Town of Clearfield v. Cushman

SUNDBY, J.

0dissenting). This case does not involve an exercise of the town’s zoning power, under sec. 66.058, Stats., or otherwise. Cushman is charged with violating specific provisions of the town’s Subdivision and Building Ordinance, adopted September 17, 1981, and its Land Division and Building Ordinance, adopted March 15, 1984, which are not zoning regulations.1 Both ordinances are involved because Cush-man’s mobile home was first located on the parcel on November 10, 1983 but has been occupied off and on through November 27, 1985.

The town’s complaint alleges that Cushman violated these ordinances in the following respects: (1) He did not apply for or receive a building permit. (2) The mobile home does not meet minimum size requirements. (3) He has not provided the unit with a septic system or well.2

*563The Subdivision and Building Ordinance provided:

Section 9
A trailer or mobile home may be installed as a dwelling or commercial structure in the Town of Clearfield only if a building permit is previously obtained. Permitting the use of such trailer or mobile home shall be subject to the restrictions as set forth herein for other dwellings and business structures.
No trailer or mobile home shall be authorized or permitted unless it has a minimum of 720 square feet. It is to be located on a lot or parcel of not less than 3 acres and must meet all other requirements for such structures as set forth in this ordinance. No permits shall be issued for a trailer or mobile home unless it is to be permanently affixed to the real estate so as to be an integral part thereof within 4 months from the date the permit issued.
Trailers or mobile homes must be connected to sewage disposal system and have a well.

*564The ordinance made additional provisions with respect to footings, supporting piers, skirting and inspection. Sections 2 and 3 required a building permit for all buildings erected or placed in the town. Included in the information to be furnished were:

f. Permits for adequate and safe private sewage disposal system or plans to hook up to a public system, with the approximate date of its completion.
g. The proposed manner in which an adequate and safe supply of water will be provided and the approximate date of its completion.

These provisions were continued in the town’s Land Division and Building Ordinance adopted March 15, 1984. Section 8 of both ordinances regulated mobile home parks, the March 15, 1984 ordinance more comprehensively than the earlier ordinance.

The majority rests its opinion on two bases: (1) 60 Op. Att’y Gen. 131 (1971), in which, the majority concludes, the attorney general opined that towns may not regulate mobile homes located outside of mobile home parks and (2) sec. 60.61(2)(a-g), Stats., which the majority concludes empowers towns to regulate mobile homes outside of mobile home parks but only if the regulatory measure has been approved by the county board.

The majority misreads 60 Op. Att’y Gen. 131. The attorney general opined that towns may not have more restrictive zoning ordinances regulating the use and location of mobile homes outside mobile home parks than the county which has a zoning ordinance. Id. The attorney general did not opine that towns had no authority to regulate individual mobile homes located outside of mobile home parks. He stated: *565"[Section] 66.058(3)(e), Stats., recognizes that individual mobile homes as well as parks may be regulated by local ordinance.” 60 Op. Att’y Gen. at 132. Section 66.058(3)(e) requires mobile homes permitted by local ordinance to be located outside of a licensed mobile home park to pay a monthly parking permit fee. The last sentence of that paragraph provides: "Nothing contained in this subsection shall prohibit the regulation thereof by local ordinance.” As to this paragraph the attorney general stated: "Section 66.058(3)(e), Stats., does not in itself grant specific authority to a town to regulate mobile homes.” 60 Op. Att’y Gen. at 132 (emphasis added).

The attorney general concluded that he was unable to find any authority other than sec. 66.058, Stats., for towns to regulate "the type of location” of individual mobile homes outside of mobile home parks. 60 Op. Att’y Gen. at 134. The attorney general did not, however, opine that towns had no authority to impose on individual mobile homes located outside of mobile home parks, subdivision, building and sanitary requirements. In fact, as the attorney general noted, sec. 66.058(3)(e) specifically recognizes that towns may regulate by local ordinance individual mobile homes.3

The majority misapplies sec. 60.61(2)(a-g), Stats. This section controls the exercise of a town’s zoning *566power. The provisions of the ordinances which Cush-man is charged with violating have nothing to do with zoning. Therefore, the requirement of sec. 60.62(3), that a town zoning ordinance have the approval of the county board, is inapplicable.

The majority points to the fact that the town ordinances set minimum lot size, minimum side yards, minimum structure sizes, and the type and location of structures. From this, the majority concludes that the ordinance is a zoning ordinance and therefore invalid because it was not approved by the Juneau County Board. The town does not seek to enforce such provisions of the ordinance, so the question is not presented whether these provisions constitute zoning. If such restrictions are, in fact, zoning regulations which may not be enforced by the town, Cushman has no standing to complain because the town does not propose to enforce those regulations against him. See Jacobs v. Major, 132 Wis. 2d 82, 103, 390 N.W.2d 86, 93 (Ct. App. 1986) (statute attacked must affect the litigant in some way), modified on other grounds, 139 Wis. 2d 492, 407 N.W.2d 832 (1987).

The majority refuses to apply the severability clause contained in sec. 11 of each ordinance because sec. 9 makes the use of individual mobile homes subject to the restrictions set forth in the ordinances for other dwellings and business structures. It is not necessary to apply the severability provision because none of the provisions of the ordinance which the town seeks to enforce constitute zoning regulations. However, I conclude the severability provisions are effective to sever from the ordinances any provision which could be construed to be a prohibited zoning regulation. See Wis. Wine & Spirit Institute v. Ley, 141 Wis. 2d 958, 972, 416 N.W.2d 914, 920 (Ct. App. 1987) *567(factors to consider in deciding severability include viability of the severed portion standing alone).

Cushman stipulated that the sole issue before the trial court was whether or not the town ordinance was invalid because the county zoning ordinance had preempted the field. Whether the town has authority apart from sec. 66.058, Stats., to require building permits and to enact building and sanitary ordinances is not before us. As the issue has been framed by Cushman, I disagree with the majority’s conclusion that the Juneau County zoning ordinance prevents the town from (1) requiring a building permit before a mobile home may be located outside of a mobile home park in the town; (2) requiring that mobile homes located outside of licensed mobile home parks meet a minimum size requirement; and (3) requiring that mobile homes located outside licensed mobile home parks be served with a septic system or well. The latter two requirements are exercises of the town’s police power to preserve and protect the public health, safety and welfare. The building permit requirement is merely an enforcement tool. None of these requirements are attempted exercises of the town’s zoning authority. Because the majority opinion will have a devastating effect on areas of legitimate regulation of mobile homes by towns, I cannot join it. I respectfully dissent.

The majority states that one of the dispositive issues is whether sec. 66.058(2)(b), Stats., permits towns to regulate individual mobile homes outside mobile home parks. It is not. The sole issue, as framed by the parties, is whether the Juneau County zoning ordinance preempts the regulation of mobile homes by the town, regardless of the source of the town’s regulatory authority.

The majority states that my concern with how Cushman violated the town’s Subdivision and Building Ordinance and its Land Division and Building Ordinance "addresses an issue the *563parties chose not to litigate.” This is a puzzling statement in view of the fact that Cushman was assessed a forfeiture of $3,000 for violating these ordinances. What the parties chose not to litigate was whether the ordinances in question were valid if the county ordinance did not preempt the field. The majority apparently believes that the extent of the town’s authority to regulate mobile homes is contained in sec. 66.058, Stats. That is not the case. I suspect that Clearfield has adopted village board powers under sec. 60.10(2)(c), see sec. 60.22(3), Stats., and that is the source of its powers to adopt and enforce the ordinances in question. We need not search for the source of the town’s authority, however, because the sole issue, as framed by the parties, is whether the regulations which the town seeks to enforce are preempted by the county zoning ordinance.

The majority suggests that I quote the attorney general out of context. The suggestion demonstrates that it does not understand my point. I agree that the attorney general opined that he could find no authority other than sec. 66.058, Stats., to regulate the "type or location” of mobile homes. He did not opine, however, that towns could not, for example, require that mobile homes be served with a septic system or sanitary sewer, that they be securely tied down, and that they be properly skirted to avoid rat and mice infestation and the collection of debris.