Summary
In Edelbeck v. Town of Theresa, 57 Wis.2d 172, 203 N.W.2d 694 (1973), the Wisconsin supreme court considered the constitutionality of section 66.058(5).
Summary of this case from Molgaard v. Town of CaledoniaOpinion
No. 297.
Argued January 2, 1973. —
Decided January 30, 1973.
APPEAL from a judgment of the circuit court for Dodge county: HENRY G. GERGEN, JR., Circuit Judge. Affirmed in part; reversed in part; and remanded.
For the appellants there was a brief and oral argument by William H. Bowman of Milwaukee.
For the respondent there was a brief by Allan Storck of Mayville and oral argument by Robert E. Storck.
This case involves plaintiffs' efforts to obtain a mobile park license in the town of Theresa, Dodge county. On July 28, 1958, the defendant-respondent town adopted "An Ordinance Establishing a Monthly Parking Permit Fee for Mobile Homes and Regulating Mobile Home Parks." This ordinance was enacted under the authority of sec. 66.058, Stats., which gives municipalities licensing authority, after approval of plans and specifications, over mobile home parks. On April 24, 1970, the 1958 ordinance was repealed and a revised version was adopted by the Theresa town board. Both of these ordinances were solely concerned with revenue. Acting under the 1958 ordinance, the town clerk issued a mobile home park license on July 9, 1969, to Heins-Smith, Inc., plaintiffs' predecessor in title.
On February 25, 1970, the plaintiffs made application for a mobile home park permit to the town board. The permit was issued and, on its face, expired one year from the date of its issuance. When the action was started here, the trial court found, however, that the language relating to the expiration date did not reflect the intention of the parties. The practice of the town board was to issue new permits during the year so that they would all expire on the following July 1st. This facilitated uniform annual consideration of such permits according to the trial court. On the plaintiffs' mobile home park permit form the town clerk neglected to note the July 1st expiration date. The trial court found that plaintiffs had paid only a prorated portion of the permit fee and, pursuant to a phone call from the town clerk upon the discovery of his, error (the following day), had promised to amend their license to reflect the correct expiration date and forward a copy of such amended license to the clerk.
On July 3, 1970, the plaintiffs applied for a renewal of their license. The town board did not immediately act upon the renewal request and, on July 6th, repealed the April, 1970, ordinance, replacing it with an ordinance more extensively regulating mobile home parks. On August 19th, the town clerk informed plaintiffs by letter that their request for a mobile home park permit had been denied because their park plan did not comply with the July 6th ordinance.
On February 12, 1971, the plaintiffs, owners of Highway Mobile Home Sales, Inc., the plaintiff corporation, and also of the real estate involved here, brought suit against the town seeking both a temporary and permanent injunction restraining the town from obstructing or interfering with their mobile home park permit and damages of $100,000. The trial court denied the temporary injunction. After both parties brought motions for summary judgment, it granted summary judgment in favor of the defendant town.
Plaintiffs appeal.
Three issues are presented on this appeal:
1. Did the town of Theresa enact a valid ordinance on July 6, 1970?
2. Is the town of Theresa estopped from denying a permit to plaintiffs?
3. Is mobile home park zoning legislation such as the disputed ordinance here constitutionally defective?
4. Are damages barred to plaintiffs?
Invalidity of ordinance of July 6, 1970.
Appellants argue, in support of their claim for injunctive relief, that pertinent provisions of sec. 66.058, Stats. 1967, failed to provide them with an adequate remedy at law. This failure, it is asserted, arises from the town's failure to give them notice of the town board hearing pursuant to sec. 66.058(3)(d)1, and its failure to notify appellants of the revocation of their license pursuant to sec. 66.058(2)(d). Appellants argue that because of these failures appellants were unable to appeal from the town board action within the statutory period of twenty days as specified by sec. 66.058(2)(d).
We find no merit in these arguments. First, because the appeal procedure under sec. 66.058(3)(d), Stats. 1967, does not on its face refer to the adoption by a town board of mobile home park regulatory legislation as was done here. The appeal procedure referred to by the appellants applies only to the action of the town board in determining the amount of "the per mobile home parking permit fee to be levied against a mobile home park." Although the July 6, 1970, ordinance did increase such parking fee, this action is not complained of by appellants. The second reason for rejecting appellants' arguments is that both subdivisions 1 and 2 of sec. 66.058(3)(d), Stats. 1967, were repealed by ch. 495 of the Wisconsin Session Laws of 1969. This session law became effective on April 30, 1970, two months before the town board adopted the ordinance of July 6th.
As to appellants' argument that the town board failed to comply with sec. 66.058(2)(d), Stats. 1967, when it failed to notify appellants of the revocation of their license, the trial court was entirely correct in concluding that appellants could not avail themselves of the appeal procedure because they had failed to obtain, at any time, a valid mobile home park permit. The statute unequivocally mandates state and local approval of mobile home park plans prior to the issuance of a license. It is undisputed here that such approval of park plans was not received prior to the issuance of the license. The town clerk's issuance of a license was an ultra vires act and did not result in the issuance of a valid mobile home park permit which was thereafter revoked or suspended.
State ex rel. Ryan v. Pietrzykowski (1969), 42 Wis.2d 457, 463, 167 N.W.2d 242.
While appellants are not entitled to pursue the specific statutory appeals procedure outlined in sec. 66.058(2)(d), Stats. 1967, they are permitted to challenge, with equitable actions, proceedings under statutes which provide only a limited appeal procedure. In this respect it is necessary to examine the general provisions relating to ordinance adoption by town boards. The zoning power of towns is regulated by sec. 60.74 and provides:
Milwaukee v. Reilly (1957), 2 Wis.2d 33, 37, 85 N.W.2d 837.
David A. Ulrich, Inc. v. Saukville (1959), 7 Wis.2d 173, 177, 96 N.W.2d 612.
"(2) If such town has a town park commission organized as provided by law, such commission shall recommend boundaries of such districts and appropriate regulations and restrictions to be imposed therein. If the town has no town park commission, the town board may appoint a town zoning committee of 5 members to perform the duties of the town park commission under this section. The town park commission or zoning committee shall first formulate a tentative report and shall hold public hearings thereon before submitting a final report to the town board. After such final report is submitted, and the ordinance pursuant thereto adopted, the town board may alter, supplement or change the boundaries or regulations contained in such ordinance as herein set forth, but a class 2 notice, under ch. 985, any such proposed changes shall first be published in the town prior to the hearing. A hearing shall be granted to any person interested, at a time and place to be specified in the notice."
It is clear from the record here that sec. 60.74(2), Stats., was not complied with by the town of Theresa prior to the adoption of the July 6, 1970, ordinance. In testimony upon adverse examination, the town clerk, Ralph Bodden, acknowledged that no notice of the pendency of the ordinance was published or posted prior to the meeting in which it was adopted. He further testified that the July ordinance was not prepared by the town attorney until one week prior to the town meeting.
What is the effect of the town's failure to comply with the provisions of sec. 60.74(2), Stats.? In Herman Oconto, we held the failure to publish a pending city ordinance pursuant to an 1893 statute was a jurisdictional defect rendering the ordinance void:
(1898), 100 Wis. 391, 76 N.W. 364.
". . . It is contended that the common council complied with all of such requirements, except the last clause, printed in italics, and that that clause is directory and not mandatory. But the whole section is mandatory, and the common council had no more power to dispense with the last clause than any other portion of the section. Such notice was required so that the public might appear and make their objections to the change."
Id. at page 398. See also: State ex rel. Ryan v. Pietrzykowski, supra, footnote 1, at page 463.
McQuillin's Law of Municipal Corporations is to the same effect:
"Provisions respecting publication and sufficient notice of ordinances and resolutions are mandatory, and failure to publish or give notice, or to do so substantially in the manner prescribed, renders them void even where, it has been declared, newspapers reported the pendency of the measure as an ordinary news story."
5 McQuillin, Municipal Corporation (3d ed. rev. 1969), pp. 267-269, sec. 16.78.
We conclude that the failure to comply with the notice-of-hearing provisions of sec. 60.74(2), Stats., invalidates the enactment of the July 6, 1970, ordinance. The public has the right to appear and voice objections to pending legislation. This is certainly a right that should be honored in connection with zoning changes, as here.
1 Rathkopf, Zoning and Planning (3d ed.), ch. 8, pp. 8-12-8-23 (1972).
Estoppel of town board.
Appellants argue that they are entitled to the prior-nonconforming-use doctrine enunciated in several Wisconsin cases. This nonconforming use comes about because of the invalidity of the July 6, 1970, zoning ordinance and the contention that appellants expended over $60,000 in purchasing and improving the property in question after the permit was initially granted under the 1958 ordinance. The only evidence in the record of such a sum is found in an unidentified and unsigned offer to purchase. The trial court correctly concluded that appellants had made an outlay of only "some $3,000 or $4,000." Thus, this situation is far different from that which existed in State ex rel. Schroedel v. Pagels, cited by appellants. In Schroedel, petitioner had expended roughly $185,000 in reliance upon an existing ordinance. Thereafter, and with full knowledge of these expenditures, the municipality adopted a more stringent ordinance. On appeal the supreme court affirmed the trial court's conclusion that the petitioner had acquired vested rights and interests by virtue of the expenditures on reliance of the previous ordinance. There is no substance to the appellants' claim here that they acquired a vested right which barred the town from further action in adopting a more stringent zoning ordinance with reference to mobile home parks.
See e.g., Yorkville v. Fonk (1958), 3 Wis.2d 371, 88 N.W.2d 319, certiorari denied, 358 U.S. 58, 79 Sup. Ct. 110, 3 L.Ed.2d 48.
(1950), 257 Wis. 376, 43 N.W.2d 349.
Constitutionality of mobile home park zoning legislation.
As to appellants' contention that zoning requirements for mobile homes which are different from those for single and multiple family homes violate the equal protection clause of the state and federal constitutions, this court has nothing to add to its 1958 decision in Yorkville v. Fonk, sustaining such legislation. As stated in that case:
"Trailer camps in recent years have become so common that it is not beyond the bounds of reason that the legislature may believe that such camps, with their collection of small mobile homes, present definite problems of health, safety, morality, and general welfare in the area which is affected by the presence of such camps. . . .
". . .
"The ordinance reasonably tends to stabilize the problems created by the transient nature of mobile-home life to a point where school districts may cope with them.
"We concur in the trial court's decision that neither the statute nor the ordinance in question here is unconstitutional."
Yorkville v. Fonk, supra, footnote 8, at pages 375 and 377.
The following memorandum was filed on March 27, 1973.
It is entirely constitutional for reasonable zoning regulations to be developed imposing zoning requirements for these trailer camps (mobile home parks).
Appellants also argue that sec. 66.058(5), Stats., is unconstitutional in the event that the trial court's interpretation thereof is accepted. This section provides as follows:
"(5) PLANS AND SPECIFICATIONS TO BE FILED. Accompanying, and to be filed with an original application for a mobile home park, shall be plans and specifications which shall be in compliance with all applicable city, town or village ordinances and provisions of the department of health and social services. The clerk after approval of the application by the governing body and upon completion of the work according to the plans shall issue the license. A mobile housing development harboring only nondependent mobile homes as defined in sub. (1)(g) shall not be required to provide a service building."
The trial court ruled that a property owner gains no status under this section until he files a park plan with the municipality which conforms to state and local regulations. Appellants argue that under this interpretation they would be forced to expend large sums of money without any assurance of eventually being granted a park permit. This, they contend, is an unconstitutional interpretation of the applicable statute. The trial court was entirely correct in its interpretation of sec. 66.058(5), Stats. The statute clearly mandates the clerk of a municipality to issue a mobile home park license after completion of the park's construction according to the previously approved plans. It is true that some money must be expended by a property owner in the preparation of his mobile home park plans. This situation is no different than, for example, the expending of money for the preparation of a plat which, under ch. 236, must be approved by the local municipality. It cannot be argued that a reasonable refusal to approve such a plat results in the unconstitutional deprivation of the moneys expended in its preparation. Similarly in the instant case, a reasonable refusal to approve a mobile park home plan is not an unconstitutional deprivation of the money expended in seeking the park plan's approval. We conclude that the trial court's interpretation of sec. 66.058(5) is entirely correct and reasonable and that such interpretation does not result in an unconstitutional deprivation of property should the plan be reasonably refused.
Damages.
The appellants have failed to file a statement of their claim and demand for payment with the town clerk pursuant to sec. 60.36, Stats. Moreover, their pleading, as provided by sec. 895.43, does not show compliance with the notice of injury or damage requirement of that section, and, therefore, their cause of action for money damages, for these reasons, was properly dismissed.
By the Court. — Judgment affirmed as to dismissal of cause of action for money damages; reversed as to dismissal of cause of action for injunction; cause remanded for further proceedings not inconsistent with this opinion.
The ordinance of July 6, 1970, was a zoning ordinance and because, as respondent points out on rehearing, Dodge county had already adopted a county-wide zoning ordinance under sec. 59.97, Stats., adoption of this zoning ordinance was invalid for the additional reason that the town of Theresa was not authorized under sec. 60.74(1)(a) to adopt such ordinance.
The mandate in this cause is amended to read:
By the Court. — Judgment affirmed as to dismissal of cause of action for money damages; reversed as to dismissal of cause of action for injunction.