Town of Wayne v. Bishop
| Decision Date | 16 April 1997 |
| Docket Number | No. 95-2387,95-2387 |
| Citation | 565 N.W.2d 201,210 Wis.2d 218 |
| Parties | TOWN OF WAYNE, Plaintiff-Respondent, d v. Daniel L. BISHOP, Mark Phillips and Special Souvenirs, Inc., Defendants-Appellants, Richard A. Cassel, Sr. and Scott Pecor, d/b/a Cassel-Pecor Investments, Defendants. |
| Court | Wisconsin Court of Appeals |
For the defendants-appellants, the cause was submitted on the briefs of Percy L. Julian, Jr., of Julian, Olson & Lasker, S.C., of Madison and Jeff Scott Olson of Madison.
For the plaintiff-respondent, the cause was submitted on the briefs of H. Stanley Riffle of Arenz, Molter, Macy & Riffle, S.C., of Waukesha.
Before BROWN, NETTESHEIM and ANDERSON, JJ.
The primary issue in the case relates to the Town of Wayne's attempt to prosecute adult bookstore operators for zoning and building occupancy code violations. All told, the circuit court imposed civil forfeitures of over $80,000. The defendants argued that the Town impermissibly restricted their free speech rights when it changed the substantive zoning code to make it impossible for the defendants to get the otherwise necessary zoning and building occupancy permits, thereby effectively banning this type of business from the Town.
The circuit court found that the defendants had no standing to raise their constitutional claim because they did not even try to get the permits or bring a complaint before the Town's zoning agencies. The court accepted the Town's claim that the substantive elements of the zoning code were separate and distinct from the general zoning and building occupancy rules within the code.
We hold, however, that the defendants did have standing to raise their constitutional challenge and that they are correct on the merits. We must examine the Town's zoning scheme as a whole. And, when we do, we conclude that it worked as an unconstitutional prior restraint on the defendants' First Amendment rights. We thus reverse the elements of the judgment relating to the zoning and building occupancy violations.
The circuit court entered summary judgment against the defendants 1 and set total forfeitures at $85,480. This total was allocated to three local code violations in the following manner:
The defendants have asserted a nine-prong attack on this judgment. While we have set out a list of all the issues that they identified in the margin, 2 we do not have to address each one to successfully gauge the merits of this controversy. We will confine our analysis to the following five issues:
1. Whether the defendants have standing to raise their First Amendment challenge to the Town's whole zoning scheme?
2. Whether the Town's whole zoning scheme worked as an impermissible "prior restraint" of their free speech rights?
3. Whether the circuit court properly awarded summary judgment to the Town on the plumbing violation?
4. Whether the circuit court properly included the Town's attorney's fees as a cost of prosecution?
5. Whether the circuit court properly found the defendants jointly and severally liable?
We will begin by setting out some pertinent background information. Further factual details will be forthcoming where necessary.
In December 1992, the defendants leased property in the Town. They planned to operate a store offering, as they termed them, "sexually explicit materials."
At this same time, however, the Town was in the process of amending its zoning ordinances to address the planning issues associated with adult-oriented businesses. In January 1993, the Town passed an ordinance that amended the substantive zoning code; it redefined some of the existing commercial zoning classifications and placed special restrictions on "commercial establishments" that sold books and films depicting "sexual conduct" or "nudity." See TOWN OF WAYNE, WIS., ORDINANCE No. 93-1, § 1.26(3)(v). The parties refer to this ordinance as "No. 93-1," and to eliminate possible confusion, we will also. Number 93-1 defined the types of materials that fell within the above two categories. See § 1.26(3)(vi). Moreover, No. 93-1 mandated that stores offering these materials needed to apply for a "conditional use permit" and could only locate in the commercial "B-2" district. See § 1.26(3)(vii). The stated policy of No. 93-1 was to generally "protect the public health, safety, welfare and morals of the community" by restricting the "location of defined materials and activities consistent with the Town's interest in the present and future character of its community development." See § 1.26(3)(viii).
This new ordinance, however, created a problem for the defendants. First, the property they leased was located in a "B-1" district, and therefore, they could not use it for their planned store. In addition, although the Town designated the "B-2" district as suitable for such a business, the Town did not designate any areas with that classification. The net result was that the defendants had no place to permissibly operate their planned store.
The defendants responded in two ways. First, they filed suit in federal district court challenging the constitutionality of No. 93-1 and seeking to enjoin the Town from enforcing it. Next, and more important to this controversy, the defendants proceeded to open their store anyway, without bothering to get the otherwise necessary zoning and building occupancy permits.
In early May 1993, the Town posted a "stop work" order at the defendants' store. An inspection revealed that the defendants had changed the use of the property (into an adult bookstore) without obtaining the zoning and building occupancy permits necessary for any new business. The Town cited the defendants for failing to obtain a zoning permit and a certificate of occupancy. See TOWN OF WAYNE, WIS., ZONING ORDINANCE § 1.01(2) and TOWN OF WAYNE, WIS., BUILDING CODE § 30.11(3). Additionally, the Town cited the defendants for performing plumbing work without a permit. See TOWN OF WAYNE, WIS., PLUMBING CODE § 1.02(2). After the defendants failed to cure these violations or appeal them to the local zoning agencies, the Town initiated suit in September 1993, seeking injunctive relief and civil forfeitures.
The circuit court entered a temporary injunction on October 21. This order closed the store until the ongoing controversy could be resolved. The defendants then filed a petition with this court seeking a stay of the injunction and leave to appeal this nonfinal order. Here, the defendants alleged that No. 93-1, and thus the injunction, violated their First Amendment rights. We denied review at that time, however, noting that the then ongoing litigation in federal district court would adequately resolve this constitutional issue.
But by this time, the federal litigation had drawn closer to completion. Although the parties do not elaborate on that matter in their briefs, the record reveals that the defendants withdrew their motion for an injunction to bar the Town from enforcing No. 93-1 after the Town stipulated that it would halt any enforcement of the ordinance against the defendants. Even though the federal litigation was temporarily stalled, the defendants recast their First Amendment challenge as a counterclaim in the zoning and building occupancy enforcement action which was still proceeding in the circuit court.
By March 1994, the Town and the defendants had each moved for summary judgment. The Town sought a permanent injunction barring the defendants from operating this store, as well as civil forfeitures and the costs of enforcement. On the other side, the defendants argued that No. 93-1 was facially unconstitutional and that the Town was trying to implicitly enforce it through the general zoning and building occupancy codes. The defendants separately argued that the Town had no proof to support the plumbing code violation. The defendants sought injunctive relief, lost profit damages and attorney's fees.
The circuit court ruled for the Town. It accepted the Town's argument that the general zoning and building occupancy provisions were distinct from the substantive restrictions within No. 93-1. The court further reasoned that the defendants waived their right to pursue their constitutional claim because they did not participate in the Town's administrative appeal process, which the court found was the "exclusive remedy" available to the defendants. Although the court noted that No. 93-1 "might have been found unconstitutional," it found that the Town was merely citing the defendants for their failure to obtain the same permits that all businesses had to obtain. Because the defendants had failed to comply with these administrative requirements, the court found that they had no "standing" to argue "constitutionality." With regard to the plumbing code violation, the court found that there was no dispute of material fact that the defendants performed plumbing work at the store and did not have the necessary permit.
The court later held an evidentiary hearing to determine appropriate forfeitures. Here, emphasizing that the defendants' violations of the zoning and building occupancy codes were "willful and knowing" and that the defendants "ignored the town's sensitivities," the court assessed total forfeitures and costs of over $85,000.
Before we turn to the five issues raised in this appeal, we emphasize that our analysis is confined to assessing the validity of the judgment entered against the defendants. Although, as we explain below, we are required to consider the merits of No. 93-1 to properly analyze this judgment, the defendants have not requested that we declare No. 93-1 void. In fact, the parties both represent in their briefs that they have reached a settlement which permits the defendants to operate their store in the future.
Our analysis of the...
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Special Souvenirs, Inc. v. Town of Wayne
...by the Wisconsin Court of Appeals. The state court of appeals rendered a decision on April 16, 1997. See Town of Wayne v. Bishop, 210 Wis.2d 218, 565 N.W.2d 201 (Ct.App.1997). The lower court decision was affirmed in part, reversed in part and remanded to the circuit court. In significant p......
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