State ex rel. Saveland Park Holding Corp. v. Wieland

• Decision Date: 08 March 1955
• Citation: 69 N.W.2d 217,269 Wis. 262
• Parties: STATE ex rel. SAVELAND PARK HOLDING CORP., Respondent, v. Donald G. WIELAND, Building Inspector of the Village of Fox Point, Appellant.
• Court: Wisconsin Supreme Court

Page 217

69 N.W.2d 217

269 Wis. 262

STATE ex rel. SAVELAND PARK HOLDING CORP., Respondent, v. Donald G. WIELAND, Building Inspector of the Village of Fox Point, Appellant.

Supreme Court of Wisconsin.

March 8, 1955.

Rehearing Denied May 3, 1955.

Fraley N. Weidner, Village Atty., Milwaukee, for appellant.

David V. Jennings, Jr., Milwaukee, for respondent.

CURRIE, Justice.

The sole issue on this appeal is the constitutionality of ordinance No. 129 of the village of Fox Point, adopted by the village board of said village on July 23, 1946.

Sec. 1 of such ordinance provides as follows:

'No building permit for any structure for which a building permit is required shall be issued unless it has been found as a fact by the Building Board by at least a majority vote, after a view of the site of the proposed structure, and an examination of the application papers for a building permit, which shall include exterior elevations of the proposed structure, that the exterior architectural appeal and functional plan of the proposed structure will, when erected, not be so at variance with either the exterior architectural appeal and functional plan of the structures already constructed or in the course of construction in the immediate neighborhood or the character of the applicable district established by Ordinance No. 117 [the general zoning ordinance of the village], or any ordinance amendatory thereof or supplementary thereto, as to cause a substantial depreciation in the property values of said neighborhood within said applicable district.'

Subsequent sections of the ordinance provide that the Building Board shall consist of three residents of the village, two of whom shall be architects, and provide a method of appeal from the decision of the Building Board to the Board of Appeals of the village.

On this appeal it is conceded that relator's application for a building permit disclosed compliance with all provisions of the general zoning ordinance of the village, and the sole reason why the defendant building inspector refused to grant the permit was the failure of the Building Board to make the necessary finding prescribed by sec. 1 of ordinance No. 129 as a prerequisite to the issuance of the permit.

The village of Fox Point was incorporated in 1926. It consists of approximately two and one-half square miles, and the entire area has been zoned for residential use only. There is, however, a small business district and a relatively small institutional district permitting churches, lodges, and municipal buildings, but the vast majority of the territory in the village is devoted to residence purposes. The village has developed into a highly desirable residential village, almost entirely built up of single family residences.

The learned trial court held the ordinance unconstitutional on the following three grounds: (1) that the preservation of property values is not by itself a proper objective for the exercise of the police power in enacting a zoning ordinance; (2) that the ordinance essentially is concerned with aesthetics which also is not a proper basis for exercise of the police power; and (3) that the standards prescribed in the ordinance for governing the action and decision of the Building Board are so indefinite as to subject applicants for building permits to the unlimited and arbitrary discretion of such board.

At the outset we deem it advisable to consider the basis in constitutional law for upholding the validity of zoning ordinances, which, by their very nature, do impose restrictions upon the use of private property. We quote from the able opinion by Mr. Justice Owen in State ex rel. Carter v. Harper, 1923, 182 Wis. 148, 151, 153, 196 N.W. 451, 452, 33 A.L.R. 269, as follows:

'The Constitution of this state (section 13, art. 1) provides that the property of no person shall be taken for public use without just compensation therefor, and the Fourteenth Amendment of the federal Constitution provides that no person shall be deprived of his property without due process of law. These provisions are intended to secure the enjoyment of most substantial and fundamental rights, and the allegation that one is being deprived of his property without just compensation or without due process of law calls for most serious consideration. It has long been settled, however, that these constitutional provisions interpose no barrier to the exercise of the police power of the state. Thus it was said in State ex rel. Kellogg v. Currens, 111 Wis. 431, 435, 87 N.W. 561, 562 (56 L.R.A. 252), speaking of constitutional limitations upon legislative power:

"These limitations, however, according to all the authorities, state and federal, are to be read as not extending so far as to deprive the states of their power to so control the conduct of individuals as to protect the welfare of the community--a power commonly described as the 'police power'." * * *

'* * * As the interest of society justifies restraints upon individual conduct, so also does it justify restraints upon the use to which property may be devoted. It was not intended by these constitutional provisions to so far protect the individual in the use of his property as to enable him to use it to the detriment of society. By thus protecting individual rights, society did not part with the power to protect itself or to promote its general well-being. Where the interest of the individual conflicts with the interest of society, such individual interest is subordinated to the general welfare. If in the prosecution of governmental functions it becomes necessary to take private property, compensation must be made. But incidental damages to property resulting from governmental activities, or laws passed in the promotion of the public welfare, are not considered a taking of the property for which compensation must be made.' (Emphasis supplied.)

Keeping in mind the foregoing principles, is the objective of an ordinance in the nature of a zoning regulation, which seeks to protect or preserve property values, embraced within the term 'general welfare'? It is the contention of counsel for relator that it is not, because such an ordinance does not tend to promote public health, safety, or morals. We consider this as entirely too restrictive an interpretation of the term 'general welfare'. As pointed out by the New York court of appeals in Wulfsohn v. Burden, 1925, 241 N.Y. 288, 150 N.E. 120, 122, 43 A.L.R. 651:

'The [police] power is not limited to regulations designed to promote public health, public morals, or public safety, or to the suppression of what is offensive, disordely, or unsanitary, but extends to so dealing with conditions which exist as to bring out of them the greatest welfare of the people by promoting public convenience or general prosperity.'

In the recent case of State ex rel. Wis. Lutheran H. S. Conference v. Sinar, 1954, 267 Wis. 91, 95, 65 N.W.2d 43, 46, this court upheld the constitutionality of a zoning ordinance of the city of Wauwatosa which excluded private schools other than private elementary schools from class 'A' residence districts, and stated:

'We have recognized that the term 'general welfare' includes considerations of public convenience, and general prosperity. * * * The presence of the school will lessen the taxable value of nearby homes and will deter the building of new homes in the area.' (Emphasis supplied.)

However, other considerations in addition to the protection of property values were also stressed in our opinion in State ex rel. Lutheran H. S. Conference v. Sinar, supra, to establish that the zoning restriction therein upheld did promote the 'general welfare'. Cases from other jurisdictions holding that preservation of property values are the legitimate objective of zoning ordinances is: Wulfsohn v. Burden, supra; State ex rel. Beery v. Houghton, 1925, 164 Minn. 146, 204 N.W. 569, 54 A.L.R. 1012, affirmed 273 U.S. 671, 47 S.Ct. 474, 71 L.Ed. 832; Rice v. Van Vranken, 1928, 132 Misc. 82, 229 N.Y.S. 32, affirmed 225 App.Div. 179, 232 N.Y.S. 506; Lionshead Lake, Inc. v. Wayne Township, 1952, 10 N.J. 165, 89 A.2d 693, 698, appeal dismissed January 19, 1953 for want of substantial federal question 344 U.S. 919, 73 S.Ct. 386, 97 L.Ed. 708.

The New Jersey court, in an opinion by Mr. Chief Justice Vanderbilt, in the recent case of Fischer v. Bedminster Township, 1952, 11 N.J. 194, 93 A.2d 378, 384, upheld the validity of a zoning ordinance in a rural community restricting lot sizes to a minimum of five acres each, and declared:

'* * * there would appear to be ample justification for the ordinance in preserving the character of the community, maintaining the value of property therein and devoting the land throughout the township for its most appropriate use.' (Emphasis supplied.)

In the earlier New Jersey case of Griggs v. City of Paterson, 1944, 132 N.J.L. 145, 39 A.2d 231, 232, it was stated:

'The proper purpose of zoning is 'Conserving the value of property and encouraging the most appropriate use of the land.' Gabrielson v. Glen Ridge, 176 A. 676, 679, 13 N.J.Misc. 142.'

Mr. Edward D. Landels contributed an article entitled 'Zoning: An Analysis of its Purposes and its Legal Sanctions' in 17 American Bar Association Journal 163. The author of such article was a prominent member of the Oakland, California, bar, who had served as special counsel for the city of Oakland in zoning cases, and was a member of the American City Planning Institute, Legal Division. Such article contains the following pertinent statement (p. 165):

'On analysis the primary objects of zoning are found to be, not so much the protection of public health and safety, as the protection of the value and usefulness of urban land, and the assurance of such orderliness in municipal growth as will facilitate the execution of the city plan and the economical provision of public services.

'Zoning results chiefly from an appreciation of the 'interdependence of...