Town of Clearfield v. Cushman

• Decision Date: 07 June 1989
• Docket Number: No. 87-0420,87-0420
• Parties: TOWN OF CLEARFIELD, Plaintiff-Respondent-Petitioner, v. Walter CUSHMAN, Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 777

440 N.W.2d 777

150 Wis.2d 10

TOWN OF CLEARFIELD, Plaintiff-Respondent-Petitioner, v. Walter CUSHMAN, Defendant-Appellant.

No. 87-0420.

Supreme Court of Wisconsin.

Argued March 1, 1989.

Decided June 7, 1989.

Dennis C. Schuh, argued, Thompson and Schuh, on brief, Mauston, for plaintiff-respondent-petitioner.

Ray C. Feldman, Jr., argued, Vieth & Feldman, on brief, Mauston, for defendant-appellant.

LeRoy A. Lokken, Madison, amicus curiae, for Wisconsin Mfg. Housing Ass'n.

Richard J. Stadelman, Shawano, amicus curiae, for Wisconsin Towns Ass'n.

DAY, Justice.

This is a review of a decision by the court of appeals, Town of Clearfield v. Cushman, 143 Wis.2d 553, 421 N.W.2d 865 (Ct.App.1988), which reversed and remanded a judgment by the circuit court for Juneau county, Honorable Wallace A. Brady, judge. The circuit court granted summary judgment in favor of the Town of Clearfield (Town) against Walter Cushman (Cushman) for violating a town ordinance which regulates mobile homes located outside "mobile home parks." Among other things, the ordinance required a building permit, provided for minimum dwelling size, and imposed well and septic system requirements. The circuit court assessed a fine of $3,000. against Mr. Cushman for the violation. The court of appeals reversed, holding the ordinance was a "zoning ordinance" requiring county board approval which had not been obtained. It also held the Town had no statutory authority to regulate mobile homes outside of mobile home parks.

We reverse. We hold the ordinance is not a zoning ordinance and therefore does not require county board approval. We also hold that while the Town lacks statutory authority to proscribe a minimum size of mobile homes, such provision is severable and the Town does have authority to enact other provisions affecting Cushman such as requiring a building permit, well and connection to a sewage disposal system.

The principal issues presented are: (1) Is the Town's "Land Division and Building Ordinance" a zoning ordinance? We conclude it is not. (2) Does the Town have statutory authority to require a building permit, a well, and a septic system as conditions for permitting a mobile home to be installed on property outside the boundaries of a "mobile home park?" We hold it does. (3) Does the Town have statutory authority to set the minimum dwelling size for mobile homes installed on such property? We conclude it does not. (4) Is the invalid portion of the ordinance prescribing minimum dwelling size severable from the remaining portion of the ordinance? We hold it is.

In 1979, the Town enacted the "Subdivision and Building Ordinance" (Ordinance). Section 9 regulated the installation of mobile homes outside of mobile home parks. The ordinance was amended in 1981. The Town adopted a revised version of the Ordinance entitled "Land Division and Building Ordinance" on March 11, 1984. Section 9 is substantially the same in each of the ordinances. The parties do not raise the issue as to which of the specific ordinances apply. ¹

In 1983, Mr. Cushman purchased property in the Town and allowed another person to place a mobile home on it. ² The Town initiated this action in 1985 to have the mobile home removed from the property and a forfeiture assessed against Cushman. Three violations of the ordinance were alleged: (1) Cushman had failed to apply for or receive a building permit; (2) The mobile home failed to meet the minimum size requirements; (3) The mobile home had no septic system nor well. The parties stipulated the facts including the mobile home's violation of the ordinance. Cushman's sole contention to the circuit court was that the ordinance is a zoning ordinance which has been preempted by a zoning ordinance adopted by Juneau county. ³

The circuit court issued a memorandum decision granting summary judgment in favor of the Town. The circuit court phrased the issue as: "Whether or not, in view of enactment of a Juneau County zoning ordinance, the town may enact an ordinance such as has been done by the plaintiff here to regulate mobile homes under its police power." It concluded that pursuant to sec. 66.058(2)(b), Stats., ⁴ the Town did have such statutory authority. A judgment was issued assessing a forfeiture against Cushman and he appealed.

The court of appeals reversed the circuit court and held that the Town had no authority pursuant to sec. 66.058(2)(b), Stats., to enact the ordinance. Clearfield, 143 Wis.2d at 557-59, 421 N.W.2d 865. It also concluded that the ordinance was a zoning ordinance "because its purpose is to control land use and building development through regulation of existing conditions." Id. 143 Wis.2d at 561, 421 N.W.2d 865. The ordinance was held invalid "because it was not approved by the Juneau County Board." Id. Although the court of appeals acknowledged portions of the ordinance may have been valid, it concluded the severability clause of the ordinance was ineffective. Id. at nn. 8-9.

In his dissent Judge Sundby opined the ordinance was not a zoning ordinance. Id. 143 Wis.2d at 562, 421 N.W.2d 865 (Sundby, J., dissenting). He noted portions of the ordinance which he concluded Cushman had no standing to challenge were considered by the majority in reaching its decision that the ordinance was a zoning ordinance. Id. 143 Wis.2d at 566, 421 N.W.2d 865. He also concluded the severability clause was effective. Id. Finally, he opined that the only issue before the court of appeals was whether the county's zoning ordinance preempted the Town's ordinance, and not whether the Town had independent authority to enact the ordinance. Id. 143 Wis.2d at 562 n. 2, 567, 421 N.W.2d 865. This court accepted the Town's petition for review.

The Town asserts Cushman only has standing to challenge those provisions sought to be enforced against him. It further contends that it possesses statutory authority to regulate the matters enforced against Cushman. If it is without authority in one or more of the provisions, the Town maintains those provisions are severable from the valid portion of the ordinance.

Cushman argues he may challenge the entire ordinance and that the Town has regulated matters beyond its statutory authority. He also contends that the ordinance is a zoning ordinance which requires approval by the county board which was not obtained and, therefore, the ordinance is invalid. Cushman asserts the severability clause is ineffective and the whole ordinance must be declared void. ⁵

The court of appeals examined various provisions of the ordinance, including those not enforced against Cushman, and held it was a zoning ordinance. We conclude that Cushman is without standing to challenge those portions not enforced against him and, therefore, we will not consider the unenforced provisions here.

" 'Each case, in which the validity of such restrictions is challenged, must be determined on the facts that are directly applicable to the property of the parties complaining.' " Kmiec v. Town of Spider Lake, 60 Wis.2d 640, 648, 211 N.W.2d 471 (1973) (citation omitted); See also Jacobs v. Major, 132 Wis.2d 82, 103, 390 N.W.2d 86 (Ct.App.1986) ("A statute attacked as unconstitutional must affect the litigant in some way") modified on other grounds 139 Wis.2d 492, 407 N.W.2d 832 (1987); ⁶ Mast v. Olsen, 89 Wis.2d 12, 16, 278 N.W.2d 205 (1979) ("A party has standing to challenge a statute if that statute causes that party injury in fact and the party has a personal stake in the outcome of the action"); Milwaukee, Etc. v. Milwaukee County Park Com'n., 477 F.Supp. 1210, 1215-16 (1979) (plaintiffs lack standing to challenge provisions of Milwaukee ordinance which were not applied against them). Here, only the provisions on the requirements of a building permit, minimum dwelling size, wells and septic systems are being enforced against Cushman; the remaining provisions are not. He has no interest in whether the unenforced provisions are valid. Consequently, he lacks standing to challenge them.

Whether the Town has authority to enact this ordinance is a question of statutory interpretation. Questions of statutory interpretation are questions of law which this court reviews de novo. Minuteman, Inc. v. Alexander, 147 Wis.2d 842, 853, 434 N.W.2d 773 (1989).

The basic question is: Does the Town have statutory authority to enact this particular ordinance? The court of appeals concluded the Town's ordinance "is a zoning ordinance because its purpose is to control land use and building development through regulation of existing conditions." Clearfield, 143 Wis.2d at 561, 421 N.W.2d 865. "Zoning is governmental regulation of the uses of land and buildings according to districts or zones." 8 McQuillan Municipal Corporations sec. 25.01 at 6 (3rd ed. 1983). It "is exclusively concerned with use regulation ..." Id. at 7. "Zoning definitely is use planning and regulation according to districts or zones ... It seeks the most appropriate use of land, the preservation of the character of areas, the protection of existing property values and business, the stability of plans and conditions, the safeguarding of future developments and use" State ex rel. Albert Realty Co. v. Village Board., 7 Wis.2d 93, 98, 95 N.W.2d 808 (1959) quoting 8 McQuillin, Municipal Corporations sec. 25.08 at 31, 33 (2d ed.).

Here, however, the Town does not regulate the use of property by the establishment of zones or districts. There is no regulation as to what the property may be used for. Rather the ordinance establishes the minimal requirements for land to be used as a site for a mobile home. Section 9 permits mobile homes to be installed both as dwellings and commercial structures. Consequently, we hold the Town's ordinance is not a zoning ordinance. Thus, it is not void for failing to be approved by the Juneau County Board.

This is the only issue the parties presented to the circuit court for determination. On review, however, the Town has...