Westgate Hotel, Inc. v. Krumbiegel

• Decision Date: 07 May 1968
• Citation: 158 N.W.2d 362,39 Wis.2d 108
• Parties: WESTGATE HOTEL, INC., Appellant, v. E. R. KRUMBIEGEL, M.D., Comm'r of Health, City of Milwaukee Health Dept., Respondent.
• Court: Wisconsin Supreme Court

Page 362

158 N.W.2d 362

39 Wis.2d 108

WESTGATE HOTEL, INC., Appellant, v. E. R. KRUMBIEGEL, M.D., Comm'r of Health, City of Milwaukee

Health Dept., Respondent.

Supreme Court of Wisconsin.

May 7, 1968.

NATASHA

Schwemer & Schwemer, Milwaukee, for appellant.

John J. Fleming, City Atty., John F. Kitzke and Thomas E. Hayes, Asst. City Attys., Milwaukee, for respondent.

HEFFERNAN, Justice.

The appellant's principal contention is one that is raised for the first time on appeal. ¹ He claims that, because the Health Department for nine years permitted Westgate to operate second-class dwelling units without kitchen sinks, this constituted a variance in fact which could not be revoked without just cause.

It is clear that from 1958 through 1967 the 17 rooms were classed as second-class dwelling units. A dwelling unit is defined by the ordinance as a habitable room or group of rooms with facilities which are used for living, sleeping, cooking, and eating of meals. A second-class dwelling unit must contain an approved type kitchen sink.

The appellant argues that, because the building has been licensed for hotel and dwelling-unit purposes for the last nine years, certain vested rights have been created which cannot now be terminated. Westgate relies on the following passage from 9 McQuillin, Municipal Corporations (3d ed.), p. 196, sec. 26,81a:

'Although a lawfully issued license or permit may not strictly be property, it has some of the aspects of property and it is entitled to protection against arbitrary revocation. Viewed somewhat differently, but to similar effect, while a license or permit may be considered a privilege as distinguished from a right, it may be considered equivalent to a contract right to the extent that it cannot be abrogated at any time without sufficient cause.'

While we have no quarrel with the McQuillin statement in the context in which it is used, it assumes the granting of a valid permit or a granting of a variance after the licensing board has made the considered choice of permitting a variance from the statutory requirements. The compilation of Milwaukee housing ordinances in the record includes sec. 75--3(3), which permits the commissioner of health to grant a variance from the provisions of the code when a literal enforcement of the provisions will result in a practical difficulty or unnecessary hardship. A reading of the full ordinance makes it clear that the granting of a variance is a formal and deliberative matter, which requires the finding of hardship, on one hand, and the finding, on the other hand, that public health and welfare will be secured. The record herein is devoid of any evidence that a variance was granted. The most that can be said for the plaintiff's position is that he had been violating the law for a number of years and had got away with it. The argument posed by the appellant in the trial court was that, because of the long-delayed enforcement of the ordinance and because it had been lulled into thinking that it was in full compliance, the city was estopped from enforcing the health regulations.

What the appellant now denominates as a variance in fact is but another name for estoppel, which it argued in the trial court, and which it now concedes is not applicable against a municipal corporation.

The most that the appellant has proved is that it should have been denied the license at a far earlier date. It, however, is axiomatic that a law-enforcing body, when faced with the practical difficulties of enforcing all of its regulations at once, is not thereby barred from future enforcement of the law, especially, as in this case, when there has been substantial notice given.

No variance was granted under sec. 75--3(3) of the Milwaukee housing ordinance, and the failure of the city of Milwaukee to exact complete compliance in the past does not estop it in demanding compliance now.

The appellant also argues that the failure of the respondent to grant a variance imposes practical difficulties and unnecessary hardships, and constitutes and abuse of discretion. Contrary to the premise upon which the appellant's argument is based, the commissioner of health did, in fact, grant a variance. His order was dated January 12, 1967, and specifically permitted the units in question to retain the classification as second-class dwelling units until July 1, 1967. In view of the fact that the original order of the commissioner seeking compliance was dated June 28, 1966, it would appear that the appellant has been given an ample opportunity to comply.

The trial judge in his memorandum opinion pointed out that, at the time of his decision, the Westgate Hotel had been allowed to remain in a state of noncompliance for a period of one year and three months. While the record does not show the present status, it is probable that the appellant continues to operate until the present time.

The review of this court in a matter brought to it by certiorari is limited to:

'(1) Whether the board kept within its jurisdiction, (2) whether it acted according to law, (3) whether its action was arbitrary, oppressive, or unreasonable and represented its will and not its judgment, and (4) whether the evidence was such that it might reasonably make the order or determination in question.' State ex rel. Wasilewski v. Board of School Directors (1961), 14 Wis.2d 243, 255, 111 N.W.2d 198, 205.

It is clear that the only arguable position that the appellant has is that the conduct of the commissioner was arbitrary and capricious. A review of the record makes it eminently clear that the conduct of the commissioner was most exemplary. As we pointed out above, six adjournments were give at the request of the petitioner. By these adjournments, an additional half year of noncompliance was gained, and the order itself allowed another six months to conform.

The trial judge typified the action of the commissioner as being:

'* * * neither arbitrary nor unreasonably arrived at. He acted according to the provisions of the ordinance; accorded to petitioner an extraordinary measure of fair play * * *.'

As alluded to in the statement of facts, the record makes it clear that the management of the Westgate Hotel was not so much concerned with the out-of-pocket expense that might be incurred by the installation of the sinks, but was concerned about making such an investment in view of the uncertainty of the future of the hotel business in the city of Milwaukee. The facts support the statement of George Kupfer, superintendent of the Bureau of Environmental Sanitation, who stated:

'If the court rules in favor of the tax freeze system, two proposed hotels may be built in the Milwaukee area in the near future. Mr. McCabe alleges that in this event he would have to revert his operation to a second class dwelling or rooming house and, therefore, loss of the status of these rooms...