02-22-1977 Planning Packet - Laserfiche WebLink

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REPORTER. 2d SERIESthere IS ;i holt of trees. The shoreline is from one foot to XJ feet higher than the lake level ami there is a narrow lielt of hi>;her lami ahinj; the shore known as a “pressure ruij'e ” or “ice heave,” varymi; in width from one to three feet. South of this |nnnt, the natural level of the land ranees one to two feet alnive lake level. I he land slopes ^vnerally toward the lake hut has a slope les.s than twelve per cent. Xo water flows onto the land from the lake, luit ihcie is some siirlacc water which col lects on land and stands in pools. rile land owned Iw the Justs is designated as swamps or marshes on the I'niteil States tieolo^ical .'survey Map and is located with in feet of the normal hi);h-water elevation of the hike. 'I'lnis, the property is included in a ^•onservancy district .•mil, hy sec. of the ordinance, classifieil as ■'weilands." t'onse«inentl\. in order to place iiiore th.'in .sin) si|n:ire feet of fill on this properly, the lusts were reipiircd to ohtaiii a eondition,il use permit tioin liic /otiin^ adiinnisliator ol ihe eounty and pa;, a fee of $20 or incur a forfeiture of $I«I to for i-ach dav of violation. In I eluii.iry and March of si.x months alter the ordinanee In came effec tive. Ronald Jiist, witlioni si-cnr’in;^ a eon- ditionat-ii'e pel tint, ha'ilul I.OlO sipiare v.iids ol s.md onto this property and filled in area .i|»pm\itn.itrl\ JU-fect wnlc corn- tin nrni^ at till* 'suiithufsl voriKT ami ex it mliiu; aliiiu'st tVit north to the north- arst itii ncr luai the vhorelmr, then caNtcrIy ilmi: the shoreline almost to the lot line. Ill* st.i\e*I l»ack lr<»tii the j*ri'*'*iire riilj^e ihoiit Ji) fell. Mole ilian sf|n:irc feet »f tins till was upon wetlamis locatctl con* to the w.iliT aiul winch ha«I suriace It.itiiane toward the lake. he fill witliiii ful of tl;e lake also was more than sijiiair |\rt on a slope less than 12 *t‘icMil^ It IS not seiionsly t*f»ntcmlcd tin'll Wfliati.N • i.ltlili;; t,» ||»,. |,MO jsiMlis tti Sri iiiin .1 o Ilf iliiH «ii itiiiaii* I. i*»l of t(i|i voi| ij|- Mo r *r:iiilM*rrV Imi;:w. I Nm ks, lioatla»ii:sf s.** 4 •fr-i .■V m t i ! ri JUST V. MARINETTE COUNTYI'll.* .1". ,S*I N W '.it •••!Wia.isis did iu.t vKihrtc the »tdm.ince and lal court correctly louml ,i violation.rc.il issue is whether the conserv- ilistrict provisions and llic wctlands- restrictions arc unconstitutional he- they amount to a constructive lakiii;i lusts ’ laud without compeusatiou. Idle coimly and the stale of Wiscon- •jiuc the restrictions of the conserv- district suul wetlands provisions con- ; a proper c.xcrcisc of the police r of the slate and do not so severely the use or depreciate the value of the as to constitute a taking without com- itiou. •8] T o slate the issue iii more mean- il terms, it is a couflict hciwceu the c interest in slopping the despoilation latural resources, which our cili/ens recently have taken as incvitahle and granted, and an owner ’s .asserted right •e his properly as he w ishes. The pro- on of public rights may he .accotn- icd hy the exercise of the police power ss the damage to the property owner is great .md amounts to a confiscation, securing or taking of a henefit not «entlv enjoyed hy the public for its use btained by the government through its er of emmenl domain. The distinction veen the exercise of the police power condemnation has been said to be a :tcr of tlcgrec of ilainagc to the propeil> ler. In the valid exercise of tlic police .er rc.ason.ably restricting the use of perty, the ilamag'' suffered by the owner •:iid to be incideii.al. However, where restriction is so great the landowner ;ht not to beat such a burden for tlic llic good, the restriction has been hcbl lie a constructive taking « vcn though the ua! use or forbidden use has nut hceti lusferred to the government so as to be laking in the traditional sense. Stef.m ito lUidv V. .'^tatc Higiiway I'omm. ( \\Ts.2d' l-*« N.WJd .M'»; l’•nhlcl• v. icine County (!'«*«)). Wis-M l.V, bid AV.Jd 40.1: Nick V. State Highway imm. 1-^ \Vis.2d ."^11. Id*> N.W.id HI N.\V.2d ‘'5; State v. Itecker il'CM). Jl.s WTs. hu\. J.ra N.W. 144. Whether a t.ikmg has occurred dc|*cuds upon whether "the rcstnctioii practically or substantially lenders the land useless for all reasonable purposes.” Iluhicr v. Racine Connty. supra. The loss caused the individual must he weighed to determine if it is more than he should hear. As this court staled in .S7c/i/»i. at pp. 1-1 N.\V.3d M9, p ilainaj^c is stich as to he suffered by many siimlarly situated and IS in the nature of a restriction - >» the use to which land may lie put and o rglu to he IioriK ’ liy the nuhviflual as a memher of society for the good of the puhlic safety, he;iltli or general welfare, it is said to he a reasonable exercise of the police power, but if llic damage is so great to the in dividual that he ought not to bear it under contemporary standards, then courts arc inclined to treat it as a 'taking' of the property or an unreasonable exercise of the police power.” |9| .\laiiv years ago. I’rofcssnr I rciind stated in Ins work uii The Police Power, sec. .s|l. at .s4d-.sl7. ”lt may he said that the state takes properly by eminent domain because it is useful to the imblic. ami under the police power because it is harmful l-rom this results the difference lietwci it the pow er of t nmiciit domain .md the pol ce power, lliat ih.- former recog nises a right to eoii.pciisalion. \shile the latter on principle <loc- not.” 1 hits the necessity for nioiictaiy compensation for 1..SS suffered to ail owner by |.olice power lesliictmn aiists when restrictions arc j.laced on piop^ily in order to create a pnl.l,.. benefit rather than to prevent a pnl.lic h.iiin. Rathkopf. T he l.aw of Zon ing and Planning. Vol. 1, eh. f», pp. f*-'- 1 101 T his ease c.mses us to reexamine the concepts of public Imietit in contrast t.. public li.irin .md the scope of an owner ’s right to us«- of liis pioperiy. In the instant c.ise we have a resiiiction on tlie^nse of a citi/eiis’ pr..l'crly. not to scenic a benefit for the public, but to prevent a harm from the change in the natural character of the t: f 1 te :. : “ . .ft-;-. .. > "