Hayes v. Hoffman , 192 Wis. 63 ( 1927 )

The following opinion was filed December 7, 1926:

Rosenberry, J.

Upon the appeal-the defendant Hoffman assigns errors, which assignments present the following issues :

(1) “Did the defendant William Hoffman violate the zoning ordinance of the city of Milwaukee with respect to setback on Thirty-first street, area, side yards and rear yards in the erection of the apartment building and the moving of the frame house in the manner in which he caused the apartment building to be erected and the frame house moved to the rear of said lot?

(2) “Is not the zoning ordinance void as to the setbacks required because of it being unreasonable and oppressive ?

(3) “Are the plaintiffs not guilty of laches?”

The contention upon the first proposition is based mainly upon the provisions of sec. 26.63 of the zoning ordinance relating to setbacks:

“Setbacks: On lots fronting on one side of a street between two intersecting streets, no building shall hereafter be erected, and nó existing building shall be reconstructed or altered in such a way that any portion thereof shall be closer to the street line than any existing building fronting on that street within that block; but in no case shall the required setback in a ‘C residence district, and in any adjacent ‘D’ residence district, be greater than fifteen feet.”

In the case of a corner lot the inspector of buildings has construed the ordinance to mean that a setback is required on one street only. The ordinance defines a corner lot as follows:

“A corner lot. is a lot or portion of a lot not more than fifty feet wide at the junction of and fronting on two intersecting streets. Any portion of a lot more than fifty feet distant from that street with the greater frontage shall comply with all the provisions of this chapter respecting interior lots.”

An interior lot is defined as follows: “An interior lot is a lot other than a’corner lot.”

By the zoning ordinance the city of Milwaukee is divided into four districts, known as residence districts, local business districts, commercial and light manufacturing districts, and industrial districts, and the city is further divided into four classes of area districts, to wit: A, B, C, and D. The property owned by the plaintiffs as well as that of the defendant is situated in a residence district and in area district C.

The trial court held that the ordinance as applied to a C residence district should be so construed as to require a setback in the case of a corner lot to fifteen feet on each street. If the definition of a corner lot be adhered to, it seems to be impossible to reach any other conclusion. By the definition a corner lot is one fronting on two streets. The defendant’s lot therefore fronts on Cedar street and on Thirty-first street. It is conceded that under the terms of the ordinance the setback on Thirty-first street is fifteen feet; the apartment house as constructed has a setback of 2.40 feet and is therefore clearly in violation of the terms of the ordinance. It is equally true that it was erected in violation of the area provisions of the ordinance applicable to the C residence district, and the trial court rightly so held.

The second proposition presented is that the zoning ordinance is void as to its setback provisions because it is unreasonable and oppressive. The complaint in this action set out in great detail the ownership of the property, the applicable provisions of the zoning ordinance, the respects in which it was claimed the ordinance was violated, the damage alleged to have been sustained by the plaintiffs, and all material facts in relation to the matter. The answer of the building commissioner was a general denial. The answer of the defendant Hoffman was, after admission as to the parties, ownerships, etc.:

“Denies that defendant has violated and is violating any of the provisions of section 26.63 of said city ordinance and that defendant William D. Harper, as building inspector of the city of Milwaukee, issued a permit to the answering defendant in violation of said zoning and building ordinances of the city of Milwaukee and without authority.”

The answer of the defendant in this case raised no other issue, and the defendant chose to rest his case upon the proposition that he was not erecting his building in violation of the terms of the ordinance. The answer made no claim that the ordinance was void because unreasonable and oppressive or in violation of any of the constitutional guaranties. It is sought to present that question for the first time in this court. The question is raised in the brief of Mr. See-feld, who tried the case in the court below, and is argued at considerable length and with vigor by Mr. Ballhorn and Mr. Katz, who appear as of counsel here.

The constitutionality of the ordinance as a whole was considered in the case of State ex rel. Carter v. Harper, 182 Wis. 148, 163, 196 N. W. 451, and its constitutionality sustained. It was there said:

“It is our conclusion that the ordinance is, in the respects here considered, a reasonable, valid, and constitutional enactment. It is appreciated that there are other provisions of the ordinance the validity of which may be the subject of future challenge. It is to be understood that no opinion is expressed with reference to any features of the ordinance except such as are herein treated.”

It is the duty of a person who claims that an ordinance invades rights guaranteed by the constitution to raise that question at his earliest opportunity. Taking part in a proceeding which fixes his liability under the ordinance without raising any question as to constitutionality of the ordinance is a waiver of the right to raise that question subsequently. Shoal Creek Coal Co. v. Industrial Comm. 300 Ill. 551, 133 N. E. 218; Chicago-Sandoval Coal Co. v. Industrial Comm. 301 Ill. 389, 134 N. E. 158. See, also, 6 Ruling Case Law, 94, and cases cited.

This salutary rule is peculiarly appropriate in this case. No situation map was filed with the application, at least none such as is required by the terms of the ordinance. No evidence was offered as to the general situation in the city of Milwaukee. There are in almost all police regulations instances where the law operates with hardship and seems oppressive. That such is the fact, however, does not render the regulation invalid or unconstitutional. In contemplation of law, the benefits equal the burdens. The plaintiffs were given no opportunity to meet the issue in the court below. The record was made up without reference to the claim made here for the first time. We cannot entertain it.

The plaintiffs were not guilty of laches. The court finds that the defendant Hoffman knew at all times that he was proceeding in violation of the provisions of the law. The facts do not present a case where a party has proceeded in good faith and been misled by the conduct of the plaintiffs in failing seasonably to assert their rights.

By the Court. — Judgment affirmed.

A motion to amend the mandate was denied, without costs, on February 8, 1927.