Case Notes

Court of Appeals Holds That Courts Must Issue Injunctions for Removal of Buildings Located in Violation of Zoning Setbacks

A divided panel of the Wisconsin Court of Appeals has ruled that a judge has no choice but to issue an injunction to remove a house built fifteen feet too close to a lakeshore. Once the existence of a violation is proven, such a violation can never be "cured" solely by payment of a forfeiture.

The trial court had declined to enjoin the removal of the house. Apparently the house had been improperly located 15 feet beyond the state-required 75 foot shore setback line by negligence of contractors and an after-the-fact-variance was turned down by the Board of Adjustment. The trial court imposed a forfeiture and costs of $9,355.

The court of appeals extended the number of days to which the forfeiture applied and directed the trial court to increase the forfeiture to something in the neighborhood of $30,000.

In addition to increasing the amount of the forfeiture, the court of appeals said that the trial court had no choice but to order removal or relocation of the house. To do otherwise would allow a property owner to "buy a variance that had been turned down by going to court."

The only role of the court is to enforce an ordinance once when the county prosecutor has proven a violation.

A sharply worded dissent by Judge Hoover argued that a trial court always has discretion whether to grant injunctive relief.

Forest County v. Goode, Case No. 96-3592 (Ct. App. Dist. III), filed November 25, 1997. Recommended for publication.

This case will be heard on appeal by the Wisconsin Supreme Court.

Findings on Conditional Use Decisions

A zoning committee gave five reasons for denying a conditional use permit for a quarry. They were: noise of blasting; depth of stone removal; deterioration of roads; devaluation of homes; and signatures on opposing petitions. The decision was upheld by the circuit court. The court of appeals overturned the decision on the grounds that it lacked specificity. The law requires that a committee "give clear indication that it has exercised the discretion with which [it was] empowered. In this case, the committee made "ultimate findings" but did not explain the basis for those findings. Furthermore, the committee finding that there could be devaluation of homes was based on a conclusion of the town assessor with no supporting evidence. The court suggests that "requiring findings [is] a matter of common law." Conclusions that an application does not meet the ordinance standards must be supported by reasons for those conclusions.

State ex rel. Halquist Stone Company, Inc. v. Town of Brotherton, Case No. 97-0304, Court of Appeals December 10, 1997, unpublished.

Lot Size Standards in a Subdivision Ordinance Are Applicable to Condominiums

Property owner argued that a minimum lot area requirement in a county land subdivision ordinance cannot be applied to condominiums. The Court of Appeals holds that lot size regulations can be part of zoning, as well as being part of subdivision regulations. A zoning ordinance that regulates lot size is not converted into a land subdivision ordinance because it regulates lot size.

Peppler v. Burnett County Board of Adjustment, Case No. 97-1317, Court of Appeals January 13, 1998, unpublished.

Wisconsin Supreme Court Sets Broad Guidelines for Testimony at Public Hearings

When can a citizen sue another citizen for defamation because of what the other citizen said at a televised City Council public hearing? Answer: When the person testifying knows the testimony is false or acts in reckless disregard as to whether it is false or true. Defamation also requires that the information be broadcast in a way that harms the reputation of the targeted individual.

Three justices dissented, arguing that citizens should be encouraged to speak their minds without worrying about getting sued, especially in retaliatory "SLAPP" suits. The court repeatedly used hypothetical zoning hearings to illustrate legal principles. There is some idea in the case that testimony that is invited, under oath, answers to questions put to a witness and testimony in quasi-judicial proceedings is more protected from defamation challenge than is uninvited testimony at a legislative proceeding.