2007 WI App 250
court of appeals of
published opinion
Case No.: |
2007AP891 |
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Complete Title of Case: |
†Petition for Review filed. |
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Plaintiff-Appellant, v. Solid Waste Management Board,
Defendants-Respondents. † |
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Opinion Filed: |
October 18, 2007 |
Submitted on Briefs: |
September 14, 2007 |
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JUDGES: |
Dykman, Lundsten and Bridge, JJ. |
Concurred: |
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Dissented: |
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Appellant |
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ATTORNEYS: |
On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Ted Waskowski, and Richard C. Yde of Stafford Rosenbaum LLP, Madison. |
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Respondent |
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ATTORNEYS: |
On behalf of the defendants-respondents, the cause was submitted on the brief of William F. White, Mary C. Turke, and Paul D. Barbato of Michael Best & Friedrich, LLP, Madison. |
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2007 WI App 250
COURT OF APPEALS DECISION DATED AND FILED October 18, 2007 David R. Schanker Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal No. |
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STATE OF |
IN COURT OF APPEALS |
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Plaintiff-Appellant, v. Waste Management Board,
Defendants-Respondents. |
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APPEAL
from an order of the circuit court for
Before Dykman, Lundsten and Bridge, JJ.
¶1 DYKMAN, J. The
Background
¶2 The following is taken from trial testimony and
exhibits. In early 2002, representatives
of the County and of the Village[1]
entered discussions for the County to site a waste transfer station at a closed
landfill in
¶3 In September 2002, the County requested a holding tank permit
from the Village. The Village’s
clerk/treasurer informed the County that the Village would not issue any
permits to the County for the waste transfer station. In October 2002, the Village notified the
County in writing that it had voted unanimously to rescind its approval of the
memorandum, based on various problems it had identified with operating a waste
transfer station at the closed landfill.
The Village asked the County to withdraw its plans to site its waste
transfer station in
¶4 The County sought advice from its corporation counsel on how
to proceed, because it had already invested time and money in planning the
waste transfer station to be located in
¶5 The trial court granted summary judgment to the County,
finding that the Village was equitably estopped from asserting that the
County’s waste transfer station violated the Village’s zoning ordinance. The Village appealed, and we reversed.
¶6 On review, the supreme court affirmed.
¶7 Following a trial on the two issues remanded by the supreme court, the trial court found that the waste transfer station did not violate the Village zoning ordinance. The court reasoned that “[t]he use, the history and the law estop the Village from taking any other position.”[3] The court then found that even if there had been a zoning violation, equity would prevent its issuing an injunction. The court found that the County’s reliance on the Village’s interpretation of its zoning as allowing the waste transfer station was reasonable, that the Village had “unclean hands,” and that no public interest would be served by closing the station. Thus, the court denied the Village’s request for an injunction to prevent the County from operating the waste transfer station. The Village appeals.
Standard of Review
¶8 This case requires that we interpret the
Discussion
¶9 The Village argues that the trial court erred in denying it
an injunction because (1) the record establishes that the County violated
the Village zoning ordinance when it constructed the waste transfer station at
the closed landfill in
(1) Ordinance
Violations
¶10 The Village asserts that the County violated the Village zoning ordinance by constructing a waste transfer station without a building permit in an area designated A-2 agricultural exclusive. The County responds that the Village did not meet its burden to prove a zoning violation. The County argues that the Village’s zoning ordinance expressly incorporates its maps, which zone the waste transfer station site “public use.” Alternatively, the County argues that the waste transfer station is a legal non-conforming use of the area. We agree with the Village.
¶11 The parties agree that the following provision of the
The location and boundaries of the districts established by this ordinance are set forth on the zoning map, entitled “Zoning District Map for the Town of Hobart, Brown County, Wisconsin,” dated October 6, 1986, which are incorporated herein and hereby made a part of this ordinance. The said map, together with everything shown thereon and all amendments thereto, shall be as much a part of this ordinance as though fully set forth and described herein.
¶12 The Village contends that the ordinance clearly states that the zoning districts are set forth in the October 6, 1986 official zoning map. The parties agree that the 1986 map establishes the site of the waste transfer station as an A-2 Exclusive Agricultural District, which does not allow waste transfer stations. The County argues that the last sentence in the disputed provision, stating that “[t]he said map, together with everything shown thereon and all amendments thereto, shall be as much a part of this ordinance as though fully set forth and described herein,” establishes that the other purported official zoning maps, several of which are posted in the Village’s City Hall and one of which was provided to the County, are incorporated into the zoning ordinance. The parties agree that the other versions of the zoning map designate the waste transfer station site as “public use.” The County asserts that the Village’s other versions of the zoning map are “amendments” to its official map, and thus the waste transfer station site has been re-zoned to public use.
¶13 The problem with the County’s argument is that it is asking us
to equate the printing of a map with zoning.
But the Village may not effect a zoning change by simply printing a new
map. See Gloudeman v. City
of St. Francis, 143
¶14 Additionally, we agree with the Village that even if the County had established that the waste transfer station site was re-zoned as “public use,” the transfer station would not be a permitted use. The Village’s zoning ordinance sets out the designated zoning areas, and does not establish or define a “public use” designation. Without an ordinances’ description of what uses would be permitted in a “public use” district, it would be impossible to tell whether a proposed use would be permitted or prohibited. The County has not explained why a waste transfer station would be a permitted use in a “public use” district, even if one existed.
¶15 The County argues alternatively that the waste transfer station is a legal non-conforming use because the site was previously used as an operating landfill and the County had ongoing duties to supervise and maintain the closed landfill. We disagree.
¶16 “A nonconforming use is an active and actual use of land and
buildings which existed prior to the commencement of the zoning ordinance and
which has continued in the same or a related use until the present.”
the spirit of zoning is to restrict a nonconforming use and to eliminate such uses as quickly as possible[,] [t]he law does not tolerate the continuance of nonconforming uses if the use is changed and the law will not condone an activity simply because it takes place on the premises.
¶17 The County does not assert that it operated a waste transfer
station at the
¶18 Finally, the County does not contest the fact that it
constructed the waste transfer station without a building permit, contrary to
the Village’s zoning ordinance. See
¶19 Thus, having determined that the County did violate the Village’s zoning ordinance, we turn to equitable considerations to determine whether an injunction should nevertheless be denied.
(2) Equitable
Considerations
¶20 The Village contends that equitable considerations do not justify denying it an injunction because its actions did not induce the County to construct a waste transfer station without a building permit and contrary to Village zoning, and the public interest is served by allowing the Village to enforce its zoning ordinance. The County responds that the trial court correctly denied the Village an injunction on equitable principles because the County reasonably relied on the Village’s assurances that the waste transfer station site was properly zoned and the public interest is best served by allowing the transfer station to continue operations. We agree with the Village that the facts of this case do not establish the elements of equitable estoppel.
¶21 Equitable estoppel requires the party asserting it as a defense
to prove by clear, satisfactory and convincing evidence the following
elements: (1) action or non-action,
(2) by the opposing party, (3) which induced the party claiming
estoppel to reasonably rely on the opposing party, either in action or
non-action, and (4) that the reliance was to the claiming party’s
detriment. Milas, 214
¶22 The trial testimony established that prior to the County’s beginning construction in October 2002, the County knew that the Village no longer planned to approve the waste transfer station. When the County attempted to obtain a holding tank permit, it was informed by the Village’s clerk/treasurer that the Village would not issue any permits in relation to the proposed waste transfer station. The County also received a letter from the Village rescinding the memorandum. Indeed, the County only lists Village assurances of proper zoning through August, 2002. As of early October 2002, then, despite the Village’s prior assurances that the zoning of the closed landfill was appropriate for a waste transfer station, the County knew that the Village did not plan to approve the waste transfer station.[8] At that point, the County made its own decision to commence construction without applying for a building permit to obtain a zoning decision by the Village. Whatever reliance on the Village’s assertions the County may claim in its planning of the waste transfer station, it has not established that it reasonably believed the Village assured proper zoning when it began construction.[9]
¶23 Had the County applied for a building permit and received a rejection, the County would have understood the Village’s position on zoning and could have proceeded legally from there. The County’s belief that the site was properly zoned and that the Village was resisting due to an outcry from its residents does not validate its decision to bypass the Village zoning requirements. It is no defense to an ordinance enforcement action that the violator ignored the ordinance.
¶24 Finally, we do not agree that the public interest is best
served by denying an injunction. We have
said that “[t]he municipalities, and the citizens who reside there, have a
right to enforce their zoning laws.”
By the Court.—Order reversed and cause remanded for proceedings consistent with this opinion.
[1] At
that time, the
[2] There
are two landfills in
[3] We
note that the supreme court’s remand clearly stated that the Village could not
be estopped from asserting a violation of its zoning ordinance. Village of Hobart v. Brown County,
2005 WI 78, ¶25, 281
[4] The County argues that the Village was in the best position to prove that no other “official map” was adopted after 1986 and failed to do so. Specifically, the County points to testimony by the program manager for the Brown County Land Conservation Department that the Village provided him a map in 1996 that was labeled “official zoning map” and that stated it had been adopted by the Hobart Town Board on June 10, 1996. However, the Village did refute this evidence, submitting the minutes of the Village’s board meeting on June 10, 1996, showing that no new map was adopted on that date. The Village also presented testimony of its Village Administrator, who testified that the 1986 map was the last official map adopted by the Village, and that the Village did not follow the procedure to adopt another zoning map. While neither party explains what process the Village must undertake to “amend” its official zoning map, the Village Administrator testified as to the procedure for the Village to adopt a new official map. We conclude that it is sufficient for purposes of our discussion that the record establishes that the Village did not adopt a new official map after 1986.
[5] The County argues that the 1986 “official map” is invalid because it does not display the various amendments to the Village zoning ordinance in the subsequent twenty plus years. We do not agree. The County has cited no authority stating that an official zoning map must reflect all valid amendments to a zoning ordinance in order to retain validity. Furthermore, the County has not asserted that a valid amendment to the Village’s zoning ordinance changed the zoning at issue here. Thus, we need not address the effect a valid change to the zoning ordinance would have on the official map.
[6] We do not address the propriety of the Village’s labeling various conflicting maps as its “official zoning map” in this portion of our discussion. Rather, we limit our discussion to the legal effect those maps have on the Village’s zoning. We agree with the County that the Village’s actions in providing the County with a map labeled “official zoning map” that displayed the zoning of the proposed site for the waste transfer station as “public use” is a factor to weigh in determining whether equity prevents an injunction.
[7] In finding that the waste transfer station was a legal non-conforming use, the trial court said only that the use of the landfill site has been “public” for many years and thus public uses are legal non-conforming uses. This is not the correct test. The testimony at trial explained the difference between a waste transfer station, which involves depositing waste and then transferring it to much larger trucks for distribution to other sites, and operating and maintaining a landfill, which receives and stores waste. We do not agree that the former is encompassed in the latter.
[8] The County argues that because the October 2002 letter from the Village to the County did not reference zoning, the County believed that the Village was not rescinding its earlier statements that the area was properly zoned. Even accepting this assertion, we do not agree that the County’s decision to construct the waste transfer station without Village approval was reasonable.
[9] This
conclusion also negates the trial court’s finding that the Village should be
denied an injunction based on “unclean hands.”
The “clean hands” doctrine only applies where a party’s bad acts caused
the harm from which it seeks relief. Security
Pac. Nat’l Bank v. Ginkowski, 140