Summary
In Covenant Harbor, 7 Wis.2d at 276-78, 96 N.W.2d at 358-59, a fire destroyed a bible camp building capable of housing 75 to 100 people.
Summary of this case from Village of Elm Grove v. T.V. John SonOpinion
April 9, 1959 —
May 5, 1959.
APPEAL from a judgment and order of the circuit court for Walworth county: M. EUGENE BAKER, Circuit Judge. Judgment reversed; appeal from order dismissed.
For the appellant there was a brief by Rieser, Stafford, Lesselyoung Rosenbaum of Madison, and oral argument by Nicholas J. Lesselyoung and Willard S. Stafford.
For the respondents there was a brief and oral argument by Hugh L. Burdick of Lake Geneva, attorney, and J. Arthur Moran of Delavan of counsel.
Covenant Harbor Bible Camp of the Central Conference of the Evangelical Mission Covenant Church of America, relator, is a Wisconsin nonstock corporation. It owns and operates a bible camp located principally in the city of Lake Geneva. In July, 1957, it applied for building permits for six cottages. The city building inspector and the city council rejected the application and relator appealed to the board of appeals. After hearing, the board of appeals affirmed the action of the city council and building inspector. The circuit court issued a writ of certiorari March 26, 1958, upon the petition of relator. After consideration of the writ and after a hearing at which additional evidence was taken, the court entered judgment on June 11, 1958, quashing the writ and affirming the decision of the board of appeals. The relator appealed from the judgment.
Thereafter relator by motion challenged the validity of a particular city ordinance but its motion was denied by order entered July 17, 1958. Relator also appealed from the order but has since abandoned its claim that the ordinance was invalid.
Relator's property consists of 53 acres. Forty acres thereof and most of the improvements are within the city of Lake Geneva and this portion of the property has a frontage on Lake Geneva of 1,106 feet. Relator is owned by the Central Conference of the Evangelical Mission Covenant Church. The Central Conference is a district or synod composed of 64 churches located in Illinois, Wisconsin, and Indiana. The bible camp in Lake Geneva is known as Covenant Harbor. During the summers it is operated for the benefit of children and young people from the ages of nine to seventeen. These campers come for one-week periods and under the directions of counselors and staff engage in bible study, religious services, recreation, and discussions of questions concerning Christian living. The maximum residence capacity of the camp has been about 225 people, including campers and staff, and approximately 1,000 campers are served during a summer season. The property is used in other seasons for retreats and week-end conferences.
The property was formerly a family estate. It was purchased by the Central Conference in October, 1947, for $150,000, and later conveyed to relator after its incorporation in March, 1948. In 1947 the improvements included the old family residence, and some half-dozen guesthouses and similar quarters. The family residence contained 26 rooms and 11 baths. During camp seasons and winter retreats, it housed between 75 and 100 people, as well as containing office quarters.
In 1948 and 1949 a dining hall with a capacity of nearly 300 was erected pursuant to permission granted by the city council in the summer of 1948. The out-of-pocket cost of the building was approximately $30,000, but including the value of volunteer labor, the cost was estimated at $55,000 to $60,000. On May 23, 1951, the city council authorized permits for three cabins, each to contain 16 campers and two counselors. These cabins were constructed at an out-of-pocket cost of about $3,000 each and the cost, including the value of volunteer labor, was about $5,000 each. In April, 1954, a permit was granted for a cabin to house two families and referred to as the "cook's cabin." The estimated cost was $4,000.
On January 17, 1957, the family residence burned and was a total loss. The application involved in this proceeding was for six cabins identical to those which had been built in 1951 and which would have housed a total of 96 campers, approximately replacing the campers' quarters lost as a result of the fire. The city attorney advised relator that it was prohibited from rebuilding the residence.
Starting in 1928 the city of Lake Geneva had in force ordinance No. 129 regulating zoning. Relator's property was in a residence district under that ordinance and permitted uses in that district were residence, rooming or boarding house, church, and school. On January 9, 1946, the city adopted ordinance No. 200 as an interim ordinance prior to the adoption of a comprehensive zoning ordinance under sec. 62.23, Stats. It did not expressly repeal ordinance No. 129 and contained a section providing that, "Where not clearly inconsistent with the spirit and intent of this ordinance, a permit may be issued for the erection on any lot or parcel of land lying in a residence district of a building or structure for the purpose of any business, industrial, mercantile, manufacturing, or storage use, or for the alteration, extension, or conversion of a building or structure in such district for or to such purpose," provided that there be certain written consents by owners on the same street within the same block. Ordinance No. 200 was extended from time to time so that it was in force at the time relator acquired the property, at the time its permit to build its dining hall was issued and the dining hall constructed and its first camping season held in 1948. On June 23, 1949, there was published ordinance No. 237 which, with one amendment, remained in force. Under ordinance No. 237 relator's property was in residence district "A" and among permitted uses in that district were "churches, public schools, boarding-and-lodging parochial schools, public libraries, public museums, and art galleries. . . . Public and organized quasi-public recreational and community-center buildings and grounds." The ordinance remained in this form at the time that the council issued the permits for the three campers' cottages in May, 1951. On December 9, 1953, the council adopted ordinance No. 265 which removed churches, boarding-and-lodging parochial schools, and public and organized quasi-public recreational and community-center buildings and grounds from the list of permitted uses in residence district "A" and included them in the list of permitted uses in residence district "B." This amendment had taken place prior to the issuance in 1954 of the permit for the cook's cabin and was still in effect at the time of hearing.
Ordinance No. 237 provides that, "The existing lawful use of a building or premises at the time of the enactment of this ordinance or any amendment thereto may be continued although such does not conform with the provisions of this ordinance for the district in which it is located, but such nonconforming use shall not be extended." It also provides, "When a building containing a nonconforming use is damaged by fire, explosion, act of God, or the public enemy to the extent of more than 50 per cent of its current local assessed value, it shall not be restored except in conformity with the regulations of the district in which it is located. The total structural repairs or alterations in any nonconforming use shall not during its life exceed 50 per cent of the local assessed value of the building at the time of its becoming a nonconforming use unless permanently changed to a conforming use."
The ordinance also confers upon the board of appeals power "to authorize, upon appeal in specific cases, such variance from the terms of this ordinance, as will not be contrary to the public interest, where, owing to special conditions, a literal enforcement will result in practical difficulty or unnecessary hardship, so that the spirit of the ordinance shall be observed, public safety and welfare secured, and substantial justice done."
Relator's property is not assessed for tax purposes because it is exempt as a bible camp. A charge is made to campers but the charge is less than the cost of operation, the difference being contributed by the churches of the Conference.
The decision of the board of appeals was that relator's nonconforming use was established in 1949 when the ordinance was passed and could be continued but not extended; that the permits to build cabins in 1951 and 1954 extended the nonconforming use and were issued in error; that the total destruction of the main building by fire was subject to the provision preventing its restoration; that the board did not believe that its action would result in undue financial loss or hardship to the camp and that any such loss is more than balanced by the long-range policy toward conformity of use within the district.
The circuit court filed a written decision holding that the use did not conform to the ordinance and that the board of appeals was within its discretion in denying a variance on the grounds of hardship.
The parties agree that relator's use of its premises for a bible camp is nonconforming. Respondents take the position that this use has been nonconforming ever since ordinance No. 237 was enacted in 1949. Relator apparently takes the position that this use conformed to the ordinance until ordinance No. 265 was enacted in 1953, removing certain enumerated uses from the list of uses permitted in the district in which relator's property is located. Since the extent of relator's use of the premises was increased in 1951 by the construction of three cabins, the extent of the nonconforming use protected by the zoning ordinance depends upon whether relator's use became nonconforming in 1949 or in 1953.
We are of the opinion that relator's use of the premises for a bible camp became nonconforming at the time of the amendment of the ordinance in 1953. At the time relator acquired the property and began the bible camp, the ordinance in effect did not expressly authorize bible camps, but authorized uses for residence, rooming or boarding house, church, and school, and further, in the event of consent by neighbors, authorized issuing permits for business, industrial, mercantile, manufacturing, or storage use. The city expressly permitted relator to construct buildings for the bible-camp use. Evidently, it is conceded that this was either the granting of an authorized special permit or was an administrative construction of the list of permitted uses as covering the use proposed by relator.
In 1951 the city issued permits for construction of three cabins which enlarged the residence capacity of the camp. At that time the list of permitted uses still included churches and two other categories, the meaning of which was open to interpretation of considerable latitude, i.e., "boarding-and-lodging parochial schools" and "organized quasi-public recreational . . . buildings and grounds." We think that the permits issued in 1951 are not to be considered as unauthorized permits, but should be treated as administrative construction of the ordinance as permitting the use which relator was making.
Thus at the time that the relator's use of the property became nonconforming in 1953, its bible camp had a capacity approximately the same as it had just prior to the fire which destroyed the family residence in 1957. The only addition after 1953 appears to have been the so-called cook's cabin, the permit for which was not authorized by the ordinance.
The bible-camp use, under the terms of the ordinance, could be continued but not extended. Very shortly after the family residence was destroyed by fire in January, 1957, the city attorney advised relator that because the bible camp was a nonconforming use and because the family residence had been completely destroyed, relator could not replace that building. We shall first address ourselves to the question of whether this advice was correct. The city attorney relied upon the provision of the ordinance that when a building containing a nonconforming use is damaged by fire to the extent of more than 50 per cent of its current local assessed value, it shall not be restored except in conformity with the ordinance.
Relator points out that its bible camp constitutes a single use, that it is carried on in a number of different buildings, the use of each being an integral part of the one use of the premises — the bible camp. The respondents and the city attorney emphasize the fact that the ordinance refers to "a building containing a nonconforming use" in the singular and not the plural. It may be observed that in the situation before us, no one building contains the entire nonconforming use (the bible camp) and that there is authority for construing a word in the singular in a statute as if it were plural. Sec. 990.001 (1), Stats.; 50 Am. Jur., Statutes, p. 251, sec. 256.
Ordinances of the type relied upon have been generally upheld as constitutional. A number of cases are cited in Rhyne, Municipal Law (1957 ed.), pp. 915, 916, sec. 32.30; 1 Antieau, Mun. Corp., p. 447, sec. 7.07. We have not, however, found a decision discussing the type of situation which is before us in this case. In some of the cases like Palazzola v. Gulfport (1951), 211 Miss. 737, 52 So.2d 611, the building destroyed was the only building on the property. In some like Baird v. Bradley (1952), 109 Cal.App.2d 365, 240 P.2d 1016, the building destroyed did not conform to structural requirements. In State v. Hillman (1929), 110 Conn. 92, 147 A. 294, several buildings devoted to the same use were involved, but it appears from the statement of facts that more than the required percentage had been destroyed, taking all the buildings together.
It appears to be an accepted principle that "The spirit of zoning is to restrict rather than increase a nonconforming use and to eliminate such uses as speedily as possible." 2 Rathkopf, Law of Zoning and Planning (3d ed.), p. 75. Legislatures have generally refrained from requiring an immediate discontinuance of nonconforming uses presumably because of doubt that such a provision would be constitutional. See 1 Antieau, Mun. Corp., p. 444, sec. 7.07; Willis, The Elimination of Nonconforming Uses, 1951 Wisconsin Law Review, 685. Evidently courts have considered that where a nonconforming use has been carried on in a building which has been accidentally destroyed in large measure, it is not unreasonable to compel the owner to conform to zoning requirements thereafter. The investment in an improvement which may not be readily adaptable to a conforming use has been taken away from him by the accident and not by the ordinance. With the improvement substantially destroyed, the land on which it is located will presumably have approximately as much value for use in conformity with the ordinance as otherwise, and the public interest in conformity with the ordinance will be served if he is not permitted to continue the nonconforming use.
Granting that the position of respondents could be sustained if in the case before us the building destroyed had been devoted to a separate nonconforming use, that is not the situation presented. The 50 per cent rule, which may be reasonable if applied to one building containing a separate use, may not be reasonable if applied to an individual building used jointly with other buildings in a single nonconforming use upon one premises. At least the theory which has been suggested for sustaining the 50 per cent rule would not apply in the latter type of case. Suppose that the value of the destroyed building were only 15 or 20 per cent of the value of all relator's buildings, but that the loss of 50 per cent of the sleeping quarters of the camp would make continuance of the camp financially impossible. Suppose that one property is used for an institution or industry housed in several buildings, no one of which is worth as much as half the total but each of which is essential to the operation of the whole. In situations of the type suggested the application of the 50 per cent rule to the individual building might well result in a substantial loss of investment out of all proportion to the value of the building destroyed by accident. We therefore conclude that the 50 per cent rule should not be interpreted in accordance with the views of the respondents in a situation such as the one before us.
In the case before us the buildings have not been assessed because the use makes the property exempt from taxation. Assessed value, however, is required by law to equal fair market value and the fair market value could be determined by evidence. We conclude that the question of whether relator had the right to restore the family residence without changing it to a conforming use depends upon whether the fair market value of the destroyed building prior to its destruction was more than 50 per cent of the fair market value of all the buildings on the premises (excluding the cook's cabin) used by relator for its bible camp. If the value of the one building was not more than 50 per cent of the total, then relator could have "restored" the destroyed building.
We do not think that relator's only right would have been to erect a structure identical to the building destroyed but the reasonable construction of the word "restore" is not before us in this case. Relator's intention here was to replace the residence capacity of the destroyed building by building six cabins in a part of the premises some distance away from the building which was destroyed by fire. It is our opinion that even if the values were such that relator had the right to restore the destroyed building, relator could not as a matter of right replace it with different buildings at a different site. Relator's desire to do so would have to have been considered by the board of appeals under the provisions of the ordinance empowering the board to grant a variance. In deciding whether to grant a variance the board would have had to proceed upon the premise that the relator was entitled to restore the destroyed building if it chose.
Under the circumstances we deem that the judgment should be reversed and the matter should be remanded to the circuit court. Sec. 62.23 (7) (e) 10 to 15, Stats., authorizes the circuit court to review the decision of the board of appeals by certiorari. Par. 13 permits the court to take evidence. We leave it to the discretion of the circuit court whether to hear evidence on value to determine whether relator has a right to restore the destroyed building and then to reverse the decision and remand the matter to the board of appeals for consideration of the matter of granting a variance or whether the court should at once reverse the board's decision and remand the entire matter for further hearing and determination by the board in accordance with the conclusions stated in this opinion.
By the Court. — Judgment reversed, and cause remanded for further proceedings not inconsistent with the opinion filed herein; appeal from order dismissed.