Just v. Marinette County, Nos. 106

CourtUnited States State Supreme Court of Wisconsin
Writing for the CourtHALLOWS
Citation56 Wis.2d 7,201 N.W.2d 761
Decision Date31 October 1972
Docket Number107,Nos. 106
Parties, 4 ERC 1841, 3 Envtl. L. Rep. 20,167 Ronald JUST and Kathryn L. Just, his wife, Appellants, v. MARINETTE COUNTY, Respondent, State of Wisconsin, Impleaded Respondent. MARINETTE COUNTY, Respondent, v. Ronald JUST and Kathryn L. Just, his wife, Appellants, State of Wisconsin, Impleaded Respondent.

Page 761

201 N.W.2d 761
56 Wis.2d 7, 4 ERC 1841, 3 Envtl. L.
Rep. 20,167
Ronald JUST and Kathryn L. Just, his wife, Appellants,
v.
MARINETTE COUNTY, Respondent,
State of Wisconsin, Impleaded Respondent.
MARINETTE COUNTY, Respondent,
v.
Ronald JUST and Kathryn L. Just, his wife, Appellants,
State of Wisconsin, Impleaded Respondent.
Nos. 106, 107.
Supreme Court of Wisconsin.
Oct. 31, 1972.

Evrard, Evrard, Duffy, Holman, Faulds & Peterson, Wayne R. Peterson, Green Bay, for appellants.

James E. Murphy, Corp. Counsel, Marinette, for Marinette County.

Robert W. Warren, Atty. Gen., Steven M. Schur, Asst. Atty. Gen., Madison, for impleaded respondent.

McBurney, Musolf & Whipple, Carlyle H. Whipple, Madison, amici curiae.

HALLOWS, Chief Justice.

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. See Kusler, Water Quality Protection For Inland Lakes in Wisconsin: A Comprehensive Approach to Water Pollution, 1970 [56 Wis.2d 10] Wis.L.Rev. 35, 62--63. 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 under sec. 144.26, Stats. These standards are found in 6 Wis.Adm.Code, Sec. NR 115.03, May, 1971, Register No. 185. The legislation, secs. 59.971 and 144.26, Stats., authorizing the ordinance was enacted as a part of the Water Quality Act of 1965 by ch. 614, Laws 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. 6 Wis.Adm.Code, sec. NR 115.04, May, 1971, Register No. 185. If a county does not enact a shoreland zoning ordinance which complies with the state's standards,

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the department of natural resources may enact such an ordinance for the county. Sec. 59.971(6), Stats.

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 developed of shorelands. In the Navigable Waters Protection Act, sec. 144.26, the purpose of the state's shoreland regulation program is stated as being to 'aid in the fulfillment of the state's role as trustee of its navigable waters and to promote public health, safety, convenience and general welfare'. 1 In sec. 59.971(1), which grants authority[56 Wis.2d 11] for shoreland zoning to counties, the same purposes are reaffirmed. 2 The Marinette county shoreland zoning ordinance in secs. 1.2 and 1.3 states the uncontrolled use of shorelands and pollution of navigable waters of Marinette county adversely affect public health, safety, convenience, and general welfare and impair the tax base.

The shoreland zoning ordinance divides the shorelands of Marinette county into general purpose districts, general recreation districts, and conservancy districts. A 'conservancy' district is required by the statutory minimum standards and is defined in sec. 3.4 of the ordinance to include 'all shorelands designated as swamps or marshes on the United States Geological Survey maps which have been designated as the Shoreland Zoning Map of Marinette County, Wisconsin or on the detailed Insert Shoreland Zoning Maps.' The ordinance provides [56 Wis.2d 12] for permitted uses 3 and conditional uses. 4 One of the conditional

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uses requiring a permit under sec. 3.42(4) is the filling, drainage or dredging of wetlands according to the provisions of sec. 5 of the ordinance. 'Wetlands' are defined in sec. 2.29 as '(a)reas where ground water is at or near the surface much of the year or where any segment of plant cover is deemed an aquatic according to N. C. Fassett's 'Manual of Aquatic Plants.' Section 5.42(2) of the ordinance requires a conditional-use permit for any filling or grading 'Of any area which is within three hundred feet horizontal distance of a navigable water and which has surface drainage toward the water [56 Wis.2d 13] and on which there is: (a) Filling of more than five hundred square feet of any wetland which it contiguous to the water . . . (d) Filling or grading of more than 2,000 square feet on slopes of twelve per cent or less.'

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. This property has a frontage of 366.7 feet and the south one half contains a stand of cedar, pine, various hard woods, birch and red maple. The north one half, closer to the lake, is barren of trees except immediately along the shore. The south three fourths of this north one half is populated with various plant grasses and vegetation including some plants which N. C. Fassett in his manual of aquatic plants has classified as 'aquatic.' There are also non-aquatic plants which grow upon the land. Along the shoreline there is a belt of trees. The shoreline is from one foot to 3.2 feet higher than the lake level and there is a narrow belt of higher land along the shore known as a 'pressure ridge' or 'ice heave,' varying in width from one to three feet. South of this point, the natural level of the land ranges one to two feet above lake level. The land slopes generally toward the lake but has a slope less than twelve per cent. No water flows onto the land from the lake, but there is some surface water which collects on land and stands in pools.

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 [56 Wis.2d 14] 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

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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 wetlandsfilling 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 more meaningful terms, it is a conflict between the public interest in stopping the [56 Wis.2d 15] despoilation 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 amd 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. Stefan Auto Body v. State Highway Comm. (1963), 21 Wis.2d 363, 124 N.W.2d 319; Buhler v. Racine County (1966), 33 Wis.2d 137, 146 N.W.2d 403; Nick v. State Highway Comm. (1961), 13 Wis.2d 511, 109 N.W.2d 71, 111 N.W.2d 95; State v. Becker (1934), 215 Wis. 564, 255 N.W. 144. Whether a taking has occurred depends upon whether 'the restriction practically or substantially renders the land useless for all reasonable purposes.' Buhler v. Racine County, supra. The loss caused the individual must be...

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125 practice notes
  • Antoniewicz v. Reszcynski, No. 602
    • United States
    • United States State Supreme Court of Wisconsin
    • December 10, 1975
    ...the needs of the community, usually expressed through police power zoning regulations. More recently, in Just v. Marinette County (1972), 56 Wis.2d 7, 201 N.W.2d 761, we have approved additional curtailment of the right of unbridled use of private property when it may affect the ecological ......
  • Eldridge v. City of Palo Alto
    • United States
    • California Court of Appeals
    • April 23, 1976
    ...Concord Township Appeal (1970) 439 Pa. 466, 470--476, 268 A.2d 765, 766--770, with Just v. Marinette County (1972) 5 Wis.2d 7, 14--18, 201 N.W.2d 761,...
  • Prah v. Maretti, No. 81-193
    • United States
    • United States State Supreme Court of Wisconsin
    • July 2, 1982
    ...by the landowner for the general welfare. Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926); Just v. Marinette, 56 Wis.2d 7, 201 N.W.2d 761 Second, access to sunlight has taken on a new significance in recent years. In this case the plaintiff seeks to protect acce......
  • Lovequist v. Conservation Commission of Town of Dennis
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • August 21, 1979
    ...v. State, 115 N.H. 124, 336 A.2d 239 (1975); J. M. Mills, Inc. v. Murphy, 116 R.I. 54, 352 A.2d 661 (1976); Just v. Marinette County, 56 Wis.2d 7, 201 N.W.2d 761 Moreover, it has been observed that an increasing number of communities in the Commonwealth face critical water supply shortages ......
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119 cases
  • Antoniewicz v. Reszcynski, No. 602
    • United States
    • United States State Supreme Court of Wisconsin
    • December 10, 1975
    ...the needs of the community, usually expressed through police power zoning regulations. More recently, in Just v. Marinette County (1972), 56 Wis.2d 7, 201 N.W.2d 761, we have approved additional curtailment of the right of unbridled use of private property when it may affect the ecological ......
  • Eldridge v. City of Palo Alto
    • United States
    • California Court of Appeals
    • April 23, 1976
    ...Concord Township Appeal (1970) 439 Pa. 466, 470--476, 268 A.2d 765, 766--770, with Just v. Marinette County (1972) 5 Wis.2d 7, 14--18, 201 N.W.2d 761,...
  • Prah v. Maretti, No. 81-193
    • United States
    • United States State Supreme Court of Wisconsin
    • July 2, 1982
    ...by the landowner for the general welfare. Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926); Just v. Marinette, 56 Wis.2d 7, 201 N.W.2d 761 Second, access to sunlight has taken on a new significance in recent years. In this case the plaintiff seeks to protect acce......
  • Lovequist v. Conservation Commission of Town of Dennis
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • August 21, 1979
    ...v. State, 115 N.H. 124, 336 A.2d 239 (1975); J. M. Mills, Inc. v. Murphy, 116 R.I. 54, 352 A.2d 661 (1976); Just v. Marinette County, 56 Wis.2d 7, 201 N.W.2d 761 Moreover, it has been observed that an increasing number of communities in the Commonwealth face critical water supply shortages ......
  • Request a trial to view additional results
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  • The Limitations of 'Sic Utere Tuo...': Planning by Private Law Devices
    • United States
    • Land use planning and the environment: a casebook
    • January 23, 2010
    ...regulated the use of land by the landowner for the general welfare. Euclid v. Ambler Realty Co., 272 U.S. 365 (1926); Just v. Marinette, 56 Wis. 2d 7, 201 N.W.2d 761 (1972). Second, access to sunlight has taken on a new significance in recent years. In this case the plaintiff seeks to prote......
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    • United States
    • Environmental Law Reporter Nbr. 46-1, January 2016
    • January 1, 2016
    ...of Blackstone, Inc. v. Conservation Comm’n of Blackstone, 673 N.E.2d 61, 71 (Mass. App. Ct. 1996). 192. See Just v. Marinette Cnty., 201 N.W.2d 761, 767-68, 3 ELR 20167 (Wis. 1972). Although the Supreme Court has downplayed this dichotomy, lower courts still employ it. See, e.g. , R.W. Dock......
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    • United States
    • Everyday Environmentalism. Law, Nature & Individual Behavior
    • January 22, 2011
    ...also for hunting and ishing, which are now mainly certain forms of recreation.” 145 N.W. 816, 820 (1914). 80. Just v. Marinette County , 201 N.W.2d 761, 768 (Wis. 1972). 81. Schauwecker, supra note 76. 82. JON KUSLER & JEANNE CHRISTIE, ASS’N OF STATE WETLAND MANAGERS, COMMON QUESTIONS: ......
  • LAND USE REGULATIONS, CLIMATE CHANGE, AND REGULATORY TAKINGS.
    • United States
    • Environmental Law Vol. 52 Nbr. 2, March 2022
    • March 22, 2022
    ...and be adopted only after opportunity for significant landowner participation). (154) Id. (155) Id. (156) E.g., Just v. Marinette Cty., 201 N.W.2d 761, 768 (Wis. (157) See infra text accompanying notes 169-174 (illustrating the importance of proactively setting landowner expectations). (158......
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