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NOTICE This opinion is subject to further editing and
modification. The final version will
appear in the bound volume of the official reports. |
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No.
94-1155
STATE OF WISCONSIN : IN SUPREME COURT
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Lake Bluff Housing Partners, a Wisconsin limited partnership, Plaintiff-Respondent, v. City of South Milwaukee and Michael Vesperman, in his capacity as City Building Inspector, Defendants-Appellants-Petitioners. |
FILED NOV
20, 1995 Marilyn L. Graves Clerk of Supreme Court Madison, WI |
REVIEW of a decision of the court of
appeals. Reversed.
ROLAND
B. DAY, C.J. This is a review of a published decision of the
court of appeals affirming a judgment of the Circuit Court for Milwaukee
County, John E. McCormick, Judge, granting a writ of mandamus ordering the City
of South Milwaukee (the City) to issue a building permit to Lake Bluff Housing
Partners (Lake Bluff). This case
presents the following issue: may a court, through the exercise of discretion,
resort to "equitable principles" to supply a "right" to the
issuance of a building permit where the building plans submitted did not comply
with the applicable zoning and building code requirements, and thereby find a
positive and plain duty on the part of the municipality to issue a building
permit for a construction that would be in violation of the ordinance. We conclude that the circuit court in this
case erred in granting a writ of mandamus in the absence of a clear legal right
on the part of Lake Bluff and a positive and plain duty on the part of the City,
and therefore reverse the decision of the court of appeals.
The
facts in this case are largely undisputed.
Lake Bluff, a Wisconsin limited partnership, is a developer of rental
properties. In December 1992, Lake
Bluff purchased a parcel of land for $294,000 along the shoreline of Lake
Michigan in South Milwaukee, intending to construct a multi‑family
development that would qualify for low income housing tax credits administered
by the Wisconsin Housing and Economic Development Authority (WHEDA). The zoning on the parcel was "C‑2,"
a classification allowing the construction of multi‑family residential
units. Although the parcel had been
zoned C-2 since 1965, there were no multi-family units on the land in
1992. Lake Bluff verified through the
land's previous owners that the land was zoned C‑2, and that such zoning
would allow for a multi‑family development, before purchasing the
land.
Lake
Bluff had applied for a tax credit through WHEDA in October, 1992. WHEDA awarded Lake Bluff a $266,903 site‑specific
tax credit in December, 1992. Later
that same month, Lake Bluff paid WHEDA a non‑refundable fee of $16,314 to
reserve the credit. Lake Bluff then had
the property surveyed at a cost of $1,150, and contracted with an architect to
prepare project plans at a cost of $29,513.
In order to preserve the WHEDA tax credit, Lake Bluff's project had to
be built and certificates of occupancy had to issue by December 31, 1994. The trial court found that Lake Bluff would
have had to begin construction "immediately" after the issuance of
the trial court's May 1994 order granting mandamus in order to complete the
project in time.
In
February 1993, representatives of Lake Bluff met with the mayor, city
administrator, building inspector, city engineer, and district alderperson of
South Milwaukee to review initial plans for its project. At this meeting, Lake Bluff proposed
building seven apartment buildings on the land, each with space for eight
family units.[1] The City confirmed that the property was in
a C‑2 zone that permitted a multi‑family project. However, the City advised Lake Bluff that
all construction along the lake bluff required a bluff assessment establishing
that the project would not cause bluff erosion. The City also advised Lake Bluff that South Milwaukee's parking
requirements had changed and that Lake Bluff would have to modify its plans to
meet the new requirements. Lake Bluff
subsequently modified its parking plans and commissioned a bluff erosion study
costing $4,950.
In
a letter to a City of South Milwaukee alderperson dated April 28, 1993, William
J. Fox, III, a neighboring landowner, requested that Lake Bluff's land be
rezoned from C‑2 to R‑A.
This zoning change would allow for single-family housing, but not for
Lake Bluff's proposed multi-family units.
On May 6, the City referred Fox's request to its Plan Commission; on May
24, the Plan Commission referred the matter to the South Milwaukee City
Attorney for review and comment. The
Plan Commission also recommended that no building permits issue while the
rezoning request was under consideration.
The trial court found that Lake Bluff did not learn that the City was
considering a moratorium on the issuance of any building permits for the
property or a rezoning until June 22, 1993, and that Lake Bluff did not have an
opportunity to participate in the May meetings of the Plan Commission or the
Common Council.
On
July 6, 1993, the South Milwaukee Common Council adopted resolution number
93-30, pertaining only to the Lake Bluff property, imposing a moratorium on the
issuance of any building permits while the Council considered the rezoning
request.[2] The Plan Commission then considered the
rezoning request at its meeting of July 12, 1993.
On
August 5, 1993, the Wisconsin Department of Industry, Labor and Human Relations
issued its conditional approval of Lake Bluff's plans. This approval enabled Lake Bluff to seek a
"footing and foundation" building permit from the City and subsequently
begin construction. Lake Bluff
submitted an application for the permit on that same day. Lake Bluff now proposed construction of two
buildings: one a three-story building containing 40 units, and the other a
two-story building containing 16 units.
The City's building inspector denied the permit that same day. The building inspector wrote "per
resolution number 93-30 [the moratorium], permit is denied" on Lake
Bluff's permit application and returned it to Lake Bluff's representative.
Two
days later, in an apparent effort to determine whether the denial was based
solely on the moratorium or on some defect in its plans, Lake Bluff wrote to
Michael Vesperman, South Milwaukee's building inspector:
Pursuant
to our application for a "Footing/Foundation" permit on Thursday,
August 5, 1993, . . . it is the understanding of this office that the
following additional information will be required:
a. the City Engineer . . . will review the drawings deposited
with your office to "verify site/building grades" for conformance,
b. your office will review the drawings deposited with your office for
"conformance to required set backs,"
c. two (2) additional sets of drawings are required for application,
one (1) additional "State Approved" copy, plus one (1) not
necessarily stamped set,
d. evidence of "DILHR Letter of Approval" dated August 5,
1993 for each building, copies of which have been sent directly to your office
by DILHR via the U.S. Mail, and
e. Footing/Foundation permit for the above captioned project "has
been denied" per [the moratorium] dated July 6, 1993. Any questions concerning this matter should
be referred to the City Attorneys office, attention Mr. Joseph Murphy.
Should
you be in disagreement with any of the contents of this letter, please notify
this writer via facsimile . . . with a hard copy via U.S. mail, prior
to the close of business on Monday, August 9, 1993.
The City did not formally respond to this
letter.[3] On August 20, Lake Bluff again wrote to the
City requesting a specific response to its concerns. On August 24, the City Attorney replied to the August 20 letter,
writing, in part:
Please
be advised that Mr. Vesperman has not yet reviewed the plans presented for the
structural aspects of the property, has not verified the setbacks and zoning
compliance and erosion control measures contemplated and the City Engineer has
not had the opportunity to check the grading and zoning compliance. Furthermore, the Building Board of Review
has not yet reviewed the plans.
Also, please
be advised that inasmuch as the moratorium will not allow construction of this
project until after November 4, 1993, neither the City Building Inspector nor
the City Engineer intends to drop everything else that they are currently
engaged in to process this application for a building permit. Your application for a permit will simply
have to wait its turn for their attention like everything else that is coming
across their desk. If there is some
reason that their review ought to be advanced and expedited, please advise me.
Lake
Bluff did not reply to the City Attorney's request to be advised "if there
is some reason that . . . review ought to be advanced and
expedited." Instead, the partnership
attempted to resolve its difficulties through the political process. A Lake Bluff general partner wrote letters
to the Mayor of South Milwaukee on September 24 and October 7, 1993, requesting
the cooperation of the City in consideration of the development plans, and in
the scheduling of a Plan Commission meeting at which to discuss alternative
solutions[4]
to the dispute.
On
October 7, the Common Council of the City of South Milwaukee held a public
hearing on the rezoning request. On
November 2, 1993, the City enacted an ordinance rezoning the Lake Bluff
property from C‑2 to R‑A.[5] On March 10, 1994, Lake Bluff resubmitted
its application for a building permit, and also filed a complaint seeking a
writ of mandamus to compel issuance of the permit.[6] The complaint alleged that Lake Bluff had
acquired vested rights in the C‑2 zoning of the property prior to the
City's enactment of the change in the zoning, and requested the trial court to
issue a writ of mandamus requiring the City to issue Lake Bluff a building
permit.
In
its answer to the complaint, the City asserted that Lake Bluff's plans failed
to comply with the requirements of the former C-2 zoning and other statutory
and administrative provisions.[7] It is undisputed that the plans submitted on
August 8, 1993, and March 10, 1994 were for a building too large to comply with
the setback requirements of the C-2 zoning on the parcel.[8] The March 10, 1994 plans were also not in
compliance with the then-existing R-A zoning on the land, which prohibited
multi-family housing. During the course
of the litigation, Lake Bluff sent its architect to the depositions of various
City officials. The architect
determined the details of the zoning and building code violations, and changed
the plans to conform to code by the time the case was heard on April 29, 1994.
The
trial court found that "Lake Bluff would suffer significant and
irreparable harm if it is not allowed to proceed with its planned construction
at the Property immediately" and
rendered the following conclusions of law:
Lake
Bluff acquired protected vested rights and interests in the Property by virtue
of the expenditures it made for the purchase price of the Property, the payment
to WHEDA to reserve the low income housing tax credits, the cost of
architectural plans and specifications, the survey costs and the costs for the
bluff study, all in reliance upon the zoning in existence at the Property at
the time that it purchased it.
Lake
Bluff acquired its vested rights before South Milwaukee's enactment of the
moratorium prohibiting the issuance of building permits at the Property.
South
Milwaukee's actions in denying Lake Bluff's application for a building permit
were arbitrary, capricious and invalid.
Because
it acquired vested rights in the existing C‑2 zoning at the property,
Lake Bluff is entitled to a Writ of Mandamus directing the Building Inspector
to issue a permit allowing it to construct its project at the Property.
South
Milwaukee is estopped from raising its belated objections to Lake Bluff's
plans.
On
April 29, 1994, the trial court granted the writ of mandamus directing the City
to issue a building permit to Lake Bluff for its planned development. The City appealed.
The
court of appeals, in a two-to-one decision, affirmed the circuit court. See Lake Bluff Housing Partners v
City of South Milwaukee, 188 Wis. 2d 230, 525 N.W.2d 59 (Ct. App.
1994). The majority of the court of
appeals held that the circuit court's granting of the writ of mandamus had not
been an erroneous exercise of discretion.
The majority ruled that although Lake Bluff had never submitted a proposal
for a building permit which conformed to the zoning and building code
requirements on the property, the partnership had nonetheless acquired a vested
right in the former zoning of the land.
According to the majority, Wisconsin case law on vested rights and
mandamus allowed the consideration of equitable factors in determining the
existence of two requirements of a writ of mandamus, a clear legal right and a
plain duty.
Mandamus
is an extraordinary legal remedy, available only to parties that can show that
the writ is based on a "clear, specific legal right which is free from
substantial doubt." Collins v.
American Family Mut. Ins. Co., 153 Wis. 2d 477, 483, 451 N.W.2d 429
(1990) (quoting Eisenberg v. ILHR Dept., 59 Wis. 2d 98, 101, 207
N.W.2d 874 (1973)). A party seeking
mandamus must also show that the duty sought to be enforced is positive and
plain; that substantial damage will result if the duty is not performed; and
that no other adequate remedy at law exists.
State ex rel. Iushewitz v. Personnel Review Bd., 176 Wis. 2d
706, 711, 500 N.W.2d 634 (1993) (citing Collins, 153 Wis. 2d at
483-84).
This
court will uphold a trial court's granting or denying a writ of mandamus unless
the judge erroneously exercised discretion.
Miller v. Smith, 100 Wis. 2d 609, 621, 302 N.W.2d 468
(1981); State ex rel. Kurkierewicz v. Cannon, 42 Wis. 2d 368,
375-76, 166 N.W.2d 255 (1969). A
judge's discretion in issuing a writ of mandamus is erroneously exercised if
based on an erroneous understanding of the law. State ex rel. Althouse v. City of Madison, 79 Wis. 2d
97, 106, 255 N.W.2d 449 (1977).
The
trial court in this case granted mandamus in part because it determined that
Lake Bluff had obtained vested rights in its building project through its
various expenditures made prior to the City's moratorium. The City argues that, under Wisconsin law, a
builder must submit an application for a building permit which conforms to
applicable zoning and building code requirements in order to obtain vested
rights; because Lake Bluff never submitted a conforming application before the
change in zoning in the instant case, it never obtained vested rights and
mandamus should not have been granted in the absence of any clear right.
In
the Building Height Cases, 181 Wis. 519, 195 N.W. 544 (1923), this court
established criteria for adjudicating zoning vested rights cases. The court examined three separate fact
situations, and ruled on the nature of the vested rights, if any, in each. In the first case, State ex rel. Klefisch
v. Wisconsin Telephone Co., a builder had designed and obtained building
permits for an addition of five floors to an eight-story building. Id. at 530-31. The builder had incurred various expenses
for materials, and had already begun construction, when the Legislature enacted
a restriction on the height of structures which would have forbidden the
building. Id. at 531. The court held that the builder's
"substantial rights had vested" prior to the passage of the
restriction, and the builder could proceed with the construction. Id. at 532.
In
the second case, State ex rel. Buchholz v. Hotel Wisconsin Realty Co., a
builder had planned to construct an addition to a building which would have
violated the height restriction, but had not incurred any expenses. Id.
The builder did not attempt to obtain a building permit until after the
passage of the height restriction, at which time the permit was denied. Id.
The court held that the builder's rights in the proposed construction
had not vested in that case. Id.
at 533.
In
the third case, Atkinson v. Piper, a builder had planned, prior to the
enactment of the height restriction, a building with a prohibited height of 115
feet. Id. at 533-34. The builder had obtained a building permit
and started construction, but the court noted that the builder had not incurred
any expense which would be lost if the building were to conform to the new
height restriction, and be 100 feet tall instead of 115. Id. at 534. A 4-3 majority held that the builder's rights had nonetheless
vested, and allowed the construction of the building at its full height of 115
feet. Id.
Although
the court in the Building Height Cases stressed that determining whether
rights have vested is "for the most part a matter of individual opinion,"
id., a common factor in the three cases there considered was the
presence or absence of a building permit.
In the two cases where a permit had been obtained, the court held that
the builder's rights had vested, while in the one case where a permit had not
been applied for, the court found no vested rights. From the very beginning of zoning jurisprudence in this state,
then, a building permit has been a central factor in determining when a
builder's rights have vested.
This
court, in State ex rel. Humble Oil & Ref. Co. v. Wahner, 25
Wis. 2d 1, 130 N.W.2d 304 (1964), stated: "Generally, a building
permit must be obtained before vested rights arise. Other jurisdictions have held that construction must have begun,
that merely applying for a permit, commencing a mandamus action, and even
getting a mandamus action are insufficient." Id. at 13 (footnotes omitted). The use of the word "generally" implies that receiving
a building permit is not an absolute requirement in the vested rights
analysis. In fact, our cases show that
a developer must at least apply for a building permit in order to obtain vested
rights.
In
Rosenberg v. Whitefish Bay, 199 Wis. 214, 215, 225 N.W. 838 (1929), a
builder had obtained a change in zoning on a parcel of land to allow construction
of an apartment building. The builder
then incurred various expenses and prepared plans for the proposed
construction. Id. at 216. Fifteen months after the change in zoning,
the builder applied for a building permit.
The municipality denied the application, informing the builder that it
wished to build a park on the parcel of land.
Id. The municipality in Rosenberg
apparently never alleged that the builder's application did not conform to the
requirements of the zoning or building code.
The municipality then passed a new zoning ordinance which forbade the
builder's proposed construction. Id. This court noted that the builder, like the
builder in the third of the Building Height Cases, had incurred expenses
in the preparation of building plans. Id.
at 217. The court held that the
builder's substantial rights had vested before the passing of the ordinance,
and that the ordinance could not prevent the construction of the proposed
buildings. Id.
In
the instant case, as in Rosenberg, the builder had applied for, but not
received, a building permit; Rosenberg would thus appear to support Lake
Bluff's position that simply applying for a permit is sufficient to allow
rights to vest. However, our cases also
state that the application for a building permit must be in conformance with
all zoning and building code requirements.
In State ex rel. Schroedel v. Pagels, 257 Wis. 376, 378, 43
N.W.2d 349 (1950), a builder planned to construct an apartment building on a
parcel of land zoned for such use.
After discussing his plans with municipal officials, the builder was
informed of new garage requirements for apartments, and changed the plans to
comply with the requirements. The
builder then learned that the municipality planned to rezone the parcel of
land; the builder promptly submitted an application for a building permit,
"together with complete plans and specifications which had been approved
by the Wisconsin industrial commission as conforming to the state
code." Id. at 378-79. The municipality denied the request because
of its plans to change the zoning on the parcel, and because it claimed that
the builder's plans did not comply with certain local requirements for a sewer
connection. Id. at 379. The trial court, however, specifically found
that the plans did comply with the local requirements and would "call for
the erection of apartment buildings which would be valid and lawful under the
zoning laws" as they existed at the time of the filing of the plans. Id. at 380, 382. This court held that the builder's rights in
the construction project had vested. Id.
at 382.
Requiring
strict and complete conformance with applicable zoning and building code
requirements is in line with the general rule:
In order for the applicant [for mandamus]
to have a right to have the sought after act or action performed, strict and
complete compliance with all necessary and applicable provisions of the
relevant ordinance is required. Lack of
compliance with conditions precedent not only has the effect of precluding a
clear legal duty on the part of the administrative officer or body, it deprives
such officer or body of the power to perform the act.
4 Edward H. Ziegler, Jr., Rathkopf's
The Law of Zoning and Planning § 44.04[1], at 44-14 to 44-15 (4th ed.
1956 & Supp. 1994) (footnotes omitted); see also Eugene McQuillin, Municipal
Corporations § 25.157, at 703 (3d ed. 1991) ("No rights may vest where
either the application submitted or the permit issued fails to conform to the
existing zoning or building regulations."). Requiring an
application for a building permit which conforms to applicable zoning or
building code requirements in order to show a clear legal right also serves the
goals of the vested rights doctrine.
The theory behind the vested rights doctrine is that a builder is
proceeding on the basis of a reasonable expectation. See State ex rel. Cities Serv. Oil Co. v. Board of
Appeals, 21 Wis. 2d 516, 528-29, 124 N.W.2d 809 (1963); McQuillin, supra,
§ 25.157, at 701 ("[The vested rights] doctrine is also applicable to an
applicant for a permit who acted in reliance on the ordinance as it existed at
the time of his or her application for a permit."). Vested rights should only be obtained on the
basis of strict and complete compliance with zoning and building code
requirements, because a builder's proceeding in violation of applicable requirements
is not reasonable.
In
this case, it is undisputed that Lake Bluff never submitted an application for
a building permit which complied with either the new single-family zoning or
with the former C-2 zoning. The record
demonstrates that the plans submitted pursuant to Lake Bluff's applications for
a building permit on August 8, 1993, and March 10, 1994 were, at least, not in
compliance with the set-back requirements of the C-2 zoning. In fact, the plans proposed a building too
large for the zoning on the lot. The
trial court, in its findings of fact, acknowledged that the plans as first
submitted were nonconforming by finding that "[s]ince the start of this
lawsuit, Lake Bluff has changed its plans to correct the deficiencies belatedly
identified by South Milwaukee in Lake Bluff's permit application." Of course, the plans submitted by Lake Bluff
on March 10, 1994, also did not comply with the residential zoning then in
effect on the parcel of land, because they proposed a multi-family apartment complex.
Lake
Bluff argues that, in the words of the court of appeals majority in the instant
case, "conceptually, vested rights can be separated from zoning
compliance." Lake Bluff,
188 Wis. 2d at 250. However,
neither Lake Bluff nor the court of appeals majority cite a single Wisconsin
case in which a court found that a builder's rights had vested when the builder
had not submitted an application for a building permit which conformed to
code. In fact, the line of vested
rights cases, including the Building Height Cases, Rosenberg, and
Schroedel, holds exactly the opposite.
Lake
Bluff contends that State ex rel. Humble Oil & Refining Co. v. Wahner,
25 Wis. 2d 1, 130 N.W.2d 304 (1964), supports the general proposition that
a property owner's noncompliance may not be fatal to a mandamus claim. A builder, Humble, sought to construct a gas
station. According to local zoning
requirements, the construction of such stations was not permitted on the land
in question, but the stations could be constructed with the approval of the
town board of appeals. Id. at
3-4. Humble made several attempts at
securing a permit, but each time the town refused the request without
explanation. Id. at 3, 5. Humble then filed suit against the town;
shortly afterwards, the town changed its zoning requirements on the land in
question, forbidding the construction of gas stations. Id. at 6.
This
court first determined that the original zoning was invalid for failing to
provide proper standards to guide the town board of appeals in ruling on
petitions. Id. at 11. In addition, the court held that the
builder's rights had not vested. Id.
at 12-13. The court distinguished Schroedel
on the grounds that Humble's applications for building permits never proposed a
use which was allowed under the existing zoning—as already noted, gas stations
could only be constructed on the land with the approval of the town board of
appeals. Id. The court concluded:
Although since its first petition . . .
Humble had obtained an option on the subject property, had exercised the
option, and had gone to considerable expense in developing plans for the
development of the site, Humble had no vested rights as of the time when the
new ordinance was passed by the town board.
Id. at 13.
By denying vested rights to a builder who submitted an application for a
building permit that did not propose a permitted use under existing zoning, Humble
is squarely in line with the general rule in Wisconsin: in order for a
developer's rights to vest, the developer must submit an application for a
building permit which conforms to the zoning or building code requirements in
effect at the time of the application.
Ultimately,
the court in Humble concluded that Humble's writ of mandamus should be
granted, because the original ordinance was defective:
Since this court has concluded that the
portion of the ordinance permitting filling stations but requiring board
approval of each permit is invalid as to this attempted delegation of authority
to the board, Humble had a clear legal right to the issuance of the requested
permit and the appellant building inspector had a positive and plain duty to
issue the permit. Under the
circumstances Humble was clearly entitled to the writ of mandamus.
Humble, 25 Wis. 2d at 16. The reason for this holding is clear: but
for the invalid portion of the municipality's original ordinance, Humble's
applications would have been conforming.
As a result, Humble had a clear legal right to a permit.
Thus,
Humble does not stand for the proposition, advanced by the majority of
the court of appeals, that a court may employ equitable considerations in
determining the existence of a "clear legal right" in an action for a
writ of mandamus. See Lake
Bluff, 188 Wis. 2d at 254. The
court in Humble did not apply equity to supply or create a clear legal
right; it only looked to the equities for the limited purpose of determining
that the municipality's second zoning ordinance, as amended after the filing of
the lawsuit in order to prohibit Humble's requested use, could not bar the
builder's right to a permit. Humble,
25 Wis. 2d at 13-15. Similarly, in
Schroedel, the court only looked to equitable considerations in
discussing the nature of the municipality's change in the zoning ordinance, after
having found that the builder had submitted a plan conforming to the former
requirements and thus had a clear right to a permit. See Schroedel, 257 Wis. 2d at 383-84. This result is in line with the criteria for
mandamus found in Neu v. Voege, 96 Wis. 489, 492-93, 71 N.W. 880 (1897):
To
be sure, the granting or refusing of a writ of mandamus is somewhat
discretionary, but when the application therefor is made by a person to enforce
a clear legal right; the duty sought to be enforced is positive and plain; the
applicant for the writ shows that he will be substantially damaged by
nonperformance of such duty; and there is not other adequate specific legal
remedy for the threatened injury, and no laches on the part of such applicant,
and no special reasons exist rendering a resort on his part to the remedy,
under the circumstances, inequitable, to refuse to issue the writ constitutes
an abuse of judicial discretion.
As the court of appeals noted in Keane
v. St. Francis Hospital, 186 Wis. 2d 637, 647, 522 N.W.2d 517 (Ct.
App. 1994): "The theme throughout the caselaw is that the four criteria
preceding the `and no' clauses establish the legal prerequisites that must
be satisfied before a trial court can grant the writ, while the `and no'
clauses then carry the trial court to additional discretionary, equitable
considerations." The existence of
a clear legal right, then, is not to be determined through the use of equitable
principles.
Lake
Bluff contends that equitable considerations should require this court to
nullify the City's change in the zoning ordinance, as did the court in Humble. However, the amendment to the ordinance in Humble
occurred after the builder had filed suit against the town. The court noted that allowing the amendment
"would be tantamount to approving the proposition that every time a party
came close to successfully challenging a town and its zoning board on its
zoning actions, his gains could be legislated away by the enactment of an
amendment to the ordinance." Id. This concern is not present in the instant
case, because here the ordinance was changed before the filing of the suit, not
after. The equities in the present
situation do not require us to provide the remedy given in Humble. In addition, there is nothing in the C-2
ordinance that is invalid, as there was in the ordinance in Humble.
Lake
Bluff also notes that the town in Humble raised noncompliance with
building requirements as an argument against granting mandamus, but this court
ruled that the town had waived any noncompliance by first raising the argument
on appeal and by failing to give a reason for the denial of Humble's
application for a permit on three separate occasions. Id. at 16. The
issue of zoning compliance in the present matter is distinguishable from Humble. First, the City did not raise Lake Bluff's
noncompliance for the first time on appeal, but rather immediately, in its
answer to the complaint. Second, the City,
unlike the municipality in Humble, did provide reasons for the denial of
the permit. The City first informed
Lake Bluff that its permit was denied because of the moratorium. As already noted, the legality of this
moratorium has not been questioned, and we consider it as valid for purposes of
this appeal. South Milwaukee's City
Attorney also informed Lake Bluff by letter that the moratorium was delaying
the review of the plans, and that Lake Bluff should inform the City if it
wanted the review of the plans to be expedited. But Lake Bluff ignored this request, and chose instead to contact
local officials, and propose alternative plans, in an attempt to avoid a change
in zoning. Third, as Judge Fine noted
in his dissent to the court of appeals opinion in the instant case, even if the
City had issued the requested building permit, that permit could not have
authorized Lake Bluff to develop its property in conformity with the
application filed August 5th, because a building permit grants no right to an unlawful
use. Lake Bluff, 188
Wis. 2d at 255-56 (Fine, J., dissenting) (citing Jelinski v. Eggers,
34 Wis. 2d 85, 93, 148 N.W.2d 750 (1967)). In Humble the town only alleged a failure to comply with
"formal filing requirements," and the court noted "[n]o evidence
was produced by the town to show that any vital documents had not been
filed." Humble, 25
Wis. 2d at 16. The seriousness of
the noncompliance in the present case is of a greater magnitude, and not merely
alleged but clearly demonstrated in the record. For these reasons, we conclude the City did not waive Lake
Bluff's non-compliance.
Lake
Bluff also cites State ex rel. Lake Drive Baptist Church v. Village of
Bayside Bd. of Trustees, 12 Wis. 2d 585, 108 N.W.2d 288 (1961), for
the proposition that the presence or absence of a building permit is not
crucial to the determination of vested rights.
Lake Bluff notes that, although the Lake Drive Baptist court did
not find any vested rights on the part of the builder, the court's discussion
of the vested rights issue mentioned only the absence of any significant
expenses on the part of the builder, not the absence of a building permit. However, in Lake Drive Baptist, as in
Schroedel, the trial court made a specific finding that the plans
conformed to local building codes: "The [trial] court found that there is
no issue between the parties concerning the adequacy of the proposed building
according to the plans . . . , structurally,
architecturally, or otherwise. . . .
The plans and specifications comply with local building-code
requirements and state law." Lake
Drive Baptist, 12 Wis. 2d at 592-93.
The issue of compliance was not before the Lake Drive Baptist
court, and the case therefore provides no support for Lake Bluff's
contentions. In any event, three years
after the Lake Drive Baptist case, the Humble court determined
that a builder who had incurred substantial expenses still had no vested rights
because of the lack of a building permit.
Humble, 25 Wis. 2d at 13.
The Lake Drive Baptist case does not deviate from the general
pattern of requiring at least an application for a building permit which
complies with applicable building codes in order for rights to vest.
From
our examination of relevant law, it is clear that Lake Bluff obtained no vested
rights, because it never submitted an application for a building permit
conforming to the zoning and building code requirements in effect at the time
of the application. Our cases have
consistently held that no rights vest in such an instance. Lake Bluff did not possess the "clear,
specific legal right which is free from substantial doubt" that is
required in an action for mandamus. Collins
v. American Family Mut. Ins. Co., 153 Wis. 2d 477, 483, 451 N.W.2d 429
(1990) (quoting Eisenberg v. ILHR Dept., 59 Wis. 2d 98, 101, 207
N.W.2d 874 (1973)).
We
conclude that the trial court made its determination that mandamus could lie
based on an erroneous understanding of the law. Because a discretionary determination must be based on a correct
understanding of the law, see Althouse, 79 Wis. 2d at 106,
we hold that the trial judge's granting of mandamus was an erroneous exercise
of discretion.
By
the Court.—The decision of the court of appeals is reversed, and
the cause remanded to the circuit court with instructions to quash the writ.
SUPREME COURT OF WISCONSIN
Case No.: 94-1155
Complete Title
of Case: Lake Bluff Housing Partners,
a Wisconsin limited partnership,
Plaintiff-Respondent,
v.
City of South Milwaukee and Michael
Vesperman,
in his capacity as City Building Inspector,
Defendants-Appellants-Petitioners.
_________________________________________
REVIEW OF A DECISION OF THE COURT OF
APPEALS
Reported at: 188 Wis. 2d 230, 525 N.W.2d 59
(Ct. App. 1994)
PUBLISHED
Opinion Filed:
Submitted on Briefs:
Oral Argument: September 7,
1995
Source of APPEAL
COURT: Circuit
COUNTY: Milwaukee
JUDGE: JOHN E. MC CORMICK
JUSTICES:
Concurred:
Dissented:
Not Participating:
94-1155
ATTORNEYS: For the defendants-appellants-petitioners
there were briefs by Joseph G. Murphy, city attorney, and Murphy
& Leonard, South Milwaukee and oral argument by Joseph G. Murphy.
For the plaintiff-respondent there was a
brief by Alan Marcuvitz, Debra A. Slater and Weiss, Berzowski, Brady
& Donahue, Milwaukee and oral argument by Alan Marcuvitz & Debra
A. Slater.
Amicus curiae brief was filed by Curtis
A. Witynski, Madison for the League of Wisconsin Municipalities.
[1] Lake Bluff ultimately proposed three
separate plans for development of its property. As noted below, by August 1993, Lake Bluff had changed its
proposed construction to a plan for two buildings, totalling 56 units, and in
September 1993, Lake Bluff proposed constructing a single three-story building
with 68 units. The August plans were
later resubmitted in March of 1994, along with Lake Bluff's complaint for a
writ of mandamus.
[2] At oral argument before both this Court and
the court of appeals, counsel for defendant stated that this moratorium was of
questionable legality, although it was counsel's opinion that the moratorium
would have been legal if enacted by ordinance.
Because the moratorium was never challenged, and is not challenged here,
we will accept it as valid for the purposes of this review.
[3] Although it is undisputed that the City
never provided a written reply to Lake Bluff's letter, there is some dispute as
to whether the City responded to Lake Bluff's inquiries by other means. The trial court found that the City "did
not notify Lake Bluff of any deficiencies in its plans, specifications and
application" and that the City only identified the deficiencies after the
commencement of Lake Bluff's lawsuit on March 10, 1994. However, the record also shows that the
City's engineer, Michael Lemens, recalled that he contacted Ron Klaas, a
representative of Lake Bluff, during September or October 1993, and that Lemens
informed Klaas that problems existed with Lake Bluff's proposed plans,
including a problem with the setback requirement.
[4] As part of its attempt at political
persuasion in September, Lake Bluff proposed still another plan, for a single
three-story building with 68 units.
Lake Bluff never applied for a building permit for this proposal.
[5] This ordinance was applicable only to Lake
Bluff's property. However, the record
shows that the City also considered rezoning an adjacent parcel of land from
commercial to residential at the same time, but decided against the change when
it was informed that the parcel, a former site of two large industrial waste
pits, would be subject to an environmental cleanup.
[6] The proposed building plans were the same
plans submitted by Lake Bluff on August 8, 1993. As already noted, this plan proposed the construction of two
buildings, totalling 56 units.
[7] The City asserted the following instances of
noncompliance in its answer:
a. set‑back
requirements of the zoning code
b. parking
requirements of the Americans with Disabilities Act
c. proper
connection to existing sewer, water and street systems for the proper
collection and conveyance of storm water runoff including:
i. a
continuous easement for storm sewer
ii. no
easement had been dedicated
iii. a portion
of the planned storm sewer was improperly sized
iv. fail to
provide for a required manhole
v. failed to
provide sufficient inlets and inlet leads
d. insufficient detail was provided to determine if the
plans required driveway approaches which conform to City standards.
[8] The City's building inspector testified at
his deposition that city ordinances required a twenty-foot setback on rear
yards, and a fifteen-foot setback on side yards. The building depicted in Lake Bluff's plans had a five-foot stoop
along one side of the structure. The
building inspector further testified:
Q:Now, so in
order to comply with the setback requirements, building one would have to move
how far north in order to . . . give them the stoop that they have asked for on
their plan and comply with the absolute minimum setback which is the . . .
15-foot side yard? How far north does
that building have to go?
A:In excess of
five feet.
Q:It has to go
five feet just for the 15-foot, right?
A:Correct.
Q:And then an
additional five foot for the stoop?
A:Correct.
Q:And how much
room is there on the north of the plan between the north edge of the building
and the lot line?
A:Eight feet
two inches.
Q:So this
building can't fit on the lot?
A:The way it is designed here, no, it
can't.