Summary
finding an amendment permitting a use on only one of four similarly situated parcels in a district violated the uniformity requirement
Summary of this case from Anderson House v. RockvilleOpinion
September 8, 1966. —
October 4, 1966.
APPEALS from orders of the circuit court for Brown county: RAYMOND J. RAHR, Circuit Judge. Affirmed.
For the appellants there were briefs by Bernard Berk and Berk Pressentin, all of Green Bay, and oral argument by Bernard Berk.
For the respondents there was a brief by Kaftan, Kaftan Kaftan and Robert P. Stebbins, all of Green Bay, and oral argument by Mr. Arthur Kaftan and Mr. Stebbins.
The plaintiffs' action is for declaratory judgment under sec. 269.56, Stats. The complaint purports to allege but one cause of action. Upon the allegations made the plaintiffs seek judgment determining various issues.
Plaintiffs Mr. and Mrs. Boerschinger are alleged to be neighboring property holders of and residents on land adjacent to realty owned by defendant Elkay Enterprises, Inc. The defendant Elkay Enterprises., Inc., owns real estate upon which is located a slaughterhouse and meat-packing plant. The land is zoned for industrial use. Defendant Packerland Packing Company, Inc., owns and operates the meat-packing plant on this land. Packerland and Frank O. Zeise Construction Company, Inc., are defendants because Packerland had contracted with Zeise for the erection of an animal-rendering plant. The defendant town of Bellevue, Brown county, is a municipal corporation which prior to March 28, 1962, had voted itself the powers of a village. The additional material allegations of the complaint state in substance: On March 28, 1962, the town enacted a zoning ordinance which divided the town into several districts pursuant to sec. 62.23, Stats. Rendering plants were prohibited. This ordinance, sec. VIII, Industrial District, was passed after Packerland had been conducting its stockyard and meat-packing activities. Upon the adoption of the ordinance it became a nonconforming use.
In the summer of 1963, Elkay petitioned the zoning board of appeals for permission to erect a rendering plant pursuant to sec. 62.23(7)(e), Stats. A public hearing was held, and on August 1, 1963, the appeal board denied the request. In the summer of 1963, Elkay also petitioned for a permit from the board of appeals to enable them to extend the operation of the packing plant and slaughterhouse in the industrial district where it was then operating as a nonconforming use. A public hearing was held on August 1, 1963. The appeal board denied the request. On November 13, 1963, the town board enacted paragraph 4 of sec. VIII of the zoning ordinance which provided:
"An ordinance amending the Town of Bellevue Zoning Ordinance as adopted March 28, 1963, by authorizing certain uses in the industrial district fronting Lime Kiln Road by creating Paragraph 4 of Section VIII."
The plaintiffs attack this amendment to the ordinance because no notice of a public hearing was given; no public hearing was ever held by the planning and zoning committee or by the town board; the amendment is not uniform in application throughout the industrial district; and such regulation is discriminatory. The plaintiffs allege that they would be specially damaged because of obnoxious. sights, odors, sounds, traffic, attraction of insects and flies, and depreciation of their property by such construction. Plaintiffs seek a declaration that the November 13, 1963, ordinance is invalid. The plaintiffs and defendants moved for summary judgment. The trial court denied the motions and defendants Elkay Enterprises, Inc., Packerland Packing Company, Inc., and Frank O. Zeise Construction Company, Inc., appeal. The reason stated by the trial judge in denying summary judgment was his opinion that there were issues of fact to be tried. By separate order the trial court granted plaintiffs' motion that the cash bond of $5,000 be returned to plaintiffs. The parties are in agreement that the case involves one basic issue only, the validity of the amendment to the zoning ordinance.
We are satisfied the action is ripe for determination under the Declaratory Judgments Act, sec. 269.56, Stats. The town government is required to follow the statute under which the legislature has granted it power to zone. Sec. 62.23(7), under which the town of Bellevue enacted its zoning ordinance, provides at sub. (b) as follows:
"(b) Districts. For any and all of said purposes the council may divide the city into districts of such number, shape, and area as may be deemed best suited to carry out the purposes of this section; and within such districts it may regulate and restrict the erection, construction, reconstruction, alteration or use of buildings, structures or land. All such regulations shall be uniform for each class or kind of buildings and for the use of land throughout each district, but the regulations in one district may differ from those in other districts."
The town zoning ordinance enacted pursuant to above statute reads:
"Section II Districts 1. For the purpose of this ordinance, the Town of Bellevue, Brown County, Wisconsin, is hereby divided into four districts as follows: (1) Residence District (2) Agricultural District (3) Commercial District (4) Industrial District."
The ordinance creates one industrial district in the town. The land comprising the industrial district consisted of four separate parcels of land scattered throughout the town. The regulations for that district must, according to sec. 62.23(7), Stats., be uniform and affect all land in the industrial district alike. The ordinance amending the general town zoning ordinance by creating paragraph 4 of sec. VIII authorized the defendants' land for use as a rendering plant but did not carry over as a similar approval to the remaining three parcels comprising the industrial district. One of the principles of law is that all persons are entitled to equal protection of the law, and any ordinance regulating the use of property must apply equally to all persons under like or similar circumstances. There must be a reasonable basis for different treatment. In State ex rel. Ford Hopkins Co. v. Mayor (1937), 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 classification is not based upon substantial distinctions which make the operation of a rendering plant and packing plant in one area of the industrial district different from any other areas in the industrial district. The effect of the amendment to the ordinance is to require the owners of the other three parcels of land located in the industrial district to obtain approval of the board of appeals in order to use their land for a rendering plant or packing-plant site while the defendant owners of the fourth parcel are exempt from seeking approval. Appellants contend separated zones may be considered separately and cite Ball v. Town Plan and Zoning Comm. (1959) 146 Conn. 397, 151 A.2d 327. The court determined that three lots were to be considered separately and not as an entirety as claimed by objectors. This case is distinguishable. The court stated at page 402:
"It was within the province of the commission to consider the three applications separately, because it was within its power to differentiate between them if it had reasonable grounds for doing so."
The facts in that case established reasonable grounds. A new highway location made it altogether improbable that the properties would ever be used for residential purposes. Furthermore, a short time previously a large zone for industrial uses had been established in the neighborhood, and the commission did properly consider those factors. In the case before us the record does not disclose any reasonable basis for the different treatment. In fact, no reasons are stated. The amendment to the ordinance is discriminatory since the standards set forth in the ordinance would not apply to defendant owners of the property exempted by the amendment. If the amendment is valid, the owners of the three other parcels in the industrial district would be required to meet the standards to obtain like permits. In Katt v. Sturtevant (1955), 269 Wis. 638, 640, 70 N.W.2d 188, the court said:
"Municipal restrictions of the use of real and personal property by owners thereof must be reasonable in the classification used, and an ordinance that arbitrarily and unreasonably discriminates is void."
The amendment of November 13, 1963, is a regulation which is not uniform for the use of land throughout the industrial district. It is in violation of sec. 62.23(7), Stats., and is therefore void.
This determination makes it unnecessary to decide the ancillary issues that were raised.
Since the commencement of this action the town board on the 30th day of August, 1966, granted defendants-appellants a special land-use permit under sec. VIII, paragraph 3, of the zoning ordinance. The validity of this section of the ordinance was determined on a prior hearing in Boerschinger v. Elkay Enterprises, Inc. (1965), 26 Wis.2d 102, 122d, 132 N.W.2d 258, 133 N.W.2d 333.
The motion of dismissal filed September 6, 1966, by the defendants-respondents is denied.
It is declared and adjudged: That paragraph 4 of sec. VIII of the zoning ordinance of the town of Bellevue is void and of no effect.
The order of the trial court denying defendants-appellants' motion for summary judgment is affirmed with costs.
By the Court. — Orders affirmed. Remanded for determination of the issue of damages, if any.