Town of Hobart v. Collier

• Decision Date: 04 February 1958
• Citation: 3 Wis.2d 182,87 N.W.2d 868
• Parties: TOWN OF HOBART, Appellant, v. Charles COLLIER, Respondent. TOWN OF HOBART, Appellant, v. Norman CHALLE, Respondent.
• Court: Wisconsin Supreme Court

Page 868

87 N.W.2d 868

3 Wis.2d 182

TOWN OF HOBART, Appellant, v. Charles COLLIER, Respondent.

TOWN OF HOBART, Appellant, v. Norman CHALLE, Respondent.

Supreme Court of Wisconsin.

Feb. 4, 1958.

Kaftan, Kaftan & Kaftan, Green Bay, for appellant.

Evrard, Evrard, Duffy, Holman & Faulds, Green Bay, for Charles Collier.

Cohen & Parins, Green Bay, for Norman Challe.

MARTIN, Chief Justice.

The Town of Hobart is a municipality contiguous with the city of Green Bay on the west. On February 5, 1952 the Town Board adopted an ordinance creating a residential zone in part of the town; the balance was not zoned. On April 15, 1952 the ordinance was amended to extend the residential zone to include the entire town area.

In the preamble of the ordinance as amended its purpose is declared to be the regulation and restriction of the size of buildings and yards, their location and use for trade, industry, residence or other purposes, the creation of districts for such purposes and the establishment of their boundaries, and provisions for enforcement and penalties. In its specific provisions, so far as material, it creates a residential district with boundaries which are conceded to include the entire town; it provides that buildings and premises shall be restricted to residential use and (sec. II(b)) 'Industries and trades which are not commonly known as objectionable and obnoxious may be admitted with the approval of the Town Board;' it sets out building regulations with respect to setback lines, size of buildings, type of construction, etc.; in sec. V under 'Express Exclusion Clause' it provides '(d) It shall be unlawful for any person, partnership, firm or corporation to use any of the premises within the boundaries of the residential district for the purpose of carrying on or maintaining a junk yard, dealing in second-hand metals, paper, rags, second-hand or junked automobiles or parts, etc. Any person permitting three or more junked or partly torn down automobiles to remain on the premises for a period of more than thirty days, shall be deemed to be maintaining or carrying on the business of a junk yard and such conduct shall be deemed a violation of this section.'

Sec. XII is a severability clause.

Subsequent to the adoption of the ordinance and its amendment Collier purchased a piece of land within the town 150 feet along County Trunk Highway GE and running 300 feet back from the road. Collier and Challe operated thereon an automobile salvage or junk yard where they haul and store junked automobiles, burn them and break them up into parts, which parts are sold. Although the evidence as to just when they commenced using the premises as a salvage yard was in conflict, the trial court found their use of the premises did not constitute a pre-existing nonconforming use and that issue is not raised on appeal.

The trial court held the ordinance invalid and dismissed the plaintiff's complaints. According to its findings, the members of the Town Board and the Zoning Committee, knowing the defendants were purchasing their property with the intention of operating a salvage yard, adopted the amendment of April 15, 1952 for the express purpose of preventing such use; that they adopted the amendment zoning the entire town as residential with the intention that various businesses would be permitted in the future at the pleasure of the members of the Board, the ordinance failing to provide standards or guides with respect to permitting uses other than residential in the future; that the Town of Hobart and particularly the area in which defendants' property is located is not peculiarly adaptable to residential use; that the ordinance as amended is arbitrary and unreasonable and deprives defendants of their property without due process of law.

We agree with the trial court. The ordinance is invalid on its face. Its purposes, as set out in the preamble, include the creation of districts for the location and use of buildings and land for 'trade industry, residence or other purposes.' It thereupon creates a residential district of the entire area of the town regardless of its character; it creates no districts for trade or industry or any other purpose than residential. The ordinance does not accomplish, nor does it attempt to accomplish, the purposes set out in its preamble.

The Town of Hobart is twelve by fifteen miles in area. A railroad runs diagonally through it. Most of the area has been and still is used for farming. That the town area is not in its entirety adaptable to residential use, that it is adaptable to other uses in addition to residential, is recognized in sec. II(b) which provides that trades and industries may be admitted in the future.

In its decision the trial court stated that it had made a view of the premises of the defendants and the surrounding area and stated:

'These premises on which the auto salvage business is conducted is out in open country where the land is not adaptable to anything but farming, if at all. The terrain is rough, consisting of numerous ravines and hills. Immediately to the north and adjacent to the premises is a home owned by one Andy Knoll, one of the principal objectors. Outside of that residence, there is no other home within the immediate vicinity.'

It was the testimony of Andy Knoll that he used his land for farming; that he raised corn, potatoes, all his vegetables and hay; that the area is full of brush, trees and hills.

Upon all the evidence the trial court was warranted in finding that the town as a whole and the area of the defendants' premises in particular are not suited for residential purposes.

In State ex rel. Tingley v. Gurda, 1932, 209 Wis. 63, 243 N.W. 317, and in Rowland v. City of Racine, 1937, 223 Wis. 488, 271 N.W. 36, it was held that ordinances, in so far as they classify as residential property which does not have residential value, are unreasonable, unconstitutional and void. In the Tingley Case, supra, (209 Wis. at page 69, 243 N.W. at page 320) this court said:

'Here is a block of land in an industrial center, valuable for industrial purposes, condemned to a use for residential purposes, and for such purposes it is comparatively valueless. This situation should not result and cannot result from a bona fide administration of the zoning powers of the city. This situation in itself is sufficient to condemn the ordinance as an unreasonable exercise of power.'

Defendants purchased their land with the intention of using it as a salvage yard. Plaintiff argues that the town could, under sec. 66.052, Stats., prohibit their operations regardless of zoning classification. Even so, if defendants' property is subject to the zoning ordinance they are deprived of the opportunity to dispose of it for its true value because it must be sold for residence purposes, a use for which it is not fit. The question is not whether the town may prohibit a junk yard, but whether it has validly zoned the area as residential. The trial court found that the area 'is not adaptable to anything but farming, if at all.' Yet, the ordinance would make it impossible for defendants to sell their property for farming purposes. Plaintiff comments in its brief:

'Undoubtedly on many pieces of land in the township any attempt under the ordinance to prevent the construction of buildings for agricultural use would be unreasonable.'

Sec. II(a) of the ordinance, however, restricts all buildings and premises within the town to use as dwellings or incidental thereto.

Sec. II(b) provides that 'Industries and trades which are not commonly known as objectionable and obnoxious may be admitted with the approval of the Town Board.' As pointed out by the trial court, the ordinance fails to provide any standards to guide the Town Board in admitting industries or trades in the future, and sec. II(b) constitutes an unlawful delegation of power to the members of the Board:

'It is well settled that such power of zoning cannot be delegated to the town board as individuals who might then be permitted to admit or deny use of property for industry or trade at its whim or caprice. Both Mr. Boland, a member of the Zoning Committee, and Mr. Burdeau testified that it was the intention that various businesses from time to time would be permitted in the future if the board, in its opinion believed it for the best interests of the town in general. The general rule is stated in Volume 37 A. J. Page 73, Paragraph 158. * * *'

The rule referred to is also stated in 62 C.J.S. Municipal Corporations § 226(6) b as follows:

'A zoning ordinance or regulation should be clear and specific, and where such a regulation is vague and indefinite it may be held invalid. The regulation should prescribe a definite standard and furnish a uniform rule of action to govern the conduct of administrative officials; and the application of the regulation may not be left to the arbitrary will of governing authorities.'

By the language of sec. II(b) the ordinance recognizes there are areas within the town suitable for other purposes than residences and shows that it was contemplated that trades and industries would be admitted in the future. Not only is the area where defendants' property is located not suited for residences, but the area along the railroad tracks is admitted by a member of the Zoning Committee to be proper for the development of industry, not residences. In plaintiff's brief it is stated:

'Admittedly there are places where a proper use would be business or industrial--perhaps in Oneida, or along the railroad tracks.'

That being true, the failure of the ordinance to create districts other than residential, define their boundaries and establish standards for their regulation and use, violates the rules governing the making of classifications in the exercise of the police power, as stated in State ex rel. Ford Hopkins Co. v. Mayor, 1937, 226 Wis. 215, 222, 276 N.W. 311, 314:

'1. All classification must be based upon...