201 N.W.2d 761 (Wis. 1972)
In September 1967 Marinette County adopted shoreland zoning ordinance number 24, which became effective the following month.1 The ordinance followed a model published by the Wisconsin Department of Resource Development and implemented standards required by state statutes sections 59.971 and 144.26, enacted in 1965 as part of the Water Quality Act.2
It established conservancy districts covering all shorelands designated as swamps or marshes on United States Geological Survey maps.3 The ordinance defined wetlands as areas where groundwater is at or near the surface much of the year or where any segment of plant cover is deemed an aquatic according to N. C. Fassett's Manual of Aquatic Plants.4 It required a conditional use permit and a fee of twenty dollars before any person could fill more than five hundred square feet of wetlands contiguous to navigable water.5 It also required a permit for filling more than two thousand square feet on slopes of twelve percent or less within three hundred feet of such water.6
In April 1961 the Justs purchased 36.4 acres of land with 1,266.7 feet of frontage on the south shore of Lake Noquebay, a navigable lake in Marinette County.7 Between 1964 and 1967 they sold five parcels and retained the southernmost lot, which has 366.7 feet of lake frontage.8 The northern half of the retained parcel lies within one thousand feet of the lake's normal high-water elevation, appears as swamp or marsh on the USGS map, contains plants classified as aquatic by N. C. Fassett's Manual of Aquatic Plants, and therefore qualifies as wetlands under the ordinance.9
In February and March 1968 Ronald Just, without obtaining a conditional-use permit, hauled 1,040 square yards of sand onto the retained parcel and created a fill strip approximately twenty feet wide that ran nearly six hundred feet along the western boundary and then eastward along the shoreline.10 The fill covered more than five hundred square feet of wetlands with surface drainage toward the lake.11 It also covered more than two thousand square feet on a slope of less than twelve percent within three hundred feet of the lake.12
The Justs filed a declaratory-judgment action asserting that the ordinance's conservancy-district and filling restrictions were unconstitutional.13 After trial the circuit court dismissed the Justs' declaratory action and entered judgment against them in the forfeiture proceeding, after which the Supreme Court of Wisconsin granted review.14
Whether the conservancy district provisions and wetlands-filling restrictions of Marinette County shoreland zoning ordinance number 24 amount to a constructive taking of the Justs' land without compensation?15
The distinction between the exercise of the police power and condemnation is a matter of degree of damage to the property owner. If the restriction is so great that the landowner ought not to bear such a burden for the public good, the restriction has been held to be a constructive taking. However, it is not an unreasonable exercise of the police power to prevent harm to public rights by limiting the use of private property to its natural uses, particularly where the restriction preserves the natural character of wetlands that are interrelated to the purity of navigable waters.16
No. In April 1961 the Justs purchased 36.4 acres of land with 1,266.7 feet of frontage on the south shore of Lake Noquebay, a navigable lake in Marinette County. This land was purchased partially for personal use and partially for resale. Between 1964 and 1967, the Justs made five sales of parcels, leaving the property involved in these suits with 366.7 feet of frontage.17
The northern half of the retained property lies within one thousand feet of the lake's normal high-water elevation and is designated as swamps or marshes on the United States Geological Survey Map. It contains plant grasses and vegetation including some plants classified as aquatic by N. C. Fassett's Manual of Aquatic Plants, making it wetlands under the ordinance.18
In September 1967 Marinette County adopted shoreland zoning ordinance number 24, which became effective in October 1967. The ordinance established conservancy districts. It required a conditional use permit for filling more than five hundred square feet of wetlands contiguous to navigable water.19 It also required a permit for filling more than two thousand square feet on slopes of twelve percent or less within three hundred feet of such water.
In February and March 1968, Ronald Just, without securing a conditional use permit, hauled 1,040 square yards of sand onto the property and filled an area approximately twenty feet wide extending nearly six hundred feet. The Justs filed a declaratory judgment action challenging the constitutionality of the ordinance. The circuit court dismissed the declaratory action and entered judgment against the Justs in the forfeiture proceeding, leading to review by the Supreme Court of Wisconsin.20 The Justs' property qualifies as wetlands under the ordinance because it lies within one thousand feet of Lake Noquebay, appears as swamp or marsh on the USGS map, and supports aquatic plants. Filling more than five hundred square feet of such wetlands without a permit would upset the natural environment and degrade the purity of the lake.21 This constitutes a public harm rather than the securing of a new public benefit.22 The ordinance permits natural uses such as harvesting wild crops, sustained yield forestry, hunting, and hiking trails while requiring only a permit and fee for filling that exceeds the stated thresholds, rendering the restriction a reasonable exercise of police power that limits the land to its natural uses.23
The conservancy district provisions and wetlands-filling restrictions of Marinette County shoreland zoning ordinance number 24 do not amount to a constructive taking of the Justs' land without compensation.24
Whether the trial court erred by dismissing the Justs' declaratory judgment action instead of entering a declaratory adjudication of the parties' rights?25
When a complaint seeks a declaratory judgment and the court determines that the ordinance is constitutional contrary to the plaintiffs' contention, the judgment should set forth the declaratory adjudication rather than dismissing the action.26
Yes. The circuit court dismissed the Justs' declaratory action after finding the ordinance constitutional, but the proper procedure requires entry of a judgment that declares the ordinance constitutional, confirms that the Justs' property constitutes wetlands, and affirms that the prohibition against filling wetlands is constitutional.27
The trial court erred by dismissing the Justs' declaratory judgment action instead of entering a declaratory adjudication of the parties' rights.28
Whether trial courts should decide questions of a statute's or ordinance's constitutionality after full briefing rather than assuming constitutionality until an appellate court rules?29
The practice of assuming constitutionality until the contrary is decided by an appellate court is no longer necessary or workable. Trial courts should recognize the importance of a constitutional issue, have it thoroughly briefed and fully presented, and decide it as any other important issue with due consideration, subject to the presumption that a regularly enacted statute is constitutional until declared otherwise by a competent court.30
Yes. The trial court quoted older authority directing inferior courts to assume constitutionality until an appellate court rules. The Supreme Court of Wisconsin held that trial courts are competent to decide constitutional questions after full briefing and should do so rather than deferring the issue.31
Trial courts should decide questions of a statute's or ordinance's constitutionality after full briefing rather than assuming constitutionality until an appellate court rules.32