HALLOWS, C. J.
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
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, the department of natural resources may enact such an ordinance for the county. Sec. 59.971 (6).
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 development of shorelands. In the Navigable Waters Protection Act, sec. 144.26, Stats., 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."
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
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 hardwoods, 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 nonaquatic 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 12 percent. 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
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 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 wetlands-filling 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 in more meaningful terms, it is a conflict between the public interest in stopping the
Many years ago, Professor Freund stated in his work on The Police Power, sec. 511, at 546, 547, "... it may be said that the state takes property by eminent domain because it is useful to the public, and under the police power because it is harmful .... From this results the difference between the power of eminent domain and the police power, that the former recognizes a right to compensation, while the latter on principle does not." Thus the necessity for monetary compensation for loss suffered to an owner by police power restriction arises when restrictions are placed on property in order to create a public benefit rather than to prevent a public harm. 1 Rathkopf, The Law of Zoning and Planning, ch. 6, p. 6-7.
This case causes us to re-examine the concepts of public benefit in contrast to public harm and the scope of an owner's right to use of his property. In the instant case we have a restriction on the use of a citizens' property, not to secure a benefit for the public, but to prevent a harm from the change in the natural character of the citizens' property. We start with the premise that lakes and rivers in their natural state are unpolluted and the pollution which now exists is man made. The state of Wisconsin under the trust doctrine has a duty to eradicate the present pollution and to prevent further pollution in its navigable waters. This is not, in a legal sense, a gain or a securing of a benefit by the maintaining of the natural status quo of the environment. What makes this case different from most condemnation or police power zoning cases is the interrelationship of the wetlands, the swamps and the natural environment of shorelands to
Is the ownership of a parcel of land so absolute that man can change its nature to suit any of his purposes? The great forests of our state were stripped on the theory man's ownership was unlimited. But in forestry, the land at least was used naturally, only the natural fruit of the land (the trees) were taken. The despoilage was in the failure to look to the future and provide for the reforestation of the land. An owner of land has no absolute and unlimited right to change the essential natural character of his land so as to use it for a purpose for which it was unsuited in its natural state and which injures the rights of others. The exercise of the police power in zoning must be reasonable and we think it is not an unreasonable exercise of that power to prevent harm to public rights by limiting the use of private property to its natural uses.
This is not a case where an owner is prevented from using his land for natural and indigenous uses. The uses consistent with the nature of the land are allowed and other uses recognized and still others permitted by special permit. The shoreland zoning ordinance prevents to some extent the changing of the natural character of the land within 1,000 feet of a navigable lake and 300 feet of a navigable river because of such land's interrelation to the contiguous water. The changing of wetlands
Wisconsin has long held that laws and regulations to prevent pollution and to protect the waters of this state from degradation are valid police-power enactments. State ex rel. Martin v. Juneau (1941), 238 Wis. 564, 300 N. W. 187; State ex rel. La Follette v. Reuter (1967), 33 Wis.2d 384, 147 N.W.2d 304; Reuter v. Department of Natural Resources (1969), 43 Wis.2d 272, 168 N.W.2d 860. The active public trust duty of the state of Wisconsin in respect to navigable waters requires the state not only to promote navigation but also to protect and preserve those waters for fishing, recreation, and scenic beauty. Muench v. Public Service Comm. (1952), 261 Wis. 492, 53 N.W.2d 514, 55 N.W.2d 40. To further this duty, the legislature may delegate authority to local units of the government, which the state did by requiring counties to pass shoreland zoning ordinances. Menzer v. Elkhart Lake (1971), 51 Wis.2d 70, 186 N.W.2d 290.
This is not a case of an isolated swamp unrelated to a navigable lake or stream, the change of which would cause no harm to public rights. Lands adjacent to or near navigable waters exist in a special relationship to the state. They have been held subject to special taxation,
Cases wherein a confiscation was found cannot be relied upon by the Justs. In State v. Herwig (1962), 17 Wis.2d 442, 117 N.W.2d 335, a "taking" was found where a regulation which prohibited hunting on farmland had the effect of establishing a game refuge and resulted in an unnatural, concentrated foraging of the owner's land by waterfowl. In State v. Becker, supra, the court held void a law which established a wildlife refuge (and prohibited hunting) on private property. In Benka v. Consolidated Water Power Co. (1929), 198 Wis. 472, 224 N. W. 718, the court held if damages to plaintiff's property were in fact caused by flooding from a dam constructed by a public utility, those damages constituted a "taking" within the meaning of the condemnation statutes. In Bino v. Hurley (1956), 273 Wis. 10, 76 N.W.2d 571, the court held unconstitutional as a "taking" without compensation an ordinance which, in attempting to prevent pollution, prohibited the owners of land surrounding a lake from bathing, boating, or swimming in the lake. In Piper v. Ekern (1923), 180 Wis. 586, 593,
Cases holding the exercise of police power to be reasonable likewise provide no assistance to Marinette county in their argument. In More-Way North Corp. v. State Highway Comm. (1969), 44 Wis.2d 165, 170 N.W.2d 749, the court held that no "taking" occurred as a result of the state's lowering the grade of a highway, which necessitated plaintiff's reconstruction of its parking lot and loss of 42 parking spaces. In Wisconsin Power & Light Co. v. Columbia County (1958), 3 Wis.2d 1, 87 N.W.2d 279, no "taking" was found where the county, in relocating a highway, deposited gravel close to plaintiff's tower, causing it to tilt. In Nick v. State Highway Comm., supra, the court held where property itself is not physically taken by the state, a restriction of access to a highway, while it may decrease the value of the land, does not entitle the owner to compensation. In Buhler the court held the mere depreciation of value was not sufficient ground to enjoin the county from enforcing the ordinance. In Hasslinger v. Hartland (1940), 234 Wis. 201, 206, 290 N. W. 647, the court noted that "[a]ssuming an actionable nuisance by the creation of odors which make occupation of plaintiffs' farm inconvenient ... and impair its value, it cannot be said that defendant has dispossessed plaintiffs or taken their property."
The Justs rely on several cases from other jurisdictions which have held zoning regulations involving flood plain districts, flood basins and wetlands to be so confiscatory as to amount to a taking because the owners of the land
In State v. Johnson (Me. 1970), 265 Atl. 2d 711, the Wetlands Act restricted the alteration and use of certain wetlands without permission. The act was a conservation measure enacted under the police power to protect the ecology of areas bordering the coastal waters. The plaintiff
It seems to us that filling a swamp not otherwise commercially usable is not in and of itself an existing use, which is prevented, but rather is the preparation for some future use which is not indigenous to a swamp. Too much stress is laid on the right of an owner to change commercially valueless land when that change does damage to the rights of the public. It is observed that a use of special permits is a means of control and accomplishing the purpose of the zoning ordinance as distinguished from the old concept of providing for variances. The special permit technique is now common practice and has met with judicial approval, and we think it is of some significance in considering whether or not a particular zoning ordinance is reasonable.
A recent case sustaining the validity of a zoning ordinance establishing a flood plain district is Turnpike Realty Co. v. Town of Dedham (Mass. 1972), 284 N.E.2d 891.
The Justs argue their property has been severely depreciated in value. But this depreciation of value is not based on the use of the land in its natural state but on what the land would be worth if it could be filled and used for the location of a dwelling. While loss of value is to be considered in determining whether a restriction is a constructive taking, value based upon changing the character of the land at the expense of harm to public rights is not an essential factor or controlling.
We are not unmindful of the warning in Pennsylvania Coal Co. v. Mahon (1922), 260 U.S. 393, 416, 43 Sup. Ct. 158, 67 L. Ed. 322:
"... We are in danger of forgetting that a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change."
This observation refers to the improvement of the public condition, the securing of a benefit not presently enjoyed and to which the public is not entitled. The shoreland zoning ordinance preserves nature, the environment, and natural resources as they were created and to which the
We note the lower court dismissed the action commenced by the Justs, although it sought a declaratory judgment and the rights of the Justs were declared. This dismissal is in conflict with the procedure which this court has made clear should be followed, namely, that the complaint should not be dismissed when contrary to the plaintiffs' contention, but rather the judgment should set forth the declaratory adjudication. City of Milwaukee v. Milwaukee County (1965), 27 Wis.2d 53, 67, 133 N.W.2d 393; David A. Ulrich, Inc. v. Saukville (1959), 7 Wis.2d 173, 181, 96 N.W.2d 612; Denning v. Green Bay (1955), 271 Wis. 230, 72 N.W.2d 730.
In commenting on the propriety of its deciding the issue of constitutionality of the ordinance, the trial court quoted State v. Stehlek (1953), 262 Wis. 642, 645, 56 N.W.2d 514:
"The exercise of the power to declare laws unconstitutional by inferior courts should be carefully limited and avoided if possible. The authorities are to the effect that unless it appears clearly beyond a reasonable doubt that the statute is unconstitutional, it is considered better practice for the court to assume the statute is constitutional, until the contrary is decided by a court of appellate jurisdiction."
This view has consistently been followed. State ex rel. Fieldhack v. Gregorski (1956), 272 Wis. 570, 574, 76 N.W.2d 382; White House Milk Co. v. Reynolds (1960),
Although the practice for trial courts not to hold laws unconstitutional has not been uniformly followed, nevertheless, it is our belief many lawyers have been and are bringing to the federal courts cases involving questions of constitutionality of state laws because of the limitation
We think that when a constitutional issue is now presented to the trial courts of this state, it is the better practice for those courts to recognize its importance, have the issue thoroughly briefed, and fully presented. The issue should be decided as any other important issue with due consideration. The practice of assuming constitutionality, until the contrary is decided by an appellate court, is no longer necessary or workable. Of course, a presumption of constitutionality exists until declared otherwise by a competent court, which we think the trial courts of Wisconsin are, because a regularly enacted statute is presumed to be constitutional and the party attacking the statute must meet the burden of proof of showing unconstitutionality beyond a reasonable doubt.
By the Court.—The judgment in Case No. 106, dismissing the Justs' action, is modified to set forth the declaratory adjudication that the shoreland zoning ordinance of respondent Marinette county is constitutional; that the Justs' property constitutes wetlands and that particularly the prohibition in the ordinance against the filling of wetlands is constitutional; and the judgment, as so modified, is affirmed. The judgment in Case No. 107, declaring a forfeiture, is affirmed.
"(1) Harvesting of any wild crop such as marsh hay, ferns, moss, wild rice, berries, tree fruits and tree seeds.
"(2) Sustained yield forestry subject to the provisions of Section 5.0 relating to removal of shore cover.
"(3) Utilities such as, but not restricted to, telephone, telegraph and power transmission lines.
"(4) Hunting, fishing, preservation of scenic, historic and scientific areas and wildlife preserves.
"(5) Non-resident buildings used solely in conjunction with raising water fowl, minnows, and other similar lowland animals, fowl or fish.
"(6) Hiking trails and bridle paths.
"(7) Accessory uses.
"(8) Signs, subject to the restriction of Section 2.0."
"(1) General farming provided farm animals shall be kept one hundred feet from any non-farm residence.
"(2) Dams, power plants, flowages and ponds.
"(3) Relocation of any water course.
"(4) Filling, drainage or dredging of wetlands according to the provisions of Section 5.0 of this ordinance.
"(5) Removal of topsoil or peat.
"(6) Cranberry bogs.
"(7) Piers, docks, boathouses."