Edelbeck v. Town of Theresa
Edelbeck v. Town of Theresa
Opinion of the Court
Three issues are presented on this appeal:
1. Did the town of Theresa enact a valid ordinance on July 6,1970?
2. Is the town of Theresa estopped from denying a permit to plaintiffs ?
3. Is mobile home park zoning legislation such as the disputed ordinance here constitutionally defective?
4. Are damages barred to plaintiffs ?
Invalidity of ordinance of July 6,1970.
Appellants argue, in support of their claim for in-junctive relief, that pertinent provisions of sec. 66.058, Stats. 1967, failed to provide them with an adequate remedy at law. This failure, it is asserted, arises from the town’s failure to give them notice of the town board hearing pursuant to sec. 66.058 (3) (d) 1, and its failure to notify appellants of the revocation of their license pursuant to sec. 66.058 (2) (d). Appellants argue that because of these failures appellants were unable to appeal from the town board action within the statutory period of twenty days as specified by sec. 66.058 (2) (d).
As to appellants’ argument that the town board failed to comply with sec. 66.058 (2) (d), Stats. 1967, when it failed to notify appellants of the revocation of their license, the trial court was entirely correct in concluding that appellants could not avail themselves of the appeal procedure because they had failed to obtain, at any time, a valid mobile home park permit. The statute unequivocally mandates state and local approval of mobile home park plans prior to the issuance of a license. It is undisputed here that such approval of park plans was not received prior to the issuance of the license. The town clerk’s issuance of a license was an ultra vires act and did not result in the issuance of a valid mobile home park permit which was thereafter revoked or suspended.
While appellants are not entitled to pursue the specific statutory appeals procedure outlined in sec.
“(2) If such town has a town park commissiqn organized as provided by law, such commission shall recommend boundaries of such districts and appropriate regulations and restrictions to be imposed therein. If the town has no town park commission, the town board may appoint a town zoning committee of 5 members to perform the duties of the town park commission under this section. The town park commission or zoning committee shall first formulate a tentative report and shall hold public hearings thereon before submitting a final report to the town board. After such final report is submitted, and the ordinance pursuant thereto adopted, the town board may alter, supplement or change the boundaries or regulations contained in such ordinance as herein set forth, but a class 2 notice, under ch. 985, of any such proposed changes shall first be published in the town prior to the hearing. A hearing shall be granted to any person interested, at a time and place to be specified in the notice.”
It is clear from the record here that sec. 60.74 (2), Stats., was not complied with by the town of Theresa prior to the adoption of the July 6, 1970, ordinance. In testimony upon adverse examination, the town clerk, Ralph Bodden, acknowledged that no notice of the pendency of the ordinance was published or posted prior to the meeting in which it was adopted. He further testified that the July ordinance was not prepared by the town attorney until one week prior to the town meeting.
. . It is contended that the common council complied with all of such requirements, except the last clause, printed in italics, and that that clause is directory and not mandatory. But the whole section is mandatory, and the common council had no more power to dispense with the last clause than any other portion of the section. Such notice was required so that the public might appear and make their objections to the change.”5
McQuillin’s Law of Municipal Corporations is to the same effect:
“Provisions respecting publication and sufficient notice of ordinances and resolutions are mandatory, and failure to publish or give notice, or to do so substantially in the manner prescribed, renders them void even where, it has been declared, newspapers reported the pendency of the measure as an ordinary news story.”6
We conclude that the failure to comply with the notice-of-hearing provisions of sec. 60.74 (2), Stats., invalidates the enactment of the July 6, 1970,. ordinance. The public has the right to appear and voice objections to pending legislation. This is certainly a right that should be honored in connection with zoning changes, as here.
Appellants argue that they are entitled to the prior-nonconforming-use doctrine enunciated in several Wisconsin cases.
Constitutionality of mobile home park zoning legislation.
As to appellants’ contention that zoning requirements for mobile homes which are different from those for single and multiple family homes violate the equal pro
“Trailer camps in recent years have become so common that it is not beyond the bounds of reason that the legislature may believe that such camps, with their collection of small mobile homes, present definite problems of health, safety, morality, and general welfare in the area which is affected by the presence of such camps. . . .
it
“The ordinance reasonably tends to stabilize the problems created by the transient nature of mobile-home life to a point where school districts may cope with them.
“We concur in the trial court’s decision that neither the statute nor the ordinance in question here is unconstitutional.”10
It is entirely constitutional for reasonable zoning regulations to be' developed imposing zoning requirements for these trailer camps (mobile home parks).
Appellants also argue that sec. 66.058 (5), Stats., is unconstitutional in the event that the trial court’s interpretation thereof is accepted. This section provides as follows:
“(5) Plans and SPECIFICATIONS to be filed. Accompanying, and to be filed with an original application for a mobile home park, shall be plans and specifications which shall be in compliance with all applicable city, town or village ordinances and provisions of the department of health and social services. The clerk after approval of the application by the governing body and upon completion of the work according to the plans shal) issue the license. A mobile housing development harboring only nondependent mobile homes as defined in sub. (1) (g) shall not be required to provide a service building.”
Damages.
The appellants have failed to file a statement of their claim and demand for payment with the town clerk pursuant to sec. 60.36, Stats. Moreover, their pleading,
By the Court. — Judgment affirmed as to dismissal of cause of action for money damages; reversed as to dismissal of cause of action for injunction; cause remanded for further proceedings not inconsistent with this opinion.
The following memorandum was filed on March 27, 1973.
State ex rel. Ryan v. Pietrzykowski (1969), 42 Wis. 2d 457, 463, 167 N. W. 2d 242.
Milwaukee v. Reilly (1957), 2 Wis. 2d 33, 37, 85 N. W. 2d 837.
David A. Ulrich, Inc. v. Saukville (1969), 7 Wis. 2d 173, 177, 96 N. W. 2d 612.
(1898), 100 Wis. 891, 76 N. W. 364.
Id. at page 398. See also: State ex rel. Ryan v. Pietrzykowski, supra, footnote 1, at page 463.
5 McQuillin, Municipal Corporation (3d ed. rev. 1969), pp. 267-269, sec. 16.78.
1 Rathkopf, Zoning and Planning (3d ed.), ch. 8, pp. 8-12-8-23 (1972).
See e.g., Yorkville v. Fonk (1958), 3 Wis. 2d 371, 88 N. W. 2d 319, certiorari denied, 358 U. S. 58, 79 Sup. Ct. 110, 3 L. Ed. 2d 48.
(1950), 257 Wis. 376, 43 N. W. 2d 349.
Yorkville v. Fonk, supra, footnote 8, at pages 875 and 377.
070rehearing
(on motion for rehearing). The ordinance of July 6, 1970, was a zoning ordinance and because, as respondent points out on rehearing, Dodge county had already adopted a county-wide zoning ordinance under sec. 59.97, Stats., adoption of this zoning ordinance was invalid for the additional reason that the town of Theresa was not authorized under sec. 60.74 (1) (a) to adopt such ordinance.
The mandate in this cause is amended to read:
By the Court. — Judgment affirmed as to dismissal of cause of action for money damages; reversed as to dismissal of cause of action for injunction.
Reference
- Full Case Name
- Edelbeck and Others, Appellants, v. Town of Theresa, Respondent
- Cited By
- 17 cases
- Status
- Published