Town of Caledonia v. Racine Limestone Co. ( 1954 )

Broadfoot, J.

Upon this appeal the town contends that the ordinance is a valid regulatory measure enacted by the town board under its police powers. The defendant, on the other hand, contends that it is an attempt by the town to amend the county zoning ordinance; that it is a prohibitory measure; that it is void for lack of certainty as to what acts are prohibited; that it is inapplicable to an existing quarry ; and that it is invalid in that it creates an unlawful classification.

An owner’s right in property extends not only downward under the surface to an unlimited extent but also upward, but all private property is held subject to a reasonable exercise of the police power. Piper v. Ekern, 180 Wis. 586, 194 N. W. 159. Stated in another way, the privilege of every citizen to use his property according to his own wishes and in a manner that will yield him the best economic return is a property right. This property right should be invaded only when it is necessary to secure the common welfare. It is often difficult to determine whether the invasion of property rights is necessary for the public good, or whether it is unreasonable or confiscatory. An ordinance restricting the use of property beyond what is necessary to provide for the welfare and general security of the public is not a valid exercise of the police power. The rights of the public must be weighed against the rights of the individual. If the gain to the public by the ordinance is small when compared with the hardship imposed upon the individual property owner by the restrictions of the ordinance, no valid basis for the exercise of the police power exists. In weighing the respective rights certain rules have been formulated. One of the principles is that all persons are entitled to equal protection of the law, and any ordinance limiting or restricting the right of a person to engage in a legitimate business must apply equally to all persons engaged in a like business where circumstances and conditions are similar, and that classifications of persons to be regulated must be reasonable and substantial. In State ex rel. Ford Hopkins Co. v. Mayor, 226 Wis. 215, 222, 276 N. W. 311, this court said:

“(1) All classification must be based upon substantial distinctions which make one class really different from another.

“(2) The classification adopted must be germane to the purpose of the law.

“(3) The classification must not be based upon existing circumstances only.

“(4) To whatever class a law may apply, it must apply equally to each member thereof.

“ ‘(5) That the characteristics of each class should be so far different from those of other classes as to reasonably suggest at least the propriety, having regard to the public good, of substantially different legislation.’ ”

The record discloses that there is and has been in operation in an industrial area within said town a large commercial rock quarry. The ordinance does not apply to said quarry, nor does it apply to the operation of sand pits, gravel pits, clay beds, or to the recovery and sale of any other mineral. In determining the reasonableness of a proposed regulation under the police power, the object to be attained is to.be given consideration. The test to be applied by the town board in making its determination is whether the operation will be “conducive to the health, safety, welfare, and convenience of the public.”

The validity of an ordinance allegedly adopted as a regulation under the police power depends on whether, under all of the facts and circumstances, the ordinance is really designed to accomplish a purpose properly falling within the scope of the police power. The record before us is a meager one. The plaintiff suggests that we may take judicial notice of certain alleged evils connected with the quarrying of rock. It is claimed that blasting with explosives is a necessary part of the operation with resultant noise and earth tremors which would damage surrounding residences and buildings. The record does not disclose the number or kind of buildings within the vicinity, nor their proximity to the quarry. Nor does the record disclose the same information as to the quarry in the industrial area. If we were to take judicial notice of the proximity of the buildings, it would be necessary for us to assume that there would be more buildings and that they would be in closer proximity to a quarry in an industrial area than in an agricultural area, and that the danger to buildings in an industrial area might be greater. Indeed, the question of lateral support of buildings of heavy construction adjacent to the quarry might become pertinent.

The plaintiff then contends that the operation of a quarry necessarily brings into existence a concentration of heavy and noisy machinery, trucks and the like. If this is a traffic measure, then the concentration of traffic is probably greater in an industrial area than in an agricultural area.

It is also contended that when quarrying operations are over a quarry is abandoned, leaving an excavation useless for any purpose except a public dump; that the same would be unsightly, and might be dangerous to children. These objections would seem to apply with equal force to a quarry in an industrial area and to an operation in an agricultural area concerned with the recovery of sand, gravel, clay, or minerals, particularly so when it appears that the Bradley farm is adjacent to the public dumping grounds of the plaintiff and to a quarry belonging to it.

It is difficult to see that this is a regulatory measure. Upon consideration of an application the town board can do one of two things. It can prohibit the operation of a quarry or it can grant a permit for said operation. If a permit is granted, then the applicant is permitted to proceed without limitation as to time and without any regulation as to the size or method of his activities. The classification is not based upon substantial distinctions which make operations of stone quarries in an agricultural district really different from other mining operations within the agricultural district, nor from those in an industrial district. The purpose of the law is obscured and it is difficult to see that the classification adopted is germane to the purpose.

Our attention has been called to prior decisions of this court wherein ordinances regulating junk dealers, rendering plants, and other businesses not nuisances per se have been upheld. In those cases the test applied was whether the standards set up by the ordinance were sufficient. These dealt with the operation of businesses within a city. Density of population has always been considered in passing upon the reasonableness of a regulatory measure, and it should be pointed out that the municipalities were dealing with businesses of a transitory nature. In other words, a junk yard can be moved to an area less densely populated without expense that is disproportionate to the public good. Minerals, on the other hand, must be extracted from the location where they were placed by nature. To unduly restrict their recovery is more apt to result in a confiscation of a property right.

It is difficult to formulate rules applicable to all situations. A regulation may be valid as applied to one kind of business, but it may be invalid when applied to another business because its effect on the public is different. As stated above, each case depends upon its own particular facts and circumstances.

We hold that the ordinance is void because the classification made therein is improper. This determination makes it unnecessary to decide the other issues that were raised.

By the Court.- — -Judgment reversed. Cause remanded with directions to dismiss the plaintiff’s complaint.