COURT OF APPEALS DECISION DATED AND RELEASED DECEMBER 12, 1995 |
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(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-1223
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
ROBERT M. PACE,
Plaintiff-Appellant,
JEAN PACE and ALL
OWNERS OF BOATHOUSES
LOCATED BEYOND THE
ORDINARY HIGH WATERMARK
OF NAVIGABLE WATERWAYS
LOCATED IN ONEIDA
COUNTY, WISCONSIN,
Plaintiffs,
v.
ONEIDA COUNTY,
Defendant-Respondent,
STATE OF WISCONSIN,
Intervenor-Respondent.
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ONEIDA COUNTY, STATE
OF WISCONSIN,
a municipal
corporation,
Plaintiff-Respondent,
STATE OF WISCONSIN,
Intervenor-Respondent,
ROBERT M. PACE,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Oneida County:
MARK A. MANGERSON, Judge. Affirmed
in part; reversed in part and cause remanded.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER
CURIAM. Robert Pace appeals a summary judgment concluding that
he violated provisions of the Oneida County Zoning and Shorelines Protections
Ordinance by building a new wet boathouse without first obtaining a
permit. The court imposed a $10 per day
forfeiture for each day of violation and ordered that the boathouse be
removed. Pace argues that he should not
have been required to exhaust his administrative remedies before presenting
some defenses to this action, that an outstanding issue of material fact
precludes summary judgment and that the forfeiture was excessive. We conclude that Pace was not required to
exhaust his administrative remedies before challenging for the validity of the
ordinance. All other defenses were
properly rejected by the trial court based on Pace's failure to seek court
review of the Board of Adjustment decision.
The sentence constitutes a proper exercise of the trial court's
discretion. We therefore affirm in
part, reverse in part and remand for further proceedings.
Pace's original
boathouse was destroyed by heavy snow and fire. The zoning administrator denied his request for a permit to
replace the boathouse, concluding that the boathouse could not be repaired
under the Oneida County Shoreline Zoning Ordinance. Pace appealed that decision to the Oneida Board of Adjustment and
that appeal was denied. Despite
receiving notice of his right to appeal to the circuit court, Pace did not file
an appeal. Rather, he informed the
Board that he intended to build the boathouse without a permit and if the
administrator came around, "he better have a gun." That threat was repeated in a letter to a
county board member.
After Pace completed
construction of his new boathouse, the County brought this action seeking
removal of the illegal structure and a forfeiture. Pace defended on the grounds that the Board of Adjustment
violated due process by not swearing all of the witnesses that made statements
before the Board, that the new boathouse is not in violation of the ordinance
because the repairs to the boathouse did not exceed 50% of the current market
value and that Pace was the victim of selective prosecution. After the trial court granted partial
summary judgment to the County and allowed additional time for discovery on the
selective prosecution defense, Pace filed an amended answer also alleging that
the ordinance constituted a taking of property without compensation. When Pace failed to conduct additional
discovery on the selective prosecution defense, the trial court granted summary
judgment to the county on all issues.
In its findings of fact and conclusions of law, the court itemized the
defenses raised in the final amended answer, and ruled that the issue of
whether the ordinance created a taking without compensation was waived because
Pace did not raise that issue by appealing the board of adjustment's decision.
The law relating to
exhaustion of administrative remedies was set out in Jefferson County v.
Timmel, 269 Wis. 39, 63, 51 N.W.2d 518, 530 (1952): if a zoning
ordinance provides for appeal to a board of adjustment and court review of the
board's decision or order is specifically provided for by statute, that remedy
is exclusive of all other remedies and must be exhausted before a party can
resort to the courts for other relief "except in cases where the validity
of the ordinance itself is attacked."
Because Pace challenges the validity of the ordinance as a taking
without compensation, that issue cannot be resolved based solely on Pace's
failure to exhaust his administrative remedies. Therefore, we reverse that part of the summary judgment disposing
of the taking issue and remand the cause to the trial court to consider the
merits of that issue.
The trial court properly
rejected the remaining defenses based on Pace's failure to exhaust
administrative remedies. The factors
that are considered in determining whether to consider an issue raised in an
enforcement action when the party failed to seek judicial review of the
underlying administrative decision are (1) whether the question presented
in the enforcement action is the same as would have been presented in a
certiorari action; (2) what issues remain outstanding; (3) whether
the record indicates that the defendant in the enforcement action had a sound
defense; and (4) whether application of the exhaustion doctrine would be
harsh. See County of Sauk
v. Trager, 118 Wis.2d 204, 215-16, 246 N.W.2d 756, 761-62 (1984). Pace's defenses do not satisfy these
criteria.
Pace first contends that
the Board of Adjustment violated his due process rights by not swearing in all
of the witnesses who spoke at the hearing.
The "witnesses" in question provided their legal analysis, not
factual information. This procedural
anomaly provides no defense for Pace's deliberate decision to build the
boathouse without a permit.
Pace's next defense was
that the new boathouse is not in violation of the ordinance because it did not
exceed the 50% limit. In support of
that argument, he presents substantial evidence that was never presented to the
board. That evidence, however, is
internally inconsistent and contradictory and does not establish that the
board's decision was incorrect. This
information appears to be an attempt to circumvent the Board's fact-finding
authority and the court's deferential standard of review.
As to the selective
prosecution defense, the trial court allowed Pace additional time to conduct
discovery to support that defense. Pace
conducted no additional discovery during that time. The court properly concluded that his bare allegations,
unsupported by any evidence, do not constitute a defense to this action.
From the onset, Pace has
attempted to circumvent the board's decision.
He failed to cooperate with county authorities during discovery, failed
to prove the existence of a recognizable hardship for which variances are granted
and failed to offer any credible evidence that could be utilized in the
application of the 50% rule. When
presented with an adverse ruling by the board, Pace responded with threats and
refusal to abide by the board's decision rather than seeking review in the
circuit court. The hardships of the
fine and injunction to remove the boathouse are hardships created by Pace and
do not provide any basis for ignoring his failure to exhaust administrative
remedies.
Pace next argues that
the trial court should not have granted summary judgment because there remain
outstanding issues of material fact.
The facts cited, relating to the 50% rule, are not material facts
because the trial court correctly determined that the issue was barred by
Pace's failure to exhaust administrative remedies.
Pace argues that the
sentence was excessive. The trial court
imposed the minimum forfeiture of $10 per day for each day of violation. Pace contends that the court should not have
included the days in which the proceedings were adjourned pending a decision in
Oneida v. Converse, 173 Wis.2d 78, 496 N.W.2d 124 (Ct. App.
1992), rev'd, 180 Wis.2d 120, 508 N.W.2d 416 (1993). The trial court imposed a forfeiture for the
time in which the Converse case was being decided for two reasons. First, the court imposed the minimum daily
forfeiture even though there were substantial aggravating circumstances. Had the court reduced the number of days of
violation, it would have been appropriate to increase the amount of the daily
forfeitures. Pace has enjoyed the
benefits of his illegal construction throughout the pendency of this
action. Second, the court noted that
Pace had throughout these proceedings indicated an intent to ignore the zoning
ordinance and demonstrated disregard for the law.
Finally, Pace argues
that recent changes to § 30.121, Stats.,
constitute a "new factor" that should be considered when deciding
Pace's permit application and the penalty.
This issue was not raised before the board or in the trial court and
will not be considered for the first time on appeal. See Goranson v. DILHR, 94 Wis.2d 537, 545,
289 N.W.2d 270, 274 (1980); Wirth v. Ehly, 93 Wis.2d 433, 443-43,
287 N.W.2d 140, 145-46 (1980).
By the Court.—Judgment
affirmed in part; reversed in part and cause remanded.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.