Town of Delafield v. Winkelman

• Decision Date: 05 March 2004
• Docket Number: No. 02-0979.,02-0979.
• Citation: 675 NW 2d 470,2004 WI 17
• Parties: Town of Delafield, Plaintiff-Respondent-Petitioner, v. Eric Winkelman and Christine Winkelman, Defendants-Appellants.
• Court: Wisconsin Supreme Court

2004 WI 17

675 NW 2d 470

Town of Delafield, Plaintiff-Respondent-Petitioner, v. Eric Winkelman and Christine Winkelman, Defendants-Appellants.

No. 02-0979.

Supreme Court of Wisconsin.

Oral Argument: December 4, 2003.

Opinion Filed: March 5, 2004.

For the plaintiff-respondent-petitioner there were briefs by H. Stanley Riffle, Julie A. Aquavia and Arenz, Molter, Macy & Riffle, S.C., Waukesha, and oral argument by H. Stanley Riffle.

For the defendants-appellants there was a brief by James W. Hammes and Cramer, Multhauf & Hammes, LLP, Waukesha, and oral argument by James W. Hammes.

¶1. ANN WALSH BRADLEY, J.

The petitioner, Town of Delafield ("Town"), seeks review of a published decision of the court of appeals that reversed the summary judgment granted by the circuit court in favor of the Town.¹ After a zoning violation had been proven in a separate proceeding, the Town brought this enforcement action seeking, as sanction for the violation, a raze order for the removal of a legal nonconforming rental unit from the Winkelmans' property.

¶2. The Town urges this court to clarify whether the circuit court had the power to consider equitable arguments in this enforcement action. It asserts that even if the circuit court generally has such power, it should not be exercised here because the Winkelmans already received a full opportunity to challenge the equities in the certiorari review. The Winkelmans counter that the circuit court lacked subject matter jurisdiction to consider the Town's enforcement action.

¶3. We conclude that the circuit court had subject matter jurisdiction to enter the orders. We also agree with the court of appeals that the circuit court had the power to consider the Winkelmans' equitable arguments in the context of this enforcement action. Moreover, we determine that the circuit court may properly exercise that power here. Accordingly, we affirm the court of appeals.

I

¶4. The Winkelmans own a lot in the Town of Delafield containing two houses. Both are legal, but nonconforming structures based on their location on the lot. The houses are also legal, but nonconforming uses due to zoning restrictions that permit only one residence per lot. At all times relevant to these proceedings, the Winkelmans used one of the houses as their own residence and the other as a rental unit.²

¶5. In 1991, the Winkelmans obtained a building permit for interior remodeling of the two houses. After construction began, the new Town building inspector discovered that the remodeling involved work on a legal nonconforming structure and issued a stop-work order. As a result of the stop-work order, the Winkelmans applied for a variance from the Town zoning board.

¶6. On September 30, 1994, the Town zoning board granted the Winkelmans' request for a variance in part, but placed certain conditions on its approval. One of the conditions required the Winkelmans to remove the rental residence from the property within three years of the date of the board's decision.

¶7. The Winkelmans thereafter sought certiorari review of the board's decision. Among other arguments, the Winkelmans claimed that the board's action was unreasonable because their mortgage financing was contingent upon the rental income of the second residence. The certiorari court rejected this argument, noting that the Winkelmans provided no evidence to support it. Accordingly, the court upheld the board's decision, and the Winkelmans did not appeal.

¶8. After certiorari review, the Town extended the deadline for removing the rental residence from March 1998 to April 1999. When the Winkelmans did not remove the rental house by April 1999, the Town's zoning board brought a motion requesting the certiorari court to order the Winkelmans to raze the house or, in the alternative, allow the Town to do so. The certiorari court granted the board's motion, and the Winkelmans appealed.

¶9. The court of appeals reversed the certiorari court. Winkelman v. Town of Delafield, 2000 WI App 254, ¶1, 239 Wis. 2d 542, 620 N.W.2d 438 (Winkelman I). It did so on the ground that the board needed to obtain jurisdiction over the Winkelmans for the enforcement action either by serving a summons and complaint or by serving an appropriate original writ. Id.

¶10. Following the decision of the court of appeals, the Town commenced this action pursuant to Wis. Stat. § 62.23(8) (2001-02)³ by filing a complaint requesting forfeitures along with an order directing the Winkelmans to remove the rental residence. The Town then moved for summary judgment.

¶11. The circuit court granted the Town's motion for summary judgment and rejected the Winkelmans' argument that under Forest County v. Goode, 219 Wis. 2d 654, 579 N.W.2d 715 (1998), it was required to hear their equitable argument. In its oral decision, the court concluded that it did not have the equitable power in the context of the enforcement action to deny the injunctive relief. It explained:

But now we're back on an independent action and I have no power to change the — actually, the position taken by the Town which was upheld by Judge Mawdsley, not appealed on that issue. There is now a judgment entered that approves of the variance . . . . I have no alternative but to grant this motion for summary judgment . . . and enter an order allowing the Town to raze the building if the Winkelmans do not.

¶12. The circuit court subsequently imposed a forfeiture of $25 per day from April 8, 1999, until January 31, 2002. The oral ruling granting the raze order and a forfeiture was later reduced to a written order. The Winkelmans again appealed.

¶13. The court of appeals reversed the circuit court's decision. Town of Delafield v. Winkelman, 2003 WI App 92, ¶1, 264 Wis. 2d 264, 663 N.W.2d 324 (Winkelman II). It observed that when a governmental entity seeks equitable relief such as an injunction or abatement, the law appeared to provide property owners with "two kicks at the cat": first, to defend against the claim that there is a violation and, second, to defend against enforcement of a sanction for that violation. Id., ¶14. Although the court questioned the wisdom of this approach, it determined that Goode mandated consideration of the equitable arguments. Id., ¶15. Moreover, it rejected the Town's assertion that the Winkelmans had already made their equitable arguments during the certiorari review. Id., ¶18. Accordingly, the court of appeals remanded the case back to the circuit court for a hearing on the equities. Id., ¶20. It prohibited the Winkelmans from reasserting the argument previously rejected by the certiorari court, however, under the doctrine of issue preclusion. Id.

II

¶14. As a threshold matter, we must examine the issue of subject matter jurisdiction. Whether a court has subject matter jurisdiction of a particular action is a question of law, subject to independent appellate review. See Gonzales v. AM Cmty. Credit Union, 150 Wis. 2d 773, 777, 442 N.W.2d 536 (Ct. App. 1989).

¶15. Additionally, this case provides us with an opportunity to review the circuit court's power to consider equitable arguments in the context of an enforcement action. It also allows us to determine whether the court may consider equitable arguments which have been previously rejected by a certiorari court. These issues are raised in the context of summary judgment. We review a circuit court's grant or denial of summary judgment independently, applying the same methodology as the circuit court. O'Neill v. Reemer, 2003 WI 13, ¶8, 259 Wis. 2d 544, 657 N.W.2d 403 (citing Torgerson v. Journal/Sentinel, Inc., 210 Wis. 2d 524, 536, 563 N.W.2d 472 (1997)).

¶16. Summary judgment is appropriate if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Id., ¶8. Here, there are no material facts in dispute that are relevant to the issue before us. Therefore, we are presented with a question of law, which is subject to independent appellate review. Id. (citing Lewis v. Physicians Ins. Co. of Wis., 2001 WI 60, ¶9, 243 Wis. 2d 648, 627 N.W.2d 484.)

III

¶17. We begin with the inquiry of whether the circuit court had subject matter jurisdiction. In their brief, the Winkelmans assert that the circuit court lacked subject matter jurisdiction to consider the Town's enforcement action. Specifically, they contend that the jurisdiction of the Town's ordinance did not extend to them, as their property is actually controlled by the Waukesha County Shoreland Code. In the case's nine-year history, this is the first time the Winkelmans have raised the issue of subject matter jurisdiction.

¶18. The principal authority the Winkelmans rely upon for their argument is Wis. Stat. § 59.692(2)(b). The statute provides, "if an existing town ordinance relating to shorelands is more restrictive than an ordinance later enacted under this section affecting the same shorelands, it continues as a town ordinance in all respects to the extent of the greater restrictions, but not otherwise." Wis. Stat. § 59.692(2)(b). The Winkelmans argue that by the application of the statute, the Town zoning ordinance could regulate their shoreland property only to the extent that it imposed a greater restriction than does the County ordinance. An examination of the two ordinances, they maintain, reveals that it does not. Thus, they argue the Town's ordinance does not apply to their property. Consequently, the court does not have jurisdiction over this claimed violation.

¶19. The problem with the Winkelmans' argument is that it confuses the jurisdiction of the zoning board with that of the court. In Wisconsin, circuit courts are courts of general jurisdiction. Mack v. State, 93 Wis. 2d 287, 294, 286 N.W.2d 563 (1980). They have subject matter jurisdiction of all matters, civil and criminal, not excepted in the constitution or prohibited by law. Id. (citing Dumer v. State, 64 Wis. 2d 590, 595, 219 N.W.2d 592 (1974)). This includes the authority...