Civil homework help

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JUDGES: JUDGES: Hallows, C. J. OPINION BY: OPINION BY: HALLOWS OPINION OPINION 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. The ordinance was designed to meet standards and criteria for shoreland regulation which the legislature required to be promulgated by the department of natural resources. The legislation, authorizing the ordinance was enacted as a part of the Water Quality Act of 1965. 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. 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. 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 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. 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 elevation of the lake. Thus, the property is included in a conservancy district and, by sec. 2.29 of the ordinance, classified as “wetlands.” Consequently, in order to place more than 500 square feet of fill on this property, the Justs were required to obtain a conditional use permit from the zoning administrator of the county and pay a fee of $ 20 or incur a forfeiture of $ 10 to $ 200 for each day of violation. 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 thedespoliation of natural resources, which our citizens until recently have taken as inevitable and for granted, and an owner’s asserted right to use his property as he wishes. The protection of public rights may be accomplished by the exercise of the police power unless the damage to the property owner is too great and amounts to a confiscation. The securing or taking of a benefit not presently enjoyed by the public for its use is obtained by the government through its power of eminent domain. The distinction between the exercise of the police power and condemnation has been said to be a matter of degree of damage to the property owner. In the valid exercise of the police power reasonably restricting the use of property, the damage suffered by the owner is said to be incidental. However, where the restriction is so great the landowner ought not to bear such a burden for the public good, the restriction has been held to be a constructive taking even though the actual use or forbidden use has not been transferred to the government so as to be a taking in the traditional sense. Whether a taking has occurred depends upon whether “the restriction practically or substantially renders the land useless for all reasonable purposes.” The loss caused the individual must