Town of Delafield v. Winkelman

2004 WI 17, 675 N.W.2d 470, 269 Wis. 2d 109, 2004 Wisc. LEXIS 23

Opinions

ANN WALSH BRADLEY, J.

¶ 1. The petitioner, Town of Delafield ("Town"), seeks review of a published decision of the court of appeals that reversed the summary judgment granted by the circuit court in favor of the Town.¹ After a zoning violation had been proven in a separate proceeding, the Town brought this enforcement action seeking, as sanction for the violation, a raze order for the removal of a legal nonconforming rental unit from the Winkelmans' property.

¶ 2. The Town urges this court to clarify whether the circuit court had the power to consider equitable arguments in this enforcement action. It asserts that even if the circuit court generally has such power, it should not be exercised here because the Winkelmans already received a full opportunity to challenge the equities in the certiorari review. The Winkelmans counter that the circuit court lacked subject matter jurisdiction to consider the Town's enforcement action.

¶ 3. We conclude that the circuit court had subject matter jurisdiction to enter the orders. We also agree with the court of appeals that the circuit court had the power to consider the Winkelmans¹ equitable arguments in the context of this enforcement action. Moreover, we determine that the circuit court may properly exercise that power here. Accordingly, we affirm the court of appeals.

I

¶ 4. The Winkelmans own a lot in the Town of Delafield containing two houses. Both are legal, but nonconforming structures based on their location on the lot. The houses are also legal, but nonconforming uses due to zoning restrictions that permit only one residence per lot. At all times relevant to these proceedings, the Winkelmans used one of the houses as their own residence and the other as a rental unit.²

¶ 5. In 1991, the Winkelmans obtained a building permit for interior remodeling of the two houses. After construction began, the new Town building inspector discovered that the remodeling involved work on a legal nonconforming structure and issued a stop-work order. As a result of the stop-work order, the Winkelmans applied for a variance from the Town zoning board.

¶ 6. On September 30, 1994, the Town zoning board granted the Winkelmans' request for a variance in part, but placed certain conditions on its approval. One of the conditions required the Winkelmans to remove the rental residence from the property within three years of the date of the board's decision.

¶ 7. The Winkelmans thereafter sought certiorari review of the board's decision. Among other arguments, the Winkelmans claimed that the board's action was unreasonable because their mortgage financing was contingent upon the rental income of the second residence. The certiorari court rejected this argument, noting that the Winkelmans provided no evidence to support it. Accordingly, the court upheld the board's decision, and the Winkelmans did not appeal.

¶ 8. After certiorari review, the Town extended the deadline for removing the rental residence from March 1998 to April 1999. When the Winkelmans did not remove the rental house by April 1999, the Town's zoning board brought a motion requesting the certio-rari court to order the Winkelmans to raze the house or, in the alternative, allow the Town to do so. The certio-rari court granted the board's motion, and the Winkel-mans appealed.

¶ 9. The court of appeals reversed the certiorari court. Winkelman v. Town of Delafield, 2000 WI App 254, ¶ 1, 239 Wis. 2d 542, 620 N.W.2d 438 (Winkelman). It did so on the ground that the board needed to obtain jurisdiction over the Winkelmans for the enforcement action either by serving a summons and complaint or by serving an appropriate original writ. Id.

¶ 10. Following the decision of the court of appeals, the Town commenced this action pursuant to Wis. Stat. § 62.23(8) (2001-02)³ by filing a complaint requesting forfeitures along with an order directing the Winkelmans to remove the rental residence. The Town then moved for summary judgment.

¶ 11. The circuit court granted the Town's motion for summary judgment and rejected the Winkelmans' argument that under Forest County v. Goode, 219 Wis. 2d 654, 579 N.W.2d 715 (1998), it was required to hear their equitable argument. In its oral decision, the court concluded that it did not have the equitable power in the context of the enforcement action to deny the injunctive relief. It explained:

But now we're back on an independent action and I have no power to change the — actually, the position taken by the Town which was upheld by Judge Mawds-ley, not appealed on that issue. There is now a judgment entered that approves of the variance .... I have no alternative but to grant this motion for summary judgment . . . and enter an [o]rder allowing the Town to raze the building if the Winkelmans do not.

¶ 12. The circuit court subsequently imposed a forfeiture of $25 per day from April 8, 1999, until January 31, 2002. The oral ruling granting the raze order and a forfeiture was later reduced to a written order. The Winkelmans again appealed.

¶ 13. The court of appeals reversed the circuit court's decision. Town of Delafield v. Winkelman, 2003 WI App 92, ¶ 1, 264 Wis. 2d 264, 663 N.W.2d 324 (Winkelman II)- It observed that when a governmental entity seeks equitable relief such as an injunction or abatement, the law appeared to provide property owners with "two kicks at the cat": first, to defend against the claim that there is a violation and, second, to defend against enforcement of a sanction for that violation. Id., ¶ 14. Although the court questioned the wisdom of this approach, it determined that Goode mandated consideration of the equitable arguments. Id., ¶ 15. Moreover, it rejected the Town's assertion that the Winkelmans had already made their equitable arguments during the certiorari review. Id., ¶ 18. Accordingly, the court of appeals remanded the case back to the circuit court for a hearing on the equities. Id., ¶ 20. It prohibited the Winkelmans from reasserting the argument previously rejected by the certiorari court, however, under the doctrine of issue preclusion. Id.

¶ 14. As a threshold matter, we must examine the issue of subject matter jurisdiction. Whether a court has subject matter jurisdiction of a particular action is a question of law, subject to independent appellate review. See Gonzales v. AM Cmty. Credit Union, 150 Wis. 2d 773, 777, 442 N.W.2d 536 (Ct. App. 1989).

¶ 15. Additionally, this case provides us with an opportunity to review the circuit court's power to consider equitable arguments in the context of an enforcement action. It also allows us to determine whether the court may consider equitable arguments which have been previously rejected by a certiorari court. These issues are raised in the context of summary judgment. We review a circuit court's grant or denial of summary judgment independently, applying the same methodology as the circuit court. O'Neill v. Reemer, 2003 WI 13, ¶ 8, 259 Wis. 2d 544, 657 N.W.2d 403 (citing Torgerson v. Journal/Sentinel, Inc., 210 Wis. 2d 524, 536, 563 N.W.2d 472 (1997)).

¶ 16. Summary judgment is appropriate if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Id., ¶ 8. Here, there are no material facts in dispute that are relevant to the issue before us. Therefore, we are presented with a question of law, which is subject to independent appellate review. Id. (citing Lewis v. Physicians Ins. Co. of Wis., 2001 WI 60, ¶ 9, 243 Wis. 2d 648, 627 N.W.2d 484.)

I — I h-H HH

¶ 17. We begin with the inquiry of whether the circuit court had subject matter jurisdiction. In their brief, the Winkelmans assert that the circuit court lacked subject matter jurisdiction to qonsider the Town's enforcement action. Specifically, they contend that the jurisdiction of the Town's ordinance did not extend to them, as their property is actually controlled by the Waukesha County Shoreland Code. In the case's nine-year history, this is the first time the Winkelmans have raised the issue of subject matter jurisdiction.

¶ 18. The principal authority the Winkelmans rely upon for their argument is Wis. Stat. § 59.692(2)(b). The statute provides, "[i]f an existing town ordinance relating to shorelands is more restrictive than an ordinance later enacted under this section affecting the same shorelands, it continues as a town ordinance in all respects to the extent of the greater restrictions, but not otherwise." Wis. Stat. § 59.692(2)(b). The Winkelmans argue that by the application of the statute, the Town zoning ordinance could regulate their shoreland property only to the extent that it imposed a greater restriction than does the County ordinance. An examination of the two ordinances, they maintain, reveals that it does not. Thus, they argue the Town's ordinance does not apply to their property. Consequently, the court does not have jurisdiction over this claimed violation.

¶ 19. The problem with the Winkelmans' argument is that it confuses the jurisdiction of the zoning board with that of the court. In Wisconsin, circuit courts are courts of general jurisdiction. Mack v. State, 93 Wis. 2d 287, 294, 286 N.W.2d 563 (1980). They have subject matter jurisdiction of all matters, civil and criminal, not excepted in the constitution or prohibited by law. Id. (citing Dumer v. State, 64 Wis. 2d 590, 595, 219 N.W.2d 592 (1974)). This includes the authority to hear zoning enforcement actions arising from either town or county ordinances.

¶ 20. The Winkelmans' claim is better understood as an attack on the Town's jurisdiction to regulate their property in the first place. This attack, however, should have been made at the initial certiorari review. After all, one of the issues certiorari courts determine is whether the Town kept within its jurisdiction.⁴ Because the Winkelmans did not timely object to the Town's jurisdiction, we do not address the merits of the issue and deem it as waived.

IV

¶ 21. We next address whether the circuit court had the power to consider the Winkelmans' equitable arguments in the context of an enforcement proceeding. The relevant precedent is Goode and the series of cases culminating in Lake Bluff Housing Partners v. City of South Milwaukee, 2001 WI App 150, 246 Wis. 2d 785, 632 N.W.2d 485 (Lake Bluff IV). We examine these cases in turn.

¶ 22. In Goode, this court was asked to determine whether a circuit court retained equitable power to deny injunctive relief after a zoning violation has been proven. 219 Wis. 2d at 656. There, the County initiated an enforcement action pursuant to Wis. Stat. § 59.69(H)⁵ against Goode for noncompliance with a zoning order. Id. at 656-57. The County requested assessment of forfeitures and an injunctive order compelling Goode to relocate his house to comply with a 50-foot setback requirement. Id. at 656. In the County's view, the statute in question did not give circuit courts discretion over whether to require compliance with zoning ordinances. Id. at 663. This court disagreed.

¶ 23. After construing Wis. Stat. § 59.69(11), we concluded that the legislature did not intend to eliminate the traditional equitable powers of the circuit court. Id. at 657. Therefore, we held that "when a circuit court is asked to grant injunctive relief for a proven zoning ordinance violation, § 59.69(11) [did] not eliminate the circuit court's equitable power to deny injunctive relief in a particular case." Id. Accordingly, we affirmed the decision of the court of appeals reversing the order to relocate Goode's house and remanded the matter for a hearing on the equities. See id.

¶ 24. In the subsequent series of Lake Bluff cases, the court of appeals considered whether the analysis in Goode applied to situations where relief is sought pursuant to a different enforcement provision for zoning violations, Wis. Stat. § 62.23(8). See Lake Bluff IV, 246 Wis. 2d 785, ¶ 3; Lake Bluff Housing Partners v. City of Milwaukee, 222 Wis. 2d 222, 231-32, 588 N.W.2d 45 (Ct. App. 1998) CLake Bluff III). There, Lake Bluff Housing Partners purchased property with the intention of using it for multi-family buildings. Lake Bluff IV, 246 Wis. 2d 785, ¶ 3. Before any building permits were issued, however, South Milwaukee rezoned the property for single-family residences. Id. Lake Bluff filed suit, claiming that it had vested rights in the property. Id., ¶¶ 3, 4.

¶ 25. Lake Bluff was successful in its argument before both the circuit court and court of appeals. Lake Bluff Housing v. City of South Milwaukee, 188 Wis. 2d 230, 233, 525 N.W.2d 59 (Ct. App. 1994) {Lake Bluff I). This court, however, reversed, concluding that because Lake Bluff "never submitted an application for a building permit conforming to the zoning and building code requirements in effect at the time of the application," it did not acquire any vested rights. Lake Bluff Housing v. City of South Milwaukee, 197 Wis. 2d 157, 182, 540 N.W.2d 189 (1995) (Lake Bluff II). While the City sought review in this court, Lake Bluff had finished construction on its project. Lake Bluff IV, 246 Wis. 2d 785, ¶ 5.

¶ 26. After this court issued its decision, Lake Bluff filed a declaratory action in circuit court, arguing that the City should be equitably estopped from initiating an enforcement action pursuant to Wis. Stat. (8). Id., ¶¶ 6-7. The circuit court agreed. Id., ¶ 6. The court of appeals, however, reversed the circuit court's decision. Lake Bluff III, 222 Wis. 2d at 224. In doing so, it remanded the case for a determination as to whether Goode's analysis applied to an analysis of Wis. Stat. § 62.23(8), and, if so, whether "there [were] compelling equitable reasons" that the requested order of abatement should not be issued. Id. at 231-32.

¶ 27. On appeal after remand, the court of appeals concluded that the circuit court had properly weighed the equitable considerations under Goode and affirmed the judgment ordering Lake Bluff to remove its buildings. Lake Bluff IV, 246 Wis. 2d 785, ¶ 1. Therefore, while not explicit, Lake Bluff IV extended Goode's analysis to cases where relief is sought pursuant to Wis. Stat. § 62.23(8), the statute relied upon by the Town in the present case.

¶ 28. In sum, we agree with the court of appeals' reading of Goode and Lake Bluff that when a governmental body exercises its authority pursuant to either Wis. Stat. §§ 59.69(11) or 62.23(8) and seeks injunctive relief, the circuit court retains the power to deny the relief sought and the property owners can defend themselves in equity. Winkelman II, 264 Wis. 2d 264, ¶ 14. Thus, we determine that the circuit court erred in concluding that it had no such power.

V

¶ 29. Having clarified that circuit courts have the power to consider equitable arguments in enforcement actions for injunctive relief, we next address whether that power may be exercised here. The Town contends that, unlike the property owners in Goode and Lake Bluff, the Winkelmans already had an opportunity to present their equitable arguments before the certiorari court and in fact did so. It warns that the decision of the court of appeals to remand in the case, "wreaks havoc on the orderly processes of judicial administration." The Town explains:

The equity hearing ordered by the [c]ourt of [alppeals creates the extraordinary situation of one circuit court exercising appellate powers over another circuit court's decision. Not only does this additional review grant the equity court power over the previously entered certio-rari decision, it denies finality to the certiorari court's decision and upsets the doctrines of issue and claim preclusion.

¶ 30. The difficulty we have with the Town's position is its premise that certiorari review is a proper forum for consideration of the equities. By its nature, certiorari review is limited in scope. Unless otherwise provided by statute, the traditional standards of common-law certiorari review apply. Hanlon v. Town of Milton, 2000 WI 61, ¶ 23, 235 Wis. 2d 597, 612 N.W.2d 44. These include determining (1) whether the board kept within its jurisdiction; (2) whether it acted according to law; (3) whether its actions were arbitrary, oppressive or unreasonable and represented its will and not its judgment; and (4) whether the evidence was such that it might reasonably make the order or determination in question. Id. (citing State ex rel. Ruthenberg v. Annuity & Pension Bd., 89 Wis. 2d 463, 472, 474, 278 N.W.2d 835 (1979)). Although the Town maintains that the third prong of certiorari review reflects the same criterion that is required for making decisions on equitable arguments, we are not persuaded.

¶ 31. In its decision, the court of appeals noted, "we find no authority, and counsel at oral argument was unable to cite to any, that says that courts sit in equity in certiorari actions." Winkelman II, 264 Wis. 2d 264, ¶ 19. Like the court of appeals, we too have discovered no precedent that allows certiorari courts to sit in equity. Indeed, the Town acknowledges in its brief that, "Wisconsin Courts have developed no legal authority with regard to this issue." As a result, we agree with the court of appeals that, "[w]hile in certain circumstances a certiorari court has the authority to take additional evidence. . . simply allowing a court to add to the record does not mean that the court is then sitting in equity." Id. (citation omitted).

¶ 32. Despite the limitations of certiorari review, the court of appeals prohibited the Winkelmans from reasserting the argument previously rejected by the certiorari court concerning the contingency of their mortgage upon the rental income of the second residence. Id., ¶ 20. It did so under the theory of issue preclusion. Id. In its brief, the Town maintains that, "issue preclusion should not have been applied in this instance. Rather, claim preclusion was the appropriate doctrine to involve so as to prevent continuing piecemeal attack on the variance." We examine each of these doctrines in turn.

¶ 33. Under claim preclusion, " 'a final judgment is conclusive in all subsequent actions between the same parties as to all matters which were litigated or which might have been litigated in the former proceedings.' " Lindas v. Cady, 183 Wis. 2d 547, 558, 515 N.W.2d 458 (1994) (quoting DePratt v. West Bend Mutual Insurance Co., 113 Wis. 2d 306, 310, 334 N.W.2d 883 (1983)). The doctrine requires: (1) identity of the parties; (2) identity of the causes of action in the two suits; and (3) final judgment on the merits in a court of competent jurisdiction. Northern States Power Co. v. Bugher, 189 Wis. 2d 541, 550, 525 N.W.2d 723 (1995).

¶ 34. Issue preclusion, by comparison, is a more narrow doctrine. It is designed to limit the relitigation of issues that have been actually litigated in a previous action. Michele T. v. Crozier, 173 Wis. 2d 681, 687, 495 N.W.2d 327 (1993). The modern approach to issue preclusion requires courts to conduct a "fundamental fairness" analysis. Id. at 689. For this analysis, courts may consider several factors in deciding whether issue preclusion is equitable in a particular case.⁶

¶ 35. In the end, we reject the use of either doctrine in this case. Claim preclusion is inapplicable as there is no "identity of the causes of actions in the two suits." In the first action, the Winkelmans sought cer-tiorari review to challenge the Town zoning board's decision to impose a raze condition on a variance. In the second, the Town brought suit to enforce that condition. Although there may have been some overlap in the arguments of the two cases, the claims themselves were separate and distinct.

¶ 36. Issue preclusion is also inappropriate for two of the reasons set forth in Crozier. First, we recognize that "significant differences in the quality or extensiveness of proceedings between the two courts warrant relitigation." Id. As noted above, certiorari review is limited in scope. The traditional criteria by which certiorari courts review a board's decision do not involve consideration of equitable arguments. The circuit court in an enforcement action for injunctive relief, by contrast, can consider all equitable issues.

¶ 37. Second, in general, property owners in the Winkelmans' position may have an "inadequate opportunity or incentive to obtain a full and fair adjudication in the initial action." Id. The reason for this is that they have no way of knowing for certain at the certiorari review what relief the Town will be seeking. Here, there was over a three-year period between the initial certio-rari review and enforcement action. Ultimately, the Town sought to enforce the razing condition of the variance. It could have, however, sought forfeitures, pursued alternative relief, or simply declined to pursue relief altogether. The Winkelmans should not have to prepare equitable defenses for all possible relief.

VI

¶ 38. In sum, we conclude that the circuit court had subject matter jurisdiction to enter the orders in this action. Additionally, we agree with the court of appeals that the circuit court had the power to consider the Winkelmans' equitable arguments in the context of this enforcement action. Further, we determine that the circuit court may properly exercise that power here. Accordingly, we affirm the court of appeals.

By the Court. — The decision of the court of appeals is affirmed.

1 Town of Delafield v. Winkelman, 2003 WI App 92, 264 Wis. 2d 264, 663 N.W.2d 324 (reversing a decision of the circuit court for Waukesha County. Judge Patrick L. Snyder issued the oral ruling to the issue on appeal. As a result of judicial rotation, Judge Robert G. Mawdsley issued the written order implementing the oral ruling.).

2 According to the Town's petition for review, the Winkel-mans no longer use one home as a residence; they now live elsewhere.

3 All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted. Wis. Stat. § 62.23(8) provides:

(8) OTHER MEASURES OF ENFORCEMENT AND REMEDIES; PENALTY. Any building erected, constructed or reconstructed in violation of this section or regulations adopted pursuant thereto shall be deemed an unlawful structure, and the building inspector or city attorney or other official designated by the council may bring action to enjoin such erection, construction or reconstruction, or cause such structure to be vacated or removed. It shall be unlawful to erect, construct or reconstruct any building or structure in violation of this section or regulations adopted pursuant thereto. Any person, firm or corporation violating such provisions shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined not more than $500. Each and every day during which said illegal erection, construction or reconstruction continues shall be deemed a separate offense. In case any building or structure is or is proposed to be erected, constructed or reconstructed, or any land is or is proposed to be used in violation of this section or regulations adopted pursuant thereto, the building inspector or the city attorney or any adjacent or neighboring property owner who would be specially damaged by such violation, may, in addition to other remedies provided by law, institute injunction, mandamus, abatement or any other appropriate action or proceeding to prevent or enjoin or abate or remove such unlawful erection, construction or reconstruction.

4 Common-law certiorari is limited to determining: (1) whether the board kept within its jurisdiction; (2) whether it acted according to law; (3) whether its actions were arbitrary, oppressive or unreasonable and represented its will and not its judgment; and (4) whether the evidence was such that it might reasonably make the order of determination in question. Hanlon v. Town of Milton, 2000 WI 61, ¶ 23, 235 Wis. 2d 597, 612 N.W.2d 44.

5 Wisconsin Stat. § 59.69(11) provides:

(11) PROCEDURE FOR ENFORCEMENT OF COUNTY ZONING ORDINANCE. The board shall prescribe rules, regulations and administrative procedures, and provide such administrative personnel as it considers necessary for the enforcement of this section, and all ordinances enacted in pursuance thereof. The rules and regulations and the districts, setback building lines and regulations authorized by this section, shall be prescribed by ordinances which shall he declared to be for the purpose of promoting the public health, safety and general welfare. The ordinances shall be enforced by appropriate forfeitures. Compliance with such ordinances may also be enforced by injunctional order at the suit of the county or an owner of real estate within the district affected by the regulation.

6 Courts may consider some or all of the following factors to protect the rights of all parties to a full and fair adjudication of all issues involved in the action:

(1) Could the party against whom preclusion is sought, as a matter of law, have obtained review of the judgment;

(2) Is the question one of law that involves two distinct claims or intervening contextual shifts in the law;

(3) Do significant differences in the quality or extensiveness of proceedings between the two courts warrant relitigation of the issue;

(4) Have the burdens of persuasion shifted such that the party seeking preclusion had a lower burden of persuasion in the first trial than in the second; or

(5) Are matters of public policy and individual circumstances involved that would render the application of collateral estoppel to be fundamentally unfair, including inadequate opportunity or incentive to obtain a full and fair adjudication in the initial action?

Michelle T. v. Crozier, 173 Wis. 2d 681, 688-89, 495 N.W.2d 327 (1993) (citing the Restatement (Second) of Judgments, "Exceptions to the General Rule of Issue Preclusion" sec. 28 at 273-74).