Forest County v. Goode

political subdivision of the State County, Forest Plaintiff-Appellant, Wisconsin, Wesley Defendant-Respondent.† S. Goode, Appeals

Court of September No. 96-3592. Submitted on briefs 25, 1997. 1997. Decided November 131.) (Alsoreported in 572 N.W.2d granted. to review †Petition plaintiff-appellant, On behalf of the the cause was submitted on the brief of Michael J. Gobiernan of Antigo. of Kawalski Law Office defendant-respondent, On behalf of the the cause Kravit, the was submitted on brief of John F. Hovel of 'Weber, &Gass S.C. of Milwaukee. support

On behalf of State of Wisconsin plaintiff-appellant, the cause was submitted on the Doyle, attorney gen- curiae amicus brief of James E. attorney eral, and Lorraine C. assistant Stoltzfus, general. Myse Cane, P.J, Hoover,

Before and JJ. County appeals judg- CANE, P.J. Forest two against Wesley entered ments Goode to enforce FOREST County Zoning § The WI 5.03.10. County, Ordinance judgment appeals denying 16, 1996, filed October request ordering its for an Goode to relocate fifty-foot require- comply setback his house to erroneously asserting exercised ment, the trial court County judgment appeals discretion. The also its ordering pay Goode to filed December asserting forfeiture, erred in cal- $8,540 culating the trial court days of violation. Because we number erroneously exercised its dis- determine the trial court injunction, refusing we reverse. cretion Regarding forfeiture, we hold the trial court incor- rectly days of violation. calculated number Therefore, remand this matter to the trial court for we per diem forfeiture. a determination lengthy, underlying facts, are The while somewhat adjoining disputed. not Goode owned two lakefront existing parcel purchased in had an lots. The twenty-nine ordinary feet from the structure located (OHWM) high mark Hemlock Lake. water Ground adjoining parcel. purchased He Goode building parcel tear down the on the first decided to property. and construct a new residence on the entire County Schmidt, Forest In June of Dawn property, administrator, met with Goode at his together they staked a distance of measured and fifty then obtained a feet from the OHWM. Goode fifty building permit house feet to construct new from the lake.1 County, in accordance with Forest permit was issued 5.03.10, provides pertinent part: ORDINANCE which

WI may by permitted the waterline be A reduced setback from buildings zoning main administrator where there are at least five proposed are to less than the of the site that built within 500 feet cases, average required In such the setback shall be setback. site, buildings proposed except main on each side ofthe the nearest (Emphasis that in shall the setback be less than 60 no case feet. added.) Stampfl Goode then hired Dan to assist with con- Stampfl arranged struction of the new residence. Flannery Trucking perform the excavation. Prior to Flannery Stampfl excavation, observed the stakes marking fifty-foot completion setback. After footings prior pouring excavation but the concrete Stampfl walls, and cement remeasured and restaked fifty-foot Stampfl's distance from the lake. mea- placement incorrect; surement and the stakes were point the measurement on fifty southern was correct at point only feet, the stake at the northern but was thirty-five edge. feet from The record does water's not the reason for the incorrect reveal measurements.

Construction of the residence and finish work of interruption the interior continued without until com- pletion. Stampfl's measuring error was not discovered building completely until after the finished. In was March of a homeowner contacted Schmidt and may problem there said be a with the setback at the May property. Goode Schmidt returned to residence and measured the distance Goode from discrepancy house, the lake to the and confirmed the thirty-five-foot distance from the lake to the north- fifty-foot ern corner and the distance from the lake to May 19, 1994, the southern corner. On Schmidt by advised Goode letter that the location of his resi- fifty-foot requirement dence violated the setback responded stating § 5.03.10. Goode letter that the requesting meeting violation was unintentional and request with the committee. for a Goode's vari- County ance after the fact was denied. The then proceedings require initiated these for an comply requirements Goode to with setback and for a noncompliance forfeiture because of his with the zon- ing ordinance. September 1996, the matter was tried to the County's request

court. The trial court denied the injunctive hearing and relief set the matter for a hearing determine the forfeiture. At the forfeiture on per November the trial court set a diem $35 imposed period May forfeiture and it for the time from 19, 1994, the date of notice of the violation until Janu- ary by 18, 1995, the commencement of a formal action County, days. imposed total of The court also $814.58, costs of for a total $9,354.58. forfeiture of This by appeal County followed.

INJUNCTION County first asserts the trial court's denial of request injunction its for an was an erroneous exercise County § of discretion. The reasons that 5.03.10 prescribes distance, the setback that Goode's residence ordinance, violates the injunctive it is authorized to seek 59.69(11), relief and that where STATS., proven it has violation, an ordinance it is entitled to the sought. County relief Forest contends the improperly balancing equi- trial court resorted to a analysis interpretation County ties based on its Bylewski, Columbia (1980). 2dWis. 288 N.W.2d 129 County

Second, the contends the trial court's grant injunction usurpation refusal to is a authority. Here, board's the board refused to allowing issue Goode a variance his residence to present remain its location violation of the County's zoning ordinance. The trial court found the properly County's posi- variance was denied. It is the injunction tion that the trial court's refusal to under these circumstances allows the violation to con- prior effectively invalidates board's tinue in the matter. decisions County nec- maintains the

Last, the is. rely right essary protect public's on argues zoning It the court's ordinances. enforcement of dangerous precedent the cumu- because sets a decision undermines the violations effect of uncorrected lative zoning plan purpose ordinances. and 59.69(11), responds § sets a dis- that Goode Stats., cretionary to follow when for the court standard injunctive considering request in a suit to for relief Bylewski Also, he relies on ordinance. enforce properly support position court that the trial his to engaged analysis appropriately balancing and in a County's injunctive request for relief. We denied persuaded. are not 59.69(11), Stats., that forfeit- reliance on

Goode's injunctions are ures must be ordered but ignores plain discretion, committed to court's meaning of a statute or of the statute. The construction question review de novo. East- is a of law we ordinance City 106, 112, 2d 342 Madison, 117 Wis. man v. 1983). 59.69(11) (Ct. App. sets 764, 767 Section N.W.2d County to effectuate remedies available to the forth the clearly zoning ordinances. The statute enforcement of by appropriate shall be enforced states that ordinances explicitly goes state that forfeitures, on to County, property owner, also has the or an affected compli- injunctive pursue relief to achieve discretion to suggests, not, create a statute as Goode ance. The does discretionary standard for the trial court to follow determining relief is warranted. whether argument We next address Goode's that the trial proper Bylewski. Normally, court's decision was under injunctive relief is ordered in the discretion of the trial change court, and this court will not the trial court's decision unless it is an erroneous exercise of discretion. Village Bay Hockers, Sister 474, 481, 106 Wis. 2d (Ct. 1982). App. 505, 508 317 N.W.2d However, where a trial court bases its decision on a mistaken view of the improper law, its decision constitutes an exercise of discretion as a matter of law. Trudeau, State v. (1987). 2d Wis. Here, trial court concluded that once it had determined that a violation had occurred occur, and continued to it was compelled equities and, balance the discretion, in its deny request determine whether to injunction. Bylewski

Goode asserts that directs the trial court competing in this case to examine and balance the equities parties.2 and interests However, of the the present factually Bylewski.3 case is distinct from language The support Goode relies on to his contention the compelled engage trial court was balancing to in a analysis is taken out of context. following Goode cites the lan " guage: '[F]inally, injunctive relief is addressed to the sound court; interests must be recon discretion of the competing trial ciled and plaintiff satisfy must the trial court that on injunction.1" County Colum equity balance issuing favors of Bylewski, bia v. (1980) 153, 163, 288 129, 135 94 Wis. 2d Co-op Pure Milk Org., Products v. National Farmers (quoting (1979) Wis. 2d 280 N.W.2d (emphasis added)). foregoing applies The to the Court's discussion distin guishing requirements proving irreparable for harm when granting injunctive municipalities. relief to 3 Bylewski, county replacing sued a landowner his existing county mobile home with a new one in violation of the issue of the court's the particular case presents Goode's continuing a proven, role in the case of discretionary equi- struggle apply violation. statutory zoning is statutory setting in modern principles table Bylewski began Bylewski. grapple evident in While maxims in the statu- of equitable the application a more context, complex we are faced with tory the court's withhold- determining whether situation in face of a proven, relief ing violation is an appropriate continuing statutory of discretion. exercise court Bylewski provides for the trial

The guidance in this case is as follows: violation, need municipality

In an ordinance ordinance, and establish only introduce the evidence, facts sufficient preponderance of the defendant has violated such demonstrate that imposes the court a forfeiture. ordinance before hand, injunctional While, a suit for an on the other to the discretion of court order is addressed balancing competing requires that there be a in inquiry involved."The true equities and interests injunctional [determining whether to relief- use or prohibiting the continuation of unlawful the removal a non- the issuance an order for building structure] is whether conforming (or building legally usable or structure is modifiable action was filed and heard small ordinances. The forfeiture forfeiture, impose a as county court did not claims court. The injunction, sponte, pleadings, issued an sua requested but reversed, home. The court hold- ordering removal of the mobile authority lacked ing county court in a small claims action injunctive It was in that context that the court order relief. requirements of applicability and discussed relief. usable) legally

and and is intended to be used for accessory main or permitted by use which is applicable ordinance or Town Sterling v. by-law." Poulin, 562, 2 Mass.App. 316 N.E.2d (1974). See also 82 Am.Jur.2d Zoning Planning (1976). "However, 252 at 787 § where it has been clear offending building or structure could not be utilized any purpose permitted for in the pertinent zoning district, relief has been extended to include an order for the removal building of the or structure." Id. at 739. added).

Id. at (emphasis 288 N.W.2d at 136 The trial court found that Goode's residence was application in built violation of the ordinance; that an properly for a variance had been filed and denied; and that the violation would continue unless relocation of inquiry the structure Thus, occurred. "the true [determining whether to . . . the issuance of an non-conforming building order for the removal of a structure] building is whether or structure is legally usable." Id. at 288 N.W.2d at 136. The true inquiry focus of the trial court's is whether the Goode any way residence could in continue to stand accor- requirements. dance with the ordinance Based on its finding earlier that the setback on the northern corner thirty-five question feet, house was was already improper answered, and it anwas exercise of point deny County's request discretion at that injunction requiring comply and order Goode to fifty-foot required with the setback as in 5.03.10. recognize We the result in Goode's case has a sympathetic plight. effect, harsh and we are to his However, the trial court's refusal to issue an ordering compliance Goode to relocate residence in his requirement fifty-foot effect, is, in a the setback with County zoning judicial granting to the of a variance by already decided ordinance, that had been a matter authority entity that deter- the to make the vested with 59.694(7), Permitting a court to Stats. mination. See injunction requiring grant to a defendant refuse to usurp zoning comply to the ordinance would be with legislative Specifically, case, if in this function.4 the undisputed his use of continue the unlawful Goode can only complying property forfeiture, the with after judgment to rezone trial would be of the court's effect County's ordinance, from the the land as a variance notwithstanding power is that to do so the fact County. summary, solely In the trial to the reserved injunctive relief, when the refusal court's continuation of results in the unconstrained refusal statutory appropriate exercise of violation, is not an discretion. legislative addition, decision to allow munic- injunctive

ipalities pursue relief to effectuate implies compliance entitlement the ordinance meeting proof. sought upon It the burden of the relief balancing public consideration a also takes into Statutory provisions private and the cost. harm authority municipality must split is a whether There balance, injunc that, equities favor issuance of an on show appropriate for the trial states hold that it is not tion. Some case, statutory equities in a court to balance and, usurp legislative function reasoning that to do so would effect, variance, thereby invading pur grant a practical Sherburne v. board. See Town Carpenter, view of (Vt. 1990). Other states hold 582 A.2d 147-48 authorizing relief does not elim presence of a statute Id. at equities. trial court's discretion to balance inate the 148.

" governmental agent 'which authorize a to sue to enjoin [legislature] activities deemed harmful designed justice parties are not to do to the but to prevent general public.'" harm to the See Town of (Vt. 1990) Carpenter, Sherburne v. 145, 582 A.2d 148 (quoting Tri-City Ackerman v. Care, Geriatric & Health (Ohio 1978)).5 Inc., 145, 149 378 N.E.2d We also determine that the trial court's refusal to grant injunctive relief is a misuse of discretion because infringes public's right it ing on the to enforcement of zon Eggers,

ordinances. See Jelinski v. 34 Wis. 2d (1967). danger 93, 148 N.W.2d 755 In addition, the allowing of the cumulative effect of violations to con general purpose zoning tinue interferes with the of promote general by laws, viding pro which is to welfare orderly a stable environment for development community. Zoning of a See 83 Am.Jur.2d Planning (1992); see PSC, also Hixon v. (1966). 608, 631-32, 146 Wis. 2d 588-89 apparent It would seem that the courts should not equitable powers permit proven use their a violation consequence. of the law to continue without The dis- today represents sent comments that our decision a departure guidelines radical from established for granting denying injunctive legally- relief. To the limiting mind, trained our decision the court's discre- tionary equity may appear role in the arena impertinent, disturbing but we find it far less than the proposition balancing courts, under the mantle of 5Town Sherburne held only the trial court has limited injunctive discretion to refuse to issue relief where a municipal ity seeks relief zoning for a ordinance violation. Id. at (Declined 148-49 to extend to private case between landowners (Vt. 1995)). City Rutland, in Richardson v. 671 A.2d 1245 permit equities, statutes defendants violate can permitted impunity. the trial at should not be One through purchase a forfeitures discretion to court's code. from variance

FORFEITURE County erred the trial court next asserts Forest days, using the forfeiture it calculated when days until the notice of violation from number County argues complaint. County filed the Forest figure Bay, Village the correct Sister that under days, representing the computing is 861 the forfeiture filing complaint days until from the number of agree. time of trial. We finding not] "[We of a trial court are bound evidentiary undisputed facts when on that is based finding essentially at of law." Id. a conclusion is COUNTY, WI ORDINANCE at 507. Forest 317 N.W.2d "Any person provides this who violates that: 20.05.1 plus up subject $200.00, fine to a ordinance shall be day prosecution. contin- Each the violation . . . costs of separate The offense." considered a ues shall be undisputed resi- is that Goode's in this case evidence §of 5.03.10 violation remained in continuous dence May of the commencement 19, 1994, the date of from September trial, a 27,1996, the date of until action, the days. total of 861 argues §20.05.1 as to is silent that since

Goode to a method of and as a violation commences when calculating period violation, the trial court did the of days. period by basing of the forfeiture on not err Bay distinguish attempts this Sister from also Goode case, continuing arguing recéived a in that case that the owners and, of rents in the form

economic benefit period therefore, a continuous of forfeiture in that case proper. persuaded. was We are not Bay

The court Sister accumulated the forfeiture through stating pre- trial, the time of that the since sumption apply of innocence not does in a civil action, forfeiture owners had notice of vio- they lations, could have corrected violations. The community court found the harm to the was, therefore, light continuous, and that assessment was fair in of during period the owners' continued benefit that of at time. Id. 317 N.W.2d at 508. had

Goode notice of the violations from the time of through commencement of the action the time of trial, continuous, violations were and Goode had ben- during period efit of the use of his residence provides day sepa- time. Section 20.05.1 that each is a days rate violation. The determination number of undisputed violation based on the tially is evidence essen- finding a conclusion of law. The trial court's days undisputed conflicts with the evidence that building continuously violated the setback from May September until 1996. We hold the proper determining for total basis forfeiture is 861 days, calculated from the date of the commencement of until action the time of trial. County this asks court to amend amount represents $30,135, of the forfeiture to which the trial per day days. imposed court's forfeiture We $35 County suggests. decline amend the forfeiture as the Rather, reverse we and remand to trial court for a per determination in discretion its of diem forfei- imposed days. period ture to be for of 861 By Judgments and cause Court. — reversed remanded.

231 part). compelled (dissenting I am HOOVER, J. in upon perceive I reasonable what as a to dissent based majority's legal opinion. deci- I believe difference firmly departure from rooted results in a drastic sion legislative or mandate without the benefit of law pointed precedent. 59.69(11), provides Stats., the methods

Section zoning may county The ordinances. enforce its which by appropri- requires ordinances to be enforced statute county gives affected forfeitures, or an ate but pursuing injunc- option property owner the further majority compliance. The relief to achieve tive solely in the that the statute discretion concludes county vests through injunction. proven If at to it is enforce the vio- that a ordinance violated and trial was indefinitely, majority continue holds lation will remedy court must issue an trial violation. part majority on its reaches this result not a discre- that the statute does create

observation tionary court follow standard the trial determining I relief is warranted. whether sug- interpretation. accept respectfully I cannot this gest statute not need to "create does body discretionary standard" because the inveterate relating already injunctions provides stan- those law They They well-settled and familiar. include dards. are germane following A to the case: that are instant prospective injunction equitable remedy. is an See Nel- 178, 187-88, 2d Taff, son 175 Wis. 499 N.W.2d (Ct. 1993). withholding granting App. "The 689 injunctions of the trial lies within sound discretion Corp., 2d 437, v. Dane 9 Wis. court." Webster (1960); Spielvogel see also State v. C. Excavating, 2d 535 N.W.2d & Sons Wis. (Ct. 1995). App. equitable remedy 28, 34 An such as a prospective injunction, necessity, place heavy "must, of particular controversy." reliance on the of facts the Bryant, 662, 668, Prince v. 2d 676, 87 Wis. 275 N.W.2d (1979). "[injunctions 678 are not to be issued lightly . . ."Bartell . Broadcasters v. Milwaukee Broad casting Co., 165, 13 2d 171, 129, Wis. 108 N.W.2d 132 (1961). general "injunctions The rule is that do not inconsequential issue for or causes," trivial Milwaukee Ry. Light Pallange, Electric & Co. v. 205 Wis. (1931), "only 236 N.W. but to an restrain act clearly contrary equity good that is to conscience." Bartell, 171, 108 13 Wis. 2d at N.W.2d at 132. signal

There is not in a word the statute to legislature's purpose radically depart from these principles guide well-established that the determina grant deny injunctive very tion to relief. At least, if in the area of ordinance enforcement a court longer grant no has as discretion to when and how to an equitable remedy, explicitly say the statute should so. legislature merely granted Thus, when 59.69(11), authority pursue injunc Stats., saying only tion, more, without it could have intended authority incorporated existing that such of body partially surveyed only of law above. This is not apparent, intuitively but consistent fundamental statutory purpose maxims of interpreting For construction. legislature presumed

statutes, is knowledge existing act with case law. Ziulkowski v. Nierengarten, 98, 104, 565 164, 166 210 Wis. 2d (Ct. 1997). App. presumed It further that, is to know language explicitly changing absence of law, appellate previous court's construction of the law will unchanged. J.R., remain In re Carol 2dWis. (Ct. 1995). App. N.W.2d 233, 235 The statute's carry language not the burden of wholesale will restructuring injunctive relief I believe interpretation majority's works. interpretation majority on also relies its Bylewski, County 153, 94 2d 288 Columbia v. Wis. 59.69(11), (1980), conclude that 129

N.W.2d provides Stats., mandatory injunctions under certain cir- for Bylewski pertinent The in issue was cumstances. county authority, in limited a small "a court of whether 299.01(2), brought type pursuant action to sec. claims county Stats., to recover a forfeiture violation [may] compliance ordinances, also enforce injunctional in order the code means of an statutory authority jurisdic- equitable or absence 160-61, 288 133. While Id. at N.W.2d at tion?" Bylewski recognized acknowledging discretion a court's majority grant injunctive does not relief, to quately ade- proper nature, extent or disclose the effectively application of this reconcile the discretion holding. merely its It court's discretion with trial Bylewski, again relying if asserts, on the court it continue, there is a and will it must finds violation grant injunctive relief. Bylewski

Nothing compels Indeed, in this result. very majority pro- quote on for its which relies merely position injunction mandatory that an is states granted injunctions properly in have that courts cer- they option instances, tain not that had but to no injunction.1 majority finds nonetheless language on the discretion in the limitation court's 1"However, offending it has been clear that where any purpose building per or structure could not be utilized for district, pertinent zoning mitted in the relief has been extended building to include an order for the removal of or structure." Bylewski, 94 County Columbia v. Wis. 2d 288 234 Bylewski ”[t]he inquiry" that asserts true for the court property question legally is "whether the is usable inquiry, . . . Id. at 288 N.W.2d at 136. This majority scope states, limits the of the trial court's bal- ancing majority implicitly suggests role. The Bylewski acknowledges discretion rests with the trial involving court in situations such as that Goode is lim- determining property legally ited to whether is majority, curiously however, usable. What terms simply finding an exercise of discretion is of fact. Finding only part process facts is one of exercis- ing Upon finding facts, discretion. the relevant a court properly applies exercises discretion it when those appropriate law, facts to the and reaches a reasoned Cooper, result. 484, 498-99, See 2dWis. Elfelt (Ct. 1991), App. 471 N.W.2d rev'd on other (1992). grounds, 168 Wis. 2d majority upon also relies Town v. Sherburne (Vt. 1990), Carpenter, 582 A.2d 147-48 for the proposition only that the trial court has limited discre- sought by tion to refuse to issue relief a municipality zoning for a ordinance violation. As with Bylewski, majority fully its discussion of the does not explore parameters reading of this discretion. A Sherburne reveals that the limited discretion the trial beyond court retains under that decision extends mak- ing findings permanency of a violation and factual denying injunction permanent an in the face of a viola- equity tion when demands. See id. at 147-49. porch Sherburne, the defendant's screened vio- county's lated the ordinance setback two feet. Id. at proof 146. The offered that defendant the violation only wholly inches involved several and was uninten- (1980) 129, 136 Poulin, (quoting Sterling Town (Mass. 1974)). App. N.E.2d Ct. having zoning told him that tional, administrator a difference. Id. at 147. not make several feet would injunction request for an denied the The trial court supreme explanation. court Id. The Vermont without findings, gui- the matter for factual remanded regarding balancing the court dance to the lower arriving equities at its determination in the case in injunction. 148. Id. at whether to concluded that issuance The Sherburne court upon trial court's determina- rests of an Id. at 149. The first is whether tion of two issues. presumed compared as violation was substantial injury arising public the violation. Id. "While we from difficulty weighing public injury recognize the typical against private case, a in the there comes loss point that it is so insubstantial were violation require unjust inequitable to the removal be and would through mandatory injunc- offending a of an structure inquiry The second area of is "whether tion." Id. alternatively, or, is innocent landowner's violation wrongdoing." conscious Id. involves major- support does not The Sherburne court ity's theory "discretion" is limited that the trial court's nothing findings: determining but factual what are (2) (1) perma- that will be the existence of a violation recognizes presumption nent. While Sherburne resulting public injury violation out- from compliance weighs private and that cost of appropri- balancing is therefore not these two interests authority recognizes ate, nonetheless the trial court's it indulge such other considerations as to balance inequitable result. The court thus avoid an would authority deny in the retains the yet perma- unintentional, instance of an insubstantial nent violation.

236 majority The also construes Stats., as 59.69(11), mandating injunctive permanent relief where a viola- proven, permit tion is because to discretion would usurp separate authority deny a branch's or usurpation variances. What the court describes as of authority overlapping is rather an instance of author- ity: separation powers of doctrine was never

intended Rather, to be strict and absolute. the doc- system trine envisions a separate of branches sharing many powers jealously while guarding cer- others, system tain "separateness but interdependence, autonomy but reciprocity." Youngstown Sheet & Sawyer, Tube Co. v. 343 U.S. 579, 635 ... (1952); State v. Holmes, 106 Wis. 2d ^[31] [1982], 42-43, 315 N.W.2d 703 When the powers of legislative judicial overlap, branches court legislature has declared that the prohibited is unreasonably burdening from substantially interfering judicial with the branch. State v. Defendant, 352, 360, Unnamed 150 2d 441 Wis. (1989). balancing N.W.2d 696 This subtle of shared powers, coupled sparing with the demarcation of powers, exclusive deliberately has enabled a unwieldy system government to endure success- fully nearly years. 150

State ex Court, rel. Friedrich v. Circuit 192 2dWis. (1995). 36

Each branch authority has core zone of exclusive may into which the other branches not intrude. Senate, State ex rel. Fiedler v. Wisconsin 155 Wis. 2d 94, 100, (1990), citing N.W.2d. 770 In Matter Complaint Against Grady, 118 Wis. 2d (1984). 348 N.W.2d "Great borderlands power" among lie the interstices the branches' authority. Appointment In re core zones of exclusive (1910). 592, 597, Revisor, 124 N.W. 670 141 Wis. possible prac- nor In these borderlands it is neither categorize governmental action as tical exclusively legislative, judicial. Layton executive or WERC, Design Art & v. 82 Wis. 2d School of (1978). 347, 262 N.W.2d 218 Id. at 13-14, at 36. the legislature 531 N.W.2d When relief, it incor- seeking injunctive provided option remedy and its precedent defining all the porated aware both that presumably proper imposition, and that court has discretion to effectively use enjoin nonconforming a declining grants judicial variance. injunc- from the authorities that define an

Aside there is equitable, discretionary remedy, tion as an to demonstrate analogous precedent equitable statutory remedies are not when a violation mandatory In Keane v. St. Francis Hosp., 186 Wis. 2d is proven. (Ct. 637, 658-59, 1994), 525 this App. relied on court decisions supreme court several discretionary the trial court's denial of a upholding of mandamus where the for issuance had grounds writ proven. been

"Although legal remedy, manda classed as equitable mus is in its nature and its issuance is generally by equitable principles. controlled may third rights public persons and of be Hauerwas, considered." State ex rel. Sullivan v. (1949). 427, 430 There can Wis. 36 N.W.2d occasions where a court concludes that the four be have legal prerequisites for mandamus been satis yet, equitable grounds, fied and on decides that ex rel. mandamus should be denied. State Horton Brechler, (1925), 185 Wis. 202 N.W. compel petitioners sought writs of mandamus certify town clerks to the valuation of real and per- property sonal outlying which, certain towns petitioners demonstrated, belonged in a school dis- trict from which the property had excluded. been Although petitioners demonstrated their clear legal right and the plain positive clerks' and duty, and although the damage was clear and no other remedy existed, the supreme court vacated the tem- porary injunction by ordered the trial court and denied the petition for writs of mandamus. The supreme court explained: foregoing While the establishes legal duty of the defendant town clerks to make the certificate which proceedings these brought are compel, we have nevertheless concluded that the writs should not issue. While as a rule the writ of mandamus should issue to enforce legal right, a clear it is a discretion- ary may writ and be withheld where its issuance will work inequitable or lead to results. confusion Id. at 658-59, 522 N.W.2d at 525 in (emphasis origi nal); see also State ex rel. Milwaukee Comm 'n Sewerage v. Milwaukee County Board Supvs., Wis. (1933), Keane, N.W. 454 discussed in 186 Wis. 2d at 660-62, 522 N.W.2d at 526-67. case, this the trial court heard that testimony board of adjustment granted eight variances of the

type Goode sought between September and 26,1996. June Variances were given to build additions within fifteen feet and feet eighteen of the OHWMs. The distance averaged 30.5 feet for the eight variances. The trial court found that no in property owners area were harmed Goode's use. It nonconforming considered that in zoning ordinances other counties a final require inspection before the foundation is poured to prevent inadvertent noncompliance. trial was, indeed, court found this an unintentional inconsistency vari- an between It found violation. it application It found and the ordinance. form ance dwelling "very very expensive" to move would be Finally, found the trial court the OHWM. back from adversely denying affect not would County. zoning these consid- It then balanced in Forest County's against in interest erations compliance equities dictated that the and determined injunction. denial forego reasonably make the could

The trial court ing findings upon introduced at the evidence based applied those facts The court trial. November applicable A reasonable as set forth above. law generalized municipality's judge conclude that could assuring compliance gaining interest outweighed viola when an unintentional is ordinance conformity great expense if was result tion would tangible harm, there where ordered, there is no where lesser-conforming granting pattern variances is a significant imposition properties forféi- of a and where trial court's sustain the deterrence. We will ture serves if the record reveals exercise of discretion proper applied facts, stan relevant court examined process, using rational and, a demonstrated dard oflaw judge could reach. conclusion a reasonable reached a Loy Bunderson, 400, 414-15,320 2d 107 Wis. (1982). trial court this I hold that the 175, 184 would by denying reasonably exercised its discretion case request affirm therefore for an would the denial order. regarding majority's opinion agree

I with the forfeiture.

Case Details

Case Name: Forest County v. Goode

Court Name: Court of Appeals of Wisconsin

Date Published: Nov 25, 1997

Citation: 572 N.W.2d 131

Docket Number: 96-3592

Court Abbreviation: Wis. Ct. App.