COURT OF APPEALS DECISION DATED AND FILED October 29, 2008 David R. Schanker Clerk of Court of Appeals |
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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 WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT II |
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Town of
Plaintiff-Respondent, v. Harry Schmitz, Jr.,
Defendant-Appellant. |
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APPEAL
from a judgment of the circuit court for
Before Brown, C.J., Snyder and Neubauer, JJ.
¶1 SNYDER, J. Harry Schmitz, Jr., appeals from a summary
judgment in favor of the Town of
FACTS AND PROCEDURAL BACKGROUND
¶2 Schmitz owns parcels described as Lot 1 and Lot 2 on
¶3 In early October 2002, Schmitz began excavation of land and construction of concrete slabs on his property. The Town issued a stop work order on October 4, 2002. The Town asserted that the construction work on Schmitz’s property was subject to the Town’s site and grading plan ordinance, which required Schmitz to submit a plan before the activity could begin. Furthermore, the Town’s zoning ordinance required Schmitz to obtain a building permit in order to construct a concrete slab on the property. Finally, the Town alleged that the accumulation of inoperable or unlicensed vehicles along with the “accumulation of defective buildings” reduced property values in the area, created a blighted condition or hazard and constituted a public nuisance.
¶4 The parties entered into an Agreement in Lieu of Enforcement Action on December 17, 2002. Under the agreement, Schmitz agreed to pay forfeitures in the amount of $1075 and to submit a site and grading plan to the Town’s designated engineering representative, Scott Roltgen. He also agreed to cure any deficiencies Roltgen identified in that plan. In exchange, the Town agreed not to prosecute the ordinance violations arising from the construction of the concrete slab and the proposed placement of the building on that slab. The plans submitted by Schmitz were not acceptable to the Town.
¶5 The Town ultimately filed suit on May 19, 2003. The Town sought “forfeitures of not less than $50 nor more than $500” for the site and grading ordinance violation, “forfeitures of not less than $25 nor more than $500” for the zoning ordinance violation, “forfeitures of not less than $50 nor more than $500” for the nuisance ordinance violation, together with costs and fees. The Town also asked the court to order Schmitz to restore the property to the condition it was in prior to the described events and to refrain from any further acts or omissions giving rise to ordinance violations.
¶6 On March 8, 2004, the parties entered into a Settlement Agreement. The Settlement Agreement acknowledged that Schmitz had filed a “plot plan” pertaining to the intended placement of the existing building, but noted the Town deemed that plan insufficient. The parties agreed that Schmitz would file a site and grading plan prepared by an approved professional engineer. The site and grading plan was to include information specified in the agreement and was to be delivered to the Town no later than May 1, 2004. Schmitz also agreed to provide basic renderings showing the appearance of the subject building and all proposed future expansion after installation. Once Schmitz complied with these requirements, the Town agreed to issue all additional permits required for the installation of the building and finishing the surface area around it. The parties also stipulated that, once the building installation was complete, it would be used for one of several approved uses such as a licensed vehicle dealership or a retail warehouse. A portion of the Settlement Agreement addressed disabled vehicles which were to be removed by an agreed upon deadline. Other provisions dealt with Schmitz’s prior tenant, Wolfe-Browning, Inc., which used a mobile home on one of the parcels as a business office. Finally, the Settlement Agreement provided that Schmitz would reimburse the Town for reasonable attorney fees, adjusted for previous payments made.
¶7 On June 30, 2005, Schmitz filed a counterclaim, alleging that the Town had breached the initial December 17, 2002 agreement by pursuing an enforcement action against him. He further claimed “inverse condemnation,” alleging that the Town’s continued actions against Schmitz interfered with his use and enjoyment of his property. Finally, he claimed the Town conspired to deprive him of his equal protection and due process rights “by seeking arbitrary enforcement” of the Town’s ordinances.
¶8 The Town filed a motion for summary judgment on February 1, 2006, asking the court to dismiss the counterclaims. The court granted summary judgment, dismissing with prejudice all counterclaims against the Town.
¶9 The Town subsequently filed a motion for partial summary judgment, which asked the court to address two issues: (1) whether Schmitz obtained the necessary permits for the construction activity that occurred on his property, and (2) whether the condition of Schmitz’s property constituted a public nuisance under the Town’s ordinance. In the event the court determined that Schmitz did violate the Town’s ordinances, the Town asked the court to calculate the appropriate forfeitures. Schmitz responded and submitted his own motion for partial summary judgment, asking the court to rule that the Settlement Agreement between the parties resolved the matter because Schmitz complied with the agreement.
¶10 The court held a hearing on July 16, 2007. It held that Schmitz had not complied with the Settlement Agreement and denied his motion for summary judgment. The court then granted the Town’s motion for summary judgment and, in its final order filed October 24, imposed forfeitures in the amount of $37,650. Schmitz filed a motion for reconsideration and the court held a hearing on October 24, 2007.[1] The court denied the motion and entered judgment against Schmitz. Schmitz appeals.
DISCUSSION
¶11 Schmitz presents three primary allegations of error by the circuit court. First, he contends that genuine issues of material fact should have prevented summary judgment in favor of the Town. Schmitz asserts that he had the necessary permit for the construction activity on his property and that the Town breached the Settlement Agreement of March 8, 2004, because Schmitz had complied with the terms of that agreement. Finally, he contests the forfeiture amount imposed by the court and argues that specific performance of the Settlement Agreement was the only reasonable remedy.
¶12 We review an appeal from a summary judgment de novo, applying
the same standard and following the same methodology required of the circuit
court under Wis. Stat. § 802.08
(2005-06).[2] In Preloznik v. City of Madison, 113
[T]he court, trial or appellate, first examines the pleadings to determine whether claims have been stated and a material factual issue is presented. If the complaint … states a claim and the pleadings show the existence of factual issues, the court examines the moving party’s affidavits for evidentiary facts admissible in evidence or other proof to determine whether that party has made a prima facie case for summary judgment. To make a prima facie case for summary judgment, a moving defendant must show a defense which would defeat the claim. If the moving party has made a prima facie case for summary judgment, the court examines the affidavits submitted by the opposing party for evidentiary facts and other proof to determine whether a genuine issue exists as to any material fact, or reasonable conflicting inferences may be drawn from the undisputed facts, and therefore a trial is necessary.
Summary judgment methodology prohibits the trial court from deciding an issue of fact. The court determines only whether a factual issue exists, resolving doubts in that regard against the party moving for summary judgment.
¶13 Here, the Town’s complaint alleged six ordinance violations and set forth facts supporting those allegations. Ultimately, the court granted summary judgment on three claims, two involving the construction of a concrete slab without the appropriate permits, and one involving the claimed public nuisance.[3] We begin with the building permit and the site and grading ordinance violations.
¶14 To support its motion for summary judgment, the Town submitted certified
copies of its permit fee schedule, building inspection ordinance, site and
grading plan ordinance, and relevant portions of its zoning ordinance. The permit fee schedule states that commercial
construction or remodeling with an estimated building cost of less than
$125,000 requires a building permit fee of $200.[4]
In contrast, the fee schedule states
that the permit fee for moving a building is $25. The Town issued Schmitz a $25 permit. The zoning ordinance provides in relevant
part: “Building permits issued on the
basis of plans and applications approved by the Building Inspector authorizes
(sic) only the use, arrangement and construction set forth in such approved
plans and applications. Use, arrangement
or construction at variance with that authorized shall be deemed a violation of
this ordinance.”
¶15 The parties do not dispute the applicability of these ordinances to the work performed on Schmitz’s property. The genuine issue of material fact, as Schmitz presents it, is whether the permit issued was in actuality a building permit that allowed for the construction of the concrete slab. He directs us to communication he received from Scott Roltgen, who issued the permit, stating, “Your new building will require a new commercial construction permit which will cost $200 if construction costs are under $125,000…. The Town also requires a site plan. I am enclosing the site plan requirements.” That is evidence, Schmitz asserts, that the Town understood he was seeking, and it was issuing, a new construction permit. Schmitz also points to the permit application itself, which contains several designations that this was a construction permit related to a moved-in building and a concrete foundation. Schmitz also notes that the Town listed a “moving permit $25,” as an approval condition on the permit application, strongly suggesting that the moving permit was in addition to the new construction permit. Finally, Schmitz asserts that he paid $225 for the combined construction and moving permit. He points to the Settlement Agreement of March 8, 2004, which states, “Schmitz has already paid the $225 fee for a building permit.” Schmitz explains that the Town owed him a credit of $200 for a previous transaction and simply applied it to the building permit fee.
¶16 Whether Schmitz held the appropriate permit for the type of
construction taking place is an issue material to the resolution of this case.
However, the issue must be genuine as well as material. An issue is genuine if the evidence is such
that reasonable jurors could return a verdict for the nonmoving party. Baxter v. DNR, 165
¶17 Schmitz makes much of the fact that he submitted site and
grading plans to the Town and that his documents met the requirements of the
site and grading ordinance. We understand
him to rely in part on plans he submitted in 1997, which resulted in two
permits, a construction permit and a drainage and erosion permit. He insists the March 8, 2004 Settlement Agreement
did not require professionally drawn plans for
¶18 The Town counters that Schmitz’s plans did not comply with the requirements of the Settlement Agreement. The Town concedes that Schmitz did submit a revised set of professionally prepared “Site and Drainage Plans” on April 26, 2004. The Town asserts, however, that the plans neither depicted nor described the “planned manner of installation of the existing building which Schmitz has moved onto the Premises,” as required by the Settlement Agreement. The Town further asserts that the plans also failed to (1) show the direction of drainage flow, (2) distinguish existing drainage patterns from proposed patterns, (3) depict spot grade elevations, and (4) indicate the location of all utilities.
¶19 Schmitz contends that the Settlement Agreement did not require
professionally drawn plans for
¶20 There is no genuine dispute that the plans Schmitz relied on pertaining
to
¶21 Schmitz next argues that there are genuine issues of material fact regarding the Town’s public nuisance claim. The Town’s public nuisance ordinance states in relevant part:
A public
nuisance is a thing, act, occupation, condition or use of property which shall
continue for such length of time as to: (a) Substantially annoy, injure or
endanger the comfort, health, repose or safety of the public; (b) In any way
render the public insecure in life or in the use of property; (c) Greatly
offend the public morals or decency; (d) Unlawfully and substantially interfere
with, obstruct or tend to obstruct or render dangerous for passage any street,
alley, highway, navigable body of water or other public way or the use of
public property; or (e) Any condition or use of premises or of building
exteriors which is detrimental to the property of others or which causes or
tends to cause substantial diminution in the value of other property in the
neighborhood in which such premises are located.
¶22 The Town alleged that Schmitz had violated the public nuisance
ordinance by allowing disabled, junked, or otherwise inoperable vehicles to
accumulate on the property. It further
alleged that there was an accumulation of defective buildings and other
“unsightly” items and materials that violated various provisions of the
ordinance. Specifically, the Town
alleged conditions that brought property values down, created a blighted
condition and presented a hazard. Whether
certain conditions meet a legal standard, here the Town’s ordinance definition
of public nuisance, is a question “reserved for the trier of fact.” See Vogel
v. Grant-Lafayette Elec. Co-op., 201
¶23 In support of its motion for summary judgment on this claim,
the Town submitted the affidavit of Sam Tobias, Planning and Parks Director for
¶24 Photographs taken and relied upon by the Town show the property cluttered with what appear to be boat hoists, wooden dock slats, a refrigerator, a mobile home, a BMW sedan, a semi-tractor, a building with an oversized concrete block wall on one side, and general debris. The grass is overgrown, the driving areas are undefined and covered in gravel, and there appears to be some graffiti on the concrete block wall. Patti Supple, Town Clerk, averred that the property on May 25, 2007, at the time of this lawsuit, was in “substantially the same” condition as the photographs submitted by the Town.
¶25 Schmitz argues that the area of concern is set back and not
visible to anyone using the public roads or the local airport. He disputes that the Town can show that the
condition of his property brought other property values down, created a
blighted condition or presented a hazard as required by the public nuisance
ordinance. As the nonmoving party,
Schmitz had the obligation to oppose summary judgment by advancing specific
facts showing the presence of a genuine material dispute. See Physicians
Plus Ins. Corp. v.
¶26 Schmitz submitted his own photographs to counter the Town’s
assertions. One depicts property with a
neatly mowed lawn and a paved parking lot.
It shows an existing building that appears well-kept, and there are
vehicles parked at the perimeter of the lot as if offered for sale. This view is from the corner of
¶27 Schmitz also submitted aerial photographs of Lots 1 and 2 in their entirety; unfortunately, the quality is such that distinguishing the condition of the property from that shown in the Town’s photographs is difficult. The aerial shots do indicate that airport visitors using the main parking would not have a view of the alleged nuisance area of the property. Schmitz also submitted photographs taken at ground level showing a view of his property from various vantage points at the airport. He argues from these pictures that views of his property are limited due to natural foliage and restricted access roads at the airport.
¶28 Schmitz also emphasizes that the Town has not documented any
complaints from area residents or business owners experiencing a decrease in
their property values or other economic interests as a result of the condition
of Schmitz’s property. He challenges the
opinion of Tobias as conclusory and unsupported by any evidence. Indeed, the affidavit submitted by Tobias
contains opinions, but no supporting documents are provided. None of the allegations by Tobias specifically
link the condition of Schmitz’s property to diminished “comfort, health, repose
or safety of the public,” or to “substantial diminution in the value of other
property in the neighborhood,” or to hazardous conditions or “blight.” See
¶29 Schmitz further disputes Supple’s statement that the current condition of the property is substantially the same as it was when the Town took photographs of the clutter. Schmitz points to the affidavit of Andrew Raasch, operator of Schmitz’s tenant Aqualand L.L.C.,[6] who disputed the Town’s characterization of the property and stated that the Town’s photographs “falsely and intentionally misrepresent … the existing condition” of the property. Therefore, Schmitz argues, the condition of the property constituting the alleged nuisance is in dispute.
¶30 Schmitz also asserts that the
¶31 The circuit court concluded that the affidavits and accompanying photographs submitted by the Town left no genuine issue of material fact about the existence of a public nuisance; specifically, the court referenced the nuisance ordinance’s prohibition against wrecked or unlicensed motor vehicles together with the unsightly accumulation of junk, machinery parts, appliances and other items that may tend to depreciate property values or create a blighted condition.
¶32 In its decision granting summary judgment on the nuisance claim, the court stated in relevant part that it was making “the following findings and conclusions” (emphasis added):
8. The
Town has duly adopted an Ordinance Prohibiting Public Nuisances [which]
prohibits junked, wrecked or unlicensed motor vehicles, truck bodies, the
accumulation of junk, machinery parts, appliances or any other unsightly
accumulation of items or materials such as may tend to depreciate values in the
area, or create a blighted condition.
9. Both the photographs accompanying the plaintiff’s motion and the Affidavit of Sam Tobias … support a finding that the existing condition of the defendant’s property violates [the ordinance]. The existing condition of the defendant’s property constitutes a public nuisance because it works some substantial annoyance, inconvenience, or injury to the public generally. In this regard, the Court accepts and adopts the factual assertions contained in the Affidavit of Sam Tobias, including, without limitation, that (a) the defendant’s property is among the first sights of visitors to Fond du Lac who arrive at the Fond du Lac County Airport; (b) the defendant’s property contains unsightly accumulations of junk, wood, bricks, abandoned vehicles or machinery, all of which are visible to visitors ingressing or egressing the Airport; (c) the immediate proximity of the defendant’s property to the Airport means that the property has a direct and substantial impact on the public use of the Airport including the use of the Airport for economic development purposes….; (d) the unsightly conditions of substantial portions of the property adversely affect the usefulness of the Airport as an economic development tool; (e) the strategic location of the defendant’s property on both a County Road and adjacent to U.S. 41 makes the defendant’s property highly visible to both local residents and visitors to the greater Fond du Lac community; and (f) the condition of substantial portions of the defendant’s property are unsightly and, therefore, interfere with the public’s comfortable enjoyment and use of the Airport.
(Emphasis added.)
¶33 Our review of the record indicates that Schmitz offered competing evidence as to the appearance of the property as a whole, the type of materials stored on the property, the description of the property as “unsightly,” the visibility of the disputed area, and the disputed impact on the local community. Given the competing affidavits and documents provided by the two parties, the circuit court’s “findings” are inappropriate. The court’s responsibility was to determine whether genuine issues of material fact existed, not to weigh the evidence, assess credibility, draw inferences, or make findings. Summary judgment is granted only when there is no genuine issue as to any material fact, Wis. Stat. § 802.08(2), where facts are not being asserted by one party and denied by the other. Formal findings of fact by the circuit court are not part of the summary judgment methodology. Accordingly, summary judgment on the Town’s nuisance claim was error.
¶34 Finally, we turn to the issue of the forfeitures imposed. The circuit court awarded the Town a total of $37,650. The court arrived at this amount by first finding that Schmitz had violated the Town’s building permit inspection ordinance, the site and grading plan ordinance, and the public nuisance ordinance. The court held that, because the violations were concurrent, the lowest daily forfeiture of $25 per day would be “appropriate and equitable.”[8] The court then found that Schmitz had “actual notice of the violations described above no later than June 2, 2003, the date on which the Summons and Complaint were served ….” It calculated that Schmitz had notice that he was in continuing violation of the ordinances from the date of service through the date of the summary judgment hearing on July 16, 2007, for a total of 1506 days. The court awarded the Town $37,650 accordingly.
¶35 It is well settled that when a municipal board, acting within
its authority, sets minimum and maximum forfeitures for specific ordinance
violations, the circuit court has no authority to impose less than the minimum
forfeiture.
¶36 Schmitz argues that his compliance with the ordinances was excused once the Settlement Agreement was reached on March 8, 2004. By Schmitz’s calculation, the proper formula would incorporate a $25 daily forfeiture from the date of service on June 2, 2003, to the date of the Settlement Agreement on March 8, 2004, for a total forfeiture of $7025. Schmitz offers no legal authority to support his position, but attempts to distinguish his case from Village of Sister Bay, where the court held that a circuit court cannot ignore an ordinance that clearly sets a minimum forfeiture for a violation and defines each day of noncompliance as a separate violation. See id. at 479. Schmitz argues that the critical difference here is the impact of the Settlement Agreement. He specifically contends:
Schmitz’s compliance with the ordinance was excused while the parties performed the Settlement Agreement that existed resolving the claim. As of March 8, 2004, the Town informed Schmitz that the terms of the Agreement, not the terms of the ordinance controlled. So fining Schmitz for violating an ordinance during a period of time that the ordinance’s application was suspended by agreement between the parties is simply wrong….
¶37 The Town responds that, by the terms of the Settlement
Agreement, it expressly reserved the right to seek forfeitures for ongoing
violations in the event Schmitz did not meet his obligations under the Settlement
Agreement. The construction of a Settlement
Agreement, as guided by contract law, presents a question of law for our de
novo review. See Borchardt v. Wilk, 156
¶38 The terms of the Settlement Agreement between Schmitz and the Town are clearly stated. The parties agreed to attempt to “voluntarily resolve the matter without further litigation,” and engaged in a cooperative effort to bring Schmitz into compliance. The Settlement Agreement set certain deadlines which Schmitz was required to meet. For example, Schmitz was to submit all required professionally-prepared plans by May 1, 2004. He was to provide additional renderings showing the existing building and proposed future expansions no later than May 30. He was to remove certain items, including seven disabled vehicles, from the property or have appropriate opaque screening installed by June 30. The record reveals that, though some progress was made, Schmitz did not meet all of the terms of the Settlement Agreement. Correspondence between the parties on July 8, August 6, August 18, and September 10, 2004, discussed what the Town considered the deficiencies in Schmitz’s efforts. On December 14, 2004, the Town advised Schmitz that he had “not complied with various provisions” of the Settlement Agreement and that, as a result, the Town would resume litigation.
¶39 Under the Settlement Agreement, the parties also established that “in the event the requirements set forth in this Agreement are not met,” neither party had waived any available remedy. This provision clearly states that the daily forfeiture remained available to the Town if Schmitz failed to meet his obligations. The Town expressly reserved the right to seek forfeitures under its municipal ordinances.
¶40 We understand Schmitz to argue that fairness and equity should
work to prevent the Town from collecting forfeitures while a settlement plan
was in place and while he was working in good faith to comply with the
terms. Though it may be a reasonable
argument to make, there is simply no law to support it. The Town had the right to seek forfeitures
for each violation, and each day that Schmitz failed to comply with the
ordinance counted as a separate violation.
Neither the circuit court nor this court has the authority to calculate
the forfeiture award in any other way.
¶41 In the alternative, Schmitz asserts that the only reasonable
remedy, “given the exorbitant fine imposed, would have been to order specific
performance of the March 8, 2004 Settlement Agreement.” Schmitz urges that specific performance of
the contract, specifically ordering Schmitz to furnish adequate plans to the
Town, would have been appropriate here because there is a binding Settlement Agreement
between Schmitz and the Town. See Krause v. Holand, 33
¶42 The Town responds that as the plaintiff, it has the choice of
which remedy to pursue. See Harris v. Metropolitan Mall, 112
CONCLUSION
¶43 The Town never issued a building permit or site and grading
permit to Schmitz for work in progress on his property. The circuit court properly granted summary
judgment on these claims. Furthermore, the
forfeiture award is supported by the record and is not subject to discretionary
tinkering by a court.
By the Court.—Judgment affirmed in part; reversed in part and cause remanded with directions.
Not recommended for publication in the official reports.
[1] At the close of the summary judgment hearing on July 16, the parties indicated a willingness to negotiate the amount of forfeitures that would ultimately be imposed. Because the negotiations were unsuccessful, the Town submitted a proposed order for summary judgment. On September 26, Schmitz submitted his motion for reconsideration. The court deferred signing the Town’s proposed summary judgment order until a motion hearing took place on October 24. Consequently, the date of the final summary judgment order and the date of the hearing on Schmitz’s motion for reconsideration of that order are both October 24, 2007.
[2] All references to the Wisconsin Statutes are to the 2005-06 version.
[3] The remaining three claims arose from the construction of a parking lot without the appropriate permits and the storage and use of a mobile home on the property. The Town’s brief asserts that the circuit court found Schmitz in violation of the zoning ordinance because of the parking lot and storage area associated with the moved building. The summary judgment decision confirms that the court focused on the construction of the concrete slab, and that it concluded three concurrent ordinance violations occurred.
[4] On his permit application, Schmitz indicated that the estimated building cost was $4500.
[5] Where
a public nuisance ordinance exists, we apply the language of the ordinance
rather than the common law definition of “public nuisance.” See
Town
of Rhine v. Bizzell, 2008 WI 76, ¶¶66-68, ___
[6] Wolfe-Browning, Inc. was Schmitz’s tenant from January 1999 through January 2004. The business “specialized in the fabrication and sales of piers, boatlifts and utility trailers.” In May 2004, Aqualand L.L.C. began operations in place of Wolfe-Browning. Aqualand engages in the construction and sale of boatlifts and piers.
[7] Tobias
offered no estimate of the volume of traffic at the
[8] The Town does not dispute this on appeal.