In Timmell, a property owner challenged the county's enforcement of a zoning ordinance that prohibited his proposed use for his land.Summary of this case from Mirbeau of Geneva Lake LLC v. City of Lake Geneva
January 10, 1952 —
February 5, 1952.
APPEAL from a judgment of the county court of Jefferson county: Roscoe R. LUCE, Judge, Presiding. Affirmed.
For the appellant there was a brief by Brendemuehl Brendemuehl of Oconomowoc, and oral argument by A. G. Brendemuehl and Curtis A. Brendemuehl. Thorpe Merriman, district attorney, for the respondent.
At a special session of the board of supervisors of Jefferson county (hereinafter referred to as the "county board") held June 7, 1938, a comprehensive zoning ordinance for Jefferson county was adopted. By this zoning ordinance certain districts in the county were zoned as "conservancy districts" and any buildings and premises located in such conservancy districts were prohibited to be used for either retail business or wholesale business purposes. At the time of adoption the town boards of the town of Farmington and certain other towns had approved the ordinance, and the ordinance provided it was to be effective in other towns when approved by their respective town boards. The county board also, in 1938, adopted a building-permit ordinance which provided that thereafter no building was to be built, altered, or moved within the county outside of the limits of incorporated villages or cities unless a building permit for the same be first obtained from the county clerk after a written application for the same shall first have been filed with the clerk stating the purpose for which the building was to be used. This latter ordinance further provided that the clerk was to issue the building permit only after he had found that the proposed building would comply with all ordinances of the county. This building-permit ordinance provided that the remedy any person aggrieved by any ruling of the county clerk under the ordinance was an appeal to the board of adjustment created by the zoning ordinance.
The zoning ordinance was amended from time to time by the county board but the only amendments material to this appeal are the amendments reported to the county board by the county park commission on December 16, 1947, and on that date the county board tentatively approved the proposed amendments and amended zoning map and provided for their submission to the town boards affected thereby. By these amendments a Conservancy District B was established along State Trunk Highway 30 which traverses Jefferson county in a generally easterly and westerly direction, and it was provided that no building, premises, or structures were to be thereafter erected or structurally altered in Conservancy District B except for one or more of the following purposes:1. Single-family residence 2. Multiple-family residence 3. Accessory buildings 4. Home occupations 5. General farming These amendments also contained the following clause: "Be it further ordained that the zoning map of Jefferson county be amended by the establishment of Conservancy District B as shown on the map attached hereto and made a part of this ordinance."
The county park commission had been directed by the county board to prepare such amendments and had conducted a public hearing on the same on December 9, 1947, at the courthouse, notice of which hearing had been published in the Watertown Daily Times on November 28th, December 2d, and December 5th, 1947. This published notice gave the date, place, and hour of the public hearing and stated that the hearing was being held on proposed changes in the Jefferson county zoning ordinance to create a new conservancy district along new State Trunk Highway 30, and that the entire proposed amendments were on file at the county clerk's office.
On January 13, 1948, the county board adopted these proposed amendments previously reported to it by the county park commission on December 16, 1947, and such amendments will hereinafter be referred to as the "1947 amendments." The December 16, 1947, proceedings of the county board, containing an exact copy in full of these 1947 amendments to the zoning ordinance, except only that the amended zoning map was omitted, were published in the Jefferson Banner on January 29, 1947, it being the officially designated newspaper for publication of the county board proceedings. The county board proceedings of January 13, 1948, showing final adoption on that date of these amendments to the zoning ordinance were published in the February 5, 1948, issue of the Jefferson Banner.
One John Perry, a former county highway commissioner, many years owned a farm abutting on State Trunk Highway 30 in the town of Farmington where such highway intersected County Trunk P, the latter highway running in a northerly and southerly direction. The dwelling house on this farm was on the east side of County Trunk P some distance north of the intersection with Highway 30, and the barn and other farm buildings were located on the west side of "P." For some years Perry had two farm gasoline pumps, one on the west side of "P" and the other on the east side of such highway. These pumps had underground gasoline-storage tanks and were used to store gasoline for use on the farm and were of the type to be found on many farms, but some gasoline was also sold by Perry and his son from these pumps to passers-by. At one time there was a small one-car garage adjacent to the pump on the east side of the highway which was used in connection with making sales from the pump and for repairing motor vehicles, but such garage was removed from the premises in 194-1 or 1942. Perry also claims that he or his son sold some tires and tubes from the premises.
On March 30, 1949, Perry filed a written application with the county clerk for a building permit to erect a one-story building with basement underneath, thirty by thirty-six feet in size, on the northeast corner of the intersection of Highways 30 and P, the same to be ninety-one feet east from the center line of "P" and one hundred fifty-three feet north from the center line of "30." The application stated that the building was to be used for a retail store. This application was denied and on July 1, 1949, Perry filed with the county clerk a new application which was practically identical with the first application except that it stated that the building was to be used for a private residence. On July 5, 1949, the clerk issued a building permit to Perry to build such building, the permit stating that the application had been approved by the county zoning committee and bore this special notation "Approved orally by Edward Brewin — he told Hyer it would be O.K. if only for a residence." (Brewin was chairman of the county zoning committee and Hyer was county clerk.)
The new building authorized by the permit was completed sometime after September 9, 1949, and two gasoline pumps with attached underground storage tanks were installed alongside the new building for the commercial sale of Shell gasoline. These new pumps were fifty to seventy-five feet distant from where the old pump formerly located to the north and on the east side of "P" had been, and the new building was fifty or sixty feet distant from the former garage building which had been removed from the premises seven or eight years before.
Upon completion of the new building Perry did not use it for residence purposes but as a business place and storeroom for selling gasoline, oil, antifreeze, tobacco, cigarettes, and pop. On February 28, 1950, Perry sold this new building and some of the adjoining land to the defendant Ernst Timmel, but it does not appear from the record whether there was included the parcel to the north of the new building on which the original gasoline pump on the east side of "P" was located. The parcel sold was in the form of a trapezium, the dimensions of the four sides being one hundred sixty-five, two hundred twenty-six, one hundred seventy-eight, and two hundred fifty-seven feet, respectively. At the time of sale there was no discussion between Perry and Timmel about the zoning ordinance, and Timmel testified that he did not learn until afterward that the premises were barred from use for commercial purposes by reason of such ordinance. Timmel continued to sell the same articles that Perry had, and in addition tires, candy, and ice cream. On July 1, 1950, Timmel obtained a Class B beer license and sold beer in the premises from a fifteen-foot bar, which was the first time beer had ever been sold there. timmel and his family occupied part of the building for residence purposes.
On May 22, 1950, the zoning committee and the district attorney of Jefferson county met with Perry and Timmel. Perry and Timmel were then warned that the premises could be used for residence purposes only in accordance with the building permit and if they persisted in using the building for commercial purposes an injunction suit to restrain such use would be instituted. Timmel persisted in using the premises for commercial purposes, and even expanded such use by thereafter commencing the sale of beer.
On November 3, 1950, the plaintiff county commenced an action against Timmel praying for a permanent injunction restraining Timmel from using the premises as a filling station, or tavern, or any other purpose which would be in violation of the county zoning ordinance. The defendant served an answer in which he denied the validity of the zoning ordinance and alleged that since February 28, 1950, he had used the premises as a filling station and for the sale of gasoline, oil, soft drinks, candy, and other merchandise commonly sold at filling stations, and that since July 1, 1950, he had sold beer there, but denied that any of such uses of the premises violated any zoning ordinance of the county. The answer then set forth a counterclaim in which the defendant alleged that he was maintaining the action and defense in behalf of all persons similarly situated who were affected by the alleged zoning ordinance; that defendant had purchased the premises on February 28, 1950, under a warranty deed and abstract which did not disclose any restrictions as to the use of the premises and that the restrictions of the alleged zoning ordinance were not recorded in the office of the register of deeds; that the threatened enforcement of the alleged zoning ordinance would seriously affect the defendant and those similarly situated from carrying on legitimate businesses on their property and unless restrained would seriously depreciate the value of their property and that they had no adequate remedy at law; that the ordinance violated the state constitution because (1) it was unreasonable, arbitrary, and discriminatory, (2) it denied equal protection of the law to the defendant and those similarly situated, (3) it took and destroyed property and property rights without just cause or reason and confiscated property without due compensation, (4) it unreasonably infringed on the freedom of contract, (5) it prevented the lawful sale of gasoline without any lawful reason therefor, and (6) it was class legislation enacted for the benefit of and at the instance of business located in favored locations and had no relation to public health, morals, or welfare; and prayed for an injunction restraining the county from enforcing the ordinance and for a judgment decreeing the ordinance to be void. There was no allegation in the answer or counterclaim that defendant was entitled to continue to use the premises for commercial purposes because of any prior nonconforming use of his predecessor in title, Perry.
After the institution of the action a special town meeting was held in the town of Farmington at which it was voted by a vote of fifty-four to seven to reject the operation of the county zoning ordinance in such town and the results of the meeting were certified to the county clerk.
The action was tried to the court without a jury on May 9, 1951. The trial court in addition to the taking of testimony made a personal inspection of the defendant's premises. In a memorandum decision filed, the trial court held that any procedural defects with respect to the adoption and publication of the zoning ordinance were not of sufficient materiality to void the ordinance, that the defendant was barred by laches from taking advantage of procedural defects, that the town of Farmington could not legally rescind the prior approval of the ordinance by its town board, and that the ordinance was not invalid upon constitutional grounds but was a valid exercise of the police power. While this decision did not discuss the question of prior nonconforming use, the formal findings of fact of the trial court contained an express finding that there was no prior nonconforming use of the defendant's premises prior to the adoption of the 1947 amendments which zoned the same as part of Conservancy District B.
Judgment was entered by the trial court on September 27, 1951, perpetually enjoining and restraining the defendant, his agents, and employees from using the premises purchased from Perry as a gasoline filling station, confectionery store, or tavern, or for any other purpose or use which would be in violation of the county zoning ordinance. From such judgment the defendant has appealed.
On this appeal the defendant advances the following contentions:
(1) That the zoning ordinance, as amended by the 1947 amendments, was invalid because of the alleged failure to comply with the following statutory procedural requirements:
(a) No map was attached to the proposed ordinance or amendment.
(b) The original ordinance and 1947 amendments were not published.
(c) No written approval of the ordinance by the town board of the town of Farmington was filed with the county board.
(d) No public hearing was held by the town board before voting approval of the ordinance.
(2) That the town of Farmington had power to withdraw from the operation of the zoning ordinance.
(3) That the zoning law is invalid because:
(a) It attempted to impose regulations not authorized by the statutes.
(b) It is unconstitutional because it is an improper exercise of the police power.
(4) There was no violation of the ordinance by the defendant because he was entitled to continue the prior nonconforming use of Perry, his predecessor in title.
We shall consider these contentions in the order in which they were presented in defendant's brief as listed above.
At the trial the plaintiff county offered in evidence a printed pamphlet on the cover of which was printed:"Jefferson County Zoning Ordinance "Revised to June 1, 1950 "Don V. Smith, chairman "County board of supervisors "James D. Hyer, county clerk "Zoning committee: "Ed. Brewin, chairman "H. A. Wilke "Math. N. Biwer" and the pamphlet contained a complete text of the county zoning ordinance as amended from time to time, including the 1947 amendments, and also a complete text of the building-permit ordinance. There was attached a map of the county on which the various zoned districts were indicated, including Conservancy District B along State Trunk Highway 30, and the title at the top of this map read: "Jefferson County Zoning Map "September, 1937 "Dec. 16, 1947" The zoning ordinance as so printed in this pamphlet contained a clause which stated that the boundaries of the various zoned districts created by the ordinance "are shown upon the map of Jefferson county, attached hereto, being designated as the `Zoning map of Jefferson county, Wisconsin,' as amended, dated December 16, 1947, and made a part of this ordinance."
Counsel for defendant objected to the offer in evidence this pamphlet upon the following four grounds: (1) That the matter in issue arose in 1949; (2) that the pamphlet did not show that it was published by authority of Jefferson county; (3) that the pamphlet did not show that the zoning ordinance was signed by the clerk and countersigned by the chairman of the county board; and (4) that there was nothing to show that the map attached to the pamphlet was the map "referred to, identifying or made a part of the records of the county board either in the original zoning ordinance or in the amendment of 1948." The trial court received the pamphlet subject to the objections, but the memorandum decision later rendered by the trial court made it clear that he did not consider such objections had any merit.
Sec. 327.04, Stats., provides as follows:
"Matter printed in any newspaper, book, pamphlet, or other form purporting to be so published by any county, town, city, or village in this state as a copy of its ordinance, by-law, resolution, or regulation, is prima facie evidence thereof; and after three years from the date of such publication, such book or pamphlet shall be conclusive proof of the regularity of the adoption and publication of the ordinance, by-law, resolution, or regulation."
Counsel for the defendant urges that this statute has no application here because the pamphlet bore no statement that its publication was authorized by the county and cites Rosenberg v. Sheahan (1912), 148 Wis. 92, 133 N.W. 645, in support of such contention. In that case the printed copy of a purported ordinance of the city of Milwaukee was offered in evidence and the only fact appearing thereon which might indicate its publication was authorized by the city was the name of the chief inspector of buildings printed at the foot of the flyleaf. The chief building inspector would hardly be deemed to have authority to publish a city ordinance. In the instant case the wording on the cover, bearing as it did the names and titles of the chairman of the county board and county clerk, would indicate that it was an authorized publication of the county. We, therefore, hold that the wording on the pamphlet cover was such as to indicate that the pamphlet purported to be published by the county so as to make the provisions of sec. 327.04, Stats., applicable thereto.
By reason of sec. 327.04, Stats., the pamphlet was prima facie evidence of the zoning ordinance, as amended, and of the building-permit ordinance. While the statute does not expressly state that the pamphlet is prima facie evidence of the publication of these ordinances, we hold that this is implied from the last clause in the statute which states that after three years from the date of publication the pamphlet is conclusive proof of the regularity of the adoption and publication of the ordinances. The map attached to the pamphlet being identified in the ordinance as the zoning map referred to in the ordinance, the pamphlet was by reason of the statute prima facie evidence that such map was the zoning map attached to the original ordinance, and amended by the 1947 amendments to show Conservancy District B along Highway 30.
We now come to the question of whether the defendant produced any evidence to rebut the prima facie presumption the identity of the map and the due publication of the ordinance. As to the map the only evidence offered by the defendant was a certificate of the county clerk dated April 30, 1951, in which he certified that he had made diligent search in his office for the zoning map "referred to in the annual session Tuesday afternoon, November 16, 1937, of the county board of Jefferson county, Wisconsin, and subsequent proceedings, [and] such zoning map cannot be found and that the same has not been filed and has not been recorded or identified as part of said zoning ordinance." The fact that the county clerk did not have the map on file in his office on April 30, 1951, does not establish that the same was not properly attached to the original zoning ordinance, when enacted, and was not revised and attached to the 1947 amendments when the latter were adopted, and is insufficient to rebut the prima facie presumption raised by sec. 327.04, Stats. In the district attorney's opening statement to the trial court at the commencement of the trial he referred to a map exhibited to the court as the "official zoning map, " and after the trial court received in evidence the pamphlet containing the zoning ordinance and having attached thereto a zoning map referred to in the ordinance, the trial court remarked, "the map that is attached to the exhibit is a facsimile to the one on the wall," evidently referring to the map mentioned by the district attorney in his opening statement. While such map on the wall was not offered in evidence, these facts are mentioned as affording a possible explanation why the county clerk was not able to find the original zoning map on file in his office on April 30, 1951.
The evidence offered by the defendant on alleged failure to publish was also a certificate of the county clerk dated April 30, 1951, stating, "I find no proof of publication of original [zoning] ordinance or any amendments thereto." The failure of the county clerk to find any proofs of publication on file in his office falls far short of establishing that the ordinance, and amendments, were never published, and likewise fails to rebut the prima facie presumption of due publication raised by sec. 327.04, Stats.
As to the point raised that the pamphlet did not show that the ordinances had been signed by the chairman of the county board and the clerk, we construe sec. 327.04, Stats., to mean that when a pamphlet purporting to be published by a county containing county ordinances is received in evidence, such as the pamphlet in this case, the pamphlet is prima facie evidence of ordinances which have been duly adopted and properly signed by the chairman and clerk of the county board, and that it is not necessary that such signatures be reproduced or printed in the pamphlet as part of such ordinances. The defendant offered no evidence that the ordinances and amendments had not been properly signed after adoption.
Defendant contends that the zoning ordinance was not operative in the town of Farmington, in which defendant's premises are located, because of alleged failure of the town board to approve the ordinance in writing as required by sec. 59.97(1) (a), Stats. 1947. As evidence to support such contention defendant relies on a certificate of the county clerk dated April 30, 1951, to the effect that he could then find no written approval of the town board on file in his office. However, there is also in evidence the proceedings of the county board for June 7, 1938, duly certified to by this same county clerk in which the county park commission reported to the county board in writing that the town boards of certain named towns, including the town of Farmington, had adopted resolutions approving the original zoning ordinance and that such resolutions were attached to the report of the park commission. In other words, there was filed with the county board on June 7, 1938, a written resolution of the town board of the town of Farmington approving the ordinance. As to the approval of the 1947 amendments, there was received in evidence the proceedings of the county board for January 13, 1948, duly certified to by the county clerk in which the county park commission filed a written report with the county board in which it was stated that the town board of the town of Farmington had adopted a resolution on December 29, 1947, approving the zoning ordinance as amended by the 1947 amendments and that such resolution was attached to the report. We consider that there therefore was compliance with the statutory requirement that the written approval of the town board of the ordinance be filed with the county board, and what became of such filed resolutions of approval afterward is immaterial. A copy of the resolution adopted by the town board on December 29, 1947, approving the ordinance as amended by the 1947 amendments certified to by the town clerk was also received in evidence.
As we construe sec. 59.97, Stats. 1947, it is not required that a public hearing be held in each town as a condition precedent to the town board's voting approval of a zoning ordinance, or an amendment thereto, but only that the one county-wide hearing required by sec. 59.97(2), Stats. 1947, be held. However, the report of the county park commission to the county board on the original ordinance, and on the 1947 amendments, show that in addition to the county-wide hearing, a separate hearing was held for the town of Farmington as to the original ordinance and a separate hearing for the town of Farmington and an adjoining town was held before the town board voted approval.
Sec. 59.97, Stats. 1947, which covers the subject of county zoning ordinances contains no provision permitting a town board which has once approved a county zoning ordinance to later withdraw such approval. In the absence of such an expressed statutory provision permitting a town to withdraw or rescind a prior approval once given to a county zoning ordinance, it is our conclusion that neither the town nor the town board possesses such power of withdrawal or rescission, and that the attempted withdrawal or rescission by the special town meeting of the town of Farmington on April 16, 1951, was therefore a nullity. While it is generally true that where municipalities are granted power to enact an ordinance they possess the implied power to rescind the same, such principle is not applicable to the question here presented. Here the county board and not the town enacts the county zoning ordinance, and the approval of the town board is required only as a condition precedent to such county zoning ordinance being operative in the town.
Defendant further contends that the county zoning ordinance was invalid because it attempted to impose regulations not authorized by statute. Sec. 59.97(1) (a), Stats. 1947, provided in part as follows:
"The county board of any county may by ordinance regulate, restrict, and determine the areas within which agriculture, forestry, and recreation may be conducted, the location of roads, schools, trades, and industries, the location, height, bulk, number of stories, and size of buildings and other structures, the percentage of lot which may be occupied, size of yards, courts, and other open spaces, the density and distribution of population, and the location of buildings designed for specified uses, and establish districts of such number, shape, and area, and may also establish setback building lines, and may further regulate, restrict, and determine the areas in and along or in or along natural watercourses, channels. streams, and creeks m which trades and industries, filling or dumping, erection of structures and the location of buildings may be prohibited or restricted, and may adopt an official map or maps which will show thereon such areas, outside the limits of incorporated villages and cities, as such county board may deem best suited to carry out the purposes of this section. . . ."
The foregoing statute read substantially the same in 1937 when the enactment of the original zoning ordinance was initiated, as no changes material to this appeal were made between 1937 and 1947.
Defendant urges that because the foregoing statute grants the power to establish restrictive areas along watercourses and does not specifically state that the same power may be exercised along highways, the county is without power to establish restrictive areas along highways such as Conservancy District B in this instance. We find no merit in this contention because the statute confers the general power to determine areas anywhere in the county in which trades and industries may be restricted. It seems clear to us that the legislature did not intend to limit the county's power to establish restrictive districts only along watercourses but that the power to establish such districts along watercourses is expressly conferred in addition to the other general powers previously mentioned in the statute.
The fact that the legislature by sec. 84.103, Stats., has conferred upon the state highway commission the power to restrict the use of land along a highway, such as State Trunk Highway 30, does not preclude the county from doing so by proper zoning ordinance enacted pursuant to sec. 59.97 in the absence of the highway commission exercising such power in such a way so as to conflict with the county zoning ordinance. Fox v. Racine (1937), 225 Wis. 542, 545, 275 N.W. 513.
Defendant urges that the zoning ordinance is unconstitutional because it is an improper exercise of the police power. It is claimed that the ordinance is oppressive and arbitrary because it destroys fifty per cent of the value of defendant's property without any appreciable benefit to the public and because it permits nine intersections along Highway 30 to be used for business purposes but denies the same privilege to the defendant and others.
It was stipulated between the parties that the value of defendant's premises, if he were permitted to use the same for the business purposes for which the same were devoted at the time of trial, would be $11,000, while the value of the same for private residence purposes would be but $5,500. In State ex rel. Carter v. Harper (1923), 182 Wis. 148, 15 3, 161, 196 N.W. 451, the constitutionality of the city of Milwaukee zoning ordinance was sustained. The court in its decision stated:
"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. . . .
"There remains a further question to be considered. Appellant claims that the ordinance is unreasonable in that it prohibits him from enlarging the business to which his property was devoted prior to the passage of the ordinance. The reasonableness of this feature of the ordinance, as well as its main purpose, is subject to judicial review. Where, however, a given situation is conceded to present a proper field for the exercise of the police power, the extent of the interference is a matter which lies very greatly in legislative discretion. Mehlos v. Milwaukee, 156 Wis. 591, 146 N.W. 882. If the appellant has acquired a vested right to enlarge his business, then every other person having an embryo business in a residential section must be accorded the same privilege, and an infant industry may grow to mammoth proportions, thereby to a very large extent defeating the purposes of the regulation.
"In Hadacheck v. Los Angeles, 239 U.S. 394, 36 Sup. Ct. 143, a brick yard of the value of $800,000, situated far outside the city limits when acquired, was suppressed after it had been included in the city limits. If property of that nature and of that value must yield to the supremacy of the police power, it is difficult to see how a regulation prohibiting appellant's enlargement of his business can be held unreasonable. Then, too, it may be remarked that an ordinance permitting those already engaged in business to enlarge the same while prohibiting all others from engaging therein, would not tend to make the ordinance less vulnerable. See People ex rel. Roos v. Kaul, 302 In. 317, 134 N.E. 740, and cases there cited."
In Hayes v. Hoffman (1927), 192 Wis. 63, 70, 211 N.W. 271, this court in upholding a setback building-line provision of a city zoning ordinance that severely lessened the building area of a corner lot to its great diminution in value, stated:
"There are in almost all police regulations instances where the law operates with hardship and seems oppressive. That such is the fact, however, does not render the regulation invalid or unconstitutional. In contemplation of law, the benefits equal the burdens."
"The law of this state recognizes the doctrine that incidental damage to property resulting from governmental action or laws passed in the promotion of public welfare, health, and safety is not considered a taking of the property."
58 Am. Jur., Zoning, p. 1016, sec. 140, states:
". . . However, the pecuniary loss is only one of the considerations on which the final decision is to be based, and the fact that a zoning ordinance causes a loss of revenue or profits, or a depreciation of the value of the property, or makes it more difficult., for the owner to sell or dispose of the same, does not necessarily invalidate the ordinance as a confiscatory, or unreasonable or arbitrary exercise of the police power. In this respect, it has been declared that the public health, safety, morals, and general welfare are superior in importance to the pecuniary profits of the individual owner."
In the instant case defendant's predecessor in title, Perry, constructed the building after the zoning ordinance, with the 1947 amendments thereto, had been enacted under a permit which restricted the use of the building for residential purposes, after his application for permit for a building to be used for business purposes had been denied. This is not a case therefore of the enactment of a zoning ordinance causing a diminution of existing property values.
In considering the constitutionality of the instant ordinance, the vital question to be considered is whether the same constitutes a reasonable exercise of the police power delegated to the county by the legislature when it enacted sec. 59.97, Stats., conferring power on county boards to enact zoning ordinances. According to the authors of the note appearing in 11 Wisconsin Law Review, 543, Wisconsin was the first state in the Union to grant counties comprehensive power to zone rural areas.
In the case of Euclid v. Ambler Realty Co. (1926), 272 U.S. 365, 47 Sup. Ct. 114, 71 L.Ed. 303, the United States supreme court held that the validity of zoning ordinances rested upon "some aspect of the police power, asserted for the public welfare, " and sustained the validity of a village zoning ordinance on the basis that it bore a rational relationship to the health and safety of the community. This court in State ex rel. Carter v. Harper, supra, in which the validity of the zoning ordinance of the city of Milwaukee was upheld, stated at page 154:
"In this day none will dispute that government in the exercise of its police power may impose restrictions upon the use of property in the interest of public health, morals, and safety. That the same restrictions may be imposed upon the use of property in promotion of the public welfare, convenience, and general prosperity is perhaps not so well understood, but, nevertheless, is firmly established by the decisions of this and the federal supreme court."
State Trunk Highway 30 is the most direct thoroughfare between the cities of Madison and Milwaukee, and the learned trial court pointed out in his decision that there are long straightways across Jefferson county conducive to speed. A right of way for a four-lane, double, divided, concrete highway was condemned and the north strip of such highway has been completed. It has been constructed to the most advanced standards of modern highway construction. The testimony discloses that there is fair view of defendant's premises for a substantial distance on the part of persons in vehicles approaching from the west, but approaching from the east, because of the presence of a hill to the east of defendant's premises, automobiles come almost directly upon defendant's premises before the riders therein can see it. The presence of business places, such as filling stations and taverns along a busily traveled highway, such as Highway 30 where traffic moves at a considerable speed, present a traffic hazard as a result of vehicles leaving the highway to patronize such places of business and thereafter again entering the highway. Such traffic hazard is aggravated where the view of such business premises is obscured from at least one direction due to the tendency of drivers who desire to stop suddenly reducing speed or turning off the highway without giving a timely signal of such intention to turn. Furthermore, where the view is obscured the hazard resulting from such vehicles leaving the premises and again entering the highway is greater than if there were an unobscured view for a long distance in either direction. Certainly the zoning ordinance in this instance, as amended so as to establish Conservancy District B along State Trunk Highway 30 barring business places from such district, was in the interest of the general welfare as promoting safety on a main-traveled highway.
The trial court, in addition to holding that the zoning ordinance was in the interest of promoting safety, also stated in his decision, "The present Highway 30 is beautiful. For esthetic reasons this beauty should be preserved." This court apparently has not heretofore upheld a zoning ordinance on the ground of esthetic reasons. It is pointed out in 58 Am.Jur., Zoning, p. 959, sec. 30, that the general rule is that the zoning power may not be exercised for purely esthetic considerations, but that there are authorities which indicate that the rule on this subject is undergoing development and it has been declared by some authorities that "in relation to the validity of zoning laws, that esthetic considerations are not wholly without weight, and may be taken into account where other elements are present to justify the regulation under the police power." We find it unnecessary in upholding the validity of the ordinance to resort to esthetic considerations because the promotion of safety on Highway 30 is sufficient to support the exercise of police power.
In zoning the territory along Highway 30 as Conservancy District B, the county zoning ordinance excluded from Conservancy District B nine intersections on this highway where filling stations and other retail businesses might be established in a limited area at each of these intersections, but new buildings or structures have to be erected so as to be a certain minimum distance from the highway. The view at all nine of these excepted intersections was unobstructed to persons in vehicles approaching from either direction. Because of the permission of business uses of the areas at these nine intersections, defendant contends that the same constitutes "spot zoning" rendering the ordinance discriminatory and void. In Marshall v. Salt Lake City (1943), 105 Utah, 11, 126, 141 P.2d 704, 149 A.L.R. 282, the zoning ordinances of Salt Lake City zoned certain small areas at the intersections of certain main thoroughfares so as to permit stores and other business uses in territory otherwise zoned for residential purposes. The Utah court held the ordinance valid and in its decision stated:
"Here the general zoning plan of the city set within a reasonable walking distance of all homes in residential "A" districts the possibilities of such homes securing daily family conveniences and necessities, such as groceries, drugs, and gasoline for the family car, with free air for the tires and water for the radiator, so the wife and mother can maintain in harmonious operation the family home, without calling Dad from his work to run errands. To effectuate this objective, there were created, on a definite, unified plan, at the intersections of definite fixed through streets, these small residential utility districts, limited and confined to such uses. Being set up on such a definite and comprehensive plan it cannot be said to be arbitrary or discriminatory. Neither does it come within the scope of the cases dealing with `spot zoning' which are based upon special privileges granted, or restrictions imposed, without regard to a unified plan. The cases relative to `spot zoning' are generally cases where a particular small tract, within a large district was specially zoned so as to impose upon it restrictions not imposed upon the surrounding lands, or grant to it special privileges not granted generally, not done in pursuance of any general or comprehensive plan. Geisenfeld v. Village of Shorewood, 232 Wis. 410, 287 N.W. 683; State ex rel. Tingley v. Gurda, 209 Wis. 63, 243 N.W. 317; Rowland v. City of Racine, 223 Wis. 488, 271 N.W. 36, 38; where it was also held that one who attacks a zoning ordinance `must show that it is unreasonable in respect to [his] property.'"
In the instant case there was a reasonable basis for the exercise of the discretion of the county board placing defendant's premises in a restricted district in which business uses were prohibited while permitting business uses at nine other intersections in the county along Highway 30. Such reasonable basis was the fact that the view of people approaching the intersection at which defendant's premises from the east was obstructed by the hill, while the view of the nine intersections zoned for business purposes was open from either direction. If there is any reasonable basis for the exercising of legislative discretion by the zoning authority the same cannot be disturbed on judicial review. 8 McQuillin, Mun. Corp. (3d ed.), p. 529, sec. 25.279.
We now reach the final argument advanced by defendant that there was no violation by the defendant because his use of the premises was but a continuance of the prior nonconforming use of his predecessor in title, Perry. The plaintiff county contends that the defendant is now barred from advancing such claim because Perry did not appeal to the board of adjustment from the county clerk's refusal to grant his application for building permit dated March 30, 1949, in which he specified the new building was to be used for a retail store, but instead filed a new application for permit for the same building designating that it was to be used only as a residence. The zoning ordinance created a board of adjustment and provided that any person aggrieved by any decision of an administrative officer under the ordinance might appeal to the board of adjustment. The building-permit ordinance also provided that anyone aggrieved by a ruling of the county clerk might appeal such ruling to the board of adjustment set up under the zoning ordinance. Sec. 59.99, Stats., authorizes the creation of such a board of adjustment by counties in connection with the exercise of the zoning power conferred on them by sec. 59.97, and subs. (10) and (11) of sec. 59.99 provide for court review of the decisions and rulings of the board of adjustment.
8 McQuillin, Mun. Corp. (3d ed.), p. 538, sec. 25.283, states that the authorities are in conflict as to whether a property owner must first pursue and exhaust the administrative remedy available to him under a zoning ordinance or statute before resorting to the courts for injunctive or other relief. We believe the sounder rule is that which holds that if a zoning ordinance provides for an appeal to a board of adjustment created pursuant to a statute similar to sec. 59.99 from an adverse ruling of an administrative officer or board in administering the ordinance, and court review of the decision or order of the board of adjustment is specifically provided for by statute, such remedy is exclusive of all other remedies and must be exhausted before a party can resort to the courts for other relief except in cases where the validity of the ordinance itself is attacked. An assertion of prior nonconforming use in itself does not constitute an attack upon the validity of the zoning ordinance.
By analogy it would seem that where a property owner makes application for a building permit for the erection of a building for a business use in a district in which business uses are prohibited by a zoning ordinance, and such permit is denied and the property owner does not appeal such ruling to the board of adjustment but instead files an application to erect a building for residential use and secures a permit to so erect such building, he should be deemed thereby to have waived the right to later assert as a defense, in an action to enjoin him from using the property for a use prohibited by the ordinance, that he is entitled to use the new building for business purposes because of some prior nonconforming use. The defendant as successor in title to Perry stands in his shoes and is in no better position to assert the defense of nonconforming use than Perry.
Defendant complains of the failure of the county to have recorded all nonconforming uses in the office of the register of deeds. Sec. 59.97(7) (d), Stats. 1947, provides that it is not necessary for counties to record nonconforming uses that issue building permits as a means of enforcing the ordinance or checking nonconforming uses. Jefferson county utilized the building-permit method of checking nonconforming uses.
Even if the defendant were not bound by Perry's waiver of the right to assert a prior nonconforming use by failure to appeal to the board of adjustment from the denial of his first application for a building permit, the fact that Perry had for some time before the adoption of the 1947 amendments to the zoning ordinance sold surplus gasoline from a pump located some fifty to seventy-five feet distant from the new building erected in 1949 would not permit the enlargement of such use to the extent here claimed by the defendant. 8 McQuillin, Mun. Corp. (3d ed.), p. 396, sec. 25.206.
By the Court. — Judgment affirmed.