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COURT
OF APPEALS DECISION DATED AND RELEASED JUNE 13, 1995 |
NOTICE |
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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. 94-2788-FT
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
ROBERT PULS AND MARY
PULS,
Plaintiffs-Appellants,
v.
RICHARD MEYER AND
MOLLY MEYER,
Defendants-Respondents,
v.
HARLAN AND NANCY CHRISTIANSON,
WILLIAM AND KATHY KRAUSE AND
DONALD AND GLORIA VAN ROO,
Defendants Third-Party Plaintiffs-Respondents,
TOWN OF BERGEN, A MUNICIPAL
CORPORATION,
Third-Party Defendant.
APPEAL from a judgment
of the circuit court for Marathon
County: RAYMOND F. THUMS, Judge. Reversed and cause remanded.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER CURIAM. Robert and Mary Puls appeal a summary
judgment dismissing their action for money damages and equitable relief based
upon alleged violations of the Town of Bergen zoning ordinance.[1] The issues raised on appeal are whether (1)
this court has jurisdiction and (2) the ordinance permits sheds, mobile homes
and trailers to be used for camping on property zoned RS-1, single family
residential.
Because the order for
partial summary judgment is nonfinal, we interpret the Puls' notice as a
petition for leave to appeal and grant leave, thus obtaining jurisdiction. We conclude that the zoning ordinance does
not permit camper trailers and mobile homes to be kept on the RS-1 zoned
lots. We also conclude that two issues
of fact are presented: (1) whether the Meyers' trailer is an accessory use and
(2) whether the Van Roos use their shed as a dwelling. We therefore reverse the partial summary
judgment dismissing the Puls' claims concerning zoning violations and remand
for further proceedings.
This matter involves
lots in the Lakehurst subdivision of the Town of Bergen in a district zoned
RS-1, single family residential. The
Puls' complaint states that they are homeowners and Paula and Molly Meyer,
Harlan and Nancy Christianson, William and Kathy Krause, and Donald and Gloria
Van Roo, the defendants, violated deed restrictions and zoning ordinances in a
variety of ways and sought injunctive relief enforcing deed restrictions and
town zoning ordinance, together with compensatory and punitive damages. The Puls complain that the Meyers, the
Christiansons and the Krauses keep camper trailers or mobile homes on their
lots. They also complain that the Van
Roos use a 200-square-foot shed for residential purposes.
The defendants moved for
a partial summary judgment declaring that their activities are not barred by
the Town's zoning ordinance. The
Christiansons and Krauses filed affidavits that they each have a mobile home
"designed to be transported by a motor vehicle on a public highway"
on their lots "resting on a concrete slab ... and has septic, water and
electrical connections." Gloria
Van Roo filed an affidavit that they do not use their shed for residential
purposes and only stayed overnight in it occasionally. The Van Roos stated that they never had a
permanent water system but would run a garden hose to the shed for water. The defendants maintain that they obtained
permission from the Eau Pleine Homeowner's Association each year that they
camped and that the Van Roos obtained the necessary permits to build their
shed. The trial
court entered a partial summary judgment that the zoning ordinance "does
not, on its face or interpretation, prohibit intermittent recreational or
mobile home use of the properties such as that enjoyed by defendants ...." It entered a later order dismissing the Town
as a party. The Puls appeal the court's
ruling dismissing their zoning violation claims. The record suggests that the Puls' claims arising out of the
alleged violations of deed restrictions remain pending.
1. Jurisdictional issue
An order or judgment, to
be appealable as of right, must dispose of the entire matter in litigation as
to one or more of the parties. Section
808.03(1), Stats. An appeal may be final as to one party, but
nonfinal as to others. Culbert v.
Young, 140 Wis.2d 821, 825, 412 N.W.2d 551, 553 (Ct. App. 1987). A nonfinal order may be reviewed by a
permissive appeal, the granting of which is within the discretion of the court
of appeals.[2] Section 808.03(2), Stats.
The defendants contend
that the Puls' notice of appeal is defective because it appeals the September 8, 1994, order dismissing the Town
of Bergen, not the August 9, 1994, order for partial summary judgment
dismissing the Puls' claims against the defendants for zoning violations.[3] They argue that because the Puls' claims
were against the defendants, not the Town, the Puls appealed the wrong order
and the notice of appeal is jurisdictionally defective.
The defendants'
jurisdictional challenge is misdirected.
We conclude that reference to the September 8 order does not render the
notice defective. There is no doubt
what was appealed. Rhyner v. Sauk
County, 118 Wis.2d 324, 326, 348 N.W.2d 588, 589 (Ct. App. 1984). The notice adequately informs the defendants
that the Puls desired to challenge the ruling adverse to them with respect to
zoning.
However, the record indicates that there
remain pending claims by the Puls against the defendants with respect to
restrictive covenants.[4] Because there remain pending claims between
the parties, the order granting partial summary judgment is nonfinal. See Culbert, 140 Wis.2d
at 825, 412 N.W.2d at 553. Neither
party addresses the finality issues.
Nonetheless, because the Puls have shown a substantial likelihood of
success on the merits and because the disposition of this appeal will clarify
further proceedings, we construe the Puls' notice as a petition for leave to
appeal and exercise our discretion to grant leave. See § 808.03, Stats. We have jurisdiction over this appeal.
2. Summary judgment
The issue on appeal requires
the interpretation of the Town's zoning ordinance. When interpreting a municipal ordinance, we give effect to the
legislative intent reflected in its language.
County of Columbia v. Bylewski, 94 Wis.2d 153, 168, 288
N.W.2d 129, 137 (1980). "The intent
of a given section must be derived from the ordinance as a whole." Id.
Moreover,
an ordinance "must be confined to such subjects or applications as are
obviously within its terms and purposes, but it does not require such an
unreasonably technical construction that words cannot be given their fair and
sensible meaning in accord with the obvious intent of the legislative
body."
Id.
(quoting 6 E. McQuillin, Law of
Municipal Corporations, § 20.49 at 133 (3d ed. 1969)). The interpretation of an ordinance, like
that of a statute, is appropriate for summary judgment determination. See Kania v. Airborne Freight
Corp., 99 Wis.2d 746, 763, 300 N.W.2d 63, 70 (1981).
The Town's 1975 zoning
ordinance plainly states that only those uses specifically authorized are
permitted. Article III, § 9 (1)
provides that "no building or land shall be used" except as stated in
the ordinance for that district.
However, "accessory buildings and uses customarily incident to the
permitted uses in that district shall be permitted subject to such requirements
as may be designated for that district in which they are located." Article III, § 11.
The zoning ordinance
divides the Town into 10 districts, including residential, conservancy,
agricultural, recreational, commercial and industrial. Article V of the ordinance provides:
Section 2. RS-1
SINGLE FAMILY (RESIDENCE DISTRICT
SECTION 3. PERMITTED USES:
....
(4) Single family dwellings designed for
and occupied exclusively by one family, but not including a house trailer or
mobile home.
....
(7)
Accessory buildings, including private garages and buildings clearly incidental
to the residential use of the property, provided, however, that no accessory
building may be used as a separate dwelling unit.
Article VI, entitled
"RS-2 SINGLE FAMILY RESIDENCE DISTRICT" permits any use
permitted in the RS-1 district and
(2)
Mobile homes, as detached single family dwellings, provided the mobile home and
the lot upon which it is located have a common ownership and ... permanent
foundation ....
There is no claim of
ambiguity made in this case. The
ordinance permits only those uses specifically authorized and uses "customarily
incident" to permitted uses. Here,
the plain language of the Town's ordinance states that in areas zoned RS-1,
single family dwellings are permitted, but not house trailers or mobile homes. There is no dispute that the Christiansons
and the Krauses have placed mobile homes on their lots, which are zoned
RS-1. The mobile homes are not a
permitted use under the ordinance in RS-1 zoned lots, but are permitted on RS-2
zoned lots.
The Christiansons and
the Krauses argue that because they "camp" instead of
"dwell" in the mobile home, they are not in violation of the zoning
ordinance. We disagree. The intent of the ordinance is plain and
unambiguous from the ordinary meaning of its language. Single family dwellings, not including
mobile homes or trailers, are permitted.
The ordinance lists no exceptions based upon the type of activity that
takes place in the mobile home or trailer.
The defendants contend
that because no occupancy permit is required for camping, and camping in mobile
homes is not expressly prohibited, they do not violate the zoning
ordinance. We are not persuaded. The plain language of the ordinance
expressly permits single family dwellings, not including mobile homes or
trailers on RS-1 zoned lots. Its intent
to exclude mobile homes and trailers as nonpermanent dwellings is plain from
its terms as well as from the ordinance as a whole.
The defendants also
argue that the Eau Pleine Homeowner's Association implicitly approved camping
by charging extra association fees to persons with trailers or mobile homes on
their lots. They contend that long
established practices illustrate that the ordinance permits mobile home
camping. We disagree. The failure to enforce zoning laws at an
earlier point in time does not prevent the municipality from later seeking
enforcement. Milwaukee v.
Leavitt, 31 Wis.2d 72, 76-77, 142 N.W.2d 169, 171-72 (1966).
The Christiansons and
the Krauses also argue that our interpretation of the ordinance requires the
conclusion that a child could not set up a lemonade stand or play a game of
softball because these activities are not "authorized" under the
zoning ordinance. These facts are not
before us and therefore we need not give a hypothetical opinion. State v. Courtney, 74 Wis.2d
705, 713, 247 N.W.2d 714, 719 (1976).
In a three-sentence
paragraph, the Krauses and the Christiansons challenge the constitutionality of
the Town zoning ordinance, contending that they have the right to be free of
unreasonable and illegal restraints on the use of their property. The ordinance is presumed valid, and the
challengers bear the burden of establishing its unconstitutionality beyond a
reasonable doubt. In re Estate of
Peterson, 66 Wis.2d 535, 538, 225 N.W.2d 644, 645 (1975). We observe that zoning requirements regarding
mobile homes that are different for those for single family dwellings have
withstood constitutional challenges based upon equal protection. Edelbeck v. Theresa, 57 Wis.2d
172, 180-81, 203 N.W.2d 694, 698 (1973).
In any event, their argument on appeal is not sufficiently developed to
permit review. State v. Gulrud,
140 Wis.2d 721, 730, 412 N.W.2d 139, 142 (Ct. App. 1987).
The plain language of
the ordinance also prohibits sheds to be used as dwelling units. Here, the Van Roos contend that they do not
use their shed as a dwelling unit, but have stayed in it occasionally. Because conflicting inferences may be drawn
from their affidavit as to the extent of their use of the shed, a factual issue
is presented not suitable for summary judgment determination.
The
Meyers contend that they have a single family dwelling on their lot that
conforms with the zoning ordinance.
They claim the storage of their camper trailer on a contiguous lot falls
within the meaning of "accessory use under" art. III § 11. Whether their camper storage is
"accessory" or "customarily incident" to a permitted use
also presents factual issues not sufficiently developed by the record to permit
summary judgment.
Therefore, we reverse
the judgment dismissing the Puls' claims based upon the alleged violations of
the zoning ordinance, direct the trial court to enter summary judgment that the
Krauses and Christiansons violated the ordinance by camping in mobile homes on
their RS-1 single family residential lots, and remand the matter to the trial
court for factual determinations whether the Meyers and Van Roos violate the
ordinance, as well as for further proceedings concerning the remaining causes
of action, damages and other relief.
By the Court.—Order
reversed and cause remanded.
This opinion will not be
published. Rule 809.23(1)(b)5, Stats.
[2] Extensions of time to file a petition for leave to appeal nonfinal orders are within the court's discretion. Section 809.82(2), Stats.
[3]
The notice of appeal states that the Puls appeal:
the Order of Dismissal re: Town of Bergen entered on September 8, 1994 in the Circuit Court for Marathon County, the Honorable Raymond F. Thums presiding, Case No. 91-CV-621 in favor of the Defendants and Third Party Plaintiffs and against the Plaintiffs, wherein the Court dismissed and removed the Town of Bergen as a party to the action and thereby dismissed all causes of action relating to violations of the Town of Bergen Zoning Ordinance.
[4] The Puls' claims were made against the defendants, not the Town of Bergen. The Town was made a third-party defendant to litigate the validity of the Town's camping ordinance. The validity of the camping ordinance is not an issue on appeal. The notice of appeal and the parties' briefs demonstrate that the issue on appeal is the trial court's interpretation of the zoning ordinance.