Opinion
February 7, 1958 —
February 28, 1958.
APPEAL from a judgment of the circuit court for Racine county: ELMER D. GOODLAND, Circuit Judge. Reversed.
For the appellant there was a brief by H. H. Brown of Union Grove, attorney, and La France, Thompson, Greenquist, Evans Dye of Racine of counsel, and oral argument by Kenneth L. Greenquist.
For the respondents there was a brief and oral argument by David L. Phillips, attorney, and Burton Lepp of counsel, both of Kenosha.
Action to collect a forfeiture for violation of a town ordinance limiting the number of trailer spaces in any trailer camp. The judgment dismissed the complaint.
On October 13, 1947, the town adopted an ordinance which limited each trailer camp in the town to the operation of not more than 25 trailer spaces. This was done in reliance upon sec. 66.058(2)(b), Stats., providing that municipal legislative bodies, including town boards, may limit the number of units, trailers, or mobile homes that may be parked or kept in any one camp or park, and may also limit the number of licenses for trailer camps or parks in any common school district.
Before the ordinance was adopted the defendants had established a trailer camp which contained 23 trailer spaces already completed and 24 spaces partially completed.
After the adoption of the ordinance defendants purchased an additional acre of land. This was large enough to accommodate 18 trailer spaces. They moved the electrical equipment from the partially completed 24-space location to the new acre, installed it there and otherwise completed new spaces there for 18 trailers. The land from which the 24-space installations were removed was converted into a playground for the enjoyment of trailer tenants. The drainage tile and grading originally done there remained in place.
Action was brought by the town to collect a forfeiture provided for violation of its ordinance. The circuit court, by judgment dated July 22, 1957, dismissed plaintiff's complaint with costs. The trial court found as facts that the 25 trailer-space limitation by the ordinance is not related to the protection of the public health, morals, and safety of the people of the town; but that this limitation is related to the general welfare of the people of the town by protecting the school district of the town from overcrowded facilities and enabling the school district to plan for necessary expansion.
The court further found that before October 13, 1949, the defendant had acquired sufficient land for 47 trailer spaces of which 23 spaces were ready for use and substantial improvements for similar use had been made on the remaining 24 spaces.
As conclusions of law the trial court held that sec. 66.058 (2)(b), Stats., which enables the town to place a limit of 25 trailers in any licensed camp without regard to the physical facilities and capacities of the camp is not an unconstitutional grant of power, and that the ordinance limiting the number of trailers to 25 at any one time is not unconstitutional. The court then held that the ordinance does not apply to the defendants and their camp because under the circumstances defendants have a vested right to place 47 trailers in their camp as a nonconforming use.
The town contends that the trial court erred in holding that the defendants have a vested right to a nonconforming use. The defendants, while upholding that conclusion of the court, have moved to review the trial court's conclusion that the ordinance is valid. All the issues, therefore, are brought before the supreme court as they were before the trial court.
The trial court filed a memorandum decision in which, among other things, it stated:
"It is established to the satisfaction of the court that the trailer camp does not have adequate facilities for sewage disposal; that the present method of sewage disposal has an adverse effect upon the health of persons in the area, and that an adequate sewage-disposal system for the camp would cost about $30,000, which would be adequate for 64 homes; that the trailer camp has an adverse effect upon the value of property in the area, which is zoned for agricultural purposes; that the larger the trailer camp the more objectionable it would be; that an increased number of trailers would not create an increased fire hazard; that the trailer camp does not present a law-enforcement problem; and that the occupants of the camp are well behaved and law abiding."
The court further said:
"We agree that the town can set up adequate trailer-camp standards to protect the general health and safety of the people of the township without limiting the number of trailers in any one camp to 25. We also agree that limiting the number of trailers to 25 has no relationship to protecting the morals of the people in the township. If we were dealing solely with the question of public health, morals, and safety, we would not hesitate to declare the limitation of 25 trailers an arbitrary exercise of police power and therefore invalid."
Other facts will be stated in the opinion.
In Des Jardin v. Greenfield (1952), 262 Wis. 43, 53 N.W.2d 784, we declared that the same principles of constitutionality apply to trailer ordinances that apply to zoning ordinances. The source of the power of the legislature to authorize their enactment is dependent on the same general police power.
The power to pass ordinances must be reasonably exercised but within the field delegated it may go to the boundaries of reason and within that field the municipality's discretionary power is supreme. C. Beck Co. v. Milwaukee (1909), 139 Wis. 340, 348, 120 N.W. 293. When a municipal body enacts regulations pursuant to authority expressly granted, all presumptions are in favor of its validity and any person attacking the ordinance must make the fact of its invalidity clearly appear. The function of a reviewing court is solely for the purpose of determining whether legislative action under the power delegated to the municipality passed the boundaries of its limitations or exceeded the boundaries of reason. The delegation to the municipality of this power by the legislature implies a field of legislative discretion within which its acts are not subject to judicial review. It is only when the bounds of that field are clearly exceeded that courts will deny validity to the ordinance. La Crosse v. Elbertson (1931), 205 Wis. 207, 211, 237 N.W. 99.
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. Granting that problems of this nature are presented, it is not beyond the bounds of reason to believe that the larger the concentration of mobile homes the greater or more intense the problems will become, and, conversely, the problem will be diminished by camps less densely populated. The legislature, then, may authorize the municipalities most directly concerned to apply their local knowledge to the local problem and attempt to deal with it by regulating the number and population of the camps to a point where the municipality may tolerate the problems which such camps present.
We have said:
"Courts will not interfere with the exercise of police power by a municipal corporation in the absence of a clear abuse of discretion and unless it is manifestly unreasonable and oppressive, for it is not within the province of the courts, except in clear cases, to interfere with the exercise of this power reposed by law in municipal corporations. 11 Am.Jur., Constitutional Law, p. 1092, sec. 307. Municipal corporations are prima facie the sole judges respecting the necessity and reasonableness of ordinances under their police power, and every intendment is to be made in favor of the lawfulness and reasonableness of such ordinance. The city is presumed to have full knowledge of local conditions, and its adoption of an ordinance in the light of this knowledge creates a prima facie presumption that it is reasonable. 3 McQuillin, Mun. Corp. (2d ed.), p. 110, sec. 951. The reasonableness of an ordinance depends upon the purpose sought to be accomplished and the effect upon all who must comply with it." Dyer v. City Council of Beloit (1947), 250 Wis. 613, 616, 27 N.W.2d 733.
We need not pass on the trial court's conclusion that in reference to public health, safety, and morality the 25-space limit by the ordinance was arbitrary and invalid. It sustained the ordinance because of its reasonable relationship to the welfare of the school district. In this, we concur.
Testimony of the school authorities establishes that the district school of the area in which this camp is situated is populated beyond its facilities. According to the recommendations of the state department of public instruction the school is equipped for 30 students. The present enrollment is 35 students. In recent years the trailer camp has furnished five, six, or seven pupils per year. In its memorandum decision the learned trial court well said:
"Trailers, by their very nature, are transitory and therefore lack the permanency for dwelling purposes conducive to the well-ordered development of the community. The basic nature of a trailer camp and the number of trailers therein make it extremely difficult, if not impossible, for a school district to adequately plan, under sound economic principles, for the education of the children in the district. It appears that the Badger School District has now reached its maximum capacity. To increase the number of trailers in the district to an unlimited number with a corresponding increase in the number of children who must be educated, would necessitate expansion of the school facilities. The school district is limited in its borrowing under sec. 67.03(1), Stats., to five per cent of the equalized value of the taxable property in the district. To have the school district go into debt to increase its school facilities in order to take care of the increased number of children occupying the trailer camp without permanency of residence or the building of permanent homes, would place upon the district a financial dilemma. It is obvious that the school district could not adequately plan for the future where there is no assurance that the number of trailers would remain constant, or the camp closed. This situation was apparently recognized by the legislature when it authorized cities, villages, and towns to limit the number of trailers that may be parked or kept in any one camp and to also limit the number of licenses for trailer camps in any common school district. To limit the number of trailer camps in any school district without limiting the number of trailers in each camp would accomplish no useful purpose in so far as the problems of the school district are concerned."
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.
The trial court held that the defendants had acquired vested rights to operate 47 trailer spaces, in spite of the ordinance limit of 25, because they had fully completed 23 spaces and partially completed 24 other spaces at the time the ordinance was adopted. We consider that the court was mistaken in its conception of vested rights to a nonconforming use. The right is to continue the use of a property which use has already been undertaken at the time when the law is changed. This principle would have protected the defendants in continuing their development and use of the 24 spaces under construction. But they did not have a vested right to operate a 47-space trailer camp wherever they please. After passage of the ordinance the defendants bought another parcel of land, pulled up a part of their equipment and with it improved the new parcel. This is not a continuance of the use of property already undertaken at the date of the ordinance but is an attempted extension of the nonconforming use to new property. Nonconforming uses are closely watched and limited and are not to be enlarged in derogation of the general scheme of the ordinance for the use of property. Hay v. Board of Adjustment (1955), 37 N.J. Super. 461, 117 A.2d 650, 651; Sitgreaves v. Board of Adjustment (1947), 136 N.J.L. 21, 54 A.2d 451, 455; 8 McQuillin, Mun. Corp. (3d ed.), p. 476, sec. 25.184.
There is no doubt that the original 24-space parcel was discontinued as space for trailers. Its equipment was removed and the property developed for other uses. Whether or not this was an abandonment of the right to operate trailers there is not presented to us. The defendants do not attempt to operate trailers there nor do they claim a right to do so. What they are doing is attempting to transfer their right to operate trailer spaces in that location to another locality. Their nonconforming use is not ambulatory. They cannot shift it to the property which they acquired after the passage of the ordinance.
The judgment should be reversed with directions to grant the relief demanded by the complaint.
By the Court. — Judgment reversed, cause remanded with directions to grant the relief demanded by the complaint.