Geisenfeld v. Vill. of Shorewood

• Decision Date: 10 October 1939
• Citation: 232 Wis. 410,287 N.W. 683
• Parties: GEISENFELD v. VILLAGE OF SHOREWOOD et al.
• Court: Wisconsin Supreme Court

232 Wis. 410

287 N.W. 683

GEISENFELD

v.VILLAGE OF SHOREWOOD et al.

Supreme Court of Wisconsin.

Oct. 10, 1939.

Appeal from a judgment of the Circuit Court for Milwaukee County; Walter Schinz, Judge.

Affirmed.

The action was commenced by the plaintiff, Charles Geisenfeld, on November 23, 1931, against the defendants, Village of Shorewood, its manager, trustees, clerk, and the attorney general of Wisconsin, for the purpose of obtaining a declaratory judgment as to the constitutionality of so much of a zoning ordinance as restricted the use of certain lots belonging to the plaintiff, to residential purposes. From a judgment which declared the ordinance unreasonable, unconstitutional and void, and perpetually enjoined the defendant village and its officers from enforcing it in so far as it applies to the plaintiff's property, entered July 7, 1938, the defendants appealed. The facts will be stated in the opinion.

Hubert O. Wolfe, of Milwaukee, for appellants.

Ben J. Wiener and Maurice Geisenfeld, both of Milwaukee, for respondent.

NELSON, Justice.

The facts are largely physical and as to them there is no dispute. The village of Shorewood is bounded on the east by Lake Michigan and on the west by the Milwaukee River. East Capitol Drive is an east and west highway which practically bisects the village. It is one of the principal highways of the village. It bears a heavy traffic and is an arterial highway. East Capitol Drive is intersected by North Oakland Avenue, a north and south highway. From the westerly limits of the village to North Oakland Avenue there are six blocks. From North Oakland Avenue easterly to North Prospect Avenue there are six blocks. From North Prospect Avenue easterly to North Lake Drive (which runs in a northerly and southerly direction along Lake Michigan, but several hundred feet therefrom) there are four blocks. One block east of North Prospect Avenue is North Stowell Avenue and one block east of North Stowell Avenue is North Downer Avenue.

In 1919, the village adopted a zoning ordinance applicable to the entire village. It created two residential districts, two business districts and one industrial district. All of the lots fronting on East Capitol Drive from the westerly boundary of the village to North Prospect Avenue were classified by the ordinance as business property. The lots on East Capitol Drive from North Prospect Avenue easterly to North Lake Drive were classified as residential property with the exception of four lots located on the northwest corner of the intersection of North Downer Avenue with Capital Drive, and three lots located on the southwest corner of the same intersection, fronting on North Downer Avenue. The plaintiff owns three lots fronting on the north side of East Capitol Drive in the block between North Prospect Avenue and North Stowell Avenue, which by the ordinance were classified as residential property. At the time the ordinance was adopted, a drug store was located on the southerly side of a part of the four lots mentioned, which faced North Downer Avenue. Whether at that time stores existed to the west or rear of the drug store on East Capitol Drive does not clearly appear. Several stores existed there at the time of the trial. The three corner lots mentioned were vacant at the time the ordinance was adopted. Since that time a filling station has been erected thereon. At the time the ordinance was adopted a store building existed on the lots now belonging to the plaintiff, which was thereafter torn down or removed therefrom. The block in which the plaintiff's lots are situated contains seven lots fronting on East Capitol Drive, all of which are vacant, except one lot located at the northwest corner of the intersection of East Capitol Drive with North Stowell Avenue, upon which an old but substantial residence exists. At the northeast corner of the same intersection are four vacant lots which front on East Capitol Drive. The four remaining lots of that block fronting on East Capitol Drive are the ones upon which the drug store and the other stores above mentioned are situated. So much of the block across the street from the plaintiff's lots as fronts on East Capitol Drive is occupied by one residence and a duplex flat, neither of which faces on North Capitol Drive; the residence is located on the southwest corner of the intersection of North Stowell Avenue with East Capitol Drive but faces North Stowell Avenue; the duplex flat is located on the southeast corner of the intersection of North Prospect Avenue with East Capitol Drive but faces North Prospect Avenue. In the block immediately to the east of the block just mentioned there is a residence which abuts on East Capitol Drive, but which faces North Stowell Avenue. The filling station mentioned is in that block and faces east. The residence is westerly of and to the rear of the filling station. The two residences and the duplex flat mentioned are built close to the southerly line of East Capitol Drive, and the entrances to their respective garages are from East Capitol Drive. East Capitol Drive from North Prospect Avenue to the westerly limits of the village was at the time the ordinance was adopted and now is predominantly given over to business, and, concededly, was properly zoned for such purposes. Only four old residences now exist in that section. East Capitol Drive from North Downer Avenue to North Lake Drive is purely residential in character, and, concededly, was properly classified as such.

This controversy primarily involves only the plaintiff's three lots but incidentally involves the short block and a half between North Prospect Avenue and the stores and filling station to the east. The plaintiff assails the ordinance in so far as it classified his three lots as residential property and contends that the ordinance as to him is arbitrary,...