State ex rel. A. Hynek & Sons Co. v. Board of Appeals of City of Racine

• Decision Date: 08 June 1954
• Citation: 267 Wis. 309,64 N.W.2d 741
• Court: Wisconsin Supreme Court
• Parties: STATE ex rel. A. HYNEK & SONS CO. et al. v. BOARD OF APPEALS OF CITY OF RACINE et al.

Page 741

64 N.W.2d 741

267 Wis. 309

STATE ex rel. A. HYNEK & SONS CO. et al. v. BOARD OF APPEALS OF CITY OF RACINE et al.

Supreme Court of Wisconsin.

June 8, 1954.

The board of appeals of the city of Racine ordered construction stopped on a building for which a building permit had previously been issued and ordered the building inspector to withhold an occupancy permit until the construction and use of the premises should conform to the standard of single-family occupancy as described in the city's zoning ordinance. In effect this prohibited a business of portrait photography from being conducted at this location. The owners and the contractor who was erecting the building obtained a writ of certiorari. On review of the record made before the board of appeals the circuit court quashed the writ and affirmed the decision of the board of appeals. The contractor and owners have appealed. The building inspector and the board of appeals of the city are the respondents. The owners are husband and wife. They and the contractor are united in interest.

Appellants Mr. and Mrs. Krusienzki maintain and operate a photography studio in the business section of the city of Racine. They also own a lot in a single-family residence zone. They applied for a permit to erect there a single-family residence which, as shown by the plans filed with the building inspector as a part of their application, contained a space labeled 'studio'. They proposed to fit up the studio with the usual equipment of portrait photographers and to take pictures there as well as in their downtown premises. The zoning ordinance permits a number of business activities to be carried on in the single-family residence zone. Considering that the owners' proposed use was a permitted one, either as a home industry or a professional office, as defined by the zoning ordinance, the building inspector issued a building permit for the construction of a '1 family residence.' The permit is dated May 20, 1953. Construction was begun on May 21, 1953 and proceeded rapidly.

After work began various property owners in the neighborhood discovered by inquiry at the office of the building inspector and by questioning the owners that the property was to be used for business as well as residential purposes and on July 7, 1953, several of them signed and sent to the board of appeals a letter which stated that the construction and proposed use of the building violated the ordinance providing for single-family residence zones and demanded that the action of the building inspector in issuing the permit be reversed and that construction be halted pending the decision of the board. Construction was stopped immediately on the studio part of the building. At that time the footings were in, and the building had been framed and partly roofed. On August 3, 1953 the board of appeals held a hearing which was attended by the present appellants, their counsel and two of the persons who signed the protesting letter. The board of appeals made its decision September 2, 1953 that the proposed use did not fall within activities permitted in the one-family residence zone and it made an order permanently stopping the construction and use of the proposed studio section of the building. Removal of the record to the trial court by writ of certiorari followed. That court in an order for judgment held that the objectors to the building were not guilty of laches and that all other questions were questions of fact which were determined by the board in a manner neither arbitrary nor unreasonable. The judgment quashed the writ and affirmed the decision of the board of appeals.

Sec. 62.23(7)(e) 4 and 6, Stats., which deals with zoning by cities, provides that persons aggrieved by decisions of the administrative officer may within a reasonable time, as that may be provided by the rules of the board of appeals, take an appeal to that board which shall then hear and decide the appeal within a reasonable time. The city zoning ordinance empowered the board to adopt its own rules of procedure and pursuant thereto the board adopted a rule that the appeal must be taken within fifteen days of the order or decision complained of and the appeal be heard not less than seven or more than fourteen days thereafter.

Foley & Foley, Racine, for Hynek & Sons Co.

Flynn & Greenquist, Rex Capwell, Jr., Racine, for the Krusienzki.

Thomas P. Corbett, City Atty., Jack Harvey, Asst. City Atty., Racine, for respondents.

BROWN, Justice.

If the protesting letter is considered an appeal from the determination of the building inspector the record shows that it was not taken until fifty-one days had passed nor was the appeal heard for another twenty-one days after the filing of the appeal with the board. In State ex rel. Russell v. Board of Appeals, 1947, 250 Wis. 394, 27 N.W.2d 378, we quoted with approval a Pennsylvania decision holding:

"* * * It is well...