New Category of Nonconformity Created by Wisconsin's Supreme Court Ruling on Ordinance Enforcement

By Richard A. Lehmann
WAPA Legislative Counsel
Boardman, Suhr, Curry & Field LLP

In a case arising in Forest County, the Wisconsin Supreme Court has announced a new body of law on enforcement of municipal ordinances regulating land use. The case presents the questions: must a court order the removal of a development built in violation of a municipal ordinance once the violation is adjudicated?

The Wisconsin Supreme Court has answered the questions thusly:

1. "In rare cases," a court can limit the penalty to forfeitures, allowing the violation to stand.
2. The "rare" cases are those in which compelling equitable reasons support allowing the development to remain.
3. Those compelling reasons must be based upon evidence presented to the court in the enforcement action. The court should examine the public interest in full enforcement of ordinances. But, the court can also examine circumstances arguing for allowing the development to stand, such as the following:

1. The extent of the violation.
2. How much did it cost to establish the development?
3. Will removal of the development that has been adjudicated to be a violation create a hardship for the property owner, as hardship is defined in zoning variance cases?
4. Did the violating property owner act in good faith?
5. Did the property owner establish the development based upon permits that had been issued by the local government?
6. Has the government led the property owner, in any other way, to think that the development was acceptable?
7. If the violating development had been built pursuant to a mistakenly issued permit, whether the agency or property owner now seeking enforcement could have appealed the issuance of that permit to the zoning appeals board or circuit court.
8. How much would it cost to remove or modify the development to bring it into compliance?
9. Has the enforcement action been commenced by the government or by private parties?
10. Was the enforcement action commenced soon after detection of the violation or was time allowed to elapse before action was taken to seek enforcement?
11. Is there evidence that the government or the private individual seeking full enforcement has had "unclean hands"?
12. Whether modifications in the development short of full compliance might produce a better equitable result than either letting the development stand as is or removing all elements of violation.
13. Whether the property owner knew they were committing a violation when they constructed or established the development.
14. Whether substantial forfeitures and/or the potential for jail time if the forfeitures are not paid, may cause the violating party to bring the property into compliance voluntarily.

A concurring opinion by Justice Bradley expressed concern that circuit courts not develop a habit of allowing violating developments to stand and imposing relatively modest forfeitures. Such a practice would encourage property owners to "effectively 'purchase' a variance for their nonconforming (developments). In such instances, the general welfare of the public is derogated in favor of the individual homeowner and the zoning boards are left powerless to fulfill their charge to protect Wisconsin's environment and the public welfare."

The Forest County case was a shoreland zoning enforcement action. At several points in the Wisconsin Supreme Court opinion, the court refers to the strong public interest in shoreland management. However, the ruling of the case appears to extend to all manner of zoning and land use regulation. The decision was primarily based upon the "traditional, equitable power of the circuit court," rather than the wording of any particular statute.

The court did not clarify the legal status of a development that has been found to be in violation but is allowed to stand. There is nothing in opinion to suggest that such a development has legal nonconforming status identical to a development that was established before enactment of an ordinance and does not comply with the new ordinance. The opinion suggests that a development that has been adjudicated to violate an ordinance, but which is allowed to stand, remains in violation and is potentially subject to ongoing forfeitures unless legalized by a variance.

The case is: Forest County v. Goode, 579 N.W. 2d 715 (1998).