State Ex Rel. Brill v. Mortenson

6 Wis. 2d 325

• Court: Wisconsin Supreme Court
• Decided: February 3, 1959
• Status: Published

Opinions

Hallows, J.

The first question presented on the appeal is whether the zoning ordinance prohibits the use of petitioner’s building as a meat-distributing and processing plant, and thus in terms warrants denial of a certificate of use and occupancy for that purpose. We agree with the learned circuit judge that it does.

The pertinent provision of the ordinance, quoted in the statement of facts, provides that “if a nonconforming use of a building or premises is discontinued for a period of twelve months, any future use . . . shall conform; . . .” that is to say, in the present context, shall be exclusively residential.

The particular nonconforming use in effect when the ordinance took effect in 1949, that of a woodworking plant, ceased in 1951. The next use, for paint spraying and enameling, terminated in 1956. Then followed a period of at least twenty-two months in which the building was not used at all. Thus each prior nonconforming use had been terminated, and we think “discontinued.”

In State ex rel. Schaetz v. Manders (1931), 206 Wis. 121, 124, 238 N. W. 835, and State ex rel. Morehouse v. Hunt (1940), 235 Wis. 358, 370, 291 N. W. 745, this court construed the word “discontinue” in comparable zoning ordinances as involving more than mere temporary cessation and requiring abandonment, which connotes a voluntary, affirmative, completed act. Therefore, a nonconforming use is not “discontinued” when it merely ceases temporarily because of inability of the owner to obtain a tenant or buyer who will make that use of the property. Each of those cases involved resumption of the identical nonconforming use which had been temporarily suspended, a dairy plant in Manders and a fraternity house in Morehouse.

Those cases do not control the present one. In the instant case the particular nonconforming use in effect when the ordinance was adopted in 1949, that of a woodworking plant, was clearly abandoned when the property was sold in 1951, and the next use, a paint and enamel shop, was likewise abandoned in 1956 when the owner went out of business, the property wras sold, and efforts were made to obtain permits for plastic molding manufacture and later for meat distributing and processing. There is no evidence of any intent to resume the woodworking business or the paint and enameling business at any time.

It is true that in the present case the use of the property for nonconforming purposes in general was not abandoned, but had merely ceased pending efforts to obtain a tenant or purchaser. But we do not read the quoted provision of the ordinance as permitting a totally different nonconforming-use to be made after the prior one had been discontinued more than twelve months. On the contrary, this court is of the opinion that “a nonconforming use” refers to the particular nonconforming use which had been lawfully made, or at most a closely similar one, and when such use has been abandoned for twelve months, only a conforming use, here residential, is permissible. Meat distributing and processing is not closely similar to woodworking, but very different.

Since only a single sentence of the ordinance is included in the record sent to this court we are obliged to construe that sentence alone and without the benefit of any other provision of the ordinance which might perhaps justify a broader interpretation of the words “if a nonconforming use ... is discontinued.”

Since we hold that the ordinance in terms warranted the county zoning authorities in denying the certificate of use and occupancy sought by the respondent, we must next consider whether the ordinance as so construed and applied is valid. It is challenged as violative of express statute, and the trial court so held.

When the ordinance was adopted in 1949, sec. 59.97 (4) of the statutes then in effect contained the following provision :

“Such ordinances shall not prohibit the continuance of the use of any building or premises for any trade or industry for which such building or premises are used at the time such ordinances take effect, . . .”

This provision has been transferred to sec. 59.97 (7) (a), Stats., and slightly amended so that it is now as quoted in the statement of facts. The amendments are not significant for present purposes.

The statutory mandate is that a county zoning ordinance shall not prohibit the continuance of “the (lawful) use” of a building “for any trade or industry for which such building or premises is used” when the ordinance takes effect. In terms, the statute protects only the original nonconforming use.

In 1949, when the Racine county ordinance took effect, “the use” of the building in suit was for the “trade or industry” of woodworking. As we have seen above, that use was abandoned in 1951. Therefore, the application of the ordinance to the present case does not prohibit the continuance of the use of the building for the trade or industry (woodworking) for which it was used when the ordinance took effect. The ordinance is not being applied to prevent continued use for woodworking but only to prevent use for meat processing. Meat processing is an entirely different trade or industry than woodworking.

We conclude, therefore,. that the ordinance as applied to the facts of the present case is not in conflict with the statute.

It is also argued by the respondent that since county boards have only such legislative powers as are conferred upon them by statute, expressly or by clear implication (Maier v. Racine County (1957), 1 Wis. (2d) 384, 385, 84 N. W. (2d) 76), the county board of Racine county had no power to enact the limitation on nonconforming uses expressed in the provision of its zoning ordinance now before us. Power to restrict nonconforming uses is clearly implied from the terms of sec. 59.97, Stats., read in the light of the general practice of zoning, and from the above-quoted specific provision of the statute. However, we are not passing upon the validity of the twelve months’ limitation of a nonconforming use in said ordinance.

Under the rule of the Manders and Morehouse Cases previously summarized the right to resume a preordinance nonconforming use is protected unless that use has in effect been abandoned. Constitutional doubts have been set at rest by Jefferson County v. Timmel (1952), 261 Wis. 39, 59, 51 , and cases there cited. This court has pointed out that under zoning ordinances, nonconforming uses are closely limited and are not to be enlarged in derogation of the general scheme of the ordinance, and hence the right to continue such a use may be lost by such acts or omissions as moving the structure to a different though near-by location (Yorkville v. Fonk (1958), 3 Wis. (2d) 371, 378, 88 N. W. (2d) 319, 323), or failing to appeal the administrator’s denial of a permit to continue the prior use (Jefferson County v. Timmel (1952), 261 Wis. 39, 64, 51 N. W. (2d) 518), as well as by abandonment.

By the Court.■ — Judgment reversed, with directions to affirm the ruling of the zoning board of adjustments.

The following opinion was filed May 5, 1959: