Court rejects request to reconsider garage ruling

An Ozaukee County judge last Friday rejected a Town of Saukville request that he reconsider his ruling in favor of a homeowner who the town said illegally built an apartment above his garage.

Circuit Court Judge Steven Cain had ruled last month in Reed and Jeanne Hortons’ favor, saying the ordinances the town relied on are “old, clunky and challenging to understand and apply” and too vague to be enforced, creating an ambiguity that favored the homeowner.

The town sued the Hortons in July 2018 after they proposed building a garage with a “bonus room” on the second floor to be used as a work space but instead built a two-bedroom apartment with kitchen facilities above a garage at 3150 Highview Rd.

The town alleged the apartment violated town zoning codes that prohibit second dwelling units on agriculturally zoned properties.

In her Dec. 17 motion asking Cain to reconsider his ruling, Town Attorney Sara MacCarthy wrote: “The evidence at trial established that the Hortons constructed, maintained and occupied an unlawful, unapproved second dwelling on the subject property in contravention of the town’s zoning ordinance” and noted that Cain agreed the apartment was a “second dwelling unit.”

Under the state Uniform Dwelling Code, which is followed by all Wisconsin municipalities, the garage constitutes an accessory structure, which the code calls “a detached building, not used as a dwelling unit but incidental to that of a main building,” MacCarthy argued.

The Hortons’ attorney, Ron Stadler, argued that MacCarthy’s motion was “misguided, confusing and at times bizarre” and called it “a rehash of its previous arguments” and “the Uniform Dwelling Code argument is a red herring.”

In court on Friday, Stadler asked that Cain deem the motion frivolous, which, if Cain agreed, could have meant greater sanctions for the town.

In his ruling, however, Cain did not agree the motion was frivolous but ruled against the town. He stated that MacCarthy did not make the case that Cain had committed a “manifest error” in his ruling, had not presented any new evidence and did not cite a “misapplication of precedent,” all of which are reasons to reconsider.

“Manifest error is a real high bar to meet,” Cain said, adding that he thought the reason for the motion was “just disappointment in the court’s findings.”

In his original ruling in the Hortons’ favor, Cain ordered the town to pay their legal fees, totaling $720, while acknowledging that what the Hortons built was different than the plans they submitted.

“It’s crystal clear that what the Hortons requested was entirely different than what was constructed,” Cain said in December.