Eggebeen v. Sonnenburg , 239 Wis. 213 ( 1941 )

Action commenced November 20, 1939, by John W. Eggebeen, Chester C. Atkinson, Gerhard E. Zimmerman, Francis M. Hoekstra, William Eggebeen, Jean C. Vollrath, Evangeline Kohler, Lillie B. Kohler, and Marie C. Kohler, plaintiffs, against Willard M. Sonnenburg, Doris Z. Sonnenburg, his wife, and their minor children Mary, Robert, Doris, Ruth, William, and Donald, and the city of Sheboygan, defendants, to permanently enjoin the enforcement of an amendment of the zoning ordinance of the defendant city. From a judgment declaring the amendment unconstitutional and void and permanently enjoining its enforcement, defendants Sonnenburg appeal.

In 1926 the city of Sheboygan passed a general zoning ordinance, providing for Class A, B, and C residence, and business and industrial districts. Class A residence districts were restricted principally to single-family dwellings; Class B allowed two-family dwellings, lodging, and boardinghouses; and Class C allowed apartment houses and multiple dwellings, apartment hotels, clubs, fraternity houses, and hospitals. The area in question comprises all but two lots in the southern half of a city block bounded by Bluff avenue on the south, North Third street on the east, Vollrath boulevard on the north, and North Fourth street on the west. The property was purchased by defendant Willard M. Sonnenburg in 1925, along with the southern half of the block immediately to the west. In 1926 it was classified by the zoning ordinance as a Class A residence district. In October, 1939, on recommendation of the city planning board, the common council of Sheboygan amended the ordinance and classified the property as Class C residence district. The validity of the procedure in passing the ordinances is not challenged.

As to the physical characteristics present, it appears that a ravine which had formerly been the watercourse, of First creek extended from a point west of North Eighth street eastward to the lake about three blocks east. The ravine was two hundred fifty to three hundred feet in width and from twenty-four to thirty feet in depth. From time to time rubbish and waste materials had been dumped into, the ravine. In Vollrath park, just to the east across North Third street, the ravine is so large that an amphitheater has been constructed in it. The area across Bluff avenue on the south has buildings which are close together, which are occupied by more than one family and which otherwise constitute nonconforming uses. They existed in that state at the time of the adoption of the initial zoning ordinance and were consequently allowed to continue. The southern half of the block to the west across North Fourth street has but three houses on it. One is near its northwest corner and the other two are on the south side facing Bluff avenue. The two houses on Bluff avenue are owned by Sonnenburg and one Fricke who purchased the lot from Sonnenburg. Sonnenburg's home was built in 1927 on filled-in ground. The west side of it settled nine inches. In 1932 repairs were made by constructing wide footings known as "floating foundations." By 1938 the house had settled further for a total of sixteen inches, and repairs were again made by driving piling down to solid earth underneath the west foundation wall, and a steel "I" beam was placed across the piling to support the house. The cost of these operations was $2,700. The ravine in that block was shallow. The Fricke home was only partially built on the filled-in ground and no trouble with settling had been experienced as to it. North of the rezoned property across Vollrath boulevard is a section fine detached single-family dwellings. The Eggebeen brothers, who own two lots in the northeast corner of the half block in question, have withdrawn from the case. Another plaintiff lives in the northeast corner of the block involved. Other plaintiffs own homes on the north side of Vollrath boulevard cast and west of North Third street, and the remaining plaintiffs live on North Third street, some three blocks north of the rezoned parcel.

Evidence offered by defendants shows that the building of single-family dwellings in this area is impracticable due to excessive cost resulting from the insecure footing. No foundation to support the superstructure can be had without the expense incident to driving piling or using a so-called "floating foundation." It is claimed that the cost of building a foundation for an apartment house is smaller in proportion to its total cost than a private dwelling, and therefore it may be feasible to erect such a structure; that such a use is consistent with the public welfare; that the amendment will prevent a taking defendants' property without due process; that the lots are now overgrown with weeds and form an unregulated playground; and that it is in the interests of public health, safety, and welfare to rezone the area so as to permit the construction of an apartment house.

Under the original zoning ordinance there were four Class C or apartment-house residence districts. There is testimony that three of them are unfitted for such purpose either because built up with buildings or because in or near business districts. The fourth was so close to a coalyard as to have much soot and coal dust constantly blown over it.

Plaintiffs contend they purchased their property relying on the classification of the district as Class A for single-family dwellings only; that the rezoning was purely for the economic benefit of Sonnenburg, who invested in the area and now finds it unsalable for single-residence purposes; and that it so interferes with their property as to constitute a violation of the equal-protection clause of the constitution. Zoning by municipalities is allowed under sec. 62.23 (5), Stats., now numbered sec. 62.23 (7), and sec. 62.23 (5) (a), Stats. 1939, provides that "such regulation is declared to be for public health, safety and welfare." That section also permits the amendment of zoning ordinances. The main question presented is whether the amendment adopted by the common council is justified as being in the interests of public health, safety, or welfare. The facts of this case were apparently considered by the members of the planning commission and the common council to show that the restriction by which the use of the land of appellants was limited in the original ordinance left the land valueless to appellants. The topography of the land and the nature of the fill is such as to make the building of detached private dwellings thereon so costly that if so limited no use of the lots whatever for the benefit of the owners remained. The city engineer of Sheboygan testified that the property under the limitations fixed in the original zoning ordinance has been left vacant and "an eyesore for a number of years. No one will buy lots in there for building purposes on account of the excess cost of putting in proper foundations." The floating foundation was shown to cost from $400 to $450 more than the conventional type and the use of piling in constructing a foundation is still more expensive. Some testimony showed that a floating foundation might not be practical, as in the case of Sonnenburg's own home described in the statement of facts. It appears from a fair and impartial analysis of all the testimony that the rezoned tract is unsuitable for building single-family residences.

Zoning is a matter within legislative discretion and if the facts do not show the bounds of that discretion have been exceeded we must hold that the action of the legislative body, the common council, is valid and to be affirmed. La Crosse v.Elbertson, 205 Wis. 207, 211, 237 N.W. 99; Geisenfeld v.Shorewood, 232 Wis. 410, 415, 287 N.W. 683. The lower court's opinion that the amendment was not proper is based principally on the idea that those who built private dwellings in the surrounding neighborhood relying on the classification of this property as residential "have acquired certain rights" which they would be deprived of were the amending ordinance held valid. While the respondents may suffer an annoyance they have no legally protectible rights merely because of their reliance on the zoning ordinance. The theory of vested rights under an ordinance overlooks the fact that rights granted by legislative action under the police power can be taken away when in the valid exercise of its discretion the legislative body sees fit. Property is always held subject to the police power. Bassett, Zoning, pp. 32, 108, 178; Piper v. Ekern,180 Wis. 586, 591, 194 N.W. 159. The theory of vested rights relates only to such rights as an owner of property may possess not to have his property rezoned after he has started construction. The rationale of such cases is that he has entered on construction work or incurred liabilities for that work which he would be deprived of by the rezoning. Smith, Zoning Law and Practice, p. 43, § 19, p. 122, § 89; Rosenberg v. WhitefishBay, 199 Wis. 214, 217, 225 N.W. 838; Lindemann v.Kenosha, 206 Wis. 364, 369, 240 N.W. 373. We are of the opinion that the filling and the experience showing the impracticability of building private dwellings thereon are facts on which the common council could conclude the change in classification was in the interest of public health, safety, and welfare. As long as the common council acted within the bounds of the legislative field, its discretion is controlling. A court cannot substitute its opinion for that of the legislative body. Geisenfeld v. Shorewood, supra; Metzenbaum, The Law of Zoning, p. 77.

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. But "if in the prosecution of governmental functions it becomes necessary to take private property, compensation must be made."State ex rel. Carter v. Harper, 182 Wis. 148, 153,196 N.W. 451; State ex rel. Tingley v. Gurda, 209 Wis. 63,243 N.W. 317.

It having become evident that the original ordinance relegated appellants' property to a single purpose for which it was unfit and useless, the legislative body might very well reclassify portions of the neighborhood under reasonable and constitutional enactments. The effect of the original legislation was the taking of appellants' property by the destruction of their right to a beneficial use of it. This being the situation, the trial court ought to have upheld the amending ordinance.

Cases which have treated with questions like the one before us have gone on the theory that the division of cities into zoned districts has contributed to the welfare of the communities but that the burden as far as possible must be equally distributed. "Hardships and difficulties there will be and many annoyances; these usually follow any restriction upon the free use of property. When, however, the adjustment becomes so one-sided as to be unreasonable and arbitrary, unnecessary to the preservation of the scheme and purpose as a whole, approaching the point where an owner is deprived of any beneficial or profitable use of his property, then the court should step in and afford relief." Matter of Eaton v. Sweeny, 257 N.Y. 176,177 N.E. 412; Arverne Bay Construction Co. v. Thatcher,278 N.Y. 222, 15 N.E.2d 587.

Objection is made to zoning this particular area as a Class C residence district when it is entirely surrounded by a Class A residence district on the ground it is "spot zoning" and therefore to be condemned. Although this piecemeal method of altering zoning ordinances may be unsatisfactory in practice because it departs from the ideal, it may be the only way of protecting rights which must be recognized. In other states appeal boards have issued variance permits to meet unusual situations as the common council concluded this one to be. Each case must be decided on its own facts. Bassett, Zoning, pp. 122, 131, 145; Higbee v. Chicago, B. Q. R. Co.235 Wis. 91, 292 N.W. 320.

By the Court. — Judgment reversed, and cause remanded with directions to enter judgment holding the amending ordinance to be valid and effective.