Just and wife, Appellants, v. Marinette County, Respondent:

 

Supreme Court of Wisconsin

 

56 Wis. 2d 7

 

October 31, 1972, Decided

 

JUDGES: Hallows, C. J. 

 

OPINION BY: HALLOWS

 

 OPINION

Marinette county's shoreland zoning ordinance number 24 was adopted September 19, 1967, became effective October 9, 1967, and follows a model ordinance published by the Wisconsin Department of Resource Development in July of 1967.  The ordinance was designed to meet standards and criteria for shoreland regulation which the legislature required to be promulgated by the department of natural resources. The legislation, authorizing the ordinance was enacted as a part of the Water Quality Act of 1965.

Shorelands for the purpose of ordinances are defined in sec. 59.971 (1), Stats., as lands within 1,000 feet of the normal high-water elevation of navigable lakes, ponds, or flowages and 300 feet from a navigable river or stream or to the landward side of the flood plain, whichever distance is greater.  The state shoreland program is unique.  All county shoreland zoning ordinances must be approved by the department of natural resources prior to their becoming effective.  If a county does not enact a shoreland zoning ordinance which complies with the state's standards,  the department of natural resources may enact such an ordinance for the county. 

There can be no disagreement over the public purpose sought to be obtained by the ordinance. Its basic purpose is to protect navigable waters and the public rights therein from the degradation and deterioration which results from uncontrolled use and development of shorelands. 

                In April of 1961, several years prior to the passage of this ordinance, the Justs purchased 36.4 acres of land in the town of Lake along the south shore of Lake Noquebay, a navigable lake in Marinette county.  This land had a frontage of 1,266.7 feet on the lake and was purchased partially for personal use and partially for resale.  During the years 1964, 1966, and 1967, the Justs made five sales of parcels having frontage and extending back from the lake some 600 feet, leaving the property involved in these suits. 

                The land owned by the Justs is designated as swamps or marshes on the United States Geological Survey Map and is located within 1,000 feet of the normal high-water elevation of the lake. Thus, the property is included in a conservancy district and, by sec. 2.29 of the ordinance, classified as "wetlands." Consequently, in order to place more than 500 square feet of fill on this property, the Justs were required to obtain a conditional use permit from the zoning administrator of the county and pay a fee of $ 20 or incur a forfeiture of $ 10 to $ 200 for each day of violation.

In February and March of 1968, six months after the ordinance became effective, Ronald Just, without securing a conditional use permit, hauled 1,040 square yards of sand onto this property and filled an area approximately 20 feet wide commencing at the southwest corner and extending almost 600 feet north to the northwest corner near the shoreline, then easterly along the shoreline almost to the lot line.  He stayed back from the pressure ridge about 20 feet. More than 500 square feet of this fill was upon wetlands located contiguous to the water and which had surface drainage toward the lake. The fill within 300 feet of the lake also was more than 2,000 square feet on a slope less than 12 percent.  It is not seriously contended that the Justs did not violate the ordinance and the trial court correctly found a violation.

The real issue is whether the conservancy district provisions and the wetlands-filling restrictions are unconstitutional because they amount to a constructive taking of the Justs' land without compensation.  Marinette county and the state of Wisconsin argue the restrictions of the conservancy district and wetlands provisions constitute a proper exercise of the police power of the state and do not so severely limit the use or depreciate the value of the land as to constitute a taking without compensation.

To state the issue in more meaningful terms, it is a conflict between the public interest in stopping the  despoliation of natural resources, which our citizens until recently have taken as inevitable and for granted, and an owner's asserted right to use his property as he wishes.   The protection of public rights may be accomplished by the exercise of the police power unless the damage to the property owner is too great and amounts to a confiscation.  The securing or taking of a benefit not presently enjoyed by the public for its use is obtained by the government through its power of eminent domain.  The distinction between the exercise of the police power and condemnation has been said to be a matter of degree of damage to the property owner.  In the valid exercise of the police power reasonably restricting the use of property, the damage suffered by the owner is said to be incidental.  However, where the restriction is so great the landowner ought not to bear such a burden for the public good, the restriction has been held to be a constructive taking even though the actual use or forbidden use has not been transferred to the government so as to be a taking in the traditional sense.  Whether a taking has occurred depends upon whether "the restriction practically or substantially renders the land useless for all reasonable purposes." The loss caused the individual must be weighed to determine if it is more than he should bear.  As this court stated in Stefan, at pages 369, 370, ". . . if the damage is such as to be suffered by many similarly situated and is in the nature of a restriction on the use to which land may be put and ought to be borne by the individual as a member of society for the good of the public safety, health, or general welfare, it is said to  be a reasonable exercise of the police power, but if the damage is so great to the individual that he ought not to bear it under contemporary standards, then courts are inclined to treat it as a 'taking' of the property or an unreasonable exercise of the police power."

. . .

This case causes us to re-examine the concepts of public benefit in contrast to public harm and the scope of an owner's right to use of his property.  In the instant case we have a restriction on the use of a citizens' property, not to secure a benefit for the public, but to prevent a harm from the change in the natural character of the citizens' property.  We start with the premise that lakes and rivers in their natural state are unpolluted and the pollution which now exists is man- made.  The state of Wisconsin under the trust doctrine has a duty to eradicate the present pollution and to prevent further pollution in its navigable waters. This is not, in a legal sense, a gain or a securing of a benefit by the maintaining of the natural status quo of the environment.  What makes this case different from most condemnation or police power zoning cases is the interrelationship of the wetlands, the swamps and the natural environment of shorelands to the purity of the water and to such natural resources as navigation, fishing, and scenic beauty. Swamps and wetlands were once considered wasteland, undesirable, and not picturesque.  But as the people became more sophisticated, an appreciation was acquired that swamps and wetlands serve a vital role in nature, are part of the balance of nature and are essential to the purity of the water in our lakes and streams. Swamps and wetlands are a necessary part of the ecological creation and now, even to the uninitiated, possess their own beauty in nature.

Is the ownership of a parcel of land so absolute that man can change its nature to suit any of his purposes?  The great forests of our state were stripped on the theory man's ownership was unlimited.  But in forestry, the land at least was used naturally, only the natural fruit of the land (the trees) were taken.  The despoilage was in the failure to look to the future and provide for the reforestation of the land.   An owner of land has no absolute and unlimited right to change the essential natural character of his land so as to use it for a purpose for which it was unsuited in its natural state and which injures the rights of others.  The exercise of the police power in zoning must be reasonable and we think it is not an unreasonable exercise of that power to prevent harm to public rights by limiting the use of private property to its natural uses.

This is not a case where an owner is prevented from using his land for natural and indigenous uses.  The uses consistent with the nature of the land are allowed and other uses recognized and still others permitted by special permit.  The shoreland zoning ordinance prevents to some extent the changing of the natural character of the land within 1,000 feet of a navigable lake and 300 feet of a navigable river because of such land's interrelation to the contiguous water. The changing of wetlands  and swamps to the damage of the general public by upsetting the natural environment and the natural relationship is not a reasonable use of that land which is protected from police power regulation. Changes and filling to some extent are permitted because the extent of such changes and filling does not cause harm.  We realize no case in Wisconsin has yet dealt with shoreland regulations and there are several cases in other states which seem to hold such  regulations unconstitutional; but nothing this court has said or held in prior cases indicates that destroying the natural character of a swamp or a wetland so as to make that location available for human habitation is a reasonable use of that land when the new use, although of a more economical value to the owner, causes a harm to the general public.

                Wisconsin has long held that laws and regulations to prevent pollution and to protect the waters of this state from degradation are valid police-power enactments.  The active public trust duty of the state of Wisconsin in respect to navigable waters requires the state not only to promote navigation but also to protect and preserve those waters for fishing, recreation, and scenic beauty.  To further this duty, the legislature may delegate authority to local units of the government, which the state did by requiring counties to pass shoreland zoning ordinances.

. . .

It seems to us that filling a swamp not otherwise commercially usable is not in and of itself an existing use, which is prevented, but rather is the preparation for some future use which is not indigenous to a swamp. Too much stress is laid on the right of an owner to change commercially valueless land when that change does damage to the rights of the public.  It is observed that a use of special permits is a means of control and accomplishing the purpose of the zoning ordinance as distinguished from the old concept of providing for variances.  The special permit technique is now common practice and has met with judicial approval, and we think it is of some significance in considering whether or not a particular zoning ordinance is reasonable.

. . .

The Justs argue their property has been severely depreciated in value.  But this depreciation of value is not based on the use of the land in its natural state but on what the land would be worth if it could be filled and used for the location of a dwelling.   While loss of value is to be considered in determining whether a restriction is a constructive taking, value based upon changing the character of the land at the expense of harm to public rights is not an essential factor or controlling.

We are not unmindful of the warning in Pennsylvania Coal Co. v. Mahon (1922), 260 U.S. 393, 416, 43 Sup. Ct. 158, 67 L. Ed. 322:

 

". . . We are in danger of forgetting that a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change."

 

This observation refers to the improvement of the public condition, the securing of a benefit not presently enjoyed and to which the public is not entitled.  The shoreland zoning ordinance preserves nature, the environment, and natural resources as they were created and to which the people have a present right. 6 The ordinance does not create or improve the public condition but only preserves nature from the despoilage and harm resulting from the unrestricted activities of humans.

. . .

Although the practice for trial courts not to hold laws unconstitutional has not been uniformly followed, nevertheless, it is our belief many lawyers have been and are bringing to the federal courts cases involving questions of constitutionality of state laws because of the limitation placed on state courts in the exercise of the power to declare a law unconstitutional.

We think that when a constitutional issue is now presented to the trial courts of this state, it is the better practice for those courts to recognize its importance, have the issue thoroughly briefed, and fully presented.  The issue should be decided as any other important issue with due consideration.  The practice of assuming constitutionality, until the contrary is decided by an appellate court, is no longer necessary or workable.  Of course, a presumption of constitutionality exists until declared otherwise by a competent court, which we think the trial courts of Wisconsin are, because a regularly enacted statute is presumed to be constitutional and the party attacking the statute must meet the burden of proof of showing unconstitutionality beyond a reasonable doubt.

By the Court.  -- The judgment in Case No. 106, dismissing the Justs' action, is modified to set forth the declaratory adjudication that the shoreland zoning ordinance of respondent Marinette county is constitutional; that the Justs' property constitutes wetlands and that particularly the prohibition in the ordinance against the filling of wetlands is constitutional; and the judgment, as so modified, is affirmed.  The judgment in Case No. 107, declaring a forfeiture, is affirmed.