In Higbee v. Chicago, supra, the court sustained an ordinance permitting a public utility to erect a railway station in a residential district on the ground that it tended to promote the public welfare, but the court significantly said: "Doubtless an attempt to erect a manufacturing plant in a district zoned for and occupied by first-class single residences only might be properly held to be `spot zoning' and unreasonable and arbitrary."Summary of this case from Page v. City of Portland
May 7, 1940 —
June 4, 1940.
APPEAL from a judgment of the circuit court for La Crosse county: S.E. SMALLEY, Circuit Judge, Presiding. Affirmed.
For the appellants there was a brief by George H. Gordon, Law Brody, and Higbee Higbee, all of La Crosse, attorneys, and Ray B. Graves of Wisconsin Rapids of counsel, and oral argument by Mr. Graves and Mr. David S. Law, and by Mr. Robert Johns of La Crosse.
For the respondent there was a brief by Lees Bunge of La Crosse, Sidney F. Blanc and Andrew C. Scott, both of Chicago, Illinois, attorneys, and J. C. James and Walter McFarland, both of Chicago, of counsel, and oral argument by Mr. Blanc and Mr. Andrew Lees.
Action by Jesse E. Higbee and others against the Chicago, Burlington Quincy Railroad Company to enjoin the construction by the defendant of a passenger depot on a two-acre tract in a Class I residence district of a zoning ordinance, commenced July 28, 1939. From a judgment entered December 28, 1938, dismissing the complaint on the merits, certain plaintiffs appeal.
The suit is by taxpayers to enjoin the erection by the defendant railroad company of a passenger depot on its "back line" upon a two-acre described tract located in a first-class single-residence district of the zoning ordinance of La Crosse as it existed prior to amending ordinances recently enacted, or at any point within said district, or in or adjacent to a platted district adjacent to the city limits of La Crosse in the town of Shelby. The suit indirectly involves declaring void three ordinances recently passed by the city council of La Crosse, (1) declaring the two-acre tract a public-utility district and authorizing the erection of a passenger depot thereon, subject to certain restrictions; (2) an ordinance granting to the defendant railroad company permission to abandon its Pearl Street passenger depot and service; and (3) authorizing the railroad to erect a new passenger depot on said two-acre tract in lieu of the Pearl Street depot. The plaintiffs own lands in the vicinity of the proposed depot in or adjacent to the first-class residence district.
For over fifty years the defendant railroad company has had a line of railroad locally called the "loop line" passing near the main business district of the city on which is located a passenger depot known as the Pearl Street depot. This line is used to handle local freight and has heretofore handled the defendant's passenger business for ten trains daily at the Pearl Street depot. The defendant also has a direct line called the "back line" which is used for through freight and recently for two through fast passenger trains daily. This line is located mostly outside, the eastern city limits and in the adjacent town of Shelby, but traverses the tract hereinafter referred to that is included therein. The local passenger traffic for these two fast trains has lately been served at what is called its Grand Crossing depot, about three miles from the Pearl Street depot, which is located at the north junction of the loop with the "back line" and five miles from the south junction of the two lines. For the purpose of cutting off about fifteen minutes from the time of its fast and other through passenger trains the defendant desired to abandon its Pearl Street depot for passenger service, and to locate a depot on its "back line" about two miles east of that depot on a seventeen-acre tract lying beyond the former city limits but within an extension thereof made to include a tract donated to the city for park purposes. The extension comprises six hundred eighty acres. The railroad traverses this tract. A strip of this tract nine to twelve hundred feet wide and three-quarters of a mile long north and south lies west and the rest of it east of the railroad. The portion of the tract east of the railroad contains no residences and is devoted to public-park and golf-club purposes. The portion west o, f the railroad and within the extended city limits contains ten residences in the vicinity of the proposed depot, but for a quarter of a mile north of the depot the tract is entirely vacant, though suitable and attractive for first-class single-residence purposes owing to the scenic location. The depot is to be located on an east-and-west street leading from the business center of the city out to the "back line." About three hundred feet south of the proposed depot, outside the city limits and in the town of Shelby, there area few residences, a tavern which has existed for several years, and a large stone-crushing plant. The proposed change of the depot would not only obviate delay in through passenger service but would obviate passenger trains going over some thirty grade crossings on the loop in a densely populated portion of the city, and would substitute therefor their going over only three grade crossings. The local passenger traffic on the two fast trains mentioned would also be better accommodated. To accomplish the desired change it was necessary to procure amendment of a city ordinance that granted permission to the company to run its loop line through the city and required it to maintain the Pearl Street passenger depot; to procure permission from the Wisconsin public service commission; and to procure an amendment to the existing zoning ordinance adopted in 1939. The public service commission on public hearing issued an order finding that the change was "consistent with reasonably adequate service to the patrons of the railroad," and that operation of its passenger service on the "back line" "would tend to promote the public safety." An ordinance initiated by the defendant company was objectionable to the plan commission of the city council created by the zoning ordinance. This was withdrawn and another was introduced which was satisfactory to that commission containing restrictions on maintenance and use of the new depot and prohibiting fueling and service of engines within the two acres created as a public-utility district and restricting use of portions within the district not used for depot purposes to the same exclusive single-family dwellings permissible in the Class I residence district of the general zoning ordinance. The council upon full hearings and upon recommendation of its plan commission comprised in part of representative citizens not members of the council (see sec. 62.23 (1) (a), Stats.) enacted the three ordinances first above mentioned.
The trial court found that the location of the depot upon the proposed two acres of the seventeen-acre tract above referred to as provided in the ordinance fixing said two-acre tract as a public-utility district "will be more convenient, practicable and accessible than at other proposed or suggested sites (on the `back line'), and will be in the interest of safety and the general welfare;" that "the erection of the proposed depot by the defendant, if conducted and operated in accordance with said conditions and restrictions in said ordinance contained, will not constitute a nuisance, either public or private;" and that the ordinances involved are "valid and reasonable;" and entered judgment dismissing the complaint on the merits.
As appears from the foregoing statement, the trial court entered judgment dismissing plaintiffs' complaint that prayed judgment enjoining the defendant railroad company from abandoning service at a central passenger depot and erecting another passenger depot to supply such service near but within the city limits. The ground laid in the complaint for the injunction is in the main that the erection of the proposed depot would violate a zoning ordinance existing at the time an amending ordinance was enacted purporting to authorize the proposed change, which amending ordinance is claimed to be void as unreasonable and beyond the power of the common council to enact. The appellants assign as error, (1) the refusal of the court to sign proposed findings of detailed facts submitted by the appellants; (2) that the findings signed by the court do not support the judgment; and (3) that the court erred in holding reasonable the amending ordinance purporting to authorize the proposed change.
(1), (2) The refusal of the court to sign the findings submitted by the appellants did not constitute error if the findings of the court so covered the issues as to support the judgment. Reference to the concluding portion of the preceding statement of facts will show that they support the judgment if the common council had power to amend the original ordinance.
That the council had such power seems too clear to permit of reasonable controversy. Sec. 62.23 (5) (c), Stats., provides that "the council may from time to time change the [zoning] districts and regulations" upon prescribed notice and hearings, which are not shown not to have been given and held prior to the ordinance change of which the plaintiffs complain. The original ordinance by section 18 thereof expressly provides that changes therein may be made by amendment upon submission of proposed changes to the city plan commission for its report and recommendations, which submission and report and recommendation were made. The contention in this respect seems to be that in making changes the original purpose, and effect of the ordinance amended cannot be frustrated or destroyed, and from this that the creation of a two-acre district limited solely to restricted depot uses frustrates and destroys the purpose and effect of the original ordinance. That it so operates as to the two acres is of course plain. But if there be such a rule, the purpose and effect involved in the rule contended for is the purpose and effect of the original ordinance as a whole, and we cannot perceive that the provision as to the two acres has any such effect. It may also be considered in this connection that the original ordinance provides, section 11 E (8) that "If recommended by the public service commission" the board of appeals provided for by the ordinance, which is itself an agency of the city for administration of the ordinance, has power "to permit in appropriate cases and subject to appropriate conditions and safeguards in harmony with the general purpose and intent of this ordinance, a building or premises to be erected or used by a public-service corporation or for public-utility purposes in any location and for any purpose which is reasonably necessary for the public convenience and welfare." What an agency of the city may do in administration of an ordinance the city itself through its common council may do by amendment of the ordinance. The depot is used by a public-utility corporation and fulfills a public-utility purpose. The public service commission recommended the proposed erection of the depot. A like provision was held valid in State ex rel. Carter v. Harper, 182 Wis. 148, 196 N.W. 451. The city planning commission, the common council, and the circuit court considered that the erection of the depot subject to the conditions imposed was in harmony with the general purpose of the ordinance, and they and the public service commission found that the erection of the depot was reasonably necessary for the public convenience and welfare.
It is urged that the ordinance creating the two-acre public-utility district is void because it is "spot zoning," which the brief states to be zoning "by which a small area situated in a larger zone is purportedly devoted to a use inconsistent with the use to which the larger area is restricted." But by this definition the devotion of a small area in a residence district to use for grocery stores, drugstores, candy and ice-cream parlors, barber shops, and the like, would be condemned, but it is common knowledge that zoning ordinances provide for them for the accommodation and convenience of the residents of the residential district. Such use is considered "not inconsistent with the use to which the larger area is restricted." "Spot zoning" is such zoning as is condemned in State ex rel. Tingley v. Gurda, 209 Wis. 63, 243 N.W. 317; Geisenfeld v. Shorewood, 232 Wis. 410, 287 N.W. 683; and Rowland v. Racine, 223 Wis. 488, 271 N.W. 36, wherein small areas in business or industrial districts were withdrawn from such districts and declared restricted to residences only. Doubtless an attempt to erect a manufacturing plant in a district zoned for and occupied by first-class single residences only might be properly held to be "spot zoning" and unreasonable and arbitrary, but this can hardly be held to be so as to buildings of public utilities devoted to public service and promotive of the public welfare, especially under the express declaration of the instant original ordinance.
(3) The controlling question in the instant case simmers down to whether the findings of the circuit court that the proposed depot will not create a nuisance, either private or public, and that the ordinance authorizing it is reasonable in view of the restrictions of use imposed by the ordinance and the entire factual situation involved. These findings of fact cannot be disturbed unless they are contrary to the great weight and clear preponderance of the evidence. This rule is so firmly established and well known that citation of authority in its support is unnecessary. We consider the findings adequately supported by the evidence.
The basis of the plaintiffs' complaint for the most part is that they are of opinion that the value of their property will be greatly diminished by reason of the location of the proposed depot. But zoning ordinances are enacted under the police power, and when in the lawful exercise of that power the value of property not taken is diminished the owners have no redress.
"Where the interest of the individual conflicts with the interest of society, such individual interest is subordinated to the general welfare. If in the prosecution of governmental functions it becomes necessary to take private property, compensation must be made. But incidental damage to property resulting from governmental activities, or laws passed in the promotion of the public welfare, is not considered a taking of the property for which compensation must be made. This has been stated over and over again." State ex rel. Carter v. Harper, supra, p. 153.
Many cases pro and con are cited in the briefs in support of the respective contentions of the parties, but we consider the decisions of our own court that we have referred to support and compel affirmance of the judgment. Further citation of authorities or discussion would serve no useful purpose.
By the Court. — The judgment of the circuit court is affirmed.