Opinion
February 2, 1959 —
March 3, 1959.
APPEAL from a judgment of the circuit court for Milwaukee county: FRANCIS X. SWIETLIK, Circuit Judge. Affirmed.
For the appellant there was a brief and oral argument by A.L. Tilton of Milwaukee.
For the respondent there was a brief by Milton F. Burmaster, city attorney, attorney, and Herbert L. Mount of Milwaukee of counsel, and oral argument by Mr. Mount.
On February 4, 1958, the city of Wauwatosa brought action against Milton E. Strudell. The complaint set forth two causes of action, but the circuit court's conclusion that the city did not prove its second cause of action (nuisance) is not challenged. In the first cause of action the city alleged that Strudell has been operating an asphalt-manufacturing and mixing plant at 11640 West Ripley avenue; that the operation was commenced pursuant to a zoning permit issued by the Milwaukee county regional planning department on March 9, 1956; that at that time this location was in the town of Wauwatosa; that the premises became a part of the city of Wauwatosa by annexation in September, 1956; that the city notified Strudell that his plant was being operated in violation of county and city zoning ordinances and that he should cease his operations; that Strudell has refused to comply with this and similar notices.
It was further alleged that in applying for the county zoning permit, Strudell represented that his structure would consist of "mobile equipment — temporary," and represented that his plant would be discontinued before the end of 1956; that the applicable portions of both the county and city ordinances prohibit the manufacturing of asphalt or asphalt products in the area where Strudell's plant is located. It is alleged that Strudell acquired no rights under the written permit issued by the county department. The city asked that Strudell be enjoined from operating his plant.
Defendant Strudell denied that he had represented that his plant would be discontinued before the end of 1956 and denied that he carried on asphalt-manufacturing operations.
The circuit court found that the permit issued March 9, 1956, was issued on a temporary basis and that the defendant was informed of that fact when the permit was issued; that the operation of defendant's plant amounts to manufacturing of an asphalt product and is prohibited under the applicable provisions of both the county and city ordinances.
The written decision, which the parties agreed would serve as findings, describes the method of the operation as follows:
"Crushed stone of various sizes, some large, some as small as particles of sand, is fed into a mixer which is in motion. Thereupon heat is injected into the mixer containing the crushed stone so as to thoroughly dry the aggregate. If a cold mix is desired, heat is generated to 100-175 degrees. If, on the other hand, it is to be a hot mix, the intensity of the heat reaches 300 degrees. Thereupon this crushed stone is transferred into a hopper into which hot asphalt (bitumen) is poured. The particles of the heated crushed stone are covered with a thin film of asphalt. This resulting plastic product is then poured into trucks to be conveyed to various jobs.
"The blending of the hot asphalt with the crushed stone after the heating process is concluded results in a cohesive plastic mass very similar to `Cracker Jack' after syrup is poured on popcorn.
"This product resulting from the application of heat, mixing, and blending with hot asphalt, is a substance which may be used `for the construction of roads, city streets, and airports.' It is a new product, distinct from the ingredients that go into it. It has a commercial value and a distinct use.
Defendant's plant was described in his application for the county zoning permit as follows: "Asphalt Mixing Plant 40' by 20', Office 10' by 15', 5,000 Gal. Fuel Tank 10' by 20' 10,000 Gal. asphalt tank 10' by 40', 30 H.P. Boiler 10' by 10'."
On July 16, 1958, judgment was entered enjoining defendant from continuing to operate his plant and defendant appealed. Further facts will be referred to in the opinion.
Before the city annexed the territory in which Strudell's plant was located, the county zoning ordinance was in force. From the time of annexation until the city placed the territory in a district governed by the city zoning code, the county ordinance continued in effect. Sec. 59.97 (4a), Stats. After June 27, 1957, the city code was applicable to the territory.
Under the county ordinance Strudell's property was in the M-1 commercial and light-manufacturing district and subject to sec. 85.13 of the ordinance. Sub. (1) lists permitted uses. Paragraph (d) reads:
"Any other trade, industry, or use that is not obnoxious or offensive by reason of odor, dust, smoke, gas, or noise, but the following types of uses are prohibited: . . ."
The list of prohibited uses contains 32 items. Item 17 includes "manufacture of; . . . asphalt or products thereof; . . . " Thirty-nine other classes of products are also included in this item.
Under the city code Strudell's property was in an "AA" Light Manufacturing District, subject to sec. 14.13 of the code. Sub. 1 provides:
"In the `AA' Light Manufacturing Districts buildings and premises except as otherwise provided in this ordinance, may be used for any use permitted in the business districts, except residential or institutional uses, and for any light-manufacturing use except the following: . . ."
The list of exceptions includes 88 items, one of which is "asphalt manufacture or products thereof."
Two questions are presented: (1) Is Strudell engaged in manufacturing an asphalt product? (2) If so, did he obtain any right to do so under the permit issued by the county?
(1) Manufacture of an asphalt product. Strudell claims he is merely mixing an aggregate and asphalt, that the mixture loaded into trucks at his plant is not materially different from the result of a mixing operation which could be carried on at the site of road or street construction, and that his operation therefore does not constitute "manufacture."
It is to be noted that this section of the city ordinance generally permits rather than prohibits light manufacturing. It is clear that the city council intended to prohibit the processing of certain materials which might otherwise be permitted as light manufacturing because of some tendency of those materials to exhibit obnoxious properties when processed. While the applicable provision of the county ordinance is drawn somewhat differently, the parties seem to concede, and we agree, that this difference is not material in so far as Mr. Strudell's operations are concerned.
We have examined definitions of "manufacture," and with them in mind, conclude that "manufacture of asphalt products" as used in these ordinances covers the processing of asphalt as performed by Mr. Strudell and the production of the so-called plant mix which he loads into trucks at his plant.
Webster's New International Dictionary (2d ed.), defines the transitive verb, manufacture, as: "1. To make (wares or other products) by hand, by machinery, or by other agency; as, to manufacture cloth, nails, glass, etc.; to produce by labor, esp., now, according to an organized plan and with division of labor, and usually with machinery. 2. To work, as raw or partly wrought materials, into suitable forms for use; as, to manufacture wool, iron, etc. 3. To fabricate; to invent; also, to produce mechanically."
The mixing of ingredients of concrete for sale in a plastic state has been held to be manufacture. Passaic Transit Concrete Co. v. Martin (1941), 19 N.J. Misc. 369, 19 A.2d 681, and Commonwealth v. McCrady-Rodgers Co. (1934), 316 Pa. 155, 174 A. 395.
It is our opinion that the operation of Strudell's plant was prohibited under both the county ordinance and the city code.
(2) The permit. Strudell claims that he built his plant at very substantial expense (some $60,000) in reliance upon the permit issued by the county building inspector and thus obtained a vested right to pursue his business at that location.
Ch. 86 of the general ordinances of Milwaukee county creates the position of county building inspector and for the enforcement of the zoning ordinance provides for the issuance of permits and requires that a permit be obtained before commencing a structure. Upon proper application, and if the use disclosed complies with the ordinance and rules, the permit must be granted. It is provided that: ". . . in no event shall the granting of a permit relieve the owner or agent from the requirements of the zoning ordinance." Thus the issuance of a permit is a condition precedent to construction for a lawful use, but the issuance of a permit does not authorize a use which is in violation of the ordinance. As a matter of law the permit issued to Mr. Strudell could not and did not make legal the operation of his asphalt-mixing plant in the M-1 district.
The officer who issued the permit pointed out upon the trial that a substantial part of Strudell's mixing plant is so constructed that it can be mounted on wheels and moved. The officer testified that there was conversation when the permit was applied for to the effect that Mr. Strudell contemplated only temporary operation in that location. The officer seems to have been under the impression that the proposed temporary use was permitted under sec. 85.17 (1) (a) of the county ordinance providing:
"The following uses shall be permitted in any district provided that such uses do not alter the character of the premises in respect to their use for the purpose permitted in such respective district: . . .
"2. Temporary buildings and uses for construction purposes for a period not to exceed one (1) year."
There was no notation on the permit at the time it was issued which indicated that it was issued on the theory that only a temporary use could be permitted. It is conceded, however, that on March 22, 1956, the officer wrote to Mr. Strudell in part as follows:
"On March 9, 1956, Milwaukee county zoning permit No. 45330 was issued to you for permission to locate a mobile asphalt mixing plant on a temporary basis on a parcel of land situated in the town of Wauwatosa. . . .
"Because this mixing plant was based on mobile equipment and of a temporary nature, the permit was issued. In the original plans for the westerly extension of the Milwaukee county expressway, such right of way was proposed to follow a route along the north side of the Milwaukee Road right of way. However, in recent studies it appears that such right of way will be moved to the south side of the Milwaukee Road tracks, . . . which means that the tract of land upon which this temporary mixing plant is located would be involved when such expressway is constructed in this neighborhood."
The trial court made a finding that Mr. Strudell had been informed of the temporary character of his permit at the time it was issued. Although there was conflicting testimony on that point, there was sufficient evidence to sustain the finding.
Thus we reach the conclusions: (1) That because the plant was operated in the manufacture of asphalt products, the use was not permitted under either the county or city ordinance and, (2) that even if some doctrine of estoppel or equity could prevent enforcement of a zoning ordinance against one who had invested money in reliance upon an unauthorized permit, Mr. Strudell was adequately informed that the permit was temporary before he invested his money.
By the Court. — Judgment affirmed.