holding nonconforming use is forfeited for failure to obtain a permit to park a trailer outside of a trailer parkSummary of this case from Baltimore v. Dembo
May 4, 1959 —
June 2, 1959.
APPEAL from a judgment of the circuit court for Sheboygan county: F. H. SCHLICHTING, Circuit Judge. Affirmed.
For the appellant there was a brief by Humke, Poole Axel of Sheboygan, and oral argument by Paul L. Axel.
For the respondent there was a brief by Federer, Grote, Hesslink, Rohde Neuses, attorneys, and R. L. Rohde of counsel, all of Sheboygan, and oral argument by R. L. Rohde.
The town of Wilson in Sheboygan county caused a warrant to be issued against Ernst Kunstmann on August 9, 1954, charging that Kunstmann violated a town ordinance in that he parked a trailer from July 1st to August 5th on property outside of a trailer camp without having secured a permit. Kunstmann was found guilty by a justice of the peace and fined $10, together with the costs and disbursements of the action. He appealed to the circuit court. After trial in the circuit court judgment was entered April 14, 1958, finding him guilty and awarding the town a forfeiture of $10, together with costs and disbursements.
The circuit court found that the town adopted ordinance No. 1, 1950, effective June 8, 1950, regulating trailers, trailer camps, and trailer sites and that the ordinance contained reasonable standards and regulations for the use of house trailers within the town; that the town adopted ordinance No. 1, 1954, effective June 28, 1954, which repealed ordinance No. 1, 1950, and which provided for the licensing and regulation of trailer camps and set forth reasonable standards and regulations for the use of house trailers within the town and set forth procedures necessary for the obtaining of a permit for locating a house trailer within the town; that Kunstmann during May, 1954, parked his house trailer on land which he owned outside of a trailer camp and used it for residential purposes without obtaining a permit as required by ordinance No. 1, 1950; that Kunstmann later made application to the town board for a permit, but that the town board refused his application on the grounds that he was illegally parked prior to making the application and that in so refusing the board did not abuse its discretion; that Kunstmann never made application for a permit under the terms of ordinance No. 1, 1954; that the town demanded that he remove his trailer and that he refused to do so claiming that the ordinances are unconstitutional; that the ordinances contain reasonable standards and procedures for obtaining a permit and do not vest any arbitrary power in the town board. The circuit court concluded that the town board had authority to license and regulate house trailers located outside trailer camps; that the ordinances and the statutes upon which they are based are not unconstitutional and that Kunstmann was guilty of violating the ordinance as charged.
In a written decision the court discussed the application for a permit which the court found was made on June 7, 1954. The court referred to testimony of the town chairman that the application was refused because Kunstmann was parked there illegally, as well as to evidence that Kunstmann had previously applied unsuccessfully for a trailer-court license, that he proposed to sell off small strips of his land to owners of trailers who would then park on such strips as individual owners thus circumventing the trailer-court or trailer-camp provisions, and that he did sell off one such strip on which a trailer was placed. The court also noted that there was evidence that some of the members of the town board "didn't want trailers parked all over the town outside of trailer camps" yet the trial court was of the opinion that in view of all the other evidence referred to, it could not be said that the town board clearly and manifestly abused its discretion in denying the permit under the 1950 ordinance.
The 1950 ordinance prohibited the maintenance of a trailer camp without first having secured a license from the town board. The ordinance prescribed a license fee, imposed a special assessment to reimburse the town for governmental services and educational facilities required by trailer camps and trailer sites, set forth certain regulations for location, water supply, service buildings, waste disposal, and management of trailer camps. It provided, "No trailer shall be parked outside of an approved trailer camp previously defined unless a permit for such parking has been obtained from the town board of the town of Wilson. Not more than one trailer may be parked on any premises outside of an approved trailer camp." Certain of the requirements as to location were expressly made applicable to trailers as well as to trailer camps.
Ordinance No. 1, 1954, provided that no person shall park or occupy any trailer on any premises outside an approved trailer camp except under special permit. Section 2A of the ordinance provided that the town board may issue special permits allowing the location of a trailer outside of a trailer camp. That section prescribed the information and the fee which must accompany the application and provided that all provisions of the ordinance governing the location, use, and sanitation of trailers located in a licensed trailer camp shall apply to a trailer located outside of a trailer camp so far as applicable. The ordinance contains provisions regulating the location of camps, the planning, water supply, service buildings, waste and garbage disposal, number of occupants, and management.
In 1950 the electors of the town of Wilson, which is contiguous to the city of Sheboygan, had conferred upon the town board the powers conferred on village boards by ch. 61 of the statutes.
Appellant was found guilty of violating the 1954 ordinance which became effective June 28th. He claims that he had lawfully used his property for parking a house trailer before June 28th and that he had thereby acquired a right to continue such use of his property notwithstanding passage of the 1954 ordinance. He relies upon Des Jardin v. Greenfield (1952), 262 Wis. 43, 53 N.W.2d 784. The decision cited is not precisely in point. The ordinance of the town of Greenfield absolutely prohibited keeping a trailer occupied or available for occupancy outside a trailer camp. On its face the 1954 ordinance of the town of Wilson does not contain an absolute prohibition, but requires a permit which presumably would be issued upon proper application and compliance with the requirements of the ordinance germane to health, safety, and welfare.
Assuming, however, as contended by appellant that one who lawfully kept a trailer outside a camp before June 28, 1954, could lawfully continue to do so without obtaining a permit, appellant still cannot prevail.
It is clear that if appellant's use of his premises before June 28th was unlawful, he acquired no right to continue such use. David A. Ulrich., Inc., v. Saukville, ante, p. 173, 96 N.W.2d 612. Appellant attempts to meet this proposition by asserting (1) that the 1950 ordinance was not applicable to individual trailers parked outside a trailer camp, and (2) that the town board improperly refused his application for a permit.
It is evident from the portion of the 1950 ordinance set forth in the statement of facts that the ordinance expressly prohibited parking a trailer outside an approved camp without a permit. The ordinance was purportedly adopted under sec. 60.297, Stats. 1949. Sub. (1) (c) defined "trailer camp" as an area or premises on which space available for two or more trailers is rented or held for rent or free occupancy. Sub. (2) empowered town boards to regulate "trailer camps." Respondent town argues that the statute also authorized regulation of individual trailer sites outside of trailer camps. Even granting that it may not, we deem it clear that a village board would have had power to regulate individual trailer sites under sec. 61.34, and that the town board of the town of Wilson had acquired the same power under sec. 60.18 (12).
Appellant evidently contends further that, even if the 1950 ordinance were valid upon its face, it was void if arbitrarily administered and that therefore his parking prior to June 28th was lawful. See Lerner v. Delavan (1930), 203 Wis. 32, 39, 233 N.W. 608. The circuit court, however, considered this issue and declined to find that the town board abused its discretion in denying appellant a permit. While there is testimony to the effect that members of the town board did not want to issue permits for trailers outside trailer camps, there was also testimony, referred to in the decision of the trial court, indicating that appellant intended an evasion of the ordinance by selling off strips of land to owners of trailers. Appellant's application was made orally by the owner of another trailer which was parked a few feet away, on land which appellant had conveyed or was going to convey to him. Both applications were denied. The evidence would by no means compel a finding that the board abused its discretion in denying appellant a permit.
By the Court. — Judgment affirmed.
MARTIN, C.J., and CURRIE, J., took no part.