¶ 1. JANINE P. GESKE, J.
In this case we are asked to determine whether a circuit court retains equitable power to deny injunctive relief after a zoning ordinance violation has been proven. Forest County instituted enforcement proceedings under Wis. Stat. § 59.69(1) against Wesley S. Goode for noncompliance with a zoning ordinance. The County requested assessment of forfeitures and an injunctive order compelling Goode to relocate his house to comply with a 50-foot setback requirement of Forest County Zoning Ordinance § 5.03.10. The Circuit Court for Forest County, Robert A. Kennedy, Judge, denied the County's request for an injunction but imposed a forfeiture against Goode. The County appealed from both orders of the circuit court.
¶ 3. We conclude that Wis. Stat. § 59.69(11) gives the county or an owner of real estate within the district affected by the zoning regulation the option of asking a circuit court sitting in equity for injunctive relief as a remedy for a zoning ordinance violation. However, we also conclude that the legislature did not intend to eliminate the traditional equitable powers of the court through § 59.69(11). Accordingly, we hold that when a circuit court is asked to grant injunctive relief for a proven zoning ordinance violation, § 59.69(11) does not eliminate the circuit court's equitable power to deny injunctive relief in a particular case. In this case, the circuit court erroneously failed to take sufficient evidence and failed to weigh the proper equitable considerations. We therefore affirm the court of appeals' decision reversing the order of the circuit court and remanding for further proceedings.
FACTS AND PROCEDURAL HISTORY
¶ 4. Goode owns two adjoining lakefront lots on Ground Hemlock Lake in Forest County. In 1993 he
¶ 5. Goode hired Dan Stampfl to assist in constructing the new residence. Stampfl retained Flannery Trucking to perform the excavation work. Prior to excavation, Stampfl and Flannery observed the stakes Goode placed on the property after making his own measurements. After the excavation but prior to pouring the concrete footings and cement walls, Stampfl remeasured and restaked the property. In March of 1994, a citizen contacted Schmidt to report that there might be a problem with the setback at Goode's property. Schmidt returned to the residence in May of 1994 and measured the distance from the house to the OHWM. She learned that the distance from the northern corner of the home to the OHWM was only 35 feet rather than the required 50 feet. On May 19, 1994, Schmidt advised Goode by letter that the location of his residence violated the 50-foot setback requirement of
¶ 6. Following a trial in September of 1996, the circuit court denied the County's request for injunctive relief, finding that Goode's violation was unintentional, the cost to move the house would be very high, and no property owners in the area would be harmed by allowing the house to remain where it was.
¶ 7. The court of appeals, with Judge Hoover dissenting, reversed and remanded. The court of appeals concluded that the plain meaning of Wis. Stat. § 59.69(11) "does not...create a discretionary standard for the trial court to follow in determining whether injunctive relief is warranted." Forest County, 215 Wis. 2d at 223. On that basis, the court of appeals held that it was an improper exercise of the circuit court's discretion
¶ 8. In the court of appeals' view, a circuit court's refusal to grant injunctive relief under Wis. Stat. § 59.69(11) would judicially usurp the legislative function. Specifically, denial of injunctive relief would, according to the court of appeals, nullify the decision of the body legislatively vested with the authority to make variance determinations. See id. at 227. In addition, the court of appeals reasoned that a refusal to grant injunctive relief here would infringe upon the public's right to have zoning ordinances enforced, would increase the dangerous cumulative effects of zoning violations, and would allow persons to "purchase" zoning variances by allowing forfeitures as a remedy in some cases. See id. at 228-29.
¶ 9. The court of appeals then turned to the County's claim that the circuit court erred in calculating the forfeitures. Forest County's Ordinance § 20.05.1 states: "Any person who violates this ordinance shall be subject to a fine up to $200.00, plus costs
¶ 10. Accordingly, the court of appeals remanded the case to the circuit court for a determination, in its discretion, of the per diem forfeiture to be imposed for the period of 861 days. See id. at 230. Goode seeks review only of the court of appeals' reversal of the circuit court's order denying injunctive relief. We granted the State's request to intervene in this review.
¶ 11. The County brought this enforcement action under Wis. Stat. § 59.69(11). That section reads:
Whether the circuit court has equitable power to deny injunctive relief once a zoning ordinance violation is proven under § 59.69(11) is a question of statutory interpretation. Statutory interpretation is a question of law we review independently, benefiting from the analysis of the circuit court and the court of appeals. See Aiello v. Village of Pleasant Prairie, 206 Wis.2d 68, 70, 556 N.W.2d 697 (1996); Town of Clearfield v. Cushman, 150 Wis.2d 10, 19, 440 N.W.2d 777 (1989). Ascertaining legislative intent is the goal of statutory interpretation. See State v. Setagord, 211 Wis.2d 397, 406, 565 N.W.2d 506 (1997). We begin with the plain language of the statute itself. See id. We do not look beyond the plain language of the statute to ascertain its meaning if the legislative intent is clear. See id.
¶ 12. The pertinent part of the statute we are asked to interpret reads: "The (county zoning) ordinances shall be enforced by appropriate forfeitures. Compliance with such ordinances may also be enforced by injunctional order instituted at the suit of the county or an owner of real estate within the district affected by the regulation." Wis. Stat. § 59.69(11)(emphasis added). This section uses the terms "shall" and "may" in close proximity to one another. Goode argues that the legislative intent is plainly demonstrated when the legislature chose to use the mandatory term "shall" in providing for forfeitures, and in choosing the directory term "may" when providing for injunctive relief. Use of the word "may," according to Goode, preserves a circuit court's traditional equitable discretion to decide in a particular case
¶ 13. Goode relies on Swatek v. County of Dane, 192 Wis.2d 47, 59, 531 N.W.2d 45 (1995), where this court concluded that "when the words `shall' and `may' are used in the same section of a statute, one can infer that the legislature was aware of the different denotations and intended the words to have their precise meanings." Additionally, Goode points to Wauwatosa v. Milwaukee County, 22 Wis.2d 184, 191, 125 N.W.2d 386 (1963), where we characterized "may" as permissive and "shall" as mandatory unless a different construction is required by the statute to carry out the clear intent of the legislature.
¶ 14. The State contends that the statute plainly does not give circuit courts discretion over whether to require compliance with zoning ordinances. The State endorses the court of appeals' view that the only discretion provided by the statute is vested in the county or affected property owners. In the alternative, the State contends that the statute is ambiguous, and thus the State turns to rules of statutory construction.
¶ 15. If a statute is capable of being understood in two or more different senses by reasonably well-informed people, it is ambiguous. See Setagord, 211 Wis. 2d at 406. A statute is not rendered ambiguous merely because the parties disagree as to its meaning. See id.
¶ 16. In this case, the court of appeals undertook a plain meaning analysis of the statute, and concluded that the only discretion permitted by the statute is that of the county or resident to decide whether to seek injunctive relief. See Forest County, 215 Wis. 2d at 223. Thus, the County and the State read the subject of the
¶ 17. Next, the County and the State assert that because zoning ordinance violations are to be enforced by a statutory injunction rather than a common law remedy, the circuit court's traditional equitable power to consider denying the injunction is eliminated. The court of appeals agreed, concluding that nothing in the statute created a discretionary standard for the circuit court to follow in determining whether injunctive relief is warranted. See id. at 223.
¶ 18. We conclude that the statute is silent as to whether the legislature intended to eliminate the circuit court's traditional equitable power in deciding whether to grant injunctive relief. This silence renders the statute ambiguous, because well-informed persons reasonably could read the statute as placing no restriction on the circuit court's traditional equitable powers. Other well-informed persons reasonably could read the statute as requiring the circuit court, once a zoning ordinance violation is proven, to issue an injunction. Because the statute is ambiguous, we may look to the scope, history, context, subject matter, and object of the statute in order to ascertain the legislative intent. See Setagord, 211 Wis. 2d at 406.
¶ 19. The State contends that the context and subject matter of the statute demonstrate a legislative intent to eliminate the equitable power of the circuit court to deny an injunction when a zoning ordinance violation is proven. The State invokes the statutory
¶ 20. Reading those statutory sections together, the State then invokes the rule of construction that when a general statute and a specific statute are compared, the specific statute takes precedence. See Milwaukee v. Kilgore, 193 Wis.2d 168, 185, 532 N.W.2d 690 (1995). The State and the County view Wis. Stat. § 59.69(11) to be a general statutory provision and the statutory variance provisions as "a bit more specific." Accordingly, the State and County contend that the more specific variance provisions take precedence over the general zoning ordinance enforcement statute. The State and County argue that the legislature could not have intended that a circuit court possess the equitable power to nullify the variance procedures.
¶ 21. There is a certain tension between the variance and the ordinance enforcement provisions. If a property owner is denied a variance for his or her non-complying property, and the county brings an enforcement action which results in forfeitures but no injunctive relief, the property owner could remain in indefinite non-compliance.
¶ 22. While we recognize this tension between the enforcement provisions of Wis. Stat. § 59.69(11) and the variance procedures of Wis. Stat. §§ 59.692(4)(b) and 59.694(7)(b) and (c), we do not view § 59.69(11) as canceling the other sections. Both the section providing authority to consider requests for variances, § 59.69(4), and the zoning ordinance enforcement provision at issue here, § 59.69(11), were passed by the same legislature as part of the 1927 Laws of Wisconsin. This is a clear indication that the legislature intended the two remedies for zoning ordinance violation to co-exist. Nothing in the legislative history for those two provisions demonstrates an intent of the legislature to eliminate the traditional equitable powers of the trial court in deciding whether to order injunctive relief after a zoning ordinance violation is proven.
¶ 23. In addition, when the legislature enacted Wis. Stat. § 59.692(4)(b) in 1965, specifically providing that variances from shoreland zoning requirements are reviewed by county boards of adjustment, we can presume that the legislature was aware of both the ordinance enforcement mechanism and the general zoning variance appeal procedures it had put in place almost 40 years earlier.
¶ 24. The State correctly asserts that the writ of certiorari is the sole method of review for denial of a variance. See Wis. Stat. § 59.694(10). The zoning ordinance enforcement statute, Wis. Stat. § 59.69(11), does not create an alternate means of review for a variance denial, nor can it result in granting a variance. Rather, § 59.69(11) is an enforcement mechanism available
¶ 25. Our reading of the zoning statutes reveals that there is no prescribed sequence to instituting a proceeding under either the variance request and appeal procedure or the ordinance enforcement mechanism. A county or an owner of real estate in the district affected by the regulation need not wait for a property owner to seek a variance, or appeal denial of a variance, before the county or resident can seek enforcement under Wis. Stat. § 59.69(11). Similarly, if a property owner seeks but is denied a variance, neither the county nor district property owners are required to enforce compliance. If and when the county or a district property owner chooses to pursue an enforcement action remains at their discretion. Significantly, the board of adjustment, which has responsibility to consider variance requests, see Wis. Stat. § 59.694, has no authority under Wis. Stat. § 59.69(11) to enforce an ordinance violation. The fact that the two statutory procedures co-exist does not mean that the court's equitable power to grant or deny injunctive relief will eviscerate the variance appeal procedure.
¶ 26. Moreover, certiorari review of a board of adjustment's decision to grant or deny a variance reviews the propriety of the board's action. The board's action focuses on protection of the land and the purpose of the zoning ordinance. The board of adjustment has no equitable power. The board only reviews whether the applicant met his or her burden to establish that, in the absence of a variance, he or she will have no reasonable use of the land. See State v. Kenosha County Board of Adjustment, 218 Wis.2d 396, 577 N.W.2d 813 (1998).
TRADITIONAL EQUITABLE POWER
¶ 27. This case focuses on the scope of the circuit court's authority once the plaintiff has proven a prima facie case of zoning ordinance violation. None of the parties contend that the County has failed to prove a prima facie case here. The only issue in dispute is whether, by enacting Wis. Stat. § 59.69(11), the legislature intended to eliminate the circuit court's equitable power to deny an injunction if appropriate under the circumstances. Most of the cases cited by the parties, and discussed below, address what is necessary to make a prima facie case for statutory injunctive relief, rather than addressing whether the circuit court retains equitable power to deny the injunction.
¶ 28. Goode argues that the legislature did not intend to eliminate the traditional equitable power of the circuit court when it enacted Wis. Stat. § 59.69(11). Because the legislature is presumed to act with knowledge of existing law, Goode asks us to consider the case law in effect at the time § 59.69(11) was enacted. See Town of Madison v. City of Madison, 269 Wis. 609, 614, 70 N.W.2d 249 (1955) (declaring that statutes are to be construed in harmony with existing law, and as part of a general and uniform system of jurisprudence).
¶ 29. We begin our analysis of this issue by looking at an early case describing the traditional equitable power of the trial court relative to common law injunctions. See Gimbel Bros. v. Milwaukee Boston Store, 161 Wis. 489, 154 N.W. 998 (1915).
Gimbel Bros., 161 Wis. at 496.
¶ 30. Typically, when a party seeks injunctive relief, the circuit court exercises its discretion in deciding whether to grant injunctive relief, and if so, in what form. See Webster v. Dane Corp., 9 Wis.2d 437, 440, 101 N.W.2d 616 (1960). Injunctive relief is not ordered as a matter of course, but instead rests on the sound discretion of the court, to be used in accordance with well-settled equitable principles and in light of all the facts and circumstances of the case. See McKinnon v. Benedict, 38 Wis.2d 607, 616, 157 N.W.2d 665 (1968); see also, Christie v. Lueth, 265 Wis. 326, 334, 61 N.W.2d 338 (1953); Maitland v. Twin City Aviation Corp., 254 Wis. 541, 549, 37 N.W.2d 74 (1949).
¶ 31. We now turn to more recent case law discussing statutory injunctions. All three parties here rely upon the County of Columbia v. Bylewski, 94 Wis.2d 153, 288 N.W.2d 129 (1980), but for different assertions. The State and County assert Bylewski demonstrates that for purposes of zoning ordinance
¶ 32. The suit in Bylewski arose when a property owner purchased land with a nonconforming structure, a mobile home, on it. When the property owner took down the nonconforming structure and replaced it with a newer version, the county sued in the county court under the small claims procedures statute. The county sought a forfeiture for violation of a zoning ordinance prohibiting structures like the mobile home from use in a recreation district. After the trial, the county court concluded that the landowner's mobile home violated the ordinance, and that the landowner had constructed his garage without a permit. The county court then ordered the landowner to remove his mobile home and garage from the property. See Bylewski, 96 Wis. 2d at 159-60. The landowner appealed. Only one issue addressed in Bylewski is significant to the case before us.
¶ 33. Bylewski asserted that the county court lacked authority under the small claims procedures to recover a forfeiture for a zoning ordinance violation and to issue an injunctive order to enforce compliance. This court held that the county court lacked authority to issue any injunctional relief under the small claims statute. See id. at 167. The Bylewski court recognized that Wis. Stat. § 59.97(11), the predecessor to Wis. Stat. § 59.69(11), allowed both the imposition of forfeitures as well as the enforcement of zoning ordinances by injunctive orders. See id. at 162. The Bylewski court distinguished between a suit for forfeitures and a suit for injunctive relief, because the latter "is an action in
¶ 34. En route to reaching that conclusion, the Bylewski court emphatically distinguished between two forms of relief for noncompliance with a zoning ordinance. "[A]n action to recover a forfeiture and a suit seeking injunctional relief are fundamentally different in nature." Id. at 167. First, the court observed that to recover forfeitures, the proponent need only introduce the ordinance and prove its violation by a preponderance of the evidence. In contrast, the court observed that:
¶ 35. Goode argues that the first two sentences of this discussion in Bylewski support the circuit court's traditional power to balance the equities in reaching its decision on injunctive relief. The County and the State argue, and the court of appeals agreed, that the discussion in Bylewski most relevant to this case is its description of the "true inquiry" test of whether an injunction should be ordered—an inquiry which merely involves a determination of whether the building is legally usable or modifiable and legally useable.
¶ 36. The court of appeals in this case concluded that because Goode's property can be modified to a legal use, an injunctive order was proper. See Forest County, 215 Wis. 2d at 226. Bylewski does not support that reasoning, however. First, whether the offending structure is legally useable, or modifiable and legally useable, is not an ultimate test. However, such an inquiry may well be a factor that a court, sitting in equity, may consider in its balancing of the equities.
¶ 37. Second, we do not read the statement in Bylewski that "relief has been extended" to include injunctive relief to denote a situation where the court is prohibited from exercising its discretion or has been legislatively required to order injunctive relief. That statement instead supports Goode's argument that Wis. Stat. § 59.69(11) does not eliminate the traditional equitable power of the circuit court.
¶ 39. The language of the 1975 statute in Pure Milk, Wis. Stat. § 185.43(2), however, differs from the statutory language at issue here:
90 Wis. 2d at 789 (emphasis added). The same distinction can be made for an earlier version of that statute:
Neillsville Shipping Ass'n. v. Lastofka, 225 Wis. 350, 353-54, 274 N.W.2d 280 (1937) (quoting Wis. Stat.
¶ 40. Similarly, the Pure Milk court did not discuss legislative intent. Instead that court relied on the plain language of the statute before it, "is entitled," and on the conclusion of the Neillsville court that a trial court had no discretion under such a statute. See Pure Milk, 90 Wis. 2d at 789-90.
¶ 41. The State points to two other decisions, where, it asserts, the circuit court's equitable powers have been limited by statute. According to the State's brief, this court concluded that "[s]tatutory compliance
¶ 42. We recognized that the consumer protection statute at issue in Excel Management gave the circuit court broad authorization to grant relief, including injunctive relief. See 111 Wis. 2d at 498. We then endorsed the United State Supreme Court's description of equitable jurisdiction:
Excel Management, 111 Wis. 2d at 490 (citing Porter v. Warner Co., 328 U.S. 395, 398 (1946)). More to the point, we stated in Excel Management that "[b]ecause the statutes here involved contain no limitation on the trial court's exercise of its equity jurisdiction, we conclude that the trial court has the full scope of equitable remedies available to it to fashion relief for the parties injured as the result of the acts and practices involved in this action." Id. at 490. We decline to read Excel Management as supporting a conclusion that the circuit court's equitable power has been eliminated.
¶ 43. The State also derives a rule from State v. Fonk's Mobile Home Park & Sales, Inc., 117 Wis.2d 94,
¶ 44. As part of our effort to discern the legislative intent relating to the circuit court's equitable power under this statute, we look to the object or purpose of the statute. "The purpose of state shoreland zoning standards is to `further the maintenance of safe and healthful conditions; prevent and control water pollution; protect spawning grounds, fish and aquatic
¶ 45. Both parties agree that an absurd or unreasonable result must be avoided. See Lake City Corp. v. City of Mequon, 207 Wis.2d 155, 162, 558 N.W.2d 100 (1997). The County argues that to allow a single property owner to enforce a zoning provision through mandatory injunctive relief is nothing more than providing a remedy co-existent with the citizen's right to expect compliance with zoning ordinances. The State argues that allowing the judiciary to nullify a statutory variance process is absurd and unreasonable. The State contends that because the public has an important interest in shoreland zoning, it would be unreasonable to conclude that the legislature intended the circuit court to retain equitable power to deny, in its discretion, injunctive relief in the case of zoning ordinance violations.
¶ 46. Goode contends that the court of appeals decision would lead to absurd or unreasonable results, but for a different reason. Goode argues that because a single property owner may institute enforcement proceedings under § 59.69(11), this single property owner could also require that an offending structure be moved no matter what the equities involved.
¶ 47. We note that "self-help through the use of injunctions by private litigants has become an important
¶ 48. In one case of private enforcement, plaintiff neighbors of a cement plant waited over three years after the plant operator had received a permit to build his plant before commencing their zoning ordinance enforcement action. See Diehl v. Dunn, 13 Wis.2d 280, 108 N.W.2d 509 (1961). If the Diehl trial court had lacked equitable power, the defendant would have had to dismantle his entire plant with no consideration of the equities. Instead, this court upheld the trial court's denial of an injunction, stating, "Injunction is an equitable remedy, and a court in accordance with ancient
¶ 49. The State asserts that the public interests at stake in zoning obviate equitable considerations that might lead to a denial of injunctive relief. The State cites Bouchard v. Zetley, 196 Wis. 635, 647, 220 N.W. 229 (1928), as an instance where the court rejected the defendants' suggestion that money damages would have been adequate, instead of the harsh injunctive relief imposed. In disagreeing with the defendants' proposal, the court stated: "The public is interested in the enforcement of the zoning ordinances, as well as the owners of property specially affected. Such public rights should not be compromised by private parties." Id.
¶ 50. Our decision today in no way endorses the "purchase" of variances. We only reaffirm the Bouchard court's statement about the nature of zoning ordinance enforcement proceedings. "Under the circumstances we think the court, sitting in equity, exercised a wise discretion." Id. at 646. We conclude that the circuit court's equitable power to use that discretion has not been eliminated.
¶ 51. Contrary to the State's prediction, our conclusion will not result in dire consequences for zoning enforcement actions. Nor will it frustrate the purpose of shoreland zoning in particular.
¶ 52. "[P]revention rather than punishment is the keynote of most zoning administration." Kenneth H. Young, Anderson's American Law of Zoning, § 29.01 (4th ed. 1997). When a circuit court exercises its equitable discretionary power, there are checks in place to oversee the proper use of that discretion. The erroneous exercise of discretion standard is available for
¶ 53. Allowing the circuit court to balance the equities when an injunction is requested under Wis. Stat. § 59.69(11) will not render "meaningless the entire line of case law regarding the standard of unnecessary hardship which must be met in order for a variance applicant to be properly granted a variance." State's brief at 7. Instead, the circuit court, sitting in equity, should weigh heavily the factors considered by boards of adjustment in determining unnecessary hardship, see Wis. State. § 59.694(7)(c), as well as traditional equitable considerations.
¶ 54. We agree with the County that where a public entity is authorized to seek a statutory injunction
¶ 55. We conclude that Wis. Stat. § 59.69(11), the zoning ordinance enforcement statute, does not eliminate the traditional equitable power of circuit court. Therefore it was within the power of the circuit court to deny the County's request for injunctive relief.
¶ 56. The County and the State then assert that the circuit court erroneously exercised its discretion by denying an injunction. We agree that in this case, the circuit court failed to consider and sufficiently weigh all the proper factors prior to entry of its order. In announcing its decision, the circuit court explained that although the County possessed an interest in having compliance with the ordinance, no property owner in the area had come forward to complain, Mr. Goode had acted in good faith, and based upon its own experience, the court believed it would be expensive to put the house into compliance. We conclude that the court did not take sufficient evidence before reaching its decision and did not adequately address the interest of the public at large in obtaining full compliance with the ordinance. The court never explored the possibility of a more limited injunction which might have been less cumbersome for Mr. Goode, but yet would have adequately protected the public interest.
¶ 58. Once a violation is established, a circuit court should grant the injunction except, in those rare cases, when it concludes, after examining the totality of the circumstances, there are compelling equitable reasons why the court should deny the request for an injunction. As the State pointed out at oral argument, the circuit court also possesses equitable power to fashion an injunction that does justice. If the court is inclined to deny an injunction, it should first explore alternatives to the requested full injunction to determine whether a more equitably crafted injunction might be appropriate.
¶ 59. We conclude that the circuit court erroneously failed to take sufficient evidence in this case and failed to sufficiently weigh the equitable considerations we have described. We therefore affirm the decision of the court of appeals reversing the order of the circuit court and remanding for a new hearing consistent with this opinion.
¶ 60. ANN WALSH BRADLEY, J. (concurring).
I agree with the majority's discussion determining that Wis. Stat. § 59.69(11) does not eliminate the traditional equitable powers of the circuit courts. However, I write separately to caution those same circuit courts to consider in the exercise of their power the very real prospect that by merely anteing up the amount of a fine imposed, individual landowners may, by circumstance or design, effectively "purchase" a variance for their nonconforming lakefront homes. In such instances, the general welfare of the public is derogated in favor of the individual homeowner and zoning boards are left powerless to fulfill their charge to protect Wisconsin's environment and the public welfare.
¶ 61. A court must consider in the exercise of its equitable powers not only the rights of individual landowners, but the rights of the public. I echo the concern voiced by the majority opinion in the court of appeals that "courts, under the mantle of balancing the equities, can permit defendants to violate statutes with [relative] impunity. One should not be permitted at the trial court's discretion to purchase through forfeitures a variance from a zoning code." See Forest County v. Goode, 215 Wis.2d 217, 228-29, 572 N.W.2d 131 (Ct. App. 1997).
Wis. Stat. § 100.20(6).