State ex rel. Markdale Corp. v. Board of Appeals of City of Milwaukee

• Citation: 27 Wis.2d 154,133 N.W.2d 795
• Parties: STATE ex rel. The MARKDALE CORP. et al., Appellants, v. The BOARD OF APPEALS OF the CITY OF MILWAUKEE, Respondent, Cities Service Oil Co., a corporation, Intervened Defendants-Respondents.
• Decision Date: 30 March 1965
• Court: United States State Supreme Court of Wisconsin

Page 795

133 N.W.2d 795

27 Wis.2d 154

STATE ex rel. The MARKDALE CORP. et al., Appellants, v. The BOARD OF APPEALS OF the CITY OF MILWAUKEE, Respondent Cities Service Oil Co., a corporation, Intervened Defendants-Respondents.

Supreme Court of Wisconsin.

March 30, 1965.

Grootemaat, Cook & Franke, Milwaukee, John J. Ottusch, Milwaukee, of counsel for appellants.

Hanley, Wedemeyer & Cavanaugh, John M. Hanley and Robert F. Cavanaugh, Milwaukee, for intervened defendant-respondent.

John J. Fleming City Atty., Cornelius J. Merten, Asst. City Atty., for respondent Board of Appeals.

CURRIE, Chief Justice.

While other issues are raised in the briefs, we deem the following two are determinative of this appeal:

(1) Does self-created hardship afford a sufficient statutory basis for a board of zoning appeals granting a variance?

(2) Do the facts in the instant case establish beyond dispute that the hardship relied upon for the variance was self-created?

Sec. 62.23(7)(e) 7, Stats., provides in part as follows:

'The board of appeals shall have the following powers: * * * to authorize upon appeal in specific cases such variance from the terms of the ordinance as will not be contrary to the public interest, where, owing to special conditions, a literal enforcement of the provisions of the ordinance will result in practical difficulty or unnecessary hardship, so that the spirit of the ordinance shall be observed, public safety and welfare secured, and substantial justice done.'

Provisions similar to the above are common in zoning statutes and ordinances. Deardorf v. Board of Adjustment, etc. (1962), 254 Iowa 380, 384, 118 N.W.2d 78; Anno. 58 A.L.R.2d 1083, 1102, III A. sec. 6 and footnote 21. Apparently this court has not previously been called upon to pass on the issue of whether the 'hardship' referred to in this statute can embrace one which is self-created. ¹ However, the authorities are practically unanimous to the effect that a hardship which has been self-created by the act of the property owner does not qualify as a hardship from which a board of appeals can grant relief by granting a variance. Booe v. Zoning Board of Appeals (1964), 151 Conn. 681, 202 A.2d 245; Misuk v. Zoning Board of Appeals (1952), 138 Conn. 477, 86 A.2d 180; Board of Zoning Appeals v. Waskelo (1960), 240 Ind. 594, 168 N.E.2d 72; Selligman v. Von Allmen Bros. (1944), 297 Ky. 121, 179 S.W.2d 207; Newcomb v. Teske (1948), 225 Minn. 223, 30 N.W.2d 354; Doull v. Wohlschlager (1963), 141 Mont. 354, 377 P.2d 758; Leimann v. Board of Adjustment (1952), 9 N.J. 336, 88 A.2d 337; In re Pierce's Appeal (Okl.1959), 347 P.2d 790; Kovacs v. Ross Township Board of Adjustment (1953), 173 Pa.Super. 66, 95 A.2d 350, cited with approval in Riccardi v. Plymouth Township Bd. of Adjustment (1958), 393 Pa. 337, 142 A.2d 289; 2 Rathkopf, Law of Zoning and Planning, sec. 48-1; 1 Yokley, Zoning Law and Practice, p. 334, sec. 137; 58 Am.Jur., Zoning, p. 1053, sec. 208; 101 C.J.S., Zoning § 292, p. 1072; Anno. 168 A.L.R. 13, 33, II, b, 2(d).

The rationale for this rule has been stated by one authority as follows:

'But the courts have likewise been emphatic in saying that the hardship must be one of necessary character. Under the ancient but well founded equitable maxim that no one should be allowed to take advantage of his own wrongdoing, the courts have uniformly held that where the hardship was created by the applicant's own acts, he is not entitled to relief. He has no right to ask the appeal board to pull his chestnuts out of the fire.' 1 Yokley, Zoning Law and Practice, p. 334, sec. 137.

This may be stating the reason for the rule too narrowly since self-created hardship which will bar the granting of a variance may consist of affirmative action in ignorance of existing zoning restrictions or upon a misinterpretation thereof.

The hardship here arises from the present position of the auto laundry building with its south wall but one foot removed from the north line of the south 60 feet of the premises which are zoned as a parking district. This building was erected by Cities Service in violation of law in that no valid building permit was ever issued for its construction. The building permit which was issued February 2, 1961, was contested by appeal to the board, and eventually held invalid. In spite of such pending appeal Cities Service proceeded with construction. In so doing it took whatever chances would result if the appeal were decided adversely to its agent or joint venturer, Modern Car Wash. We pointed out in the prior appeal of State ex rel. Cities Service Oil Co. v. Bd. of Appeals (1963), 21 Wis.2d 516, 531, 124 N.W.2d 809 that once Cities Service received notice of the appeal it proceeded at its peril in incurring expenditures in reliance on the permit.

The Connecticut case of Misuk v. Zoning Board of Appeals, supra, is directly in point. There the property owners started construction without a required building permit. They then obtained a variance from the board of appeals, and continued with construction in reckless disregard of an appeal from the variance. The court held that the variance could not be sustained on the ground of hardship because the hardship was occasioned solely by the property owners' reckless conduct. See also, Appeal of Julian (1960), 3 Storey 175, 53 Del. 175, 167 A.2d 21; Wilkins v. City of San Bernardino (1946), 29 Cal.2d 332, 175 P.2d 542.

The only excuse advanced by Cities Service for the starting and completing of construction of the building was that the building permit of February 2, 1961, was not effective if construction was not commenced within six months from date of issue. Such an excuse is so lacking in merit that it does not warrant comment.

Cities Service also points out that on April 28, 1961, while the appeal from the building permit was pending, the zoning ordinance was amended so as to only prohibit from a local business use district an automobile laundry which employed a mechanical conveyor system. Thus, when Cities Service abandoned the contemplated installation of a conveyor system, the building as actually completed did not violate the ordinance. Nevertheless, the building had been erected in violation of law because no valid building permit had been procured.

Furthermore, Cities Service had at least constructive notice as early as August 1, 1961, that the south 60 feet of their premises could not be used at part of the auto laundry operation. A written brief was then served on counsel for Modern Car Wash in the appeal pending before the board from the building permit which stated:

'Examination of the exhibits and the testimony of witness Berggren discloses that they [Modern Car Wash] intend to have cars proceed throughout the entire southerly 60 ft. of said premises as an integral part of their car washing operation. In fact, they admitted the only way in which cars can get into the car washing building and be hooked up to the track and pulled through the car wash building is by traversing the southerly 60 ft. of the premises.

'This ordinance prohibits any use other...