State ex rel. Russell v. Bd. of Appeals of Vill. of Prairie Du Sac

• Decision Date: 13 May 1947
• Parties: STATE ex rel. RUSSELL et al. v. BOARD OF APPEALS OF VILLAGE OF PRAIRIE DU SAC et al.
• Court: Wisconsin Supreme Court

250 Wis. 394

27 N.W.2d 378

STATE ex rel. RUSSELL et al.

v.BOARD OF APPEALS OF VILLAGE OF PRAIRIE DU SAC et al.

Supreme Court of Wisconsin.

May 13, 1947.

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

Reversed.

Petition for certiorari filed on April 18, 1945, to test the jurisdiction of the Board of Appeals of the Village of Prairie du Sac in granting a building permit to Roy G. Curtis notwithstanding a rezoning ordinance. From the judgment, entered June 18, 1946, affirming the granting of the permit and awarding costs against the plaintiffs, plaintiffs appeal.

Roy G. Curtis purchased certain real estate in the Village of Prairie du Sac upon which he intended to build a repair shop. On July 11, 1944, he filed a written application for a building permit, and soon thereafter he began assembling building materials on his property. At that time the land in question was in a business or service district. The Village Clerk and Building Inspector denied Curtis' application for the building permit. On September 28, 1944, Curtis filed a notice of appeal from this decision to the Board of Appeals. This notice, later found, was mislaid at the time and a second one filed on March 6, 1945. On October 10, 1944, which was after Curtis' purchase of the property, the Village Board amended the zoning ordinance so that the district in which Curtis' land was located was changed from a service district to a residence district. Notwithstanding this change, the Board of Appeals on March 9, 1945, granted Curtis a building permit.

The pertinent provisions of the village zoning ordinance, 12.17, are as follows:

Article IX. ‘Appeal: Appeal from the ruling of the Building Inspector concerning the enforcement of the provisions of this ordinance may be made to the Board of Appeals within such time as shell be prescribed by the Board by general rule. The appellant shall file with the Building Inspector and with the Board of Appeals a notice of appeal, specifying the grounds thereof. The Building Inspector shall forthwith transmit to the Board of Appeals all the papers constituting the record upon which the action appealed from was taken.’

Article IX (7). ‘Where there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of this ordinance, the Board of Appeals shall have the power in passing upon appeals to vary or modify any of these rules, regulations or provisions relating to the construction * * * of buildings to secure public safety and to obtain substantial justice. Provided, however, that no such variance or modification shall have the effect of allowing in any district uses prohibited in that district.’

Under the writ of certiorari sued out by Clayton Russell and Edna Russell, his wife, and Theo. c. Berg and Lena Berg, his wife, the circuit court affirmed the action of the Board of Appeals in granting the permit. The court said, ‘Curtis had bought the property in good faith, spent money on it, hauled building materials on the property. The Board was entitled to...