COURT OF APPEALS DECISION DATED AND RELEASED November 27, 1996 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-0024
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
TERRANCE MC KILLOP and
DARLENE MC KILLOP,
Plaintiffs-Respondents,
v.
COUNTY OF KENOSHA, a
domestic
municipal corporation,
Defendant,
KENOSHA COUNTY BOARD
OF ADJUSTMENTS,
a quasi-judicial body
of the Cty of Kenosha,
Defendant-Appellant.
APPEAL from an order of
the circuit court for Kenosha County:
ROBERT V. BAKER, Judge. Reversed
and cause remanded with directions.
Before Brown, Nettesheim
and Snyder, JJ.
PER
CURIAM. The Kenosha County Board of Adjustments (the Board)
appeals from an order permitting Terrance and Darlene McKillop to finish
repairs to a porch, a nonconforming structure within a floodplain. The Board argues that the circuit court
exceeded the scope of its authority in a certiorari action by ordering that the
repairs could be completed under the original building permit issued to the
McKillops. We conclude that under the
ordinance the Board may impose floodproofing requirements on the structural
repair to the porch. Therefore, we
reverse the order of the circuit court and remand to the court with directions
to remand the matter to the Board for consideration of the McKillops'
application for a zoning permit.
The McKillops own
property adjacent to the Fox River in Kenosha County. The property is in the Floodplain Overland District (FPO) and
subject to restrictions under the Kenosha County General Zoning and
Shoreland/Floodplain Zoning Ordinance.
The McKillops' residence is used as a summer cottage and has been
"grandfathered" in as a nonconforming use.
The McKillops sought to
replace rotting wood on the porch. The
contractor hired to do the repairs obtained a building permit from the Town of
Wheatland. Upon inspection of the
on-going repairs, the Town of Wheatland building inspector concluded that the
repairs were outside the scope of the permit because the porch had been rebuilt
with new exterior walls, rafters, headers, windows and patio doors. The McKillops were ordered to stop further
repairs and told to obtain a zoning permit from Kenosha County. The zoning permit was denied on the ground
that a permit cannot be issued for an addition or expansion of an existing
nonconforming structure in the FPO.
Kenosha
County, Wis., Gen. Zoning Code § 12.28-10 (1994), provides:
FLOODPLAIN
NON-CONFORMING USES
No
structural repairs to a structure located in the FPO Floodplain Overlay
District, or FWO Camp Lake/Center Lake Floodway Overlay District, or modifications
which raise the first floor elevation above the 100 year recurrence interval
flood elevation, shall be allowed unless the entire structure is floodproofed
by means other than the use of fill to the flood protection elevation, which is
2 feet above the 100 year recurrence interval flood. ... Structural repairs and modifications which
elevate the first floor of a floodprone structure shall not exceed over the
life of the structure 50 percent of the structure's equalized assessed value at
the time the structure became nonconforming.
The term "modification" for this section shall be strictly
interpreted to mean only those modifications that deal directly with the
floodproofing of the structure. No
additions of any type shall be allowed.
On certiorari review,
the circuit court determined that the repairs were structural and did not
violate nonconforming use zoning as an addition to the property. It held that the Board did not act according
to the law in denying the permit because the repair or alteration was less than
fifty percent of the assessed value. It
concluded that the McKillops would be permitted to finish the project under the
building permit issued by the Town of Wheatland.
The Board moved for
reconsideration. It argued that even accepting
the circuit court's finding that the repairs did not constitute an addition to
the nonconforming use, the ordinance still regulates structural repairs. The Board sought to impose a floodproofing
requirement on the structure. The
circuit court held that the floodproofing requirement did not apply because
there was no evidence that the McKillops raised the elevation of the first
floor of the structure.
The Board does not take
issue with the circuit court's ruling that the repairs were not an addition and
constituted only structural repair. It
is the circuit court's ruling on the motion for reconsideration which is really
at issue in this appeal. The Board
claims that the circuit court exceeded its jurisdiction in ordering that the
McKillops could complete their project without a zoning permit. It argues that the circuit court should have
remanded the McKillops' permit application to the Board to condition the
completion of the structural repair on the floodproofing requirement of Kenosha County, Wis., Gen. Zoning Code
§ 12.8-10 (1994).
The McKillops argue that
the Board waived its contention that the floodproofing requirement applies
because it did not raise it until after the circuit court's ruling. We disagree. The Board maintained that the repairs were an addition for which
no permit could be issued. If it
prevailed before the circuit court, no remand was necessary. It was not until the circuit court
determined that the porch repairs were structural that the need for a remand
arose. Waiver is not a jurisdictional
defect, but one of administration. See
Terpstra v. Soiltest, Inc., 63 Wis.2d 585, 593, 218 N.W.2d 129,
133 (1974). This was not an instance
where a party waited in the weeds only to spring the issue for the first time
on appeal. The issue was necessarily
raised in the motion for reconsideration and is not waived.
We turn to the
application of the ordinance. In doing
so, we do not directly address the Board's claim that the circuit court acted
in excess of the scope of review on certiorari. In determining that the McKillops could proceed without a zoning
permit, the circuit court held that the ordinance did not apply. Interpretation of an ordinance is a question
of law within the scope of the circuit court's, and this court's,
authority. Hansman v. Oneida
County, 123 Wis.2d 511, 514, 366 N.W.2d 901, 903 (Ct. App. 1985).
The relevant portion of
the ordinance provides: "No
structural repairs to a structure ..., or modifications which raise the
first floor elevation above the 100 year recurrence interval flood elevation,
shall be allowed unless the entire structure is floodproofed ...." Kenosha
County, Wis., Gen. Zoning Code § 12.28-10 (1994) (emphasis added). The McKillops read the ordinance to attach
the condition of floodproofing only when structural repairs raise the first
floor elevation. The Board asserts that
because structural repairs and modifications are stated in the disjunctive, the
condition of raising the first floor elevation applies only to
modifications. Thus, the Board
contends, any structural repair requires floodproofing.
The Board's construction
of the ordinance is entitled to some weight but is not controlling. Hansman, 123 Wis.2d at 514,
366 N.W.2d at 903. Grammatically, given
the structure of the sentence, the placement of the commas and the use of the
disjunctive, the Board's construction is correct. Equally important is the principle that "an interpretation
and application of the ordinance must accomplish the objective of the ordinance
by balancing the competing interests in a reasonable way." Marris v. City of Cedarburg,
176 Wis.2d 14, 34, 498 N.W.2d 842, 851 (1993).
"[T]he spirit of
zoning is to restrict a nonconforming use and to eliminate such uses as quickly
as possible." Waukesha
County v. Seitz, 140 Wis.2d 111, 116, 409 N.W.2d 403, 406 (Ct. App.
1987). Although some structural
repairs or alterations are permitted to allow owners to continue nonconforming
use and make reasonable renovations to prevent deterioration, they are
restricted to ensure that the life of the structure is not extended
indefinitely. Marris, 176
Wis.2d at 34, 498 N.W.2d at 850.
The McKillops' reading
of the ordinance would permit a great deal of structural repair to be completed
without a zoning permit unless the first floor elevation was raised. If the repairs did not elevate the floor,
the life of the nonconforming structure can be extended (provided the fifty
percent rule also found in the ordinance is adhered to). The ordinance here seeks to impose stricter
requirements than the fifty percent rule and do so in a manner which protects
the future integrity of the property against flooding. We conclude that the ordinance imposes the
floodproofing requirement on any structural repair, regardless of whether it
raises the first floor elevation. This
interpretation is consistent with the policy to eventually eliminate a
nonconforming use which is dangerous because of the lack of floodproofing.
The McKillops claim that
because the cost of the structural repair is well under fifty percent of the
assessed value, it is authorized by § 59.97(10), Stats., and regulations of the Department of Natural
Resources. They contend that no further
limitation can be placed on the repairs.
The provision in § 59.97(10) on which the McKillops rely applies only to
"buildings and premises used for trade and industry." Moreover, § 87.30(1)(b), Stats., indicates that a county is not
prohibited from adopting a floodplain ordinance more restrictive than the
regulations adopted by the DNR. Kenosha
County has chosen to adopt a more restrictive zoning ordinance with respect to
nonconforming uses in a floodplain. The
McKillops' property is subject to the more restrictive ordinance.
The circuit court
vacated the Board's decision and ordered that the McKillops be allowed to
complete repairs without a zoning permit.
However, we conclude that the structural repair undertaken by the
McKillops is regulated by the zoning ordinance and subject to the floodproofing
requirement. Therefore, the order of
the circuit court is reversed. The
Board must be given the opportunity to consider the McKillops' zoning
application for structural repair and determine what, if any, conditions are
necessary to meet the floodproofing requirement of the ordinance. We remand to the circuit court with
instructions that the McKillops' zoning permit application be remanded to the
Board for further consideration.
By the Court.—Order
reversed and cause remanded with directions.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.