Village of Wind Point v. Halverson

• Decision Date: 30 January 1968
• Citation: Village of Wind Point v. Halverson, 38 Wis.2d 1, 155 N.W.2d 654 (Wis. 1968)
• Parties: VILLAGE OF WIND POINT, a Municipal Corporation, Respondent, v. Irving HALVERSON and Frances M. Halverson, Appellants.
• Court: Wisconsin Supreme Court

Page 654

155 N.W.2d 654

38 Wis.2d 1

VILLAGE OF WIND POINT, a Municipal Corporation, Respondent, v.Irving HALVERSON and Frances M. Halverson, Appellants.

Supreme Court of Wisconsin.

Jan. 30, 1968.

James Wilbershide, Racine, for appellants.

Foley Capwell & Foley, Racine, for respondent.

ROBERT HANSEN, Justice.

The question presented in this case is: Upon the agreed statement of facts, is the Village of Wind Point entitled to an injunction which will prohibit defendants from proceeding with construction of a swimming pool building in violation of the setback requirements of Section 8.02(4), Municipal Code of the Village of Wind Point, and which will require defendants to remove such building or alter it to conform with the requirements of said ordinance?The trial court answered in the affirmative.

As is often the case, the answering of the single, submitted questions requires the framing and answering of several subquestions.

IS THE VILLAGE ESTOPPED IN THE ENFORCEMENT OF THE ORDINANCE BY THE ERRONEOUS ISSUANCE OF A BUILDING PERMIT BY ITS BUILDING INSPECTOR?

The trial court answered: No, holding that 'the village is not bound in an action of this kind by the errors, however sincere, of its officials, particularly where the permit was secured with full knowledge on the part of the applicant that the intended improvement violated the setback restrictions.'We concur.

The village is not estopped from the enforcement of the ordinance by the building inspector's erroneous issuance of an illegal building permit.Recently, this Court stated:

'Thus when the city acts to revoke such an illegal permit it is exercising its police power to enforce the zoning ordinance for the protection of all citizens who are being injured by the violation, and not to protect some proprietary interest of the city.These citizens have a right to rely upon city officials not having acted in violation of the ordinance, and, when such officials do so act, their acts should not afford a basis for estopping the city from later enforcing the ordinance.This is true regardless of whether or not the holder of the illegal permit has incurred expenditures in reliance thereon.'City of Milwaukee v. Leavitt(1966)31 Wis.2d 72, 142 N.W.2d 169.

Both the reasoning and the result apply to the action brought by the Village of Wind Point to enforce its ordinance, regardless of whether the ordinance is viewed as a zoning ordinance or an ordinance enacted pursuant to the police power.

IS THE ORDINANCE INVOLVED VALID AS A ZONING ORDINANCE?

The trial court answered: No, giving as its reason that 'The plaintiff's zoning ordinance contains no provision which could be construed as complying with the seemingly mandatory language (of sec. 62.23(7)(e) of the Statutes of Wisconsin.)'We concur.

If the Wind Point village ordinance is considered as a zoning ordinance, it is invalid because the village failed to comply with the requirements of sec. 62.23(7)(e) providing:

'(e)Board of Appeals.1.The council which enacts zoning regulations pursuant to this section shall by ordinance provide for the appointment of a board of appeals, and shall provide in such regulations that said board of appeals may, in appropriate cases and subject to appropriate conditions and safeguards, make special exceptions to the terms of the ordinance in harmony with is general purpose and intent and in accordance with general or specific rules therein contained.'

This statutory requirement for enactment of zoning regulations is made applicable to villages by sec. 61.35 providing:

'61.35 Village Planning.The provisions of sec. 62.23 shall apply to villages, and the powers and duties conferred and imposed by said section upon mayors, councils and specified city officials are hereby conferred upon presidents, village boards, and village officials performing duties similar to the duties of such specified city officials, respectively.'

It is undisputed that the village board in Wind Point has not provided for the establishment and appointment of a board of appeals, empowered to grant variances, make special exceptions and provide a forum for initial hearings on requests for adjustment of zoning regulations.Villages are granted both the powers and duties granted by the legislature to enact zoning regulations.The duties involved clearly include the requirement that a board of appeals be appointed as a prerequisite or accompanying enactment if zoning regulations are to be adopted.This court's ruling that 'Zoning power is conferred on cities and villages by sec. 62.23(7), Stats., made applicable to villages by sec. 61.35.'State ex rel. Lake Drive Baptist Church v. Village of Bayside Board of Trustees(1961)12 Wis.2d 585, 108 N.W.2d 288.Neither a city nor a village in Wisconsin may enact zoning regulations unless they also establish a board of appeals.The zoning enabling statute, applicable to both, requires just that.

IS THE ORDINANCE INVOLVED VALID UNDER THE GENERAL OR POLICE POWERS OF A VILLAGE?

The trial court answered: Yes, ruling that '* * * even though the ordinance cannot be sustained as a zoning ordinance, it (the village) may enact the restrictions here material under sec. 61.94(61.34)(1) and (5), Wisconsin Stats., which deal with the general grant of village powers.'We concur.

Sec. 61.34 of the Wisconsin Statutes deals with the powers of a village board, subsections (1) and (5) providing:

'(1) General Grant.Except as otherwise provided by law, the village board shall have the management and control of the village property, finances, highways, streets, navigable waters, and the public service and shall have power to act for the government and good order of the village, for its commercial benefit and for the health, safety, welfare and convenience of the public, and may carry its powers into effect by license, regulation, suppression, borrowing, taxation, special assessment, appropriation, fine, imprisonment, and other necessary or convenient means.The powers hereby conferred shall be in addition to all other grants and shall be limited only by express language.

'(5) Construction of Powers.For the purpose of giving to villages the larges measure of self-government in accordance with the spirit of home rule amendment to the constitution it is hereby declared that chapter 61 shall be liberally construed in favor of the rights, powers and privileges of villages to promote the general welfare, peace, good order and prosperity of such villages and the inhabitants thereof.'

The only portion of the village code that is in the record and before the Court is Chapter 8, entitled 'Building Restrictions.'It provides for the appointment of a building inspector, creation of a building board, and appeals to the village board in certain situations not present here.The ordinance before the Court appears to be a building restriction, part of a building code.

The dividing line between a zoning regulation and a building code regulation is not easily drawn.These are two closely related facets of police power regulation.Both are designed to promote public safety, health and welfare.

Authorities agree that there is a difference between building codes and zoning ordinances, but do not agree on the exact difference.On author defines the distinction in these words:

'Zoning ordinances prescribed the permitted and prohibited uses of land within the particular district.Building and housing codes and ordinances, on the other hand, have a more restrictive application to the use of lawfully existing buildings within zoned areas, and reach a field of regulation with respect to the construction and maintenance of buildings lawfully situated in a zone area, as such construction and maintenance relate to the comfort, health and safety of those who occupy such buildings.'Yokley, Zoning Law and Practice3d ed. p. 137, sec. 25--1.

Another writer in the field states that it is quite common for a municipality to have both a zoning ordinance and a building code and states:

'Ordinarily setback or building lines are established under the police power or under the zoning power which is, of course, usually a phase of the police power.'McQuillin, Municipal Corporations (1965 rev. ed.), p. 441, sec. 25.118.

In his decision, the trial court quotes, on the exact point involved, another leading author in the field of municipal corporations law who states:

'Municipal ordinances requiring yards, side yards and rear yards are generally sustained (pursuant to police power) as tending to ensure proper light and air and reducing fire hazards.'Antineau, Municipal Corporations Law, Vol. 1, Sec. 6.54.

There is no doubt that an ordinance requiring setback lines can be validly enacted by a city or village as a zoning ordinance pursuant to secs. 62.23(7).This Court has sustained a fifteen foot setback requirement as a valid zoning ordinances.Hayes v. Hoffman(1927)192 Wis. 63, 211 N.W. 271.Zoning ordinances requiring homes to...