|
COURT OF APPEALS DECISION DATED AND RELEASED JANUARY 9, 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(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. 95-1762
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
STATE OF WISCONSIN,
Plaintiff-Appellant,
v.
JEFFREY L. OSKEY,
Defendant-Respondent.
APPEAL from a judgment
of the circuit court for Pierce County:
ROBERT W. WING, Judge. Affirmed
in part; reversed in part and cause remanded.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER CURIAM. The State appeals the denial of injunctive
relief against Jeffrey Oskey, whom the State contends exceeded the legal limit
of 50% of assessed value for structural repairs to nonconforming floodplain
buildings. Oskey made alterations
totaling over $200,000 to a house assessed at less than $40,000. The State argues that the trial court
incorrectly applied the definition of "structural repair" developed
in Marris v. City of Cedarburg, 176 Wis.2d 14, 498 N.W.2d 842
(1993). We agree and reverse that part
of the judgment. We also affirm the
trial court's conclusion that both the state administrative and county code sections
that prohibit structural repairs and alterations in floodplains are not
unconstitutionally vague.
Oskey's house is located
in a floodplain on Trenton Island. The
floodplain zoning laws allow the house to remain in the floodplain because it
was built before the enactment of the laws.
However, the house is subject to certain restrictions, including Wis. Admin. Code § NR 116.15 and Pierce
County, Wis., Ordinance ch. 17.60.190 (Sept. 19, 1978), which prohibit
structural repairs to a nonconforming structure in excess of 50% of the
building's assessed value.[1]
Oskey applied for a
permit to expand his house. The county
granted the permit, but limited the amount of improvements to $18,401 so that
the improvements would comply with the floodplain zoning restrictions.[2] Oskey began work on his house, and a state
inspector viewed the construction and determined that Oskey had expanded and
improved his house beyond the amount allowed in the permit.
The State sought a court
order requiring that Oskey limit the improvements to his house to comply with
the applicable restrictions and to remove the alterations to his house that
exceed the value in the permit. Oskey
argued that the Pierce County ordinance was void for vagueness because it did
not specify how the structural alterations should be valued for purposes of the
50% prohibitions.
The trial court
concluded that the ordinance was not unconstitutionally vague because the only
reasonable interpretation of it was to value the improvements at their cost to
the property owner. The court tried the
case on the merits, deciding the sole factual issue whether Oskey violated the
50% limits when he remodeled and expanded his house. The trial court found the State had not met its burden of proof
and, accordingly, dismissed the complaint.
The trial court's
decision presents a mixed finding of law and fact. State v. Johnson, 153 Wis.2d 121, 127, 449 N.W.2d
845, 848 (1990). In such cases, we
review the trial court's conclusion of law independently and apply the clearly
erroneous standard to the factual part of the decision. Id. The constitutionality of a statute is a question of law that we
review without deference to the trial court.
Szarzynski v. YMCA, 184 Wis.2d 875, 883-84, 517
N.W.2d 135, 138 (1994).
The record indicates
that Oskey made repairs and alterations to his house in the amount of
$210,427.41, well exceeding the 50% prohibitions. The dispute between the parties concerns what portion of these
improvements are "structural" and should be applied against the 50%
improvement limits.[3]
Our supreme court
recently interpreted a similar ordinance in Marris. The ordinance prohibited "structural
repairs or alterations" from exceeding "50 percent of the current
assessed value of the structure ...."
Id. at 31 n.16, 498 N.W.2d at 850 n.16. The court defined "structural
repair" using the underlying policy objectives of the floodplain
laws. The competing objectives in the
restrictions on structural repairs are:
first, to avoid imposing undue hardship on owners of nonconforming
property by allowing them to make reasonable renovations to prevent deterioration
and, second, to ensure that the nonconforming use is gradually eliminated. Id. at 33-34, 498 N.W.2d at
850. The court balanced these
objectives by construing structural repairs
to include work that would convert an
existing building into a new or substantially different building, or work that
would affect the structural quality of the building.
....
However
... an owner is permitted to modernize facilities.
Id. at
38, 498 N.W.2d at 852.
At trial the State
introduced evidence showing that, among other things, Red Wing Construction
moved the front wall of Oskey's house out four feet to enclose an existing
deck, built a new 24 x 18-foot screened porch, and added a half-story
to the house, which included a bedroom, rec room, storage area, and
closet. Red Wing redesigned the roof of
Oskey's house to accommodate the new half-story.[4] Red Wing's estimate of the cost of the new
porch was $15,000, moving the outside wall to enclose the existing deck was an
additional $15,000, and the cost of the new story plus altering the roof to fit
the roof was $62,000.[5]
We conclude that adding
a new porch, enclosing an existing deck, and adding a half-story to a house
creates a "substantially different" building as contemplated by Marris. The trial court concluded that the building
was not substantially different because "[t]he Oskey home was a single
family residence occupied by Mr. Oskey and his family before the construction
began and it was a single family residence occupied by Mr. Oskey and his family
after the construction was completed."
The trial court construed "substantially different" too
narrowly. Marris created
the substantially different test so that "repairs that are reasonably
necessary to prevent deterioration might not be classed as structural
repairs." Id. at 38,
498 N.W.2d at 852. The three
improvements we have discussed were not reasonably necessary to prevent
deterioration.
The authority referred
to in Marris supports our conclusion. See id. at 36 n.20, 498 N.W.2d 852
n.20. In 1 Robert M. Anderson, American Law of Zoning § 6.57 at 618-19
(3d ed. 1986), the author summarizes case law defining "structural
alteration" as:
The
construction of a new building, the removal and replacement of a building,
[and] the construction of an addition to a building ... seem clearly to be
structural alterations of a nonconforming building or structure. Less clear, but probably usable, is the
conclusion that alterations which enlarge the nonconforming building, or
provide more floor space for a nonconforming use, or tend to render the
nonconforming use more permanent, will be regarded as proscribed structural
alterations.
The
three improvements we have discussed are additions to the Oskey house, thus
Anderson's treatise would classify them as "clearly structural."
Oskey argues that the
State did not present enough evidence to establish that Oskey performed
structural repairs in excess of the 50% prohibition. The trial court agreed with Oskey, holding that the State failed
to connect "any cost figure or increase in value to a particular
structural alteration or addition."
The State presented an
itemized estimate for all work done by Red Wing and evidence that Red Wing
performed the work for a total cost that was very close to the total estimated
cost.[6] The trial court assumably inferred the
itemized costs in the estimate did not reflect an approximation of each item's
actual cost. We reject the trial
court's inference and conclude that the actual cost of the additions
approximated their estimated cost, because total estimated cost of the project
approximated its total actual cost and because no evidence was presented to the
contrary.[7]
Next, Oskey argues that Wis. Admin. Code § NR 116.15 and Pierce
County Ord. ch. 17.60.020 are unconstitutionally vague because neither section
defines how the structural additions or repairs should be valued, i.e.,
at their cost to the homeowner, the fair market value of the services, or the
amount by which the services increase the fair market value of the
structure.
Unless a statute is so
vague and uncertain that it is impossible to execute or to ascertain its
legislative intent with reasonable certainty, it is valid. Richland School Dist. v. DILHR,
174 Wis.2d 878, 905, 498 N.W.2d 826, 836 (1993). When we are confronted with a challenge to the constitutionality
of a state law or local ordinance, we presume the law or ordinance is
constitutional. See Betthauser v.
Medical Protective Co., 172 Wis.2d 141, 150, 493 N.W.2d 40, 43
(1992). The party bringing the
challenge must show the statute or ordinance is unconstitutional beyond a
reasonable doubt. State v.
McManus, 152 Wis.2d 113, 129, 447 N.W.2d 654, 660 (1989).
We conclude that the
legislative intent of the ordinance and regulation can be determined with
reasonable certainty. As the trial
court noted, using the increased fair market value of the building would be
unfair to the property owner because the owner would not know the value of the
alterations until after the project was complete. Similarly, the fair market value of the services performed would
be difficult for the property owner to ascertain. We agree with the rationale of the trial court and conclude that
cost to the homeowner is the only reasonable interpretation of
"value" in Wis. Admin. Code
§ NR 116.15 and Pierce County Ord. ch. 17.60.020. Neither are unconstitutionally vague.
Finally, Oskey raises a
factual argument regarding precisely which improvements on his house violate
the 50% prohibitions. We remand to the
trial court for this determination and to impose relief consistent with this
opinion applying equitable principles.
By the Court.—Judgment
affirmed in part; reversed in part and cause remanded. No costs to either party.
This opinion will not be
published. Rule 809.23(1)(b)5, Stats.
[1]
Wis. Admin. Code § NR
116.15 provides in part:
(1) Insofar as the standards in
this section are not inconsistent with [other provisions], they shall apply to
all uses and buildings that do not conform to the provisions contained within a
floodplain zoning ordinance. These
standards apply to the modification of, or addition to, any building and to the
use of any building or premises which was lawful before the passage of the
ordinance. The existing lawful use of a
building or its accessory use which is not in conformity with the provisions of
a floodplain zoning ordinance may be continued subject to the following
conditions:
(a) No extension of a
nonconforming use, or modification or addition to any building with a
nonconforming use or to any nonconforming building, may be permitted unless
they are made in conformity with the provisions of this section. For the purposes of this section, the words
"modification" and "addition" shall include, but not be
limited to, any alteration, addition, modification, outbuilding or replacement
of any such existing building, accessory building or accessory use. Ordinary maintenance repairs are not
considered structural repairs, modifications or additions; such ordinary
maintenance repairs include internal and external painting, decorating,
paneling, the replacement of doors, windows and other nonstructural components;
and the maintenance, repair or replacement of existing private sewage systems,
water supply systems or connections to public utilities;
....
(c) No modification or addition to any
nonconforming building or any building with a nonconforming use, which over the
life of the building would exceed 50% of its present equalized assessed value,
may be allowed unless the entire building is permanently changed to a
conforming building ....
Pierce
County, Wis., Ordinance ch. 17.60.190 provides in part:
The existing lawful use of a
structure or premises which is not in conformity with the provisions of this
chapter may be continued subject to the following conditions:
....
B. No structural alteration, addition, or repair to any nonconforming structure over the life of the structure shall exceed fifty percent of its assessed value at the time of its becoming a nonconforming use unless permanently changed to a conforming use.
[2]
The state floodplain regulation, the county ordinance and the county
permit each limit Oskey's structural repairs to a different amount. The county ordinance limits repairs to 50%
of assessed value at the time the building became a conforming use. The structure became a nonconforming use in
1968. The 1968 assessed value was not
in the record; however, the 1966 assessed value was $15,600 and the 1970
assessed value was $15,500, indicating that repairs should not exceed $7,800.
The state regulation
limits repairs to 50% of the building's present equalized value. The parties agree that 50% of the equalized
assessed value of Oskey's house at the time he sought to expand and remodel it
was approximately $19,340.
The amount of the
permit is $18,401. The county's permit
allowed Oskey to build in an amount in excess of that allowed by the county
ordinance. Apparently the county issued
the permit in this amount in an attempt to comply with § 87.307, Stats., which mandated floodplain
ordinances pertaining to property on Trenton Island to use the present
equalized value in calculating the 50% limit on structural modifications to
property, instead of using the assessed value at the time the structure became
a nonconforming use. However, a Pierce
County Circuit Court decision subsequently declared this statutory section
unconstitutional.
For purposes of this opinion, we will refer to these three limits collectively as the "50% prohibitions."
[3] Wis. Admin. Code § NR 116.15(1)(c) limits "modification[s] or addition[s]," not "structural modifications or additions," and the State argues that subsection limits any alteration or addition to a nonconforming structure. However, § NR 116.15(1)(a) distinguishes between structural repairs and ordinary maintenance. See supra note 1. We conclude that § NR 116.15(1)(c) limits structural repairs or modifications, not any repairs or modifications.
[4] By focusing on these three projects, we do not mean to imply that none of the other work was "structural repairs or modifications." We use these three to show that the State has met its burden by proving that Oskey violated the 50% prohibitions.
[5]
Red Wing estimated the cost of all its work as follows:
New addition with full basement $ 52,000.00
New deck: 1,800.00
New screen porch: 15,000.00
Front porch encloser: 15,000.00
Existing house interior
remodeling: 40,000.00
Reroof existing house: 10,000.00
$133,800.00
[6] Red Wing's estimate of the total cost of the projects was $133,800. See supra note 6. Oskey's records indicate that he paid Red Wing $134,761.64 after Red Wing finished the projects.
[7] We give no deference to this inference drawn by the trial court because it is based on documentary evidence. State ex rel. Sieloff v. Golz, 80 Wis.2d 225, 241, 258 N.W.2d 700, 705 (1977). The clearly erroneous standard does not apply to factual inferences from documents because findings based on documents do not depend on credibility of witnesses. Vogt, Inc. v. International Brotherhood of Teamsters, Local 695, 270 Wis. 315, 321i-321j, 74 N.W.2d 749, 754-55 (1956).