COURT OF
APPEALS DECISION DATED AND
RELEASED July
31, 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. 95-0873
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
SLOUGH
CREEK PROPERTIES,
Plaintiff-Appellant,
v.
COLUMBIA
COUNTY, WISCONSIN,
Defendant-Respondent.
APPEAL
from an order of the circuit court for Columbia County: RICHARD
REHM, Judge. Affirmed.
Before
Gartzke, P.J., Dykman and Vergeront, JJ.
VERGERONT,
J. Slough Creek Properties, a
partnership, appeals from an order declaring that it violated the Columbia
County Zoning Ordinance by keeping camper trailers and a motor home on property
zoned as agricultural. The order also
enjoins the partnership from keeping trailers and motor homes on its property.[1] We conclude that the trial court correctly
interpreted the ordinance and we affirm.
The
parties have stipulated to the pertinent facts. Slough Creek Properties is a partnership consisting of four
partners who own property in Columbia County.
The property is used for hunting and camping, and is zoned agricultural
under the Columbia County Zoning Ordinance.
There are four units on the property.
One is a motor home, which the owner uses to travel to and from the
property and takes home when he leaves the property. The motor home is not left on the property unattended and is not
stored there. The other three units are
camper trailers that are on wheels and capable of being moved, although they
rarely are. One of the camper trailers
is thirty-three feet in length and two are twenty-seven feet in length. The camper trailers are not suitable for,
nor used as, houses. They are used as
overnight shelters, as a tent would be used, principally during the hunting
season and for a few nights in the summer.
None of the units are suitable for use as dwellings and none could
reasonably be used as single-family residences.
There
is a free-standing outhouse on the property, but no bathing facilities. There is no plumbing or electricity
connected to any of the camper trailers.
One of the camper trailers has a small, unattached deck built next to
it. The back stands on concrete blocks
and there is no footing except the blocks.
The deck could be picked up and moved.
The other camper trailers have free-standing screened-in porches next to
them, which are dismantled and stored every fall.
The
interpretation of an ordinance and its application to an undisputed set of
facts presents a question of law, which this court reviews de novo. Browndale Int'l Ltd. v. Board of
Adjustment, 60 Wis.2d 182, 199, 208 N.W.2d 121, 130 (1973), cert.
denied, 416 U.S. 939 (1974).
Section
11.04, Columbia County Zoning Ordinance,
provides in part:
AGRICULTURAL
DISTRICT. Use. In the Agricultural
District no building or premises shall be used and no building shall hereafter
be erected, moved or structurally altered unless otherwise provided in this
section, except for one or more of the following uses....[2]
Section
11.21, Columbia County Zoning Ordinance,
contains these definitions:
BUILDING: A structure having a roof supported by
columns or walls. Each portion of a
building separated by division walls from the ground up, without openings in
those walls, is a separate building for the purpose of this ordinance. No part of said building shall contain in
any part a trailer as defined in this section except when the trailer is
located in a licensed campground or mobile home park. Such addition to a trailer in a mobile home park shall not exceed
fifty (50) percent of the trailer's floor area.
....
MOBILE
HOME: A mobile home is that which is or
was originally constructed or designed to be transported by any motor vehicle
upon a public highway to a site, and designed, equipped and used primarily for
permanent, long-term sleeping, eating, and living quarters for a single-family,
or is intended to be so used, and includes any additions, attachments, annexes,
foundations and appurtenances and arrives at the site complete and ready for
occupancy, except for minor and incidental unpacking and assembly operations.
....
STRUCTURE: Anything constructed or erected, the use of
which requires a more or less permanent location on the ground, or attachment
to something having a permanent location on the ground, except that no part of
said structure shall contain in any part a trailer as defined in this section.
....
TRAILER. Any
vehicle, house car, camp car, or any portable or mobile vehicle on wheels,
skids, rollers or blocks, either self-propelled or propelled by any other
means, which is used or designed to be used for residential, living or sleeping
purposes.
The
parties apparently agree that the camper trailers meet the definition of
"trailer." We conclude they
do because they are "portable ... vehicle[s] on wheels ... self-propelled
or propelled by any other means ... which [are] used or designed to be used for
... sleeping purposes." We are not
certain what definitional category the parties think is appropriate for the
motor home. At times the parties and the
trial court appear to consider the terms "motor home" and
"mobile home" to be the same.
We do not agree. We conclude
that the motor home as described in the stipulated facts, a spare description
to be sure, does not come within the definition of "mobile
home." There is no indication that
the motor home is "designed to be transported by [a] motor vehicle ... to
a site, and designed, equipped and used [or intended to be used] primarily for
permanent, long-term sleeping, eating, and living quarters for a
single-family." We conclude,
however, that the motor home does come within the definition of
"trailer" because it is a "mobile vehicle on wheels ...
self-propelled ... which is used or designed to be used for ... sleeping
purposes."[3]
Although
the parties agree that the camper trailers and motor home are not buildings or
structures, they reach opposite conclusions from that point of agreement. The partnership contends that § 11.04, Columbia County Zoning Ordinance,
regulates only the erection and uses of buildings and structures and does not
regulate activities generally in agricultural districts. According to the partnership, because the
camper trailers and motor home are not buildings or structures and the
partnership's activities do not involve the use of buildings or structures,
§ 11.04 does not address the placement or use of the camper trailers and
motor home on the partnership's property.
Columbia County responds that, precisely because camper trailers and
motor homes are not buildings, they are not permitted in agricultural
districts. Columbia County, like the
trial court, relies on County of Columbia v. Bylewski, 94 Wis.2d
153, 288 N.W.2d 129 (1980).
In
Bylewski, the court interpreted § 11.07, Columbia County Zoning Ordinance, which governs recreational
districts. The prefatory language of §§
11.04 and 11.07, Columbia County Zoning
Ordinance, is identical except for the reference to agricultural
district in § 11.04 and to recreational district in § 11.07.[4] In Bylewski, Columbia County
argued that the owner of a mobile home violated § 11.07 when he replaced an
existing nonconforming mobile home with another mobile home, because mobile
homes were not buildings and were therefore not permitted in a recreational
district. The court agreed, stating:
The obvious intent of the Columbia county board in
enacting sec. 11.07 was to limit the type and use of structures in a
"recreation district" to those structures which could be classified
as a "building" as that term is defined in the ordinance. In view of the general rule of statutory
construction, expressio unius est exclusio alterius (the expression of
one thing is the exclusion of another) which provides that "... the
express mention of one matter excludes other similar matters not
mentioned," all structures not classifiable as a building, such as
trailers or mobile homes, are prohibited from recreation districts pursuant to
the ordinance. The question that
remains is whether the appellant's mobile home qualifies as a building and thus
the type of structure permitted by ordinance to be located on property in a
"recreation district" or is it a structure prohibited by the
ordinance.
Bylewski, 94 Wis.2d at 168-69, 288 N.W.2d at 137 (footnotes omitted).
The
definition of "trailer" considered by the Bylewski
court is the same as that governing this case.
See Bylewski, 94 Wis.2d at 168 n.6, 288 N.W.2d at
137. The definition of "mobile
home" was different: a
"portable or mobile vehicle on wheels, ... blocks, either self-propelled
or propelled by any other means" and used for residential housing or
sleeping purposes. Id. at
169, 288 N.W.2d at 137. The court in Bylewski
concluded that the replacement mobile home met this definition of mobile home
and that this definition of mobile home fell within the definition of trailer.[5] Id. at 169-70, 288 N.W.2d at
138. The court also concluded that a
trailer did not qualify as a building under the ordinance because a building
was defined in § 11.21, Columbia
County Zoning Ordinance, as "a structure having a roof supported by
columns or walls but which is not a `trailer' as that term is defined in the
code." Id. at 168,
288 N.W.2d at 137 (footnote omitted).
The definition of "building" the Bylewski court
referred to is, in all relevant respects, the same as that governing this case.[6]
Bylewski requires that we reject the partnership's argument that
because the camper trailers and motor home are not buildings, they are not
prohibited by § 11.04, Columbia County
Zoning Ordinance. The court in Bylewski
interpreted the identical prefatory language in § 11.07, Columbia County Zoning Ordinance, to
mean that only buildings as defined in the ordinance are permitted.
We
agree with the partnership that the supreme court's analysis in Bylewski
does not provide a satisfactory framework for resolving a number of questions
that this ordinance might raise. And
were we writing on a clean slate, we might well come to a different conclusion
than did the Bylewski court.
However, we may not disregard Bylewski. Bylewski holds that a trailer
is prohibited in a recreational district because it is not a building. Both a camper trailer and a motor home come
within the definition of "trailer" in § 11.21. Because the language at issue in this
case--the prefatory language of § 11.04 and the definitions of
"building" and "trailer" in § 11.21--is the same in all
significant respects as that interpreted in Bylewski, we must
follow Bylewski. We
conclude that the camper trailers and motor home kept on the partnership's
property are not permitted in an agricultural district.
By
the Court.—Order affirmed.
Not recommended for
publication in the official reports.
[1] Slough Creek Properties filed a complaint
requesting a declaratory judgment that the camper trailers and motor home are
not "structures" within the meaning of the Columbia County Zoning
Ordinance and did not violate the Columbia County Zoning Ordinance. Columbia County filed a counterclaim
requesting injunctive relief and a forfeiture.
The court declined to impose a forfeiture pending compliance with the
injunction.
[2] The specified uses in § 11.04, Columbia County Zoning Ordinance, are:
1. General
farming, ....
2. Not
to exceed two single family residences or one two family residence when the
occupant or head of the occupant household of both units are employed in
connection with the farm operation....
3. Not
to exceed one mobile home on any operating farm when the occupant or head of
the occupant household of such mobile home is employed in connection with the
farm operation....
4. Telephone,
telegraph and power distribution towers, poles and lines ....
5. Road
side stands....
6. Residential
units when created through farm consolidation as provided in 11.04, Paragraph
2.
7. The
following conditional uses are limited to those religious, utility (other than
those listed above), institutional, governmental, and agricultural related uses
which do not conflict with agricultural use and are found to be necessary in
light of the alternative locations available for such use when the location of
each such use shall have been approved in writing by the Board of Adjustment,
after a public hearing and after a view of the proposed site of sites....
(e) Radio and
television transmission towers, microwave and radio relay towers.
(f) Medical,
correctional or charitable institutions.
(g) Migrant
labor camps ....
(h) Real
estate, insurance, seed, fertilizer, or other sales office, only when
incidental to the principal use of the District....
(i) Solid
Waste Disposal Site.
(j) Farm
family business, as defined in Chapter 91, Wisconsin Statutes ....
Section 11.04 also contains provisions regarding height,
yard, area and other requirements.
[3] Paragraph 8 of the stipulated set of facts
states:
These units are
suitable for camping in reasonably good weather, but are not suitable for
dwellings, and could not reasonably be used as a single-family residence.
We
interpret the reference to "these units" to mean all four units. Even if this reference were meant to refer
only to the three camper trailers, the remaining description of the motor home
in the stipulated facts does not meet the definition of "mobile
home."
[4] The version of § 11.07, Columbia County Zoning Ordinance,
referred to in County of Columbia v. Bylewski, 94 Wis.2d 153, 288
N.W.2d 129 (1980), was:
11.07 RECREATION
DISTRICT. In the recreation district no
building or premises shall be used and no building shall hereafter be erected,
moved or structurally altered, unless otherwise provided for in this ordinance,
except for one or more of the following specified uses:
1. Single family homes for year round
occupancy.
2. Cottages for seasonable occupancy.
The prefatory language has remained unchanged but a
number of other permitted uses have been added.
[5] The current definition of mobile home in §
11.21, Columbia County Zoning Ordinance,
cited earlier in this opinion, does not fall within the definition of
"trailer" but sets up a distinct definitional category.
[6] The definition of "building" in Bylewski
was:
A structure having
a roof supported by columns or walls.
Each portion of a building separated by division walls from the ground
up, without openings in those walls, is a separate building for the purpose of
this ordinance, except that no part of said building shall contain in any part
a trailer as defined in this section.
Bylewski, 94 Wis.2d at 158 n.1, 288 N.W.2d at 132. Although the court in Bylewski did not address the
definition of "structure," it appears that the current definition of
"structure" was contained in the version of § 11.21, Columbia County Zoning Ordinance,
considered in Bylewski.