Just v. Marinette County

Supreme Court of Wisconsin · 1972 · Property

Propertytakingspolice powerzoningwetlandspublic trustshoreland zoningwetlands

Facts

Marinette County adopted a shoreland zoning ordinance creating conservancy districts that included shorelands designated as swamps or marshes on United States Geological Survey maps and requiring a conditional use permit for certain filling of wetlands near navigable waters. The Justs owned lakeshore property along Lake Noquebay that was within 1,000 feet of the lake, designated as swamp or marsh on the survey map, and classified as wetlands under the ordinance. Without obtaining a permit, Ronald Just hauled sand onto the property and filled more than 500 square feet of wetlands contiguous to the water and more than 2,000 square feet within 300 feet of the lake on a slope under 12 percent. The trial court found a violation, and the Justs contended the restrictions were an unconstitutional constructive taking without compensation.

Issue

Whether Marinette County's conservancy district and wetlands-filling restrictions, as applied to the Justs' shoreland property, were unconstitutional because they amounted to a constructive taking without compensation. More specifically, the question was whether the ordinance was a valid exercise of the police power to prevent harm to public rights in navigable waters or instead imposed a burden so severe that compensation was required.

Rule

The state may, through the police power, reasonably restrict the use of private property to prevent harm to public rights, including harm to navigable waters and related natural resources, without paying compensation. A restriction becomes a compensable taking only when it is so great that it practically or substantially renders the land useless for all reasonable purposes or imposes a burden the owner ought not bear under contemporary standards. In applying that distinction, the court emphasized that compensation is generally required when government secures a public benefit not previously enjoyed, but not when it prevents a public harm by preserving the natural status quo.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Door County, Wisconsin, Nora Lind owns a low marshy parcel 250 feet from a navigable bay. A county ordinance bars large-scale filling of wetlands with drainage toward the bay unless the owner obtains a conditional use permit, stating that the purpose is to prevent water pollution and protect fishing and navigation. Nora argues the county is effectively appropriating her land for the public's enjoyment and therefore must pay compensation.

What is the strongest argument that the ordinance is constitutional without compensation?

Explanation. The majority distinguishes police power from eminent domain by asking whether government is preventing a public harm or securing a new public benefit. A wetland restriction tied to protection of navigable waters and their related public rights is generally a valid police-power measure, unless the burden is so severe that it practically or substantially renders the land useless for all reasonable purposes. The opinion does not say all shoreland regulations are automatically immune, nor that the power to condemn eliminates takings limits, nor that low market value alone defeats a claim.