State ex rel. Morehouse v. Hunt

• Decision Date: 07 May 1940
• Citation: 291 N.W. 745,235 Wis. 358
• Parties: STATE ex rel. MOREHOUSE et al. v. HUNT et al.
• Court: Wisconsin Supreme Court

235 Wis. 358

291 N.W. 745

STATE ex rel. MOREHOUSE et al.

v.HUNT et al.

Supreme Court of Wisconsin.

May 7, 1940.

Appeal from a judgment of the Circuit Court for Dane County; Alvin C. Reis, Judge.

Reversed.

Certiorari by Anna E. Morehouse and another against Henry J. Hunt and others, constituting the Board of Zoning Appeals of the city of Madison, and others, to review an order of the Board granting a certificate of use and occupation as a fraternity house of a building in a Class A residence district limiting use of buildings as single family residences. From a judgment reversing the order of the Board of Zoning Appeals, the National Guardian Life Insurance Company, owner of the building, appeals. The facts are stated in the opinion.

WICKHEM, J., ROSENBERRY, C. J., and FAIRCHILD, J., dissenting.Olin & Butler and E. L. Wingert, all of Madison, for appellant.

Harold Hanson, City Atty., of Madison, for defendants.

Roberts, Roe & Boardman and Fred C. Suhr all of Madison, for respondents.

FOWLER, Justice.

The action involves the construction of certain provisions of the zoning ordinance of the city of Madison. Neither the validity of the ordinance nor of the provisions herein involved is questioned. The appellant, the National Guardian Life Insurance Company, owns a building in a Class A district prescribed by the ordinance which limits the use of buildings within the district to use as single family residences, except that non-conforming use of a building maybe continued if the building was devoted to such use when the ordinance was enacted, sec. 62.23(5) (d), Stats., unless such non-conforming use was thereafter discontinued, in which case it or any other non-conforming use by the terms of the ordinance is not permitted. The building involved was planned and constructed and is especially adapted to use as a college fraternity house, and was originally so used.

By the terms of the ordinance a certificate permitted a non-conforming use is required to be secured from the Building Commissioner of the city. On denial of such certificate the owner of the building may appeal to the Board of Zoning Appeals, which may reverse the ruling of the Commissioner. Any person aggrieved by a decision of the Board of Appeals may have a review thereof by the circuit court by certiorari. Sec. 62.23(8) (b). On such review the court may “take evidence *** which shall constitute a part of the proceedings upon which the determination of the court shall be made.” Sec. 62.23(8) (i), Stats.

The National Guardian Life Insurance Company applied to the Building Commissioner for a certificate permitting a non-conforming use of its building as a fraternity house. The Building Commissioner refused the certificate. The owner appealed to the Board of Zoning Appeals. This Board reversed the action of the Commissioner. The plaintiffs, who own and occupy a residence in the district situated across a street from the building involved, procured from the circuit court a writ of certiorari running to the individual members of the Board of Zoning Appeals, the Building Commissioner and the owner of the building to review the decision of the Board. The court reversed the decision of the Board. The owner appeals.

[1]The evidentiary facts involved are not in dispute. Construction of the building was commenced in 1922 before the ordinance was enacted. This under the Building Height Cases, 181 Wis. 519, 530, 532, 195 N.W. 544, and Rosenberg v. Village of Whitefish Bay, 199 Wis. 214, 225 N.W. 838, validated the original use. The building was occupied as a fraternity house up to March, 1932, when the fraternity moved out. In April, 1932, the appellant took possession under a mortgage it held and on September 1, 1934, procured title through foreclosure proceedings. From April 1, 1932, to September 1, 1934, the building was operated by appellant as a rooming house. Under the ordinance, when a non-conforming use is permissible any other non-conforming use of the same classification is permissible. Under the ordinance fraternity houses and rooming houses are both permissible in Class B but not in Class A districts, as are two family residences. There was thus no unpermissible non-conforming use up to September, 1934. The building was then leased to Dean Garrison for two years. Three successive leases for one year each were executed to Garrison. Each of these leases was subject to cancellation by the owner in case of sale. Each lease contained a statement that the premises were to be “used for the purpose of residence only.” The rental paid under the first lease was $80 per month. Under the succeeding leases it was $100 per month. The 1936 lease gave to the lessee an option to purchase the premises for $16,500. The property was assessed in 1935 for $27,750, and in 1936 the assessment was reduced to $16,650. At the time of the reduction two families were living in the home. This reduction was made by the assessor at the suggestion of a Mr. Keachie, a contractor, who leased several residences from the appellant and who was employed by appellant to do maintenance and repair work on buildings owned by appellant, and who according to the assessor stated that the building could no longer be used as a fraternity house and urged that the assessment was excessive in view of its use as a one-family residence. Keachie volunteered to see the assessor about reduction of the assessment on this and other properties of the owner, but was not authorized by the appellant to make any representations in its behalf or paid anything for his intercession. For about one year the premises were occupied by Dean Garrison and his family, two servants and a student who was given a room in the basement for caring for the furnace. From September, 1935, the lessee sublet as a unit two extra rooms, a kitchen and a bathroom in the basement to two unmarried women. From 1936 on this unit was occupied successively by two married couples, the latter paying $30 a month rent and maintaining an independent telephone. The basement is entered through a main floor entrance, and was arranged for use as a dormitory for fraternity members. The plans, which are in evidence, show a bath and six bedrooms, one now used as a kitchen, and another as a two-car garage. The building is adapted for fraternity rather than single family use. The rooms on the first floor are a sun-parlor, 35x12, library, 10x18, living room, 36x16, dining room, l6x16, kitchen 18x10, lavatory and hall. The second floor has eight bedrooms, two of them sleeping porches, heated and sealed, two study rooms and two bathrooms. The bathrooms are large and each contains more than one washbowl and toilet. The building is adapted to accommodate twenty to twenty-five boys and has too many and too large rooms to be readily salable for single family use. The owner has had the property listed for sale with real estate agents during the years 1936, 1937 and 1938. The form of listing regularly in use by real estate agents has been used and the building is referred to therein as a “residence,” but in so referring to it it was not intended to exclude sale to a fraternity. The leasing of the property originally or at any time has not been with intent or contemplation of abandoning its use as a fraternity house or giving up the right to so use it, but only intended as temporary and has been with the motive and for the purpose of protecting the property from deterioration and meeting as much of its carrying expense as might be. Owing to the depression and its effect on college fraternities when the premises were leased to Dean Garrison there was no present prospect of sale for use as a fraternity house, and no opportunity or prospect of opportunity to lease it for that purpose, but the owner has constantly contemplated eventual disposition to a fraternity if opportunity offered.

It is stated in an affidavit on information and belief based on hearsay, which is not denied on behalf of the owner, that an offer of purchase as a residence for $11,000 was made in 1938, which was refused, and that recently an offer was made by a college fraternity to purchase it for $12,500 on condition that permission for use as a fraternity house under the zoning ordinance could be procured. The latter offer was apparently the occasion for the application for the instant permit. There have been no structural changes in the house of any material moment. One partition has been removed to make a larger bedroom, and a bedroom in the basement has been fitted for use as a two-car garage.

The Building Commissioner's denial of a certificate of non-conforming use was based upon the idea that by permitting the use of the house by Dean Garrison by himself and family for one year, the owner discontinued the non-conforming use to which it was theretofore subject, and that a non-conforming use could not thereafter be permitted. The Appeal Board was of the view that “the conclusion is inescapable that the owners of the property *** have at no time discontinued or abandoned the non-conforming use to which the property was devoted and for which it was constructed, and is particularly adapted;” and that the use by Dean Garrison for the first year of his tenancy “was temporary in character, and did not involve a complete use of the premises by his family as a residence;” and the Board concluded that his use did not result in the forfeiture of the owner's right to continue the use of the premises as a fraternity, and that the owner's such right still continues.

The evidence before the Board was in the form of affidavits. Several owners of single family residences in the district expressed the opinion that if the occupancy of the premises involved as a fraternity house were permitted the desirability of their property and its value would be diminished. The opinion of a representative of the owner who was acquainted with market conditions was that the value of the premises would be...