Town of Caledonia v. Racine Limestone Co.

• Decision Date: 06 April 1954
• Citation: 63 N.W.2d 697,266 Wis. 475
• Parties: TOWN OF CALEDONIA, v. RACINE LIMESTONE CO., Inc.
• Court: Wisconsin Supreme Court

Page 697

63 N.W.2d 697

266 Wis. 475

TOWN OF CALEDONIA, v. RACINE LIMESTONE CO., Inc.

Supreme Court of Wisconsin.

April 6, 1954.

This is a forfeiture action to recover penalties for alleged violations of a town ordinance. Prior to April 7, 1953, the voters of the town of Caledonia had authorized the town board to exercise all powers conferred on village boards pursuant to the provisions of sec. 60.18(12), Stats. The town board had adopted an ordinance which it is claimed prohibited the operation of additional rock quarries within the town. Frank Bradley and his son, Morris Bradley, wanted to operate a rock quarry upon their farm located therein. They conferred with the town board at various times in 1952, seeking an amendment of the ordinance. The town board declined to grant their requests. At the regular town meeting held April 7, 1953, the ordinance prohibiting quarries was repealed as was the authority of the town board to exercise powers conferred on village boards. The Bradleys then commenced operating a quarry on April 13, 1953. A few days thereafter the Bradleys fromed the Racine Limestone Company, Inc., as a Wisconsin corporation, and the corporation then took over the operation of the quarry.

On June 28, 1949, the Racine county board had enacted a zoning ordinance that permitted quarrying rock only in industrial and agricultural areas. A special town meeting was held on April 20, 1953. At that meeting the voters adopted the Racine county zoning ordinance and made it applicable to the town. The voters also restored the authority to the town board to exercise powers conferred on village boards. Thereafter, and on May 11, the town board adopted the ordinance that is before us in the present action.

Section 1 of the ordinance defines quarry to mean any place where materials consisting in whole or in part of rock or stone are removed from their natural state by any method and sold or held for sale.

Section 2 of the ordinance prohibits the operation of a quarry in said town within the boundaries of any district established as an agricultural district by the zoning ordinance of Racine county, and as indicated on the county zoning map without obtaining a permit from the town board.

Section 3 of the ordinance provides for written applications to the town board, in which the applicant shall state his name and address, a description of the premises for which the permit is requested, and a statement of the nature of the quarry operation contemplated, including the type and size of machinery and buildings and the amount of explosives to be used or stored upon the premises, together with the kind and type of proposed stone intended to be produced.

Section 4 thereof provides for a public hearing on the application, with publication of notice thereof in the Racine Journal Times.

Section 5 thereof provides for determination by the town board as to whether the operation of a quarry on the premises described in the application will be conducive to the health, safety, welfare and convenience of the public, and that the town board shall grant or deny a permit in accordance with such determination.

Section l provides for a penalty of not less than $50 nor more than $200 and that every day of violation constitutes a separate offense.

The defendant made no application for a permit and on June 3, 1953, this action was started to recover the sum of $1,000 for alleged violations of the ordinance on May 27, 28 and 29 and June 1 and 2, 1953. By its answer the defendant admitted that it operated a quarry upon said dates in an area designated on the zoning map of Racine county as an agricultural district without first obtaining a permit to do so from the town board. As an affirmative defense the defendant in its answer alleged that the ordinance is unconstitutional and void for several reasons.

After issue was joined the plaintiff moved for summary judgment on the record, consisting of the pladings, which contain a copy of the ordinance, certain affidavits and the zoning law and map of Pacine county. The trial court granted the motion for summary judgment, and on August 7, 1953, judgment was entered in favor of the plaintiff and against the defendant for the sum of $500 and costs. The defendant appealed from said judgment.

Flynn & Greenquist, Racine, for appellant.

Brach & Edwards, Racine, for respondent.

Willink & Thompson for Wis. Farm Bureau Federation Cooperative, Madison, amicus curiae.

BROADFOOT, Justice.

Upon this appeal the town contends that the ordinance is a valid regulatory measure enacted by the town board under its police powers. The defendant, on the other hand, contends that it is an attempt by the town to amend the county zoning ordinance; that it is a prohibitory measure; that it is void for lack of certainty as to what acts are prohibited; that it is inapplicable to an existing quarry; and that it is invalid in that it creates an unlawful classification.

An owner's right in property extends not only downward under the surface to an unlimited extent but also upward, but all private property is held subject to a reasonable exercise of the police power. Piper v. Ekern, 180 Wis. 586, 194 N.W. 159, 34 A.L.R. 32. Stated in another way, the privilege of every citizen to use his property according to his own wishes and in a manner that will yield him the best economic return is a property right. This property right should be invaded only when it is necessary to secure the common welfare. It is often difficult to determine whether the invasion of property rights is necessary for the public good, or whether it is unreasonable or confiscatory. An ordinance restricting the use of property beyond what is necessary to provide for the welfare and general security of the public is not a valid exercise of the police power. The rights of the public must be weighed against the rights of the individual. If the gain to the public by the ordinance is small when compared with the hardship imposed upon the individual property owner by the restrictions of the ordinance, no valid basis for the exercise of the police power exists. In weighing the respective rights certain rules have been formulated. One of the principles is that all persons are entitled to equal protection of the law, and any ordinance limiting or restricting the right of a person to engage in a legitimate business must apply equally to all persons engaged in a like business where circumstances and conditions are similar, and that classifications of persons to be regulated must be reasonable and substantial. In State ex rel. Ford Hopkins Co. v. Mayor and Common Council of City of Watertown, 226 Wis. 215, 222, 276 N.W. 311, 314, this court said:

'1. All classification must be based upon substantial distinctions which make one class really different from another.

'2. The classification adopted must be germane to the purpose of the law.

'3. The classification must not be based upon existing circumstances only.

'4. To whetever class a law may apply, it must apply equally to each member thereof. * * * " that the characteristics of each class should be so far different from those of other classes as to reasonably suggest at least the propriety, having regard to the public good, of substantially different legislation."

The record discloses that there is and has been in operation in an industrial area within said town a large commercial rock quarry. The ordinance does not apply to said quarry, nor does it apply to the operation of sand pits, gravel pits, clay beds, or to the recovery and sale of any other mineral. In determining the reasonableness of a proposed regulation under the police power, the object to be attained is to be given consideration. The test to be applied by the town board in making its determination is whether the operation will be 'conducive to the health, safety, welfare and convenience of the public.'

The validity of an ordinance allegedly adopted as a regulation under the police power depends on whether, under all of the facts and circumstances, the ordinance is really designed to accomplish a purpose properly falling within the scope of the police power. The record before us is a meager one. The plaintiff suggests that we may take judicial notice of certain alleged evils connected with the quarrying of rock. It is claimed that blasting with explosives is a necessary part of the operation with resultant noise and earth tremors which would damage surrounding residences and buildings. The record does not disclose the number or kind of buildings within the vicinity, nor their proximity to the quarry. Nor does the record disclose the same information as to the quarry in the industrial area. If we were to take judicial notice of the proximity of the buildings, it would be necessary for us to assume that there would be more buildings and that they would be in closer proximity to a quarry in an industrial area than in an agricultural area, and that the danger to buildings in an industrial area might be greater. Indeed, the question of lateral support of buildings of heavy construction adjacent to the quarry might become pertinent.

The plaintiff then contends that the operation of a quarry necessarily brings into existence a concentration of heavy and noisy machinery, trucks and the like. If this is a traffic measure, then the concentration of traffic is probably greater in an industrial area than in an agricultural area.

It is also contended that when quarrying operations are over a quarry is abandoned, leaving an excavation useless for any purpose except a public dump; that the same would be unsightly, and might be dangerous to children. These objections would seem to apply with equal force to a quarry in an industrial area and to an operation in an agriculatural area concerned with the recovery of sand, gravel, clay or minerals, particularly so when it appears that the Bradley farm is adjacent to the public dumping grounds...