*1 political of the State of subdivision County, Forest Plaintiff-Appellant, Wisconsin, Wisconsin, State Intervenor Wesley Defendant-Respondent-Petitioner. Goode, S.
Supreme Court 28, argument May July 96-3592. Oral No. 1998. Decided (Also 715.) reported 579 N.W.2d *2 there defendant-respondent-petitioner For Hovel, Philpott F. Susan A. John by briefs were Gass, S.C., counsel, Mark Darnieder & C. Kravit Darnieder, Davis, & Milwaukee, and oral West all of F. Hovel. John by argument argued For the cause was plaintiff-appellant Gobiernan, Michael J. County assistant Forest cor- on the brief was Fred W. counsel, with whom poration Kawalski, Forest counsel. corporation *3 was argued by Mary- the
For intervenor the cause Sumi, ann whom on attorney general assistant with C. Stoltzfus, Lorraine was assistant attorney the brief E. Doyle, attorney James general. general GESKE, P. J. In case we are 1. JANINE this ¶ to a circuit court retains asked determine whether deny to relief after a injunctive zoning ordinance has been Forest proven. County violation proceedings instituted enforcement under Wis. Stat. 59.69(1) for against Wesley S. Goode noncompliance § a zoning with ordinance. The assess- requested ment of forfeitures and an order injunctive compelling his to a 50-foot comply Goode relocate house of requirement County Zoning setback Forest Ordi- nance 5.03.10. The Court for Forest County, Circuit § the Judge, request Robert A. denied Kennedy, County's a against for an but forfeiture imposed from both of County appealed Goode. orders the court. circuit split appeals decision,1 In a the court of denying injunctive
reversed the circuit order court's 59.69(11) holding § relief after that Wis. Stat. (1995-96)2 give equitable power does a circuit court injunctive deny relief after a ordinance viola- proven. appeals Next, tion unanimously been the has court of the reversed circuit court's calculation of the forfeiture amount. Goode seeks review appeals' denying injunc- court of reversal of the order tive relief. 59.69(11) gives § 3. We conclude that Wis. Stat. county or an owner real estate within the district zoning regulation option asking
affected sitting equity injunctive circuit court as a relief remedy However, for a ordinance violation. we legislature also conclude that did not intend equitable powers eliminate the traditional of the court 59.69(11). through Accordingly, we hold that when a grant injunctive circuit court is asked to relief for proven zoning violation, does not equitable power eliminate circuit court's particular case, relief in a case. In this erroneously circuit court failed to take sufficient evi- weigh proper equitable dence and failed to considerations. therefore affirm the We court appeals' reversing decision the order of the circuit court remanding proceedings. for further
FACTS AND PROCEDURAL HISTORY
*4
adjoining
Goode
on
4.
owns two
lakefront lots
County.
Ground Hemlock Lake
Forest
In
he
1993
Goode,
217,
County
1Forest
215 Wis. 2d
657 existing the on one of decided to tear down an structure prop- the lots, and a new residence on entire construct erty. Schmidt, 1993, In Forest of Dawn the June County zoning administrator, at the met with Goode together they roughly property measured and and high ordinary of feet the staked distance 50 from County (OHWM), required by Forest mark as water Zoning building Goode obtained a Ordinance 5.03.10. permit from to construct the new house 50 feet the OHWM of Ground Hemlock Lake.3 Stampfl in con- hired Dan to assist Goode structing Stampfl retained the new residence. Flannery Trucking perform the excavation work. Stampfl Flannery excavation, Prior to observed placed property making the on the after stakes Goode prior his own measurements. After the excavation but pouring footings walls, the concrete and cement Stampfl property. and restaked the In remeasured report March of contacted Schmidt to citizen might problem at there be a setback property. Schmidt to the Goode's returned residence May from the 1994 measured distance house OHWM. She learned that the distance from the northern corner of the home the OHWM was required May 19,1994, feet rather than the feet. On by letter Schmidt advised Goode location his requirement residence violated the 50-foot setback permit pursuant issued Goode to FOREST COUNTY, part: WI ORDINANCE 5.03.10 which states may permitted by
A setback from waterline reduced buildings there are five administrator where at least main proposed within 500 feet of the site are built to than the less required cases, average In setback. such the setback shall be the building proposed except the nearest main on each side of the site that in less no case shall setback be than 50 feet. *5 ordinance 5.03.10. Goode that the viola- responded tion was unintentional requested meet with the committee. for requested Goode variance the which the committee denied. The ini- property, County action, tiated this enforcement requesting forfeitures injunction and an the Goode requiring comply with setback requirements. trial the Following September
circuit court denied the County's request relief, finding unintentional, that was Goode’s violation the cost to move the house would and no very high, owners in the area property would be harmed the house remain it allowing where was.4 The circuit court a forfeiture Goode at diem imposed against a per $35, $8,540, rate of for a total of court plus $814.58 costs. The circuit court the using calculated forfeiture days, days number from notice (the 19, 1994, violation letter from the May county administrator) until filed the com- 18,1995). The plaint (January County appealed. 7. The court of Hoover dis- appeals, Judge reversed and remanded. The court of senting, appeals concluded plain meaning Wis. Stat. 59.69(11) "does not.. .create a discretionary standard for the trial court to follow in determining whether injunctive relief is warranted." Forest County, basis, On 2d at 223. the court of appeals held it was an exercise of discre- improper the circuit court's
4 making findings, In its the circuit court stated: "Well, competing what are the One of is interests? the interests county complied [sic] have it's desire ordinance with. property But no none there's owners harmed in that area. At least anybody have come forward. . . .There's no indication of on that being against particular lake this defendant this case. So the only thing complied we have is fact that the transcript with." Record at 109. County's for an request tion to *6 foot require- with the 50 setback requiring compliance ment. See id. at 226.5 The court of reasoned appeals "the to allow to legislative municipalities that decision relief injunctive compliance to effectuate pursue sought to the relief the ordinance entitlement implies Id. Hence, 227. the burden of at upon meeting proof." of that was the court concluded the appeals entitled to relief. injunctive view, In of 8. the court a circuit court's appeals'
¶ to relief grant injunctive refusal under Wis. Stat. the func- judicially usurp legislative would § injunctive would, tion. denial of relief Specifically, according to the court of the decision of appeals, nullify body authority the vested with the to legislatively See id. at 227. In addi- make variance determinations. tion, the court of reasoned a refusal to appeals relief grant injunctive infringe upon here would the right enforced, to have ordinances public's would increase the cumulative effects of dangerous violations, and would to persons allow variances forfeitures as "purchase" zoning by allowing cases. See id. at remedy some 228-29. 9. of then The court turned the appeals claim that the circuit court erred in calculat- County's the forfeitures. ing County's Forest Ordinance 20.05.1 this "Any person states: who violates ordi- $200.00, shall to a fine subject up nance be costs plus 5Although majority of appeals the court couches its conclu discretion," improper sion in terms of "an exercise of what it really held is the circuit has no equitable court 59.69(11), relief under Stat. once a viola Thus, proven requested. is such relief the court tion of law, appeals concluded that circuit court made an error of not an exercise erroneous of discretion. 660 prosecution.. of .Each the violation day continues shall considered a offense." Village separate upon be Relying Hockers, Sister Bay 106 Wis. 2d 317 N.W.2d (Ct. 1982), App, court determined appeals Goode's forfeiture should be based upon 244 days, but between upon days filing of the of trial. See until the time County, Forest complaint 2dWis. at 229-230. court of Accordingly, appeals remanded case to the circuit for a determination, court in its
discretion, per diem forfeiture to imposed id. See period days. at 230. Goode seeks review of the court of reversal the cir- appeals' court's cuit order relief. We denying injunctive granted State's intervene this *7 request review.
STATUTORY INTERPRETATION 11. The County brought this enforcement 59.69(11). under action Wis. Stat. That section reads: § PROCEDURE FOR ENFORCEMENT OF COUNTY ZONING ORDINANCE. The shall board rules, prescribe regulations pro- and administrative cedures, provide and such personnel administrative as it necessary considers for the enforcement of this section, all and enacted pursuance ordinances districts, regulations thereof. The rules and and the building regulations setback lines and authorized section, by this shall prescribed by ordinances which shall be purpose declared to be for the health, promoting public general safety by appro- he shall welfare. The ordinances enforced priate Compliance with such ordinances forfeitures. may injunctional by also be order at the enforced county suit of the or an owner of real estate within 661 by regulation. (Emphasis affected district added.) has the circuit court
Whether
is
relief once a
ordinance violation
of statutory
question
under
proven
is a
Statutory
question
interpretation.
interpretation
from the
benefiting
of law
review independently,
we
the circuit court and the court of
analysis
appeals.
68,
Prairie,
v.
Pleasant
Village
See Aiello
Wis.
(1996);
70, 556
Town
N.W.2d
of Clearfield
(1989).
Cushman,
10, 19,
I. 12. The of the statute we are pertinent part "The (county asked to reads: ordi- interpret zoning) by nances shall be forfeitures. appropriate enforced Compliance may with such ordinances also be enforced by injunctional order instituted at suit of county or an owner of real estate within the district regulation." affected Stat. added). This section uses the 59.69(ll)(emphasis "may" terms "shall" close to one proximity *8 another. Goode that the intent is argues legislative demonstrated the to use plainly legislature when chose forfeitures, the term "shall" in for mandatory providing the choosing directory "may" and term when provid- the ing injunctive "may," relief. Use of word Goode, a circuit tradi- according preserves court's tional discretion to decide in a case particular
662 and what manner of relief injunctive whether is warranted. relies on Swatek v. County Dane, 13. Goode ¶ of 47, 59, Wis. 2d 531 45 (1995),
192 N.W.2d where this that court concluded "when the words 'shall' and 'may' statute, used in the same section a can are one infer the was aware of the legislature different denota- and the tions intended words have their precise to Wauwatosa v. meanings." Additionally, points Goode County, Milwaukee 184, 191, 125 Wis. N.W.2d (1963), where we characterized as "may" permis- and "shall" as different mandatory sive unless carry construction is the statute to out the required by clear intent of legislature. 14. State contends statute plainly
¶ does not circuit courts discretion over give whether The State require compliance zoning ordinances. view that discre- only endorses court appeals’ provided county tion statute is vested in the or by alternative, affected owners. In the the State property contends that the statute is and thus the ambiguous, statutory State turns to rules of construction. 15. If a statute of being is understood capable
in two or different well- by reasonably more senses Setagord, See it informed is people, ambiguous. 2d at A ambiguous 406. statute is rendered merely disagree as to parties meaning. because its id. See case, 16. In this undertook appeals court statute, concluded plain meaning analysis of the
that the the statute permitted discretion decide to seek or resident whether county See County, Forest 2d at relief. Thus, the read the subject the State *9 by appropriate
phrases forfeitures" "shall be enforced "may injunctional be, order" to and also be enforced county bringing the cases, or resident both the agree reading this of enforcement action. We statute. Next, the State 17. and assert zoning are to be enforced
because by ordinance violations statutory injunction law rather than common equitable power remedy, the circuit court's traditional injunction denying is eliminated. consider agreed, appeals concluding nothing court in the discretionary created a standard the circuit statute determining court relief to follow whether is See warranted. id. at as to 18. We conclude the statute silent legislature
whether the to eliminate the cir- intended deciding cuit court's traditional grant injunctive whether to relief. This silence renders ambiguous, persons the statute reasonably because well-informed placing
could read the statute
no restric-
as
equitable powers.
tion
circuit
on the
court's traditional
persons reasonably
Other
read the
well-informed
could
requiring
court,
statute as
the circuit
once a
proven,
injunction.
an
ordinance violation is
to issue
ambiguous,
may
Because
statute is
we
look to
scope, history,
subject
object
context,
matter,
legislative
in order to
See
statute
ascertain the
intent.
Setagord,
II. ¶ 19. The State contends that context subject legislative matter the statute demonstrate a equitable power intent to eliminate the the circuit court to when a statutory proven. violation is The State invokes *10 construction rule that statutes are pari read materia, words, or in other relating that statutes to the same are State subject together. matter read urges 59.69(11) to read Stat. us Wis. conjunction § concerning obtaining statutes for procedure 59.694(7) variances, ordinance Wis. Stat. §§ 59.692(4)(b). reading together, those By provisions we a State contends will discern intent legislative eliminate the circuit court's power: Zoning navigable 59.692. of shorelands on waters. (4)(b) Variances shore- appeals regarding county lands within a are of board adjustment county 59.694, for that s. and the under procedures of that section apply.6 County zoning, adjustment 59.694. board.
(7) adjustment Powers board. of The board shall following have all of the powers: (b) To hear and decide to the special exception terms of the ordinance which the upon board required pass under such ordinance.
(c) upon specific To vari- appeal authorize cases ance from the terms of the ordinance that will be interest, contrary public where, owing spe- to the conditions, cial a literal enforcement provisions ordinance will result in unneces- sary hardship, spirit and so that section, 59.692, This Wis. Stat. was in 1965 as enacted § Stat. 59.971. See 1965 Wisconsin ch. 614. Wis. Laws justice ordinance shall be observed and substantial done.7 statutory together, Reading
¶ 20. those sections invokes rule of construction the State then general specific a statute are com- statute and when pared, precedence. specific See statute takes Kilgore, 185, Milwaukee (1995). County The State and the view N.W.2d 690 statutory general provi- Stat. statutory provisions as "a bit sion and the variance specific." Accordingly, more the State and con- specific provisions take tend that the more precedence variance general zoning enforce- over the *11 County argue that ment statute. The State and legislature intended a circuit court could have that nullify possess equitable power the variance procedures.
¶ 21. There is a certain tension the vari- between provisions. ordinance ance and If a enforcement property for is denied a variance his or her non- owner complying property, county brings and the action which in no enforcement results forfeitures but property relief, the owner could remain in non-compliance.8 indefinite 7 59.694, This Stat. section Wis. was enacted in 1927 as § Stat. 59.98. See ch. 408. The Laws Wisconsin § language of this section has remained the same. property may We later take note whether the owner steps compliance affected of the achieve could be the size dispute together, imposed. parties forfeiture None County Zoning the enforcement statute and Forest Ordinance give in setting 20.05.1 the circuit court discretion the amount § also, up per day. of the forfeiture to a maximum of See $200.00 Inc., Spielvogel Excavating, & Sons State (Ct. 1995) ("A 478, 535 trial App. N.W.2d court has wide 22. While we recognize this tension ¶ between the enforcement provisions of Wis. Stat. § and variance procedures of Wis. Stat. 59.692(4)(b) 59.694(7)(b) (c), we do §§ not view 59.69(11) as canceling the other sections. § Both the section providing authority to consider requests variances, 59.69(4), and the § ordinance here, enforcement at provision 59.69(11), issue were by the same passed legislature as part 1927 Laws of Wisconsin. This is a clear indication that the legisla- ture intended the two remedies for zoning ordinance violation to co-exist. Nothing the legislative history for those two provisions demonstrates an intent of the legislature to eliminate the traditional equitable pow- ers of the trial court whether deciding to order injunctive relief after a zoning ordinance violation is proven. addition, In when the legislature enacted 59.692(4)(b)
Wis. Stat. in 1965, specifically providing that variances from shoreland zoning requirements are reviewed by boards of county adjustment, we can pre- sume that the legislature was aware of both enforcement mechanism and the general zoning variance appeal procedures it had put place almost 40 years earlier. 24. The State asserts correctly the writ of
certiorari is the sole method of review for denial of a 59.694(10). variance. See Wis. Stat. ordi- zoning § statute, nance 59.69(11), enforcement Wis. Stat. does § not create an alternate means of review for a variance denial, nor can it result in granting Rather, a variance. 59.69(11) is an enforcement § mechanism available .(for) range fixing of discretion in the amounts of forfeitures. . case."). violations based on the facts of the individual the zon- comply does a owner property when ordinance. ing reveals statutes of the reading 25. Our instituting sequence there is no prescribed request the variance under either
proceeding mecha- enforcement or the ordinance appeal procedure in the district of real estate county A or an owner nism. a property need not wait for regulation affected denial of a vari- variance, or appeal to seek a owner resident can seek or ance, county before 59.69(11). if Similarly, Stat. enforcement under Wis. variance, denied a seeks but owner property are owners property nor district county neither county If and when the to enforce compliance. required chooses to pursue owner property or a district Signifi- at their discretion. action remains enforcement has of which adjustment, board cantly, Wis. see requests, to consider variance responsibility under Wis. Stat. 59.694, authority has no Stat. § The fact to enforce an ordinance violation. does not co-exist statutory procedures the two deny or grant the court's equitable mean the variance appeal relief will eviscerate procedure. Moreover, certiorari review of a board of or a variance grant decision
adjustment's
the board's action. The board's
propriety
reviews
land and the purpose
on
protection
action focuses
has
adjustment
ordinance. The board
whether
The board
reviews
power.
no equitable
that, her
to establish
met his or
burden
applicant
variance,
have no reason-
of a
he or she will
the absence
Board
land. See State v. Kenosha
able use of the
(1998).
577 N.W.2d
Adjustment,
*13
TRADITIONAL EQUITABLE POWER
scope
¶ 27. This case focuses on the
of the circuit
authority
plaintiff
proven prima
court's
once the
has
a
facie case of
ordinance violation. None of the
parties
prove
contend that the
has failed to
prima
dispute
facie case here. The
issue in
is
by enacting
59.69(11),
legisla-
whether,
§
Wis. Stat.
equitable
ture intended to eliminate the circuit court's
power
deny
appropriate
if
under the
by
parties,
circumstances. Most of the cases cited
necessary
below,
discussed
address what
is
prima
statutory injunctive
make a
facie case for
relief,
addressing
rather
than
whether
the circuit court
equitable power
injunction.
retains
argues
legislature
¶ 28. Goode
that the
did not
equitable power
intend to eliminate the traditional
of
59.69(11).
the circuit court when it enacted Wis. Stat.
legislature
presumed
Because the
is
to act with knowl-
edge
existing law,
of
Goode asks us to consider the case
law effect at the time
was enacted. See
City
Town
Madison,
Madison v.
609, 614,
of
of
(1955) (declaring
While the to issue mandatory9 injunctions vested in courts it equity, power is a which is "mandatory" quotation The term in this goes to the nature injunctive order, grant not to the court's Ziegler, order. See 4 Rathkopfs Zoning The Law and Plan- *14 Injunctions, 2. The High, on used. sparingly in the sound discre- injunction rests granting of an high being great, itself a court. The tion of the it in order use judgment required degree should not be it____Equity wisely and never to abuse merely injury or dam- successfully to inflict invoked securing any the defendant without age on (citations plaintiff to the right or benefit substantial omitted).
Gimbel Bros.,
¶
in decid
relief,
court exercises its discretion
the circuit
so,
if
relief, and
what
ing
grant
whether
v. Dane
437, 440, 101
9
Corp.,
form. See Webster
Wis. 2d
(1960).
not ordered as a
relief is
Injunctive
N.W.2d 616
rests on the sound discre
course, but instead
matter of
court,
used in accordance with well-
tion of the
to be
of all the facts
light
and
principles
settled equitable
See McKinnon v. Bene
and circumstances of the case.
(1968);
dict, 38
607, 616,
enforcement, the court must grant at plaintiffs request. Goode Bylewski asserts reinforces the traditional view that injunctive relief is left to the equitable discretion of the court. 32. The suit in Bylewski arose when a property
owner purchased land awith nonconforming structure, home, mobile on it. When the property owner took down the structure nonconforming it replaced with version, a newer the county sued in the county court under the small claims procedures statute. The county sought a forfeiture for violation of a zoning ordinance prohibiting structures like the mobile home from use a recreation trial, district. After the the county court *15 concluded that the landowner's mobile home violated the ordinance, and that the landowner had constructed his garage without a permit. county court then ordered the landowner to remove his mobile home and from the garage See property. Bylewski, 96 2dWis. at 159-60. The landowner appealed. one issue Only addressed in Bylewski is significant to the case before us. 33. Bylewski asserted that the court county
lacked under authority the small claims procedures recover a forfeiture for a ordinance violation and to issue an injunctive order to enforce compliance. court This held that court county lacked authority to issue any injunctional relief under the small claims statute. See id. at 167. The Bylewski court recognized that Wis. Stat. 59.97(11), the predecessor to Wis. Stat. 59.69(11), allowed both the imposition of forfeit ures as well as the enforcement of zoning ordinances by injunctive orders. See id. at 162. The court Bylewski distinguished between a suit for forfeitures and a suit " for injunctive relief, because the latter is an action in added.) of a In the absence Id.10 (Emphasis
equity." court was statute, county enabling specific See id. at relief. to grant authorized 163-166. conclusion, reaching En route to between distinguished court emphatically
Bylewski noncompliance relief for forms of two and a a forfeiture action to recover "[A]n ordinance. dif- fundamentally are relief seeking injunctional suit Id. at 167. First, the court observed ferent in nature." need forfeitures, proponent to recover aby its violation and prove introduce contrast, the court In of the evidence. preponderance that: observed to the injunctional order is addressed suit for an
[A] there requires court and be discretion of the equities and interests balancing competing determining inquiry "The true involved. injunctional prohibiting relief grant [whether to or the issuance of use continuation of unlawful nonconforming the removal of a build- an order for building or structure] is whether ing or (or legally modifiable and legally usable structure usable) main or used for a and is intended applicable accessory permitted use which is Poulin, 2 by-law." Sterling Town ordinance or 737, (1974); See App. 316 N.E.2d Mass. *16 10 Bylewski, in Columbia The statute at issue (1980), 59.97(11), 153, 288 Wis. Stat. § Wis. 2d N.W.2d provided: FOR ENFORCEMENT OF COUNTY ZONING PROCEDURE by appropriate shall be enforced ORDINANCE Such ordinances may Compliance penalties. such ordinances also be
fines and county by injunctional or the order at the suit of such enforced the district affected such or owners of real estate within owner regulation. also: 82 Am. Jur. 2d, Zoning and Planning, sec. 252 (1976). "However, at 787 where it has been clear offending that the building or structure could not be any purpose utilized for permitted in the pertinent district, relief has been extended to include an order for the removal of the building or struc- ture." Id. at 739.
Id. 35. Goode argues
¶ that the first two sentences of this discussion in Bylewski support circuit court's traditional power to balance the in equities its reaching decision on injunctive relief. The County and the State argue, and the court of appeals agreed, the discus- sion in Bylewski most relevant to this case is its description of the "true test of inquiry" whether injunction should be ordered —an inquiry which merely involves a determination of whether is building or legally usable modifiable and legally useable. 36. The court of appeals this case concluded
that because Goode's
can be
property
modified to a
legal use, an injunctive order was
See Forest
proper.
County,
lature duty grant relief. The State affirmative to points support to another enforcement statute to its argument legislature enacted statutes has equitable power court's to that eliminate circuit injunction. an See Pure Milk v. National Coop. Prod. 781, 90 Wis. N.W.2d Organ., Farmers (1979). language 1975 statute Pure 185.43(2), Stat. however, Wis. differs from the Milk, statutory language at here: issue
[a]ny person, actual or notice with constructive by 185.41, exists, [authorized Stats.] a contract sec. attempts any induces or to induce member who repudiate or his contract breach with associa- tion, any or who in manner aids a of such breach contract, aggrieved party to the for dam- liable such interference. The association is by ages caused injunction prevent any also entitled to an interfer- ence or with the contract. further interference added). (emphasis 2d at 789 The same distinc- can made tion for an earlier version of that statute: any
Where
contract exists
between
association
member,
who,
any
and a
person
knowledge
or
contract,
notice
existence of the
induces or
attempts
or aids in
induce
the breach thereof
party
shall be liable to the aggrieved
means,
any
damages on account of such interference with said
subject
shall also be
to an
contract and
prevent
or further
interference
interference
therewith.
Neillsville
Ass'n.
Shipping
Lastofka,
(1937) (quoting
353-54,
cuss
intent.
legislative
Instead that court relied on the
it,
of the
plain language
entitled,"
statute before
"is
on the conclusion of the Neillsville court
that a trial
statute. See Pure
court had no discretion under
a
such
Milk,
where, asserts, it the circuit court's equitable powers have been limited by statute. to the According State's brief, this court concluded that "[statutory compliance
11 parties All three separation this case raise a powers question. The State and if contend that we read Wis.
Stat.
not to restrict
equitable power
the traditional
court,
of the circuit
usurp
legislative
those courts can
intent
procedures.
behind the
variance
Conversely, Goode
argues that if we read the enforcement statute to eliminate the
circuit court's
power,
permitting
traditional
we will be
legislature
infringe
powers traditionally
on
reserved to
judiciary. Although
the enforcement statute at issue in Pure
Coop.
Organ.,
781,
Milk Prod.
v. National Farmers
90 Wis. 2d
(1979),
relief to the
citing State v. Excel
State's brief at
violations."
Management
479, 490,
Services, 111 Wis.
(1983).
opinion in Excel
do not read our
We
N.W.2d
statutory
Management
the tradi-
find a
erasure of
equitable power
the court.
tional
protec-
recognized
¶ 42.
the consumer
We
Management gave
in Excel
tion statute at issue
grant relief, includ-
authorization to
circuit court broad
ing injunctive
2d at 498.
then
relief. See Wis.
We
Supreme
descrip-
State
Court's
endorsed the United
*19
equitable jurisdiction:
tion of
jurisdic-
equitable
of this
comprehensiveness
limited in the
of a
tion is not to be denied or
absence
a
legislative
clear and valid
command. Unless
stat-
words,
many
necessary
or
a
and
ute in so
inference,
jurisdic-
the court's
inescapable
restricts
equity,
scope
jurisdiction
tion in
the full
of that
recognized
applied.
be
Management,
(citing
111
2d at 490
Porter v.
Excel
(1946)).
Co.,
395, More to the
Warner
328 U.S.
"[bjecause
Management
point,
we stated
Excel
the statutes here involved contain no limitation on
jurisdiction,
equity
trial court's exercise of its
we con-
scope
clude that the trial court has the full
parties
it
fashion relief for the
remedies available to to
injured
practices
as the result of the acts and
involved
in this action." Id. at 490. We decline to read Excel
Management
supporting a conclusion that the cir-
as
equitable power
cuit
has
eliminated.
court's
been
¶ 43. The State
a rule from State v.
also derives
Sales, Inc.,
94,
&
Fonk's Mobile Home Park
(Ct.
1983)
PUBLIC POLICY 44. As of our effort part to discern the legisla tive intent relating the circuit court's equitable statute, under this we look to the or object pur pose the statute. "The of state purpose shoreland zoning standards is to 'further the maintenance of safe conditions; and healthful prevent and control water pollution; fish and protect spawning grounds, aquatic practices The unfair trade statute invoked in State v. Sales, Inc., Fonk's Mobile Home Park & 117 Wis. 2d *20 (Ct. 1983), App. provided: N.W.2d 820 department may The commence an action in circuit court by temporary permanent name of the state to restrain or any may the violation of order issued under this section. The court discretion, prior entry judgment in its of final make such orders judgments may necessary any person any or as be to restore to pecuniary practices loss suffered because of the acts or involved in action, provided proof thereof is submitted to the satisfaction of the court. 100.20(6). Wis. Stat. § sites, of structure placement control
life;
building
natural
shore
cover and
uses
and reserve
land
2d at 406. "The
County,
Kenosha
218 Wis.
beauty.1"
'is to
zoning
of a shoreland
basic purpose
therein
rights
and the
navigable
public
waters
protect
which results
and deterioration
degradation
from the
of shore-
development
uncontrolled
use and
from
"
County,
Just v. Marinette
Id. at
quoting
lands.'
(1972).
7, 10
2d
¶ Lake City Corp. result must be avoided. See sonable 155, 162, 558 N.W.2d City Mequon, (1997). single to allow a County argues prop- The through a zoning provision owner to enforce erty relief is more than mandatory, injunctive nothing pro- right co-existent with the citizen's viding remedy The State ordinances. compliance expect allowing judiciary nullify statutory argues and unreasonable. variance absurd process contends that because the has an public impor- State interest in shoreland it would be zoning, tant intended legislature unreasonable to conclude circuit retain equitable power deny, court to discretion, relief in the case of its ordinance violations. contends that the court of appeals 46. Goode results,
decision would lead to absurd or unreasonable
different reason.
that because a
argues
but for a
Goode
institute
enforcement
single
may
pro-
owner
property
59.69(11),
under
this
owner
ceedings
single property
structure
moved
offending
could also
that an
require
matter what the
involved.
equities
no
note that
the use of
"self-help through
47. We
has become an
injunctions by private litigants
impor-
*21
so,
enforcement."13 Even
we
zoning
tant element of
enforcement
statute as
to construe the
conclude
circuit court's
traditional
the
eliminating
instance,
For
lead to
results.
a resi-
unjust
could
the
zoning regulation
of the district affected
dent
obtain, an injunction
and necessarily
could request,
ordinance. This is so
conformance with the
compelling
minor and the
extremely
if
was
issu-
even
the violation
inequitable.
ance of an
would be
enforcement, plaintiff
In one case of private
years
a cement
waited over three
plant
of
neighbors
a
to build
permit
the
had received
plant operator
after
their
commencing
zoning
his
before
plant
Dunn,
Diehl v.
13 Wis. 2d
enforcement action. See
(1961). If the Diehl
trial court had
While
expectation
police power,
are enacted with
enabling
municipality,
burden of enforcement will rest with
taxpayer
or other
acts of a substantial number of states authorize
enjoin
private person
a violation of the
to institute an action to
recognize
zoning regulations.
kind
not
Provisions of this
singular
in the enforcement of
fact that landowners have
stake
controls,
vigorous enforcement is
that the likelihood of
land-use
but
knowledge
always great.
that when
is
It is common
provision
many
adequate
is made
communities no
commenced in
Frequently,
committed to a build-
enforcement is
for enforcement.
enforcing
already
ing inspector
understaffed for
task
who is
building
is committed to his
enforcement
code. When
desultory
give
attention.
it more than
office he
unable
*22
doctrines and established
decisions will lend its aid
active,
to the
vigilant,
and faithful."
¶ at in stake obviate zoning considerations lead to a denial might relief. The injunctive Bouchard v. State cites Zetley, 635, (1928), N.W. 229 as an instance where the court the defendants' rejected suggestion that money dam- ages would have been instead of adequate, the harsh relief In imposed. disagreeing with the defendants' proposal, the court stated: "The is public in interested the enforcement ordinances, of the zoning as well as the owners of property specially affected. Such public rights should not be compromised by pri- Id. vate parties." 50. Our decision in today way no endorses
¶ "purchase" variances. We only reaffirm the Bouchard court's statement about the nature of zoning ordinance enforcement "Under cir- proceedings. court, cumstances we think the sitting equity, wise discretion." Id. at 646. We conclude exercised the circuit court's equitable to use that dis- cretion has not been eliminated. 51. Contrary to the State's prediction,
¶ our con- clusion will not result in dire consequences for zoning enforcement actions. Nor will it frustrate the purpose of shoreland particular. 52. "[Prevention rather than punishment keynote most zoning administration." Kenneth Anderson's
H.
American Law
Young,
Zoning, 29.01
(4th
1997).
ed.
aWhen
circuit court exercises
equita-
its
ble discretionary
power,
there are checks in place to
oversee the
use
proper
of that discretion. The errone-
ous exercise of discretion standard
is available
for
Productions,
Records
Mercury
court review.
appellate
Consultants,
Inc., 482, 500,
Economic
Inc. v.
(1979).
addition,
the amount of the
In
A decree
(2)
(1)
use;
conforming
building
put
can
to a
be
be issued where
(3)
insignificant;
has
where the violation
the violations are
where
interpretation of the
reasonable
from an erroneous but
resulted
mandatory injunc-
ordinance,
seeking
plaintiff
and the
who is
permit pursuant
appealed
the issuance of
could have
from
tion
(4)
so;
erected,
building
and where
failed to do
was
but
to which
circumstances,
compelling
together, present
rea-
viewed
the entire
injunction.'
request
why equity
plaintiff
for an
refuse
s
should
sons
681
laches,
such as
or unclean
estoppel,15
hands16 should
See,
also
be
in
e.g.,
weighed
appropriate
cases.
Ramaker v.
Cities Service Oil
Co.,
143, 153,
27 Wis. 2d
(1965)
nate the circuit court to the Therefore it was within County's request relief. the State then assert that and the erroneously discretion exercised its circuit court agree injunction. denying case, the that in this We sufficiently weigh to consider and circuit court failed entry proper prior order. In of its factors all explained announcing the circuit court decision, its although County possessed an interest hav- property ing compliance ordinance, no owner with the complain, Mr. Goode forward to in the area had come upon experi- good its own faith, and based had acted in put expensive it ence, court would believed compliance. the court did conclude that into We house reaching decision pub- its evidence before not take sufficient adequately interest of the address the did not compliance obtaining large full lic at possibility explored The court never ordinance. might been less have limited which more yet have ade- Goode, Mr. but would cumbersome for quately public protected interest. *25 deciding deny request
¶ 57. In whether to injunction upon an based a shoreland violation, the circuit court should take evidence and weigh any applicable equitable includ- considerations ing the substantial interest of the citizens of Wisconsin vigilant protection in the shorelands, state's good parties, violation, extent of the any faith of other equitable estop- available defenses such as laches, pel degree hardship hands, or unclean compliance any, govern- create, role, will and the if played contributing ment to the violation. This list is not meant to be exhaustive but to illustrate the importance of the circuit court's consideration of the public enforcing substantial interest its shoreland zoning ordinances.
¶ 58. Once a established, violation is a circuit grant injunction except, court should in those rare examining totality cases, when it concludes, after compelling equitable the circumstances, there are rea- why deny request sons the court should for an injunction. pointed argument, As the State out at oral possesses equitable power the circuit court also to fash- injunction justice. ion an that does If the court is injunction, explore inclined to it should first requested injunction alternatives to the full to deter- equitably mine whether a more crafted might appropriate.
¶ 59. We conclude that the circuit court errone- ously failed to take sufficient evidence in this case and sufficiently weigh failed to considerations we have described. We therefore affirm the decision of appeals reversing the court of the order of the circuit remanding hearing court and for a new consistent with opinion. this *26 court of appeals the Court. —The decision of the
By is affirmed. I BRADLEY, J. {concurring). ANN WALSH determining discussion majority's
agree eliminate the tradi- Stat. does not However, I circuit courts. tional of the equitable powers circuit courts to to caution those same separately write real very in the exercise of their power consider amount a fine merely by anteing up prospect circumstance may, by individual landowners imposed, a variance for their effectively "purchase" or design, instances, In such lakefront homes. nonconforming of the in favor derogated welfare of the general public boards are left pow- individual homeowner Wisconsin's charge protect to fulfill their erless and the welfare. public environment exercise of its consider in the 61. A court must individual land- not rights equitable powers I the concern echo owners, rights public. but the court of appeals in the majority opinion voiced "courts, balancing equi- under the mantle of statutes with ties, defendants violate permit can at permitted One should impunity. [relative] forfeitures through to purchase court's discretion trial See Forest from a code." a variance (Ct. Goode, 217, 228-29, 572 N.W.2d 2dWis. 1997). App.