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COURT OF APPEALS DECISION DATED AND RELEASED November 14, 1996 |
NOTICE |
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A party may file with the Supreme
Court a petition to review an adverse decision by the Court of Appeals. See § 808.10 and Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-2292
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
VILLAGE OF FREMONT,
Plaintiff,
STATE OF WISCONSIN,
Intervenor-Plaintiff-Respondent,
v.
THOMAS L. MISCHLER,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Waupaca County:
JOHN P. HOFFMANN, Judge. Affirmed.
Before Eich, C.J.,
Vergeront, J., and Paul C. Gartzke, Reserve Judge.
PER
CURIAM. Thomas L. Mischler appeals from a circuit court
judgment in which the court found that equitable estoppel had no application in
this zoning ordinance violation case.
Because we agree with the circuit court that estoppel has no
application, we affirm.
BACKGROUND
In 1986, the Village of
Fremont annexed various land along the Wolf River. In late June 1989, Thomas Mischler applied for, and received a
Village building permit for a river-front lot in the annexed lands. He twice asked the Village building
inspector to measure the setback of his proposed foundation, and was twice told
it complied with Village requirements.
Near the end of August 1989, DNR Inspector Richard Koch visited the
site. Koch informed Mischler that the
setback was not correct. However, the
Village inspector informed Mischler that the building was within Village
specifications. After this meeting, the
Village "red-tagged" the building site, stopping construction.
On September 1, 1989,
Mischler received a letter from the Village stating that:
the red tag was placed on the home you
are building because the Dept. of Natural Resources strongly advised it, as
they feel you are in the floodplain....
It is the village's opinion that you are within the required setbacks
and the village zoning ordinance. The
village attorney has advised us that you should deal directly with the DNR as
they are the ones saying you are in violation.
The
letter concludes by giving DNR Inspector Koch's address and telephone
number. At the time Mischler received
this letter, he had completed substantial construction and moving the building
would have cost $50,000. It is
undisputed that Mischler never contacted Inspector Koch.
A few days after
red-tagging the building, the Village removed the red tag, and Mischler
finished the construction. We surmise
that he and his family have been living in the building ever since.
On September 14, 1989,
DNR commenced an appeal with the Village zoning board of appeals, and on
October 3, 1989, informed Mischler that a land survey would be conducted on and
near the building site. The DNR zoning
appeal eventually led the DNR to intervene as a plaintiff in the case which
underlies this appeal.
ANALYSIS
Thomas Mischler argues
that the circuit court wrongly decided that estoppel is not a viable theory in
zoning disputes. We disagree. Our supreme court has clearly stated that a
building permit cannot confer the right to violate zoning ordinances. Snyder v. Waukesha County Zoning Bd.,
74 Wis.2d 468, 476-77, 247 N.W.2d 98, 103 (1976). Further, this is true even when, as here, the building inspector
has made assurances to the contrary. Id.,
see also Jelinski v. Eggers, 34 Wis.2d 85, 93, 148 N.W.2d
750, 755 (1967). Estoppel will not lie
against a municipality so as to bar it from enforcing a zoning ordinance
enacted pursuant to the police power. Milwaukee
v. Leavitt, 31 Wis.2d 72, 77, 142 N.W.2d 169, 172 (1966).
Mischler cites State
v. City of Green Bay, 96 Wis.2d 195, 291 N.W.2d 508 (1980), for the
proposition that equitable estoppel applies against governmental agencies. We agree that this has long been the law of
this state. Cf. Leavitt,
31 Wis.2d 76, 142 N.W.2d at 171 (governmental units are "not wholly immune
from" equitable estoppel).
However, Green Bay is a forfeiture case, not a zoning case
and as such cannot overcome the clear precedent against application of
equitable estoppel in zoning cases.
Mischler asks us to
consider various out-of-state cases where estoppel has been permitted. We decline to do so. The court of appeals is bound by prior
decisions of the Wisconsin Supreme Court.
Livesey v. Copps Corp., 90 Wis.2d 577, 581, 280 N.W.2d
339, 341 (Ct. App. 1979).
But even if estoppel had
application in Wisconsin, it would not apply in this case for two reasons. First, estoppel only arises where there is
action or inaction by a party that induces reliance by another to his or
her detriment. Tomah-Mauston
Broadcasting Co., Inc. v. Eklund, 143 Wis.2d 648, 656, 422 N.W.2d 169,
172 (Ct. App. 1988) (emphasis added).
This has not occurred here.
Mischler was informed by the DNR that his home did not comply with the
applicable county set-backs. DNR in no
way acted or failed to act in a manner which induced Mischler to rely to his
detriment. That Mischler chose to
disbelieve the DNR, and instead rely on the Village's assurances to complete
his house is not the sort of reliance that can induce estoppel as against DNR.[1]
Second, any reliance
must be reasonable. City of
Kenosha v. Jensen, 184 Wis.2d 91, 99, 516 N.W.2d 4, 8 (Ct. App.
1994). In the light of the DNR's
statewide responsibility and reputation, Mischler's decision to rely on the
Village of Fremont rather than the DNR was unreasonable. This is especially so in light of Inspector
Koch's specific representation that Mischler's house failed to comply with the
applicable setback requirements.
Because we conclude that
estoppel would have no application here, we need not consider Mischler's
argument that the circuit court erred in failing to balance the equities prior
to granting injunctive relief. Sweet
v. Berge, 113 Wis.2d 61, 67, 334 N.W.2d 559, 562 (Ct. App. 1983) (this
court need not address other issues when one disposes of the appeal).
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.