Appeal from a judgment of the Circuit Court for Sauk County: James R. Seering, Judge.
Petition to Review Granted.
Gartzke, P.j., Dykman, J. and W.l. Jackman, Reserve Judge.
The opinion of the court was delivered by: Jackman
Sauk County commenced an action against respondent charging him with violation of three sections of the Sauk County zoning ordinance. The amended complaint demanded a forfeiture of $5,000, that respondent be ordered to remove his building and that he be enjoined from further violation. Respondent's answer denied the alleged violations and asserted affirmative defenses which would exempt him from the ordinance. The issues were tried to the court on stipulated facts. The trial court dismissed the action. Sauk County appealed the trial court's judgment. We affirm the judgment of the trial court in all respects.
The stipulated facts were: Respondent owned land in the Town of Baraboo, one corner of which was at the intersection of Pit Road, which goes east and west, and U.S. Highway 12, which runs approximately north and south. In 1960 respondent and his father erected foundations and a floor of concrete for a garage and storage building, forty by twenty-four feet, the north end of the foundation being thirty-three feet south of the centerline of Pit Road.
In 1961, because of the death of his parents, respondent moved onto the family farm adjacent to this property. The demands of the farm and financial constraints prevented him from commencing further work on the building until 1974, when respondent ran electricity to the foundation. No further work was done until 1978, when respondent commenced building a wooden superstructure on the foundation. At no time did respondent have a town building permit.
For the work done prior to 1970 respondent spent $18.00 in excavating costs, $242.44 for concrete, and $142.00 for lumber. In addition, respondent and his father spent eighty hours of labor, which respondent valued at $2.00 per hour, or $160.00.
In 1970, after the construction of the foundation and before any further work had been done on the building, the Town of Baraboo became subject to the Sauk County zoning ordinance.
In December 1978, the Sauk County Office of Planning and Zoning notified respondent that his setback was insufficient to comply with the ordinance and that he should either obtain a variance or move the building. The County Board of Adjustment held a hearing on respondent's request for an interpretation of or variance from the ordinance. The board denied respondent's application on the following grounds: (1) The exemption in sec. 7.13(3) (d)1 of the zoning ordinance which provides that no building permit is required for "any building on which work to the amount of $500 or more has been done prior to the approval of this ordinance" was not applicable because "work in the amount of $500 or more was not done prior to the enactment of the ordinance," and (2) there was no reason the proposed building could not be erected elsewhere in conformance and this could be done "with little hardship."
On April 10, 1979, in a "Supplemental Decision," the board reiterated its prior position that respondent did not fall within the exemption of sec. 7.13(3) (d)1, stating:
The Board understands this provision as an attempt to spare people who are completing buildings started before the Ordinance -- the unfair situation of being bound by rules which were not in effect when the particular buildings were started. But it is clear that a building which has been started but then abandoned for a lengthy period is not entitled to the same protections as one which has been conscientiously and continuously completed. It would seem that the provision of s. 7.12(1) (f)3 would be applicable. That provision reads:
". . . If the nonconforming use of a building or premises is discontinued for a period of 12 months, any future use of the building or premises shall conform to the regulations for the district in which it is located."
It was further stipulated "hat all of the procedural steps taken by were taken upon the recommendation of the Sauk County Office of Planning and Zoning."
The complaint charged respondent with violation of three sections of the Sauk County zoning ordinance: sec. 7.13(3) (a), failure to procure a building permit; sec. 7.17(3), the sixty-three-foot setback requirement; and sec. 7.17(8), which provides: "No building . . . or structure or part thereof existing within such set-back lines on the effective date of this ordinance shall be altered or enlarged in any way that increases or prolongs the permanency thereof." It was stipulated that "the wooden part of the garage will have a shorter life than the concrete ...