Opposition Brief — Stein v. City of New Berlin

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Sugrome Court, U. &,

LIBRARY wre Cou B.

SUPREME COURT, U. 8.

No.% 3- 567 OCT 27 1973

: MICHAEL RODAK, JR.,CL

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Supreme Court of the Anited States

Ocroszr Tzrm, 1973

WERNER STEIN,

Petitioner, F

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vs. t

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CITY OF NEW BERLIN, H

Respondent. f

RESPONDENT'S BRIEF IN OPPOSITION TO I

PETITION FOR WRIT OF CERTIORARI ;

TO THE SUPREME COURT OF THE STATE OF WISCONSIN {

THEODORE M. SCHOBER,

City Attorney

T. MICHAEL SCHOBER,

Assistant City Attorney

13825 W. National Avenue

New Berlin, Wisconsin 53151

Attorneys for Respondent

Wisconsin Law Printing, Incorporated, Milwaukee, Wisconsin

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Supreme Court of the United States

October Term, 1973

No.

WERNER STEIN,

Petitioner,

CITY OF NEW BERLIN,

Respondent.

RESPONDENT’S BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI TO

THE SUPREME COURT OF THE STATE OF WISCONSIN

The respondent, CITY OF NEW BERLIN, prays that an order

issue denying the Petition of WERNER STEIN for a writ of

certiorari to review the opinion and judgment of the Supreme

Court of the State of Wisconsin rendered in these proceedings

on April 20th, 1973.

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Petitioner maintains that the Wisconsin Supreme Court can

not extend the limitation of time as set forth in Section

62.23(7) (da) of the 1957 Wisconsin Statutes. Respondent

contends that Section 62.23(7) (da) of the 1957 Wisconsin Stat-

utes does not apply to the instant matter, and that the decision

of the Supreme Court of the State of Wisconsin is based upon

sound State grounds. Respondent further submits that the

interpretation of what particular statutes of a State mean and

the extent to which any provisions may be limited or affected

by other acts, are questions which are reviewable by the highest

Court of the State of Wisconsin. The question in this matter is

not a proper question for consideration by the Supreme Court

of the United States.

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STATUTES AND LAWS INVOLVED

Section 62.06 (8) of the 1957 Wisconsin Statutes which was

repealed August 11, 1959:

“(8) EXISTING ORDINANCES. Ordinances

in force in the territory or any part thereof,

so far as not inconsistent with the provisions

of chapter 62, shall continue in force until

altered or repealed.”

Chapter 261, Laws of 1959, effective August 11, 1959 enacting

Section 66.019 (2) of the Wisconsin Statutes which reads:

“(2) EXISTING ORDINANCES. Ordinances

in force in the territory incorporated, or

any part thereof, insofar as not inconsistent

with chs. 61 and 62, shall continue in force

until altered or repealed.”

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Section 62.23 (7) (da) of the 1957 Wisconsin Statutes:

“(da) Interim zoning. The common coun-

cil of any city which has not adopted a

zoning ordinance may, without referring

the matter to the plan commission, enact

an interim zoning ordinance to preserve

existing uses while the comprehensive zoning

plan is being prepared. Such ordinance

may be enacted as is an ordinary ordinance

but shall be effective for no longer than

2 years after its enactment.”

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Section 62.23 (7) (h) of the 1957 Wisconsin Statutes:

“(h) Nonconforming uses. The lawful use

of a building or premises existing at the

time of the adoption or amendment of a

zoning ordinance may be continued al-

though such use does not conform with

the provisions of the ordinance . . .”

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STATEMENT OF THE CASE

On February 17th, 1959, the CITY OF NEW BERLIN was

incorporated, the lands subsequently acquired by Petitioner

being within the boundaries of the CITY. Prior to its incorpora-

tion, the area included in the CITY OF NEW BERLIN was

known as the Town of New Berlin. Such Town had a zoning

ordinance which zoned all of the lands acquired by WERNER

STEIN “agricultural”, Petitioner, Werner Stein, acquired lands

in the CITY OF NEW BERLIN in April of 1960. On May 29th,

1959, the CITY OF NEW BERLIN enacted an ordinance

entitled: :

“AN ORDINANCE TO ADOPT AND A-

MEND THE ZONING ORDINANCE OF

THE TOWN OF NEW BERLIN AS IN-

TERIM ZONING ORDINANCE IN THE

CITY OF NEW BERLIN, WAUKESHA

COUNTY, WISCONSIN”.

Such ordinance was found by the Supreme Court of the State

of Wisconsin to not be an “interim” ordinance as defined in

Section 62.23(7) (da) of the 1957 Wisconsin Statutes. Had

Section 62.23(7) (da) applied, it would have limited the exis-

tence of the intermediate New Berlin ordinance to a period of

two (2) years. Under the May 29th, 1959 CITY OF NEW

BERLIN ordinance, the zoning and use of the lands which peti-

tioner subsequently acquired remained unchanged, “agricultural”.

Petitioner argues that the ordinance of May 29th 1959, was an

“interim” ordinance pursuant to Section 62.23(7) (da) of the

Wisconsin Statutes and therefore expired two (2) years after its

enactment. Following this logic, petitioner argues that after

the expiration of such ordinance, having been extinguished by

Statute after two (2) years, the petitioner established a valid

non-conforming use of his premises, prior to the adoption of the

comprehensive zoning ordinance enacted by the CITY OF NEW

BERLIN on June 5th, 1962.

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REASONS FOR DENYING THE WRIT

The language of Section 62.23(7) (da) of the 1957 Wisconsin

Statutes applies to “. . . any City which has not adopted a zoning

ordinance. . .”. Section 62.23(7) (da) of the 1957 Wisconsin

Statutes was intended to apply to newly incorporated munici-

palities which as a Town did not have zoning ordinances. Such

Statute has no application to the matter at hand, for the CITY

OF NEW BERLIN had incorporated from a Town which had a

zoning ordinance. Wisconsin State Law, Section 62.06 (8)

until August llth, 1959, and Wisconsin Statutes 62.019 (2)

after August 11th, 1959, provided that a Town’s zoning ordi-

nances continued in force in a City which incorporated from a

Town if the Town had zoning ordinances. No affirmative

action on the part of the newly incorporated municipality

was necessary under State law.

Section 62.23(7) (da) of the 1957 Wisconsin Statutes by

its express language allowed the CITY to enact an “interim”

ordinance without referring the matter to the plan commission.

The procedure which the City utilized in the passage of the

May 29th, 1959, ordinance was not the procedure which

would have been utilized had the City desired to freeze existing

uses while in the process of investigating a general zoning

scheme. The May 29th, 1959, CITY OF NEW BERLIN

Zoning Ordinance was enacted by the New Berlin Common

Council upon the résolution of recommendations submitted

to it by the Plan Commission. Such recommendation and

resolution was not required by Section 62.23(7) (da) of the

1957 Wisconsin Statutes.

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The last indication that the May 29, 1959, Zoning Ordinance

of the CITY was not an interim ordinance is that it did not

preserve existing uses. Rather, it adopted some uses in existence

by virtue of the Town ordinance (as inherited by the CITY)

and amended other uses. This is not permitted by Section

62.27(7) (da) of the 1957 Wisconsin Statutes.

The May 29th, 1959, CITY OF NEW BERLIN Zoning

Ordinance, therefore, was not subject to the two year limitation

upon the zoning ordinances passed under Section 62.23 (7) (da)

of the 1957 Wisconsin Statutes. The ordinance dated May 29th,

1959, continued until superseded by enactment of the Com-

prehensive Zoning Ordinance dated June Sth, 1962. The uses to

which the defendant put his land during the time that he

purchased it up to the time this matter was initially considered

by the Circuit Court of Waukesha County, was contrary to the

Zoning Ordinances which existed except as to the renting of a

stable for horses.

An additional state ground is present upon which the de-

cision of the Trial Court and Supreme Court of the State of

Wisconsin is based. The Trial Court (Branch I, Circuit Court for

Waukesha County, Wisconsin, Honorable William E. Gramling,

presiding) determined that the evidence of the Petitioner,

WERNER STEIN, fell far short of establishing a valid non-

conforming use. The Wisconsin Supreme Court approved

the reasoning of the Trial Court indicating:

“there is no question Stein’s use of his

premises, other than renting a stable for

horses, violated the zoning restrictions ap-

plicable to his land.”

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58 Wis. 2d 417, 423; See at Appendix to

PETITION FOR WRIT OF CERTIORARI

Page 8a.

The decision of the Trial Court and Wisconsin Supreme Court

rests on adequate independent state grounds. The United

States Supreme Court in such a situation should not review their

decision. Dixon v. Duffy, Cal. 1951, 72 S.Ct. 10, 342 U.S. 33,

96 L.Ed. 46. Young v. Roger, Ill.1949, 69 S.Ct. 1073, 337

U.S. 235, 93 L.Ed. 1333.

As is demonstrated by both this BRIEF and the PETITION

FOR WRIT OF CERTIORARI, in this matter the crux of the

arguments originating from the respective parties is the inter-

pretation of the Statutes of the State of Wisconsin, and the im-

pact which such State Laws have upon other State Laws or the

ordinances of the CITY OF NEW BERLIN. In such a situation

as that at hand, the highest Court of the State of Wisconsin

has ihe final word. Musser v. State of Utah, Utah 1948, 68

S.Ct. 397, 333 U.S. 95, 92 L.Ed. 562.

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CONCLUSION

For the foregoing reasons, the PETITION FOR WRIT OF

CERTIORARI to review the judgment and opinion of the

Supreme Court of the State of Wisconsin should be denied.

Respectfully submitted,

Theodore M. Schober, City Attorney

5 T. Michael. Schober, Assistant City

_ Attorney

13825 W. National Avenue

New Berlin, Wisconsin 5315i

Attorneys for Respondent

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