## Facts

- The City of Madison zoned the property in a Class A residential district that restricted use to single-family residences but allowed continuation of any lawful nonconforming use existing when the ordinance took effect, unless that use was later discontinued.
- The building was specially designed and originally used as a college fraternity house and was being so used when the zoning ordinance was adopted.
- After the property came to be owned by National Guardian Life Insurance Company, the building was used for a time as a rooming house.
- From 1934 to 1939, National Guardian leased the building to the dean of the law school for use as a private residence.
- During the residential lease, National Guardian attempted to lease the premises to fraternities and listed the property for sale.
- In 1939, after securing a fraternity tenant, National Guardian sought a certificate from the building commissioner to resume the fraternity-house use as a protected nonconforming use.
- The building commissioner denied the certificate on the ground that the nonconforming use had been discontinued when the building was leased for residential use.
- The Board of Zoning Appeals reversed, finding the residential use was temporary and that National Guardian did not intend to abandon the fraternity-house use.
- Neighboring homeowners sought certiorari review in circuit court, which reversed the board and set aside the certificate.
- National Guardian appealed; the Wisconsin Supreme Court reversed the circuit court and reinstated the board’s order.

## Issues

1. Whether a lawful nonconforming fraternity-house use was “discontinued” (and thus lost) when the building was used as a private residence for several years.
2. On certiorari review of a zoning board decision, whether a reviewing court may reweigh evidence and substitute its factual judgment for that of the board.

## Decision

- The Wisconsin Supreme Court reversed the circuit court and reinstated the Board of Zoning Appeals’ order granting the nonconforming-use certificate.
- The court held the nonconforming fraternity-house use was not discontinued because the record supported the board’s finding that the owner lacked intent to abandon and treated the residential use as temporary.
- The court held that certiorari review is limited to whether the board acted within its jurisdiction, proceeded on a correct theory of law, and reached a reasonable decision supported by evidence; the circuit court exceeded this role by effectively retrying disputed facts.

## Legal Principles

- A lawful nonconforming use may be terminated by “discontinuance,” but discontinuance generally requires abandonment, which turns on intent to relinquish the nonconforming use and not merely a temporary suspension or interim change in occupancy.
- Where an ordinance does not set a fixed period that automatically ends a nonconforming use, whether the use has been discontinued is largely a factual determination for the zoning board, subject to limited judicial review.
- On certiorari under Wis. Stat. § 62.23(8), a circuit court may take additional evidence to evaluate the legality and reasonableness of the board’s action, but the proceeding is not a trial de novo.
- A reviewing court may not reweigh conflicting evidence or substitute its judgment for the zoning board on contested factual questions if the board’s decision is supported by evidence and is not arbitrary or unreasonable.

## Conclusion

The court upheld the continuation of a nonconforming fraternity-house use because the board could reasonably find no intent to abandon despite several years of residential occupancy, and it reaffirmed that certiorari review of zoning-board decisions is confined to jurisdiction, correct legal standards, and evidentiary support rather than judicial re-determination of disputed facts.


State ex rel. Morehouse v. Hunt, 235 Wis. 358, 291 N.W. 745 (Wis. 1940)