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Keywords

plaintiffdefendantinjunctionzoning

plaintiffdefendantinjunctiontrialzoningcomplianceregulation

Related Cases

Sohns v. Jensen, 11 Wis.2d 449, 105 N.W.2d 818, 84 A.L.R.2d 643

Facts

The plaintiffs, neighbors of the defendant, sought an injunction against him for operating an automobile wrecking yard and burning junked vehicles, which they claimed violated a zoning ordinance. The defendant had operated a garage and repair business since 1948, but the zoning ordinance adopted in 1949 prohibited automobile wrecking yards in the area. The court found that the defendant did not engage in the wrecking business before the ordinance took effect and that his burning operations created significant smoke and odors that affected the plaintiffs' properties.

The defendant since 1948 has operated a garage and automobile repair business in the town of Norway, Racine county. On June 28, 1949, Racine county adopted a zoning ordinance which on July 6, 1949, was adopted by the town of Norway.

Issue

Whether the defendant was operating an automobile wrecking yard prior to the effective date of the zoning ordinance, and whether his burning of junked automobiles constituted a private nuisance.

The only issue involved was whether such operation other than the garage constituted a nonconforming use.

Rule

A nonconforming use must have been established prior to the effective date of a zoning ordinance, and operations that create offensive odors and smoke can constitute a private nuisance.

Sec. 59.97(8), Stats., provides: 'Such ordinances shall be enforced by appropriate fines and penalties. Compliance with such ordinances may also be enforced by injunctional order at the suit of such county or the owner or owners of real estate within the district affected by such regulation.'

Analysis

The court analyzed the evidence and determined that the defendant did not begin operating an automobile wrecking yard until after the zoning ordinance took effect. The court also found that the burning of junked automobiles produced dense smoke and noxious odors that interfered with the plaintiffs' enjoyment of their properties, thus constituting a private nuisance.

The findings of fact of the trial court were not contrary to the great weight and clear preponderance of the evidence.

Conclusion

The court affirmed the judgment, enjoining the defendant from operating an automobile wrecking yard and from burning automobiles on his premises.

Judgment affirmed.

Who won?

The plaintiffs prevailed in the case because the court found that the defendant's operations violated the zoning ordinance and constituted a private nuisance.

The plaintiffs could maintain the action under sec. 59.97(8), Stats.

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