Waupaca Cnty. v. Golla, Appeal No. 2021AP1076

• Court: Court of Appeals of Wisconsin
• Writing for the Court: KLOPPENBURG, J.
• Citation: 404 Wis.2d 141,978 N.W.2d 558,2022 WI App 40
• Parties: WAUPACA COUNTY, Plaintiff-Respondent, v. DeAnn R. GOLLA and Dawn M. Zeinert, Defendants-Appellants.
• Docket Number: Appeal No. 2021AP1076
• Decision Date: 23 June 2022

404 Wis.2d 141
978 N.W.2d 558
2022 WI App 40

WAUPACA COUNTY, Plaintiff-Respondent,
v.
DeAnn R. GOLLA and Dawn M. Zeinert, Defendants-Appellants.^†

Appeal No. 2021AP1076

Court of Appeals of Wisconsin.

Oral Argument: April 25, 2022
Opinion Filed: June 23, 2022

On behalf of the defendants-appellants, the cause was submitted on the briefs of and oral argument by Michael P. Van Kleunen of Axley Brynelson, LLP, Waukesha.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Diane Meulemans and Tiffany R. Wunderlin, of Waupaca County Corporation Counsel, Waupaca. There was oral argument by Andrew T. Phillips.

Before Kloppenburg, Fitzpatrick, and Graham, JJ.

KLOPPENBURG, J.

404 Wis.2d 149

¶1 Sisters DeAnn R. Golla and Dawn Zeinert challenge the authority of Waupaca County ("the County") to enforce provisions in the County's General Zoning Ordinance

978 N.W.2d 563

as to the construction of an addition to an existing structure on their shoreland property.¹ Specifically, Golla argues that the side yard setback and land use permit provisions that apply to structural alterations on any property in the County do not apply to the addition on her property. The circuit court rejected Golla's challenge, determining first that a 1988 side yard setback variance (generally, "the 1988 variance") that allowed the construction of the existing structure on Golla's property

404 Wis.2d 150

does not exempt Golla from the need to obtain a variance from the side yard setback for the addition. Addressing a new argument raised by Golla on a second motion for reconsideration, the court also determined that the shoreland zoning statute, WIS. STAT. § 59.692 (2019-20),² does not prohibit the County from enforcing its General Zoning Ordinance provisions imposing a side yard setback and requiring a land use permit as to the addition.

¶2 Accordingly, the circuit court granted partial summary judgment to the County, determining that it was undisputed that Golla constructed the addition without applying for and obtaining a side yard setback variance or a land use permit from the County in violation of the General Zoning Ordinance side yard setback and land use permit provisions. At the conclusion of a remedies hearing, the court rejected Golla's argument that the County's failure to follow the razing statute, WIS. STAT. § 66.0413, barred injunctive relief. The court then considered the applicable factors for injunctive relief for a zoning violation, including the extensive nature of the violation and that Golla had been "put on notice time and time again both orally and in writing of the County's position" that construction of the addition could not proceed without a side yard setback variance and a land use permit. The court granted the County's request for injunctive relief and ordered removal of the addition.³

404 Wis.2d 151

¶3 On appeal, Golla seeks reversal of the circuit court's decisions denying her second motion for reconsideration and granting the County's request for injunctive relief. Regarding the court's denial of her second motion for reconsideration, Golla argues that she is entitled to summary judgment dismissing this action because WIS. STAT. § 59.692 prohibits the County from enforcing the side yard setback and land use permit provisions in its General Zoning Ordinance as to the addition on her shoreland property. The County responds that the 1988 variance that allowed construction of the original structure that encroaches on the side yard setback does not allow construction of the 2016 addition that also encroaches on the side yard setback without a new variance in connection with a land use permit. Additionally, the County argues that § 59.692 does not prohibit the County from enforcing the side yard setback and land use permit provisions in its

978 N.W.2d 564

General Zoning Ordinance as to the addition.

¶4 We conclude that Golla was required to obtain a variance for the addition because the 1988 variance does not exempt Golla from compliance with the side yard setback and land use permit provisions in the General Zoning Ordinance as to construction of the addition. We reach this conclusion based on the unambiguous language in the 1988 variance and Golla's failure to develop an argument based on that language or supporting legal authority to the contrary. We also conclude that WIS. STAT. § 59.692 does not bar the County from enforcing the side yard setback and land use permit provisions in its General Zoning Ordinance, which apply to structural alterations on all property in the County, as to the construction of the addition on Golla's shoreland property. We reach this conclusion

404 Wis.2d 152

based on the statutory language, interpreted in relation to the statute's scope, purpose, and context, the language of related statutes, and statutory history. Because it is undisputed that Golla did not obtain a side yard setback variance or land use permit before constructing the addition, the circuit court properly granted partial summary judgment to the County on the violations alleged in the complaint.

¶5 As to the circuit court's decision granting the County's request for injunctive relief, Golla argues that the court erroneously exercised its discretion in granting injunctive relief in two respects: (1) injunctive relief is barred because the requirements in WIS. STAT. § 66.0413, which authorizes counties to order a property owner to raze a building, were not met; and, alternatively, (2) the court failed to properly analyze the factors that apply to injunctive relief for a zoning violation. Based on a plain meaning interpretation of the language of § 66.0413 and case law explaining what injunctive relief is available under WIS. STAT. § 59.69(11), which authorizes counties to enforce zoning ordinances "by injunctional order," we conclude that the statutory razing requirements do not limit or otherwise affect the circuit court's authority to grant injunctive relief under § 59.69(11), as requested by the County. Based on our review of the record, which includes the court's detailed and comprehensive consideration of the applicable factors, we conclude that the court properly exercised its discretion.

¶6 Accordingly, we affirm the order of the circuit court.

404 Wis.2d 153

BACKGROUND

¶7 The following undisputed facts, taken from the stipulated facts filed with the circuit court and testimony by Golla and the County Zoning Administrator at the remedies hearing, provide necessary context for the issues raised on appeal.⁴

¶8 Golla owns property located on Dake Lake in the Town of Dayton, Waupaca County. The property is located in a "sewered residential" area under the County General Zoning Ordinance, Chapter 34, Section 3.09.⁵ The property is also located

978 N.W.2d 565

in the shoreland under the County Shoreland Zoning Ordinance, Chapter 32.

404 Wis.2d 154

¶9 In 1988, Golla's father, who then owned the property, obtained a variance to build a residence on the property which is smaller than the applicable minimum lot size under the County General Zoning Ordinance. The 1988 variance also permitted placement of the residence within the shoreland setback under the Shoreland Zoning Ordinance, and within the applicable side yard setback under the General Zoning Ordinance. The 1988 variance contained certain conditions, including a five-foot side yard setback and that a "[l]and use permit must be issued PRIOR to start of construction." Golla's father submitted a land use permit application showing the project site plan, and built a one-story residence consistent with the application and the 1988 variance.

¶10 In the summer of 2015, Golla contacted the County Deputy Zoning Administrator about what County approval would be necessary for a second-story addition within the footprint of the existing residence. The Deputy Zoning Administrator told Golla that a land use permit was required and would not be issued without a side yard setback variance for the addition.

¶11 In August 2015, Golla applied to the Town of Dayton ("the Town") for a building permit for the addition, and the Town issued the building permit in April 2016. The Town building permit included the following condition: "Please consult with Waupaca County to determine if any type of L.U. [land use] permit is required. Issued based on recently passed legislation." By signing the permit, Golla certified that she understood that she was "subject to any conditions of this permit." The permit also stated: "Failure to comply may result in suspension or revocation of this permit or other penalty."

404 Wis.2d 155

¶12 Golla did not consult with the County about whether a land use permit was required after receiving the Town building permit, nor did she ever apply for a County...