State ex rel. Humble Oil & Refining Co. v. Wahner
| Decision Date | 29 September 1964 |
| Citation | 25 Wis.2d 1,130 N.W.2d 304 |
| Parties | STATE ex rel. HUMBLE OIL & REFINING Co., a corporation, et al., Respondents, v. Mrs. T. Margaret WAHNER, Clerk of the Town of Allouez, a municipal corporation, et al., Appellants. STATE ex rel. HUMBLE OIL & REFINING Co., a corporation, et al., Respondents, v. Ted L. DENISSEN, Bldg. Inspector, Town of Allouez, Brown County, Wis., Appellant. |
| Court | Wisconsin Supreme Court |
Cornelisen, Denissen, Kranzush & Kuehn, David J. Condon, Green Bay, for appellants.
Rix, Kuelthau & Kuelthau, Milwaukee, Everson, Whitney, O'Melia, Everson & Brehm, Green Bay, of counsel, for respondents.
The first question presented on this appeal is whether the zoning ordinance in effect at the time of the Humble petitions is valid.
In 1947, the town board of Allouez had the power to zone pursuant to authority of sec. 62.23(7), Stats. This ordinance, like any zoning ordinance, is presumed to be valid and will be set aside only if its invalidity clearly appears. 1
The ordinance permitted filling stations in a commercial zone only if approved by the zoning board of appeals. When an ordinance vests discretionary power in administrative officials it must prescribe standards to guide their action. 2 There are none set out in sec. V. The only guidelines contained in the ordinance are found in that portion of sec. XV, which provides:
'In interpreting and applying the provisions of this ordinance they shall be held to be the minimum requirements for the promotion of the public health, safety, convenience, prosperity or general welfare. * * *'
The crucial question is whether these provisions save the ordinance from being declared unconstitutional for failing to prescribe adequate standards to govern the board in its disposition of a request to build a filling station in a designated commercial zone.
Several Wisconsin cases have involved licensing or zoning ordinances that faced similar challenges. In Lerner v. Delvan, 3 an ordinance was held valid which required that a permit to run a junk yard be obtained from the common council but, in addition, specified that the applications for permits had to contain the applicant's name, information as to the location and description of the premises, an explanation as to the type of business envisioned, and an enumeration of the materials to be handled. The court found that these provisions set forth sufficient standards to guide the council in evaluating applications for new junk yards.
In Wadhams Oil Co. v. Delavan, 4 the court upheld an ordinance that prohibited the operation of a gasoline station within 165 feet of the main street of the city without city council consent. Applicants were not required to submit any information in regard to the proposed station. The court found that the ordinance imposed upon the council the duty to exercise sound discretion in regard to one factor, traffic, which has made gas stations a proper subject for regulation.
In Smith v. Brookfield, 5 another zoning ordinance, which called for the submission of the 'location and plan of operation' to the board before the board would allow a particular use in an area, was sustained. The preamble declared that the ordinance was adopted
'in order to provide adequate light, pure air, and safety from fire and other dangers, to conserve the taxable value of land and buildings throughout the township, to avoid congestion in the public streets and highways and to promote the public health, safety, comfort, morals, and welfare, all in accordance with a comprehensive zoning plan; * * *.' 6
The court found that the statement of purpose announced in the preamble and the required approval of the 'location and plan of operation' were sufficient norms to guide the board.
All three of these cases are distinguishable. The ordinance in Lerner incorporated several requirements as to what each junk yard application should contain, thus setting forth some vital guides to direct the council in its consideration of these requests. No such requirements were contained in the Allouez ordinance. The ordinance in Wadhams, by specifying the 165-foot distance from the corner within which no filling station was to be constructed without council approval, impliedly commanded the council to consider the one factor of traffic in reviewing requests for permits. The Allouez ordinance is completely silent as to any such factor to be considered. The preamble language as to basic purpose which was held to supply sufficient guidelines to the zoning board in Smith is much broader and more specific than the purpose language quoted from sec. XV of the Allouez ordinance. Furthermore, in Smith the board was required to approve the 'location and plan of operation' embracing the requested use.
Appellants also rely on City of Milwaukee v. Ruplinger, 7 wherein an ordinance was upheld which provided for the submission of all applications for junk shop licenses to the mayor 'who may grant or refuse to grant such license as to him may seem best for the good order of the city.' This standard was deemed adequate.
Such a standard as what may be deemed 'best for the good order of the city' is not sufficient for the exercise of the wide discretion that may be vested in a zoning board to grant building permits for particular uses such as for filling stations under the Allouez ordinance. Neither is the requirement of minimum standards met by that part of the section on 'interpretation, purpose, and conflict' of the Allouez ordinance that provides that 'the provisions of this ordinance * * * shall be held to be the minimum requirements for the promotion of the public health, safety, convenience, prosperity or general welfare.' This is a listing of the factors that justify a zoning ordinance, but they are too general and too remotely related to what the board is required to do under sec. V(A)(3) to supply the necessary guidelines for administrative action. In Lerner, Wadhams Oil, and Smith, supra, each ordinance contained guidelines that pinpointed some of the considerations that were to govern the exercise of discretionary power either by the commom council or the zoning board. In City of Juneau v. Badger Co-operative Oil, 8 zoning ordinance was ruled invalid where it simply forbade the construction of a gasoline or oil bulk station within the city limits without first procuring the consent of the common council. The ordinance contained no standards and was held fatally defective for this reason.
Respondents rely on a Michigan case, 9 which is virtually on all fours with the present facts. The ordinance in question provided for a 'business' district but prohibited gasoline stations without the permission of the board of appeals after a public hearing. Other than a mention of public health, safety, and general welfare, no criteria were elaborated to guide the board. The court held the ordinance invalid, stating:
* * *' 10
A later Michigan case 11 involved an ordinance forbidding the location of inns within the agricultural district without authorization of the board. Again there was no mention of definite guidelines, but merely a call to promote the public health, safety, morals, comfort, prosperity and general welfare. These standards were found insufficient.
Other cases holding ordinances unconstitutional for failure to prescribe standards are: State ex rel. Selected Properties, Inc. v. Gottfried, 12 (excluded gasoline stations from retail business district without first obtaining a variance permit from the board of appeals); and Chicago, R. I. & P. R. Co. v. Liddle, 13 (prevented building of livestock pens within industrial district without authorization of board of adjustment).
Where a local zoning board of appeals is given authority to exercise discretion and judgment in the administration of a zoning ordinance, some standards must be prescribed for the guidance of the board in exercising the discretion and judgment with which it is vested. Where no such definite standards are written into the ordinance the door is opened 'to favoritism and discrimination, a ready tool for the suppression of competition through the granting of authority to one and the withholding from another.' 14
Standards were needed in the Allouez ordinance, not only to guide the board but also to inform Humble and any other parties hoping to build filling stations of what was required of them and what factors were to be considered by the obard in disposing of each application for a filling station permit. Without standards both the board and Humble 'were at sea without chart, rudder, or compass' and this was bound to create a situation in which the board could do just as it pleased.
The Allouez ordinance was defective in failing to prescribe proper standards to guide the board, and is, therefore, invalid. Since the ordinance is void on this ground it is unnecessary to consider here Humble's further attack on the ordinance on the ground that the ordinance attempted to single out filling stations in an unconstitutional classification. Furthermore, in view of the invalidity of that portion of the ordinance that required board approval of each filling station permit in this commercial zone, it is not necessary to consider whether the trial court was in error in holding that the board action, in refusing Humble a permit, was nonetheless discriminatory, arbitrary and capricious. For the same reason it is not necessary to consider the scope of new evidence that may be introduced...
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