COURT OF APPEALS DECISION DATED AND RELEASED October 17, 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
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No. 95-3123
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
ARTHUR T. DONALDSON,
Plaintiff-Appellant,
v.
TOWN BOARD OF THE TOWN
OF BELOIT,
a Body Politic,
Defendant-Respondent,
DOUGLAS J. GEARHART
and
JANET A. GEARHART,
Defendants.
APPEAL from a judgment
and an order of the circuit court for Rock County: J. RICHARD LONG, Judge. Affirmed.
Before Eich, C.J.,
Vergeront, J., and Paul C. Gartzke, Reserve Judge.
PER
CURIAM. Arthur T. Donaldson appeals from an order denying his
motion for summary disposition and dismissing with prejudice his action against
the Town of Beloit and its town board.
We affirm.
Donaldson acquired an
interest in a piece of land for which the town board of Beloit had issued a
permit for a sign with a display area of 600 square feet on each side. He commenced erecting a sign and the town
building inspector stopped construction on the grounds that Town ordinances permitted
signs only 300 square feet on each side.
Donaldson appeals. He argues
first that the town board "legislatively" approved his sign and,
second, that the board and Town are equitably estopped from enforcing the
ordinance against him.
Donaldson acknowledges a
long line of cases holding that a building permit erroneously issued cannot
authorize a use in violation of an ordinance.
See, e.g., Snyder v. Waukesha County Zoning Bd., 74
Wis.2d 468, 476-77, 247 N.W.2d 98, 103 (1976).
He attempts to distinguish these cases by noting that the entire town
board approved the application. He
maintains that the board's action constituted a "legislative"
enactment, which effectively undermines the ordinance. He concludes that because a second
legislative enactment cannot "violate" the previous enactment (the
Town sign ordinance), Snyder and similar cases have no
application.
We reject this argument.
The record demonstrates that the board granted the sign permit at a portion of
its meeting considering "licenses."
There were none of the trappings of a legislative enactment. No open meeting notice had been given, the
matter was not on the agenda as an ordinance change, and the matter was not so
considered. Because the facts do not
support Donaldson's construction, the applicable law remains that an
erroneously issued permit cannot authorize a use prohibited by ordinance.
Donaldson cites State
v. City of Green Bay, 96 Wis.2d 195, 200-01, 291 N.W.2d 508, 511
(1980), for the proposition that equitable estoppel applies against governmental
agencies. We agree that this has long
been the law of this state. Cf. City
of Milwaukee v. Leavitt, 31 Wis.2d 72, 76, 142 N.W.2d 169, 171 (1966)
(governmental units are "not wholly immune from" equitable
estoppel). However, Green Bay
is not a zoning case but a forfeiture case and, as such, cannot overcome the
clear precedent against application of equitable estoppel in zoning cases. Snyder, 74 Wis.2d at 476-77,
247 N.W.2d at 103. Estoppel will not
lie against a municipality so as to bar it from enforcing a zoning ordinance
enacted under the authority of police powers.
Leavitt, 31 Wis.2d at 76, 142 N.W.2d at 171.
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.