Buhler v. Racine County

• Court: United States State Supreme Court of Wisconsin
• Writing for the Court: HALLOWS; CURRIE
• Citation: 146 N.W.2d 403,33 Wis.2d 137
• Decision Date: 02 December 1966
• Parties: Walter E. BUHLER, Louis F. Buhler, Jr., and Amanda Muhlke, Plaintiffs-Respondents, v. RACINE COUNTY, a Wisconsin municipal corporation, and Henry Beyer, Defendants-Appellants.

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146 N.W.2d 403 33 Wis.2d 137 Walter E. BUHLER, Louis F. Buhler, Jr., and Amanda Muhlke,
Plaintiffs-Respondents,
v.
RACINE COUNTY, a Wisconsin municipal corporation, and Henry
Beyer, Defendants-Appellants. Supreme Court of Wisconsin. Dec. 2, 1966.
Concurring Opinion Dec. 6, 1966.

Edward A. Krenzke, Corp. Counsel, Racine, for appellants.

La France, Thompson, Greenquist, Evans & Dye, by William E. Dye and Adrian P. Schoone, Racine, Brach & Wheeler, Racine, amicus curiae, for respondents.

HALLOWS, Justice.

The trial court held the Racine county zoning ordinance was valid and only in the retention of the Buhler land in the residential district by denying the past application of the plaintiffs for an amendment of the zoning ordinance did Racine county act arbitrarily, unreasonably and abuse its

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discretion. The trial court in its conclusions of law held the Buhler land had been for many years located in the center of a commercial [33 Wis.2d 143] area which was necessary for the service of the surrounding residential area, that the retention of the Buhler land within the residential area deprived the plaintiffs of their property without due process of law and denied to them the equal protection of the law, and the defendant's county board acted arbitrarily, unreasonably and abused its discretion in refusing to rezone the plaintiffs' property.

The evidence does not sustain the conclusion the Buhler land had been for many years located in the center of a commercial area or that a commercial area is necessary in that location. Neither do we agree the evidence shows the county board acted arbitrarily or unreasonably in denying the plaintiffs' application.

No question on appeal is raised concerning the issue of due process. Incidental damage such as diminution of value of land because of a restricted use does not violate due process unless the restriction practically or substantially renders the land useless for all reasonable purposes. Nick v. State Highway Comm. (1961), 13 Wis.2d 511, 109 N.W.2d 71, 111 N.W.2d 95. If the limitation on use is in the nature of a taking in whole or in part for public purposes, then the constitution requires compensation to be paid, as otherwise there is a taking without compensation. See State v. Herwig (1962), 17 Wis.2d 442, 117 N.W.2d 335; Kamrowski v. State (1966), 31 Wis.2d 256, 142 N.W.2d 793. While respondents do not couch their attack on the failure of the county to rezone in terms of a denial of equal protection of the laws or of due process, they maintain such refusal was arbitrary and unreasonable. However, an attack based on the arbitrariness or unreasonableness of a legislative action is the equivalent of a claim of unconstitutionality based on a denial of equal protection of the laws or due process.

In respect to the question of the arbitrariness and unreasonableness of the refusal to rezone, the trial court [33 Wis.2d 144] in its opinion accepted the testimony of several expert witnesses that the northeast corner of the Buhler land, at the intersection, should be zoned commercial because such was its highest and best use. The court reasoned if this corner were zoned commercial then the part of the Buhler land between it and the dairy would be undesirable for residential purposes, and if these two parts were zoned commercial the value of the remainder of the property would be largely destroyed for residential use. The court was thus of the opinion the placing of all the Buhler land in a residential area was discriminatory, arbitrary and unreasonable, and therefore void. However, the findings and the judgment do not refer to the original placing of the Buhler land in the residential district but to the retention of the property therein and the denial of the application for a change as being the arbitrary, unreasonable and void act.

We do not think it is a valid approach to the problem to accept testimony of the highest and best use of part of a parcel, and because of such acceptance extend the use to the rest of the parcel. This is the method used to change the nature of an area by spot zoning. The Buhler land was zoned residential in 1949. Since that time the only change of circumstances supporting a change to commercial use which has taken place is that County Trunk C has been widened and repaved and the traffic going through the intersection has increased to 13,000 vehicles a day. The nonconforming uses in the area naturally have not increased, but the building of residential dwellings has.

It may be true the Buhler land has more value and a greater potential for commercial than residential use. But this is partly caused by the fact the area has been zoned since 1949 for residential use. This newly acquired value of the land since adoption of the zoning ordinance does not

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weigh as heavily as a factor in judging the reasonableness of the ordinance as a diminution of value [33 Wis.2d 145] occurring at the time of adoption. Besides, the difference in value for commercial use and for residential use is not sufficient, per se, to make the application of the zoning ordinance arbitrary or discriminatory. Almost every zoning ordinance which limits or affects the use of land affects its value. It is only when the deprivation of value directly caused by the zoning is so great that the land owner ought not to bear it that this element of value can be considered controlling or decisive. State ex rel. American Oil Co. v. Bessent (1965), 27 Wis.2d 537, 546, 135 N.W.2d 317; Town of Caledonia v. Racine Limestone Co. (1954), 266 Wis. 475, 63 N.W.2d 697.

The general area in which the Buhler land is situated has not acquired a commercial character, nor does it constitute a natural commercial island in a larger residential area so as to make denial to change the zoning unreasonable. The existence of the grade school on the northwest corner of the intersection adds nothing to the plaintiffs' argument. In fact, grade schools are normally and naturally in residential areas, not in commercial districts. The three nonconforming uses--the dairy,...