Petition for Writ of Certiorari — Wisconsin ex rel. Saveland Park Holding Corp. v. Wieland

Supreme Court brief1955

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SIND SONIDO $3. sccaendnaksocnnmdhistticnnasscabiieahicaiclabotanc 2

Seesement as to Furiediction ..............--2.- 0600-00 2

IR TET IIINOIIN 65nd nlltt hecnibsdeeeinanabllaonalnicnesiin 3

Constitutional and Statuicry Provisions Involved...... 4

IE Oe GO SADIE aniindectctivciemcsbuctesaiciedaeeacaniebonocs 6

Reasons Relied on for Allowance of the Writ............ 9

TABLE OF AUTHORITIES CITED

Baker vs. Sommerville, (1940) 138 Neb. 466, 293,

NSS SUNN occassion Na ceisnamecalabipeapeaddp bebsiowar eo ees eas 12

Berman vs. Parker, 348 U.S. 26................ 13, 16, 17, 18, 20

Brookdale Homes Inc. vs. Johnson, 123 N.J.L. 602,

eS ee acca OenE niemt = * 18

Continental Oil Co. vs. Wichita (1931) Texas, 42

NE SMES HOE aici ins nied atciptonnbauechisencgiacaseeta tana 24

Dowsey vs. Kensington, 257 N.Y. 221, '!77 N.E.

A A a 12

Eaion vs. Sweeny, (1931) 257 N.Y. 176, 177 N.E.

SER ean Coreen eh Bist TiS 12

Elizabeth Lake Estates vs. Waterford, 317 Mich.

eee, 20 N.W. (2nd) 768 nieces 10, 35

| Euclid vs. Ambler Realty Co., 272 U.S. 365.......... 9, 15, 20

_ Forbes vs. Hubbard, (1932) 348 Ill. 166, 180 N.E.

isc i assim ornkancaoadidenichaasibcivichoiindincienaushendied asain 12

| Gillette vs. Tyson (1929) 219 Ala, 511, 122 So. 830..... 24

CORO E S08 12

Lionshead Lake Inc. vs. Wayne Township (1952)

10 N.J. 165, 89 Atl. (2nd) 693; appeal dismissed

344 U.S. 919, 73 Sup. Ct. 386 18, 19, 20

Page

Longshore vs. Montgomery (1928) 22 Ala. App.

RR I I a ia cio b aces 24

Nectow vs. Cambridge, 277 U.S. 183 .......................--- 9

Roman Catholic Archbishop vs. Baker (1932) 140

0 Bs CID BFE nciengisirinnercceen 24

Spies vs. Board of Appeals (1929) 337 Ill. 507,

elias 24

Standard Oil Co. vs. Bowling Green, 244 Ken. 362,

50 S.W. (2nd) 960, 86 A.L.R. 648 ........................ 10

State ex rel Beery vs. Houghton (1925) 164 Minn.

146, 204 N.W. 569; affirmed in 273 U.S. 671, 47

Bs em RTI 0 Mabe US WRI cindnssecnsssnenciecovannennsnnonncansee 19, 20

State ex rel Srigley vs. Woodworth, (1929) 33 Ohio

Be, I EN Bets FE sicrerntertctimcraccciennstcgnvenrszens 12

Washington ex rel Seattle Title and Trust Co. vs.

Roberge, 278 U.S. 116, 73 L. Ed. 210, 49 S.C. 50,

I oo han gesahvaieraisniehcninisAanncineininansatanens 23

West Bros. Buick Co. vs. Alexandria (1937) 169 Va.

PM IS onic cashalstisapcenesokaeercccnsermcnnaresicannens 12

White’s Appeal, 287 Pa. 259, 134 Atl. 409 0... 17

Womens’ Kansas City St. Andrews Society vs. Kansas

City, (CCA-8th-1932) 58 Fed. (2nd) 593.............. 12

TEXT AUTHORITIES

17 American Bar Association Journal 163

Annotation at 86 A.L.R. at page 669

86 A.L.R. at page 676

86 A.L.R. at page 678

Basset, Zoning (Published 1940 by Russell Sage

Foundation) at page 97

STATUTES CITED

Ordinance No. 129, Village of Fox Point, Wisconsin.. 4, 6

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, A.D. 1954

THE STATE OF WISCONSIN, ex rel,

SAVELAND PARK HOLDING

CORPORATION,

Petitioner,

VS.

DONALD G. WIELAND, Building Inspector

of the Village of Fox Point,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT

OF THE STATE OF WISCONSIN

To the Honorable, the Chief Justice and the Associate

Justices of the Supreme Court of the United States:

Your petitioner, being aggrieved by the judgment and

decree hereinafter mentioned, respectfully submits its pe-

tition for a writ of certiorari to review a judgment of

the Supreme Court of the State of Wisconsin, which re-

versed a judgment of the Circuit Court for Milwaukee

County, Wisconsin, in the above entitled case.

Opinions Below

There was no officially reported opinion in the Cir-

cuit Court of Milwaukee County; however, the written

opinion of the trial court appears at Pages 101-116 of the

record.

The opinion of the Supreme Court of the State of

Wisconsin is reported in Vol. 269 Wisconsin Reports

(advance sheets) Page 262, 69 N.W. (2nd) 217 (R.

Pages 192-204).

Statement as to Jurisdiction

The judgment of the Supreme Court of the State of

Wisconsin sought to be reviewed was entered on March

8th, 1955, (R. Page 190). Motion for rehearing was

denied on May 3rd, 1955, (R. Page 207)

The jurisdiction of this court is invoked under Title 28

U.S. Code, Chapter 81, Sec. 1257(3), on the ground that

the decision of the Supreme Court of Wisconsin draws

into question the validity of a statute of a subdivision

of the State of Wisconsin (Ordinance No. 129 of the

Village of Fox Point) on the ground of its being repug-

nant to the Constitution of the United States and on the

further ground that petitioner claims a right, to-wit: the

right to the issuance of a building permit as applied for,

notwithstanding the provisions of Ordinance 129 of the

Village of Fox Point, Wisconsin, said right being claimed

by virtue of the Fourteenth Amendment to the Constitu-

tion of the United States.

Questions Presented

Under the Due Process and Equal Protection clauses

of the Fourteenth Amendment to the Constitution of the

United States:

1) May a village enact a zoning law for the sole

purpose of protecting existing property values?

2) May a village enact a zoning law for the sole

purpose of promoting aesthetic values?

3) May a village building board be granted the

power to reject an application for a building permit

based on its opinion as to the probable effect of the

architectural appeal and functional plan on prbp-

erty values of buildings in the adjacent neighbor-

hood? Are these standards sufficiently objective to

guarantee equal protection of the laws?

4) Are the standards to be applied by the building

board so vague as to necessarily open the way for

discrimination against applicants not based on objec-

tive findings but 09 subjective likes or dislikes?

5) Is it within the power of government to censor

a creative art, viz., private architecture, on the basis

of aesthetic appeal?

6) Does Berman vs. Parker, 348 U.S 26, mean that

the Supreme Court of the United States approves

zoning laws based on aesthetic considerations alone?

Constitutional and Statutory Provisions Involved

The Fourteenth Amendment to the CONSTITU-

TION OF THE UNITED STATES, Section 1, Sec-

ond sentence provides as follows:

“No State shall make or enforce any law which

shall abridge the privileges or immunities of citi-

zens of the United States; nor shall any State de-

prive any person of life, liberty, or property, without

due process of law; nor deny to any person within

its jurisdiction the equal protection of the laws.”

The zoning ordinances of the VILLAGE OF FOX

POINT provide generally that no new building may

be erected unless the owner first obtains a building permit.

Ordinance No. 129, adopted July 23, 1946, reads as

follows:

An Ordinance relating to and creating the Build-

ing Board of the Village of Fox Point.

The Village Board of the Village of Fox Point

do ordain as follows:

SECTION |. No building permit for any struc-

ture for which a building permit is required shall

be issued unless it has been found as a fact by the

Building Board by at least a majority vote, after a

view of the site of the proposed structure, and an

examination of the application papers for a build-

ing permit, which shall include exterior elevations |

of the proposed structure, that the exterior architec- _

tural appeal and functional plan of the proposed

structure will, when erected, not be so at variance

with either the exterior architectural appeal and

functional plan of the structures already constructed

or in the course of construction in the immediate

neighborhood or the character of the applicable dis-

trict established by Ordinance No. 117, or any ordi-

nance amendatory thereof or supplementary thereto,

as to cause a substantial depreciation in the property

values of said neighborhood within said applicable

district. :

SECTION 2. The Building Board shall consist of

three residents of the Village, two of whom shall be

architects, including within the term landscape archi-

tects, selected from a panel of not less than five estab-

lished from time to time by resolution of the Village

Board of the Village of Fox Point. The Village

Clerk, or his deputy, shall be secretary of the Build-

ing Board and the Secretary of said Building Board

shall from time to time select and request, until the

requisite number is obtained, the residents listed upon

said panel, to act as said Building Board whenever

the Building Inspector shall request a meeting of

the Building Board to consider applications for

building permits which he has found comply in all

respects with all other Ordinances of the Village

of Fox Point. The Building Board may if it desires

hear the applicant for the building permit in question

and/or the owner of the lot on which it is proposed

to erect the structure in question, together with any

other persons, whether residents or property owners,

desiring to be heard, giving such notice of the hear-

ing as they may deem sufficient. Such hearing may

be adjourned from time to time but for not more

than 48 hours, and within 48 hours after the close

of the hearing the Building Board shall in writing

make or refuse to make the finding required by Sec-

tion | hereof, and file it in the office of the Village

Clerk who shall send a copy of it to the Building

Inspector.

SECTION 3. On an appeal to the Board of Appeals,

in the absence of proof to the contrary adduced be-

fore the Board of Appeals, a refusal to grant the

building permit because refusal of the Building

Board to make the finding required by Section |

hereof, shall be deemed to be based upon facts sup-

porting the conclusion that the exterior architectural

appeal and functional plan of the proposed structure

for which a building permit was refused would,

when erected be so at variance with all of the ex-

terior architectural appeal and functional plan of

structures already constructed or in the course of

construction in the immediate neighborhood, or the

character of the applicable district, as to cause a sub-

stantial depreciation in the property values of said

neighborhood within said applicable district.

SECTION 4. Any person entitled to appeal from

the grant of, or refusal of the Building Inspector to

grant, said building permit, may appeal to the Board

of Appeals of the Village of Fox Point in the same

manner and with the same force and effect as if this

ordinance had not been adopted and the Building

Inspector had taken such action independently of the

Building Board.

SECTION 5. This Ordinance shall take effect and

be in force from and after its passage and posting.

Statement of the Case

In this case, the petitioner challenges the validity of a

certain zoning ordinance of the Village of Fox Point, as

being a violation of its rights under the Fourteenth

Amendment to the Constitution of the United States.

Ordinance No. 129, being the ordinance involved in this

case, was enacted by the village board of the Village of

Fox Point as a part of its system of zoning laws and regu-

lations affecting new buildings. The zoning ordinances of

the village provide generally that no new building may

be erected unless the owner first obtains a building permit.

The challenged ordinance reads, in part, as follows:

(R. 128) “Section 1. No building permit for any

structure for which a building permit is required shall

be issued unless it has been found as a fact by the Build-

ing Board by at least a majority vote, after a view of the

site of the proposed structure, and an examination of the

application papers for a building permit, which shall

include exterior elevations of the proposed structure, that

“the exterior architectural appeal and functional plan of

the proposed structure will, when erected, not be so at

variance with either the exterior architectural appeal and

functional plan of the structures already constructed or in

the course of construction in the immediate neighbor-

hood or the character of the applicable district established

by Ordinance No. 117, or any ordinance amendatory

thereof or supplementary thereto, as to cause a substan-

tion depreciation in the property values of said neighbor-

hood within said applicable district.”

The Village of Fox Point is suburban to the City of

Milwaukee, Wisconsin. For the most part, it consists of

single family residences (R. 194) with very limited busi-

ness and commercial development and no industrial de-

velopment. (R. 131-a)

Petitioner, Saveland Park Holding Corporation, is the

owner of certain real estate located within the limits of

the village. The property in question is located in a “C”

residence district which requires a lot area of 10.500

square feet of open area for each family, with a frontage

of at least 70 feet. (R. 134) Minimum floor area for a

one story residence is 900 square feet; for two stories,

750 square feet. (R. 135)

On April 12th, 1954, petitioner applied to the defen-

dant building inspector for a building permit for the

erection of a single family residence upon its property.

(R. 136) The building complied in all respects with all

of the zoning laws of the Village of Fox Point, with refer-

ence to height, area, lot, size, materials, and workman-

ship. (R. 136, 194) The building inspector denied the

application for the issuance of a building permit, stating

that said application was denied “pursuant with Ordi-

nance No. 129, * * *”. (R. 136) (He later stated the reason

for such denial to be that the Building Board refused to

make the finding approving “the exterior architectural

appeal and functional plan” required by the challenged

ordinance. (R. 128, 194) )

The petitioner then applied to the Circuit Court of

Milwaukee County for a Writ of Mandamus to compel

the issuance of the desired building permit, and in its

petition for said writ made the claim that Ordinance No.

129 was unconstitutional (R. 121, 122), under both the

Federal and State Constitutions. (R. 107) The Circuit

Court ruled that the ordinance was unconstitutional under

the Fourteenth Amendment to the Federal Constitution

(R. 115, 140) (Appendix p. 38) as well as under the

State Constitution and ordered the issuance of the Writ

of Mandamus. (R. 141)

On appeal, the Supreme Court of the State of Wiscon-

sin reversed the ruling of the Circuit Court (R. 190),

found the ordinance in question to be not in conflict with

the Federal Constitution (R. 200, 204), and ordered the

proceedings quashed. Motion for rehearing was denied

May 3rd, 1955. (R. 207)

Reasons Relied on for Allowance of the Writ

The State Court has decided a Federal question of sub-

stance not heretofore determined by the Supreme Court

of the United States and in a way probably not in accord

with applicable decisions of this court.’

1. Under the Fourteenth Amendment, an individ-

ual’s right to use his property cannot be curtailed

solely for the protection of other property values.

In general, zoning ordinances are now upheld as a

valid exercise of the police power of a state or municipal-

ity on the grounds that they promote the public health,

safety, morals, or general welfare.

Village of Euclid vs. Ambler Realty Co., 272 U.S.

365.

However, this does not mean that all zoning laws are

valid exercises of the police power. The subsequent case

of Nectow vs. Cambridge, 277 U.S. 183, holds that:

“The governmental power to interfere by zoning

regulations with the general rights of the land owner

by restricting the character of his use is not unlim-

ited, and other questions aside, such restriction can-

not be imposed if it does not bear a substantial

relation to the public health, safety, morals, or gen-

eral welfare.”

Under the questioned ordinance, a permit may be re-

fused if, in the opinion of the building board, a pro-

posed building may cause a substantial depreciation in

*Seven other Milwaukee suburbs have similar ordinances. The 1955

Municipal Year Book, published by the International City Managers

Association, describes the present case as marking the beginning of

municipal supervision of the design of private architecture. Milwaukee

Journal News item, July 17th, 1055.

Dine geeceene ese reeneneneerneen Leeroy pS TEESE

the property values of a neighborhood, although the

building complies with all objective requirements of the

building and zoning codes.

The effect of this ordinance is to limit the use of pe-

titioner’s property in order to maintain or increase the

value of other property. The Supreme Court of Ken-

tucky in Standard Oil Co. vs. Bowling Green, 244 Ky.

362, 50 S.W. (2nd) 960, 86 A.L.R. 648, says of this type

of legislation:

“But is is very doubtful, if this effort to increase

or improve such (neighboring property) values be the

sole reason for the ousting and prohibition of such a

business (gas station) whether the city would have

the right to so improve the economic values of the

neighboring property at the expense of the economic

value of the locus in question, especially where the

degree to which the value of such locus in question

would be thus affected would amount to great dimi-

nution and substantial annihilation.”

The same result is reached by the Supreme Court of

Michigan in Elizabeth Lake Estates vs. Waterford, 317

Mich. 359, 26 N.W. (2nd) 788 where it is held that “the

conservation of property values is not by itself made a

proper sole objective for the exercise of police power”.

Petitioner concedes that one of the objects of the zoning

law may be to preserve property values, but it will be

found that in the cases where this is mentioned, there have

been other considerations inherent in the zoning law re-

lating to public health, safety, or morals, or promoting

the orderly growth of a city to eliminate blight and slum

areas. However, the ordinance here under consideration

has as its sole purpose, the object of preserving the value

of other property and has no expressed or apparent rela-

tion to public health, safety, or morals.

No other case has held that a zoning ordinance whose

sole objective is to preserve the value of other property

in the neighborhood can be upheld as a valid exercise of

the police power. This case should be reviewed for the

purpose of determining whether preservation of property

values by itself and without any relation to public health,

safety, or morals, is a valid ground for the exercise of

police power under the Fourteenth Amendment.

2. Under the Fourteenth Amendment, the right of

an individual to build a home in accordance with

his own taste cannot be curtailed solely for alleged

aesthetic reasons, as long as he does not create a

nuisance.

While text writers have disagreed whether a zoning

law may be enacted for the sole purpose of promoting

aesthetic values this is the first case where a court of last

resort has squarely held in the affirmative. (R. 199) In

this case, unlike other zoning cases involving building

area, setbacks, land use, building height, etc., the sole

test by which a proposed building is judged is its exterior

architectural appeal and functional plan, and the effect

thereof upon surrounding property values.

It is the claim of the petitioner that government cannot

control the building of a private residence by imposing

restrictions on “architectural appeal”, that is will persons

other than the owner approve of the exterior appearance,

as long as no nuisance is created. It is further claimed by

petitioner that government cannot control the “functional

plan” of a private residence, that is, are the rooms ar-

ranged for maximum utility, as long as the building com-

plies with the objective standards of the structural and

sanitary codes. Either of these controls is an unwarrant-

ed invasion of the freedom to use property which is guar-

anteed by the Fourteenth Amendment.

It was stipulated in this case that the proposed building

complied with all of the zoning ordinances of the Village

of Fox Point except the challenged ordinance, No. 219.

Its only purported deficiencies were exterior architectural

appeal and functional plan, in other words, its aesthetic

appeal. It has always been held that aesthetic consid-

eration alone, without other factors incident to public

health, safety, or morals, is an insufficient basis for limit-

ing use cf property by zoning.

Many cases* bear out the conclusion of the author of

the Annotation at 86 4.L.R. at page 669 as follows:

“Mere aesthetic considerations in themselves do

not bear such relationship to public welfare as will

sustain the restrictions of zoning ordinances, al-

though they will not render an ordinance invalid

where only incidental to the main purposes thereof.”

The Supreme Court of Wisconsin in the present case

recognized the rule for which we contend as having pre-

vailed in our state, as late as 1952, expressed in Jefferson

County vs. Timmel, 261 Wis. 39, 61, 51 N.W. (2nd)

518. In the present case, however, the Wisconsin Court

says,

2 Baker vs. Sommerville, (1940) 138 Neb. 466, 293 N.W. 326;

Dowsey vs. Kensington, 257 N.Y. 221, 177 N.E. 427, 86 A.L.R. 642;

Women’s Kansas City St. Andrews Society vs. Kansas City, (CCA-

8th-1932) 58 Fed. (2nd) 593;

Forbes vs. Hubbard, (1932) 348 Lil. 166;

Eaton vs. Sweeny, (1931) 257 N.Y. 176, 177 N.E. 412;

State ex rel Srigley vs. Woodworth, (1929) 33 Ohio App. 406, 169

N.E. 713;

West Bros. Buick Co. vs. Alexandria, (1937), 169 Va. 271, 192

S.E. 881.

“In view of the latest word spoken on the subject

by the United States Supreme Court, in Berman vs.

Parker, * * * this development of the law has pro-

ceeded to the point that renders it extremely doubtful

that such prior rule is any longer the law.”

We contend that Berman vs. Parker was not correctly

interpreted by the Wisconsin Supreme Court. This will

be discussed infra.

There is sound reasoning behind the rule which forbids

the exercise of governmental power in the field of aes-

thetics alone. A leading text writer, Edward M. Basset,

in Zoning (Published 1940 by Russell Sage Foundation)

says at Page 97,

“Courts make no objection to the recognition of

aesthetic purposes in zoning regulations if the regu-

lations are based on considerations of health, safety,

morals, comfort, convenience, and the general wel-

fare of the community. As a general rule however,

zoning regulations may not be based on aesthetic

considerations. A zoning regulation controlling the

color or the architectural style of buildings would

not be upheld today by the courts. On the other

hand. so many qualities are closely connected with the

health, safety, and convenience of the community

that police power regulations of great scope will

be increasingly upheld. Quiet and the presence of

natural surroundings and even vegetation, on ac-

count of its production of oxygen, may be impor-

tant elements in preserving health. Considerations

of light and air affect the health of the com-

munity and enter into the making of lawful zoning

regulations. Insofar as other amenities accomplish

the same result, they too will increasingly be recog-

nized. It has been said that beautiful architecture

is in the same way conducive to health, or at least

to comfort and well-being. If all people were alike

in taste, this might be true. But even architectural

experts differ as to what they consider examples of

good taste. De gustibus non est disputandum is as

true today as it was two thousand years ago. Our

courts, compelled as they are to pass on the reason-

ableness of police power legislation prefer to cling

to fields where the evidence of qualified experts will

aid them in coming to a conclusion. Light, air, quiet,

and the effect of vegetation on the atmosphere are

subjects wherein expert evidence can assist. There

can be a perception of correctness and incorrectness

on the part of the court if experts disagree. But if

architectural expert witnesses disagree on what is

good in color, texture and architectural style, the

court is left, without help, to decide a question of

good taste. In countries where courts do not pro-

nounce either for or against the reasonableness of

police power enactments, municipal requirements re-

garding color or architectural style sometimes obtain.

Usually, however, there is much criticism from those

whose advice has not been followed. If in this coun-

try there should be architectural control of all build-

ings, by art commissions or juries, the criticism would

be great, especially in cities where the regulation

would fall into the hands of incompetent persons.

Freedom from control on matters of good taste often

permits undesirable conditions, but it also allows

experimentation which in the long run may produce

good results.” (emphasis supplied)

A citizen’s constitutional right to use his property for

a residence which satisfies his own taste is a substantial

one, not to be interfered with unless in the interest of a

genuine public need. To interfere with this constitutional

right in order to satisfy other residents of a neighbor-

hood, reduces the constitutional right of the individual

8 The forgoing was published nine years /ater than the article in 17

Am. Bar Assoc. Journal 163, cited by the Wisconsin Court, and hence

cannot be considered outdated.

to a nullity and exalts public regulation and control to

the supreme position held in some of the Eastern Euro-

pean countries.

It is worth repeating the argument made by the late

Newton D. Baker, as counsel in Euclid vs. Ambler

Realty Co.:

“That our cities should be made beautiful and

orderly is, of course, in the highest degree desirable,

but it is even more important that our people should

remain free. Their freedom depends upon the

preservation of their constitutional immunities and

privileges against the desire of others to control them,

no matter how generous the motive or well intended

the control, it is sought to impose.”

It is respectfully submitted that the Supreme Court

of the United States should strike down this effort to

extend governmental control into the aesthetic field of

architecture where matters of taste and preference are

supreme, and should preserve this area for normal prog-

ress through development of new ideas by talented

individuals.

3. The ordinance, by attempting censorship over a

creative art on the basis of its artistic appeal

alone, is beyond the power of government.

The essence of the ordinance is censorship by govern-

ment over architectural design of private residence

buildings. Not size, safety, sanitation, light and _ air,

traffic conditions, elimination of blight,— none of these

have any bearing upon the operation of the ordinance.

The ordinance is concerned only with exterior archi-

tectural appeal and functional plan of a proposed struc-

ture, style, color, and design among other things. This

case marks the extension of governmental power into a

field of the arts, where matters of taste and preference

have normally been considered supreme.

An analogy may be drawn to a situation where gov-

ernment attempts to control the conten.s of a book or

periodical. In such cases, the freedom of the artist is

protected. He may not create or circulate anything

obscene or promote a breach of the peace, but govern-

ment may not censor his production on the ground that

it is not likely to please others. Similary with architec-

ture, government is justified in preventing the creation

of a nuisance or of a structure which may be dangerous

to health or safety, but until now none of our courts

have held that government may forbid a private archi-

tect’s creation on the ground that others may not approve

of its artistic value. This ordinance is a dangerous prece-

dent which, if allowed to stand, will be an entering wedge

whereby our local governments may censor a creative

art, on the basis of taste or preference.

4. The authorities cited by the Wisconsin Supreme

Court in support of its ruling indicate erroneous

interpretation of the decisions of the United

States Supreme Court.

The Supreme Court of Wisconsin cited, as authority

for its change of attitude on aesthetic zoning, the case of

Berman vs. Parker, 348 U.S. 26, 75 Supreme Court 98.

Two elements distinguish Berman vs. Parker from the

instant case, and in our view make the same inapplicable.

First, Berman vs. Parker was a condemnation case where-

in the power of eminent domain was being considered.

Second, the objetcive sought to be obtained in Berman

vs. Parker was elimination of slums and blight, breed-

ing grounds for crime and disease. Neither of these

items are present in our. case.

There is a well established distinction between the

operation of zoning laws and the operation of the power

of eminent domain. The distinction is well pointed out

by the Pennsylvania Supreme Court in the case of W hite’s

Appeal, 287 Pa. 259, 134 Atl. 409:

“Police power should not be confused with emi-

nent domain. Police power controls the use of prop-

erty by the owner for the public good, its use

otherwise being harmful; while eminent domain and

taxation take property for public use. Under emi-

nent domain, compensation is given for property

taken, injured or destroyed, while under the police

power no payment is made for diminution in use,

even though it amounts to an actual taking or destruc-

tion of property.” ‘

Furthermore, the problem dealt with in the Berman

case is completely different from the problem in ours.

In our case, property is to ve used for a one-family resi-

dence to be erected in a residential village of high stan-

dards,* and the ordinance which prevents its use operates

only because of the architectural appeal and functional

plan of the proposed structure. This cannot be compared

with the Berman case, involving condemnation of prop-

erty for slum clearance in an underprivileged district

of Washington, D.C. where 64.3% of the dwellings were

beyond repair, where 57.8% of the dwellings had out-

side toilets, where 60.3% of the dwellings had no baths,

where 82.2% of the dwellings had no wash basins or tubs,

and 83.8% had no central heating. Furthermore, in that

case the District director of health made a specific finding

*Minimum lot size for family is 70 feet by 150 feet of open area;

minimum building area-first floor, is 750 square feet for a two story

dwelling, 900 square feet for one story.

pursuant to Act of Congress that it was necessary to rede-

velop the area in the interests of public health. The public

ends sought to be attained in the two cases are so dis-

similar that Berman vs. Parker cannot be valid authority

for the holding in the instant case.

Furthermore, the Supreme Court of the United States

said in Berman vs. Parker that Congress could legislate

to make the nation’s capital “beautiful as well as sani-

tary”. (Italics ours). The U.S. Supreme Court never

said that legislation could be passed for purposes of

beauty alone, but indicated that there was no objection

if aesthetics was combined with some other legitimate

object of governmental action. This quotation was mis-

interpreted by the Wisconsin Court, so that it apparently

misconstrued the effect of the holding of the United

States Supreme Court in Berman vs. Parker and used

this case as authority for purely aesthetic zoning.

The Wisconsin Supreme Court also misinterpreted the

effect of certain decisions in the State of New Jersey and

particularly Lionshead Lake Inc. vs. Wayne Township

(1952) 10 N.J. 165, 89 Atl. (2nd) 693 wherein an appeal

was dismissed for want of a substantial Feccral question

in 344 U.S. 919, 73 Sup. Ct. 386.

It is pointed out in the Annotation at 86 A.L.R. at

page 678, that the New Jersey cases on the subject of

zoning laws are peculiar to that state. Early cases such

as Brookdale Homes Inc. vs. Johnson, 123 N.J.L. 602,

10 Atl. (2nd) 477, held that certain zoning laws could

not be sustained as an exercise of the police power under

the New Jersey constitution. Thereafter an amendment

to the state constitution was submitted to the voters and

ratified; this specifically gave broader power to govern-

ing bodies in enacting zoning laws. The language quoted

by the Wisconsin Supreme Court from a New Jersey de-

cision paraphrases the language of the New Jersey con-

stitution which permits zoning as a method of maintain-

ing the value of property among other things.

However, the effect of the Fourteenth Amendment on

a zoning law which provides for maintaining property

values only, and this through approval of architectural

aesthetics, was not involved in Lionshead Lake Inc. vs.

Wayne Township. Accordingly, it would appear that

since no Federal question was raised in the New Jersey

court in that case, the appeal to the United States Supreme

Court was properly dismissed for lack of a substantial

Federal question. This shouid not be construed as Fed-

eral Supreme Court approval of the language of the

Lionshead Lake Inc. vs. Wayne Township decision.

In our case, the Federal constitutional question was

raised at the very beginning of the case in the petition

for a writ of mandamus, and was continually before the

court through all stages of the proceedings as will be seen

from an examination of the opinion and findings of the

trial court and the opinion of the Wisconsin Supreme

Court. Hence, we have here two points which were lack-

ing in the New Jersey case. First, the existence of a

substantial Federal question raised at all stages of the

proceedings, and second, a zoning law which is com-

pletely different from that under discussion in the New

Jersey cases since it is concerned only with exterior archi-

tectural appeal and functional plan, neither of which

were present in the New Jersey case.

State ex rel Beery vs. Houghton (1925), 164 Minn.

146, 204 N.W. 569, affirmed in 273 U.S. 671, 47 S. Ct.

474, 71 L. Ed. 832, is cited by the Wisconsin Court as

authority for zoning based on preservation of property

values alone. This case was identical with Euclid vs.

Ambler Realty Co. and was affirmed without opinion on

the authority of the earlier case. It does not touch on

the problem presented here.

It is therefore respectfully submitted that the. Wis-

consin Supreme Court has misinterpreted the language

used in Berman vs. Parker, and has also misconstrued the

effect of the dismissal of the appeal in Lionshead Lake

Inc. vs. Wayne Township, and the affirmance of State

ex rel Beery vs. Houghton. The Wisconsin Court con-

strued these to mean that the U.S. Supreme Court will

uphold purely aesthetic zoning for the sole purpose of

preserving property values. Review is necessary here

in order to correct the error.

5. The wide discretion given to the Building Board

to pass upon the exterior architectural appeal and

functional plan of a proposed residence without

any possibility of objective standards for its de-

termination denies to the petitioner due process

of law and equal protection of the laws guaran-

teed in the Fourteenth Amendment.

The ordinance requires that before issuance of a per-

mit the Building Board must make a finding “that the

exterior architectural appeal and functional plan of the

proposed structure will, when erected, not be so at vari-

ance with” (existing structures erected or contemplated)

“in the immediate neighborhood” * * * “as to cause a sub-

stantial depreciation in the property values of said neigh-

borhood within said applicable district.”

The standard which the ordinance permits the Build-

ing Board to apply in granting or denying a building

permit is necessarily vague and subjective. It depends

upon the Board’s opinion as to the “exterior architectural

appeal and functional plan” of the proposed building.

What is appealing and appears functional to one archi-

tect may not be so to another.

Furthermore, the Building Board must consider wheth-

er the exterior architectural appeal and functional plan

of the proposed structure are “so at variance” with struc-

tures already existing or in the course of construction,

Does this require conformity of structural types, or does

it require variety? The Board alone determines the gov-

ernmental policy, and may change its policy at will,

from case to case.

Thus suppose that owner “A” erects a colonial resi-

dence. Owner “B” wishes to erect an identical building

next door. The Board may decide that “the appeal” of

two identical buildings will depreciate neighborhood

values — therefore refuse owner “B” a permit. Or it

might grant owner “B” a permit and refuse a permit for

a colonial residence to owner “C” on the ground that

while two similar buildings will not depreciate values

of a neighborhood, three will do so. Or suppose that

owner “A” erects a colonial type residence and owner

“B” wishes to erect a modern style ranch home on the

adjacent lot. The Board may decide that the great vari-

ance between the “appeal” of the two styles will depre-

ciate values of the neighborhood and therefore deny

owner “B” a permit. Or owner “B” may be granted a

permit but owner “C” may be denied a permit for either

a colonial or a ranch house because of the Board’s notions

as to proper balancing of architectural styles. Moreover,

the Board may grant a permit to applicant “C” on one

day, and the next day it may change its policy and deny

the permit in identical circumstances to applicant “D”.

The Building Board must also determine whether a

proposed building well substantially depreciate property

values in the immediate neighborhood. It is common

knowledge that in forming opinions as to the value of an

existing structure, experts differ widely. Obviously, there

is room for more difference of opinion in judging the

value of a structure not built, but only proposed. And

there is ground for even more divergence of opinion

as to the “appeal” of a structure, or how it will affect

the value of other property in the neighborhood. There

is uncertainty in the extent of the affected “neighborhood”

in any given case. Yet it is in these shadowy and gossamer

realms of subjective opinion that a person’s right to use

his property is determined.

And it should be remembered that the board is not

required to give a reason for its denial of a permit in

any given case. In our case, in fact, the initial denial

of the permit did not state any reason whatsoever.

The Wisconsin Supreme Court found, in the provisions

for review, a safeguard against arbitrary and discrimi-

tory action. But on review of a particular Board

decision, by certiorari, a court may not say that one of

the determinations of policy is without any basis in fact,

since the policy determination with respect to “exterior

architectural appeal and functional plan”, extent of vari-

ance permitted or required, “substantial value,” and “im-

mediate neighborhood”, depend in the last analysis upon

the subjective opinions of the members of the Building

Board.

Because the Building Board may change the subjec-

tive standards of decision at will, a well-to-do socialite

might have no difficulty in obtaining a building permit,

while a negro doctor or lawyer with identical plans

might find it impossible. Obviously, here is a situation

where discrimination based on race, religion, national

origin, or other extraneous considerations may run ram-

pant, disguised in any number of pious cloaks, and the

courts will be powerless to deal with it.

The trial court said of these matters:

“An ordinance which requires the doing of an act

in terms so vague that men of common intelligence

must necessarily guess at its meaning and differ as

to its application violates the first essential of due

process of law.” (R. 112)

The Wisconsin Supreme Court found nothing indefinite

in the standards (R. 204).

It is the petitioner’s contention that the introduction

of so many uncertain elements of opinion into the stan-

dards which determine how he may use his property, if

at all, creates a situation wherein his rights are deter-

mined by the subjective opinions of the members of the

Building Board and not by any objective test. This marks

a complete departure from the constitutional ideal —

a government of laws and not of men.

This is similar to giving the owners of property in a

given neighborhood, the right to prevent an otherwise

lawful building permit from being issued purely on the

basis of subjective likes or dislikes and without any ob-

jective standards.

This type of arbitrary zoning without objective stan-

dards has already been stricken down by the United States

Supreme Court in Washington ex rel Seattle Title and

Trust Co. vs. Roberge, 278 U.S. 116, 73 L. Ed. 210, 49

S.C. 50, 86 A.L.R. 654. In that case the Supreme Court

analyzed a zoning ordinance which required the con-

sent of 66% of neighboring property owners before prop-

erty in a residential neighborhood could be used as a home

for the aged; no standard guided the determination of

the property owners. The United States Supreme Court

said,

“The delegation of powers so attempted is re-

pugnant to the due process clause of the Fourteenth

Amendment.”

To the same effect, see Annotation 86 A.L.R., Page

676, as follows:

“A delegation of power uncontrolled by any stan-

dard or rule prescribed by legislative action, to

owners of adjoining land to make inoperative a per-

mission otherwise granted by the ordinance to erect

within a residence district a certain type of building,

itself not likely to prove a nuisance, is repugnant to

the due process clause of the Fourteenth Amend-

ment to the Federal Constitution.””

Where the same rule of law does not necessarily apply

to all persons, but their rights may vary according to

subjective opinions of the governing authority, there is

no “equal protection of the laws” as required by the

Fourteenth Amendment.

CONCLUSION

Liberty of property, guaranteed by the Fourteenth

Amendment, means among other things that an individual

may build his own home on his own property according

to the architectural style and plan of his own choosing.

5 Citing Spies vs. Board of Appeals (1929) 337 Ill. 507, 169 N.E. 220,

Longshore vs. Montgomery (1928) 22 Ala. App. 620, 119 So. 599,

Gillette vs. Tyson (1929) 219 Ala. 511, 122 So. 830; Roman Catholic

Archbishop vs. Baker (1932) 140 Ore. 600, 15 Pac. (2nd) 391, Con-

tinental Oil Co. vs. Wichita (1931) Texas, 42 S.W. (2nd) 236.

Government may constitutionally limit this freedom, to

prevent a nuisance, to impose sanitary or safety require-

meats, or for other legitimate purposes connected with

health, safety, and morals. But when a village govern-

ment, through imposition of vague and subjective stan-

dards of the village Building Board, interferes with the

individual’s freedom for the sole purposes of maintain-

ing the value of other property and promoting the aesthe-

tic appearance of the village, then the great importance

of the constitutional freedom overbalances the slight pub-

lic interest involved in its limitation. Such zoning ordi-

nances as follow the pattern of ordinance 219 of the Vii-

lage of Fox Point should be stricken down.

For which reasons, petitioner respectfully requests that

a Writ of Certiorari should be granted.

Respectfully submitted,

EMIL HERSH,

135 W. Wells St.,

Milwaukee, Wisconsin,

DAVID V. JENNINGS, JR.,

2110 W. National Ave.,

Milwaukee, Wisconsin,

Attorneys for

SAVELAND PARK HOLDING

CORPORATION

Petitioner

ARTHUR MAGIDSON,

FREDERICK HERSH,

Of Counsel.

INDEX TO APPENDIX

Page

Opinion and decision of trial court by Hon. LEO B.

HANLEY, Judge of the Circuit Court of Mil-

wrens CONEY annette stn 27

Judgment of the Circuit Court of Milwaukee County 40

Opinion of the Supreme Court of the State of Wis-

consin by Hon. Justice GEORGE R. CURRIE... 4”

Judgment of Supreme Court of Wisconsin................ 56

OPINION AND DECISION OF TRIAL COURT

(Formal: Portions Omitted )

Petition on relation of Saveland Park Holding Cor-

poration for a writ of mandamus to command the de-

fendant Donald G. Wicland as Inspector of Buildings

of the Village of Fox Point to issue the relator a build-

ing permit to erect a residence building on its premises.

In his return defendant based his refusal to issue the

permit upon a zoning ordinance, No. 129, which requires

the Building Board to make a finding that the exterior

architectural appeal and functional plan of the proposed

structure would not be so at variance with either the

exterior architectural appeal and functional plan of the

structures already constructed or in the course of con-

struction in the immediate neighborhood or the character

of the applicable district established by ordinance as to

cause a substantial depreciation in the property values of

said neighborhood within said applicable district.

An alternative writ was issued, and the action was tried

in this branch of the Circuit Court on June 1, 1954. The

following statement of facts constitutes in substance my

findings of fact herein:

That the realtor is a Wisconsin corporation duly or-

ganized and existing under the laws of the State of Wis-

consin with its principal place of business at 2110 West

National Avenue, in the City of Milwaukee, Milwaukee

County, State of Wisconsin.

That the Village of Fox Point is a municipal corpora-

tion duly incorporated since 1926 and existing under

the laws of the State of Wisconsin, consisting of approxi-

mately two and one-half square miles, with the vast

majority of the territory in the village limited to resi-

dential purposes.

That Donald G. Wieland for some time prior to the

12th day of April, 1954, was, and still is, the duly ap-

pointed and qualified Building Inspector for the Village

of Fox Point, authorized to grant and issue permits to

owners of real estate in said village for the erection and

construction of buildings under Ordinance No. 117 as

amended and supplemented, including Ordinance No.

129 adopted July 23, 1946, and subsequent amendments,

including Ordinance No. 160 as amended and supple-

mented.

That the Village of Fox Point pursuant to Section 3

(a) of Ordinance No. 160 eliminated industrial use

districts from is official zoning map No. 5.

That said Ordinance No. 160 provides for the fol-

lowing uses in a “C” residential district:

“C. (1) In a ‘C’ residence district no building

or premises, unless otherwise provided in this Ordi-

nance, shall be erected or used, except for one or

more of the following uses, together with accessory

uses incident to the permitted use; provided always

the accessory use does not constitute or become a

public or private nuisance.

(a) Dwellings

Provided that the repeal of subparagraph (c)

is without prejudice to the expansion of the present

Fox Point-Bayside School or the recreational pro-

gram on its present site and adjacent Village

owned property and the erection of Cardinal

Stritch College, upon compliance with the pro-

se neey of Ordinance No. 160 as originally en-

acted.”

That the Ordinance provides further in part as follows:

“(2) In a ‘C’ residence district, no building may

be erected, enlarged or altered in such a way that

the open area of a lot upon which a dwelling is

erected or proposed to be erected shall be reduced

to less than 10,500 square feet for each family. Every

lot in a ‘C’ residence district shall have a frontage

of at least 70 feet. No building not erected for a

dwelling shall occupy more than 15% of the gross

area of the lot or exceed a height of 30 feet above

the proposed grade of the ground.

That the premises in question are located in a “C”

residence district.

That the building code of the Village of Fox Point

establishing the minimum ground area in the Village

upon which a residence may be constructed was repealed

and is now known as Ordinance No. 169 of the Village

of Fox Point and reads as follows:

“The Village Board of the Village of Fox Point

do ordain as follows:

Section |. Ordinance No. 101 is hereby repealed

and subparagraphs (9) and (10) of Section 10 of

Ordinance No. 158 are hereby amended to read as

follows:

‘(9) No one-story residence shall hereafter be

erected in the Village of Fox Point, the ground area

of which within the perimeter of the building at

grade, exclusive of porches and garages and other

outbuildings, less than 900 square feet.

‘(10) No residence of two stories or more shall

hereafter be erected in the Village of Fox Point,

the ground area of which within the perimeter of

the building at grade, exclusive of porches and

garages and other outbuildings, is less than 750

square feet.’

Section 2. This ordinance shall take effect and

be in force from and after its passage and the filing

in the office of the Clerk of proof of posting thereof,

as provided by law and the ordinances of this

Village.

PASSED AND ADOPTED by the Village board of the

Village of Fox Point this 26th day of October, 1950.”

That the petitioner owns the following described

premises situated in the Village of Fox Point, Milwau-

kee County, Wisconsin, to-wit:

Lot numbered Fourteen (14), in Block Numbered

One (1), in Carl Miller Subdivision No. 4 being a

— of the North East One-quarter (4) of Section

wenty (20) and the North West One-quarter (14)

of Section Twenty-one (21), in Township Eight (8)

North, Range Twenty-two (22) East, in the Village

of Fox Point.

That said above described premises pursuant to Sec-

tion 3 (a) of said zoning code are located in a “C” resi-

dence district.

That the residence for which a permit was requested

by the petitioner to be constructed on the premises in

question complies with all local ordinances except Ordi-

nance No. 129.

That on or about the 12th day of April, 1954, said

petitioner made due application to said defendant for

the issuance of a permit for the erection of a single family

residence upon said premises described above and was

ready, willing and able to pay the required fee for such

permit.

That said defendant refused and still refuses to issue

a permit to said petitioner and denied said permit, alleg-

ing as follows:

“Your application was denied pursuant with Ordi-

nance No. 129, an Ordinance relating to and creating

the Building Board of the Village of Fox Point.

That said ordinance, namely, Ordinance No. 129 of

the Village of Fox Point, and specifically Section |

thereof, reads as follows:

“Section 1. No building permit for any structure

for which a building permit is required shall be

issued unless it has been found as a fact by the Build-

ing Board by at least a majority vote, after a view

of the site of the proposed structure, and an exam-

ination of the application papers for a building per-

mit, which shall include exterior elevations of the

proposed structure, that the exterior architectural

appeal and functional plan of the proposed struc-

ture will, when erected not be so at variance with

the structures already constructed or in the course

of construction in the immediate neighborhood or

the character of the applicable district established

by Ordinance No. 117, or any ordinance amendatory

thereof or supplementary thereto, as to cause a sub-

stantial depreciation in the property values of said

neighborhood within said applicable district.”

Under the facts in this case the only question presented

is whether the zoning ordinance of the Village of Fox

Point known as Ordinance No. 129 insofar as its effects

the right of the relator to obtain a building permit is a

valid, enforceable enactment.

An examination of the ordinance to ascertain what

it is and what it does discloses that it prevents the issu-

ance of a building permit for any structure unless the

Building Board finds as a fact that the exterior archi-

tectural appeal and the functional plan will not be so at

variance with either the architectural appeal and func-

tional plan of structures constructed, or in the process

of construction, in the immediate neighborhood as to

cause a substantial depreciation in the property values

of the neighborhood within the district.

An examination of the territory upon which the ordi-

nance is to operate discloses that the area was incor-

porated as a village in 1926 and consists of approximately

two and one-half square miles, and from the time shortly

after its incorporation up to the present almost the entire

area has been zoned for residential use only. At present

there is a small business district and a relatively small

institutional district. The vast majority of the village is

limited to residential purposes.

The ordinance as a whole is assailed by the relator who

contends that the ordinance is unconstitutional in that it

contravenes both provisions of the federal and state con-

stitutions, namely, the Fourteenth Amendment to the

Constitution of the United States, which provides:

“Nor shall any state deprive any person of life,

liberty or property without due process of law.”

and Article 1, Section 13, of the Constitution of the State

of Wisconsin, which provides:

“Property of no person shall be taken for public

use without just compensation therefor.”

More specifically the relator contends that the ordi-

nance does not promote the health, safety, morals or

general welfare of the community; that it is an arbitrary

and unreasonable exercise of the police power; that it

is too vague to enforce and provides no norms of stand-

ards upon which it can be applied without caprice; that

the ordinance is based solely upon purely esthetic con-

siderations.

It can be conceded that the state under the police

power has the right to limit the use of private property

for the purpose of preserving the public health, safety,

morals and to promote the public welfare; that the state

can delegate its police power to a municipality; that

where pursuant to such delegation a municipality exer-

cises such power, it is to be presumed that such power

has been legally exercised; and that where such power

has been legally exercised there is no taking of private

property without compensation just because some legal

use of the property has been restricted.

It can be conceded also that the police power is not

unlimited and must not be arbitrarily exercised; that

it cannot be invoked to promote merely private comfort

and welfare; and while an ordinance is presumed to be

valid, any declaration therein that it is enacted to pro-

tect public health, safety, morals and public welfare

will not render the ordinance valid as being within the

police power unless there is some reasonable relation

between such purpose and the regulation prescribed.

The restriction that the exterior architectural appeal

and functional plan of the proposed structure will when

erected not be so at variance with either the architectur-

al appeal and functional plan of the structures already

constructed, or in the course of construction, in the imme-

diate neighborhood, or the character of the applicable

district * * * as to cause a substantial depreciation in the

Property values * * * bears no apparent relation to the

public health, safety or morals, nor does the ordinance

contain any definite or fixed standards by which the

reasonableness or the necessity for the restriction may

be measured or determined, nor is the resiriction neces-

sarily uniform or definite in its application, for the

Building Board has wide discretion in the term “so at

variance.” This formula “so at variance” is, to say the

least, an uncertain substitute for a constitutional guaran-

tee which assures to citizens the right to hold, enjoy or

use their property as they see fit so long as they do not

thereby injuriously affect the health, safety and welfare

of the public.

“Zoning restrictions on the general rights of a

landowner are imposed in the exercise of the police

power, and to justify the exercise of such govern-

mental power, the zoning restriction imposed must

bear a substantial relation to, or be reasonably neces-

sary for, the public health, safety, morals, or general

welfare.” 58 4m. Jur. 955.

“It is requisite to the validity of a zoning ordi-

nance that the restrictions to be imposed tend, in

some degree at least, to promote public health,

morals, safety or welfare.” Senefsky v. Huntington

aa ae 149 A.L.R. 1443, 307 Mich., 728, 12 N.W.

2d 387.

The above rule is stated in the case of Getsenfeld v.

Shorewood, 232 Wis. 410, 417. Our court in that case

also cited as authority the case of Euclid v. Ambler, 272

U.S. 365, 54 A.L.R. 1016, in which it was stated :

“In interpreting police regulations they must be

interpreted in the light of the conditions and cir-

cumstances and the particular needs and situation of

the particular community, and if in the light of these

conditions, the legislation cannot be said to have no

relationship to health, safety and the general welfare,

then the legislation must be sustained and held

valid.”

What reasonable relationship has the exterior archi-

tectural appeal and functional plan of a structure in a

restricted residential district to the health, safety, morals

or general welfare?

It is apparent that the controlling factor behind the

ordinance was the preservation of existing property

values in the immediate neighborhood. No test was

given of any other or different purpose. The ordinance

is concerned not with any injurious uses of property,

other ordinances have already provided for those regu-

lations.

“The conservation of property values is not by

itself a proper sole objective for exercise of police

power * **”

Elizabeth Lake Estates vs. Waterford Tp., 26

N.W. 2d 788.

The zoning ordinance must be reasonable and _ its

reasonableness becomes a test of its legality. By no rea-

sonable view of the matter could it be considered that

the ordinance and its enforcement tend to promote public

health, safety, morals or general welfare.

Turning to the provisions of the ordinance to ascer-

tain just what its effect is, we find that it restricts the

erection of structures in a restricted residential area

where the proposed structure’s exterior architectural ap-

peal is so at variance with other structures. In confers

upon the Building Board, and then upon the Board of

Appeals, the right to prevent the erection of any new

building where this situation is found to exist as a matter

of fact. This power is granted without any directions,

rules or standards for determining that the exterior archi-

tectural appeal and functional plan is so at variance with

other structures, but leaves that question to be deter-

mined by the unguarded and unlimited discretion of the

Building Board.

The very subject matter of the ordinance is abstract.

“Exterior architectural appeal” is entirely different than

exterior architectural design. The test “so at variance”

is indefinite, and the area “immediate neighborhood” is

undefined. The ordinance could not be effective in the

area of the village adjacent to surrounding municipalities

where architectural appeal may vary greatly. The words

“immediate neighborhood” are quite susceptible of

variation. The term is elastic and subject or dependent

upon circumstances, and may be equally satisfied by areas

measured by yards or by miles. The testimony of the

witness for the defendant showed a different interpre-

tation as to the meaning of “immediate neighborhood.”

Likewise the term “substantial depreciation” is indefinite,

especially in view of the fact that such a finding must

result from a difference in exterior architectural appeal

and functional plan. That certainly is not a reasonable

measure of establishing depreciation. The effect of this

ordinance would be to compel the relator and other home

builders to ascertain the exterior architectural appeal

and functional use of all properties in the immediate

area in order to submit building plans that might satisfy

the Building Board without affording him a comprehen-

sive guide, rule or information as to what must be done

or what must be avoided in order that he or other build-

ers may know how to comply with the requirements of

the ordinance.

In order to comply with the provisions of this ordi-

nance a builder might be required to submit numerous

plans before approval by the Building Board would be

granted. An ordinance which requires the doing of an

act in terms so vague that men of common intelligence

must necessarily guess at its meaning and differ as to its

application violates the first essential of due process of

law. Uncertainties in this ordinance deprive persons of

their property without due process of law.

The interpretation of the phrases in the ordinance

might also vary with the changing personnel of the

officials administering the law so that the use of all

property would depend not upon certain and definite

laws uniform in their application, but upon arbitrary

and changing views of individuals.

“ * * * the final evidentiary test of the legitimacy

of a police regulation is whether it is reasonable

under all the circumstances. There must be reason-

able ground for the police interference and also the

means adopted must be reasonable for the accom-

plishment of the purpose in view.”

Mehlos v. Milwaukee, 156 Wis. 591.

The plaintiff's last objection to the ordinance is that

it is based solely on esthetics. Such objection appears to

be proper. It is pointed out in 58 Am. Jur. 595, Sec.

30, that the general rule is that the zoning power may

not be exercised for purely esthetic considerations, but

that there are authorities which indicate that the rule

on this subject is undergoing development and it has

been declared by some authorities in relation to the

validity of zoning laws that esthetic considerations are

not wholly without weight and may be taken into ac-

count where other elements are present to justify the

regulation under the police power.

In the case of Baker v. Sommerville, 293 N.W. 326,

an ordinance was declared void which attempted to pre-

vent the construction of one-story homes resulting alone

from esthetic standards. The court there stated:

“Beautiful city residences, homologous lines in

architecture and symmetry in construction appeal to

artistic tastes and should be respected in connection

with substantial zoning regulations for the promo-

tion of the public welfare, but aesthetics alone for

the purpose of zoning ordinances do not seem to be

a source of police power, according to the weight

of authority.”

In the case of Brookdale Homes, Inc. v. Johnson, 123

N.J.L. 602, 10 A. 2d 477, it was also stated:

“An ordinance providing that no building should

be erected with its roof ridge less than 26 feet above

building foundation in a certain residential zone did

not promote pubic health, safety, and general wel-

fare, and hence ordinance was invalid.”

In the case of Wolverine Sign Works v. City of Bloom-

ington, 271 N.W. 823, it was stated that esthetics may

be an incident but cannot be the moving factor in deter-

mining the validity of building restrictions under the

police power.

In the case of Jefferson County v. Timmel, 261 Wis.

39, 61, our Supreme Court had occasion to comment on

the lower court’s finding that

“The present Highway 30 is beautiful. For

esthetic reasons this beauty should be preserved.’

This court aparently has not heretofore upheld a

zoning ordinance on the ground of esthetic reasons.”

The court further commented:

‘“‘We find it unnecessary in upholding the validity

of the ordinance to resort to esthetic considerations

because the promotion of safety on Highway 30 is

sufficient to support the exercise of police power.”

The Court is of the opinion that the Board of Trustees

in adopting Ordinance No. 129 clearly exceeded the

bounds of legislative discretion and that the ordinance

is unconstitutional and void as being clearly arbitrary

and unreasonable and having no substantial relation to

the public health, safety, morals or general welfare and

based upon esthetic considerations. It violates rights

guaranteed under the Fourteenth Amendment to the

Constitution of the United States, and Article I, Section

13, of the Constitution of the State of Wisconsin and is

clearly unconstitutional and void.

The Court in reaching this conclusion exercised ex-

treme caution which is required before declaring void

any zoning ordinance upon constitutional grounds and

was aware of the rule of the presumption of validity as

laid down in the case of Geisenfeld v. Shorewood, 232

Wis. 410; LaCrosse v. Elbertson, 205 Wis. 207; State

ex rel. Normal Hall, Inc. v. Gurda, 234 Wis. 290.

A peremptory writ of mandamus should be issued re-

quiring the defendant to issue to the relator the building

permit applied for.

Formal findings may be prepared by counsel for the

plaintiff pursuant to the above decision.

Dated at Milwaukee, Wisconsin, this 3rd day of

August, 1954.

By the Court:

Leo B. Hanley,

Circuit Judge.

JUDGMENT

(Formal Portions Omitted )

This action having come on for trial upon the petition

of the relator herein, the return of the defendant and

the answer of said relator thereto, on the Ist day of June,

1954, at the regular April Term, 1954, of this Court be-

fore the Honorable Leo B Hanley, Judge of Said Court,

and the Court having filed its findings of fact herein

and the Court having determined as conclusions of law

that the relator is entitled to a peremptory writ of man-

damus as prayed in the petition and to the recovery of

costs and attorney’s fees as hereinafter adjudged, ana

that Ordinance No. 129 of the Village of Fox Point is

unconstitutional and void.

Now, upon motion of David V. Jennings, Jr., attorney

for said relator:

It is Adjudged and Decreed that the said Saveland

Park Holding Corporation do have and recover of the

said Donald G. Wieland, Building Inspector of the

Village of Fox Point, the sum of Fifty-two and 30/100

Dollars, taxed as the cost of this action, and One hundred

and No/100 ($100.00) Dollars, attorney’s fees, amount-

ing in all to the sum of One Hundred Fifty-two and

30/100 Dollars, and that the relator have execution

therefor.

It ts Further Adjudged and Decreed that the relator

have a peremptory writ of mandamus and that the same

do issue forthwith directed to and commanding the said

defendant, Donald G. Wieland, Building Inspector of

the Village of Fox Point, upon the pain and peril that

shall fall thereon for refusal, that he issue to the relator,

the building permit applied for a structure to be built

on the following described premises.

Lot numbered Fourteen (14), in Block numbered

One (1), in Carl Miller Subdivision No. 4, being

a part of the North East One-quarter (%) of Sec-

tion Twenty (20) and the North West One-quarter

(%4) of Section Twenty-one (21) , in Township

Eight (8) North, Range Twenty-two (22) East, in

the Village of Fox Point, Milwaukee County, Wis-

consin, commonly known as 7033 North Fairchild

Circle, and as set forth in its application submitted

April 12, 1954.

It Is Further Adjudged and Decreed that Ordinance

No. 129 of the Village of Fox Point is unconstitutional

and void.

Dated at Milwaukee, Wisconsin, this I1th day of

October, 1954 at 3:15 P.M.

By the Court:

Francis X. McCormack,

Clerk.

By Roy J. Donovan,

Deputy Clerk.

No. 209

AUGUST TERM, 1954

STATE OF WISCONSIN : IN SUPREME COURT

State ex rel Saveland Park Holding Corp.

Respondent,

Donald G. Wieland, Building Inspector

of the Village of Fox Point,

Appellant.

APPEAL from a judgment of the circuit court for

Milwaukee county: Leo B. Hanley, Circuit Judge.

Reversed.

Petition on relation of Saveland Park Holding Cor-

poration (hereinafter referred to as the “relator’”) for

a writ of mandamus to command the defendant Donald

G. Wieland, as building inspector of the Village of Fox

Point, to issue the relator a building permit to erect a

residence building on its premises in said village.

An alternative writ of mandamus was issued and the

return of the defendant thereto based his refusal to issue

the permit upon village zoning ordinance No. 129, which

requires, as a condition precedent to the issuing of a

building permit, the Building Board of the village to

make a finding that the exterior architectural appeal and

functional plan of the proposed structure will not be so

at variance with those of other structures already con-

structed, or in the course of construction, as to cause a

substantial depreciation in the property values of the

neighborhood.

A trial was had to the court upon the petition and the

return thereto. Under date of October 11, 1954, judg-

ment was entered adjudging that said ordinance No. 129

is unconstitutional and void, which judgment directed

that a peremptory writ of mandamus be issued command-

ing the defendant to issue a building permit to relator.

From such judgment the defendant building inspector

has appealed.

CURRIE, J. The sole issue on this appeal is the con-

stitutionality of ordinance No. 129 of the village of Fox

Point, adopted by the village board of said village on

July 23, 1946.

Sec. 1 of such ordinance provides as follows:

“No building permit for any structure for which

a building permit is required shall be issued unless

it has been found as a fact by the Building Board by

at least a majority vote, after a view of the site of the

proposed structure, and an examination of the ap-

plication papers for a building permit, which shall

include exterior elevations of the proposed structure,

that the exterior architectural appeal and functional

plan of the proposed structure will, when erected,

not be so at variance with either the exterior archi-

tectural appeal and functional plan of the structures

already constructed or in the course of construction

in the immediate neighborhood or the character of

the applicable district established by Ordinance No.

117 [the general zoning ordinance of the village],

or any ordinance amendatory thereof or supplemen-

tary thereto, as to cause a substantial depreciation in

the property values of said neighborhood within said

applicable district.”

Subsequent sections of the ordinance provide that the

Building Board shall consist of three residents of the

village, two of whom shall be architects, and provide a

method of appeal from the decision of the Building

Board to the Board of Appeals of the village.

On this appeal it is conceded that relator’s application

for a building permit disclosed compliance with all pro-

visions of the general zoning ordinance of the village,

and the sole reason why the defendant building inspector

refused to grant the permit was the failure of the Build-

ing Board to make the necessary finding prescribed by

sec. | of ordinance No. 129 as a prerequisite to the issu-

ance of the permit.

The village of Fox Point was incorporated in 1926. It

consists of approximately two and one half square miles,

and the entire area has been zoned for residential use

only. There is, however, a small business district and a

relatively small institutional district permitting churches,

lodges, and municipal buildings, but the vast majority

of the territory in the village is devoted to residence pur-

poses. The village has developed into a highly desirable

residential village, almost entirely built up of single

family residences.

The learned trial court held the ordinance unconsti-

tutional on the following three grounds: (1) that the

preservation of property values is not by itself a proper

obective for the exercise of the police power in enacting

a zoning ordinance; (2) that the ordinance essentially is

concerned with aesthetics which also is not a proper basis

for exercise of the police power; and (3) that the stand-

ards prescribed in the ordinance for governing the action

and decision of the Building Board are so indefinite as to

subject applicants for building permits to the unlimited

and arbitrary discretion of such board.

At the outset we deem it advisable to consider the basis

in constitutional law for upholding the validity of zon-

ing ordinances, which, by their very nature, do impose

restrictions upon the use of private property. We quote

from the able opinion by Mr. Justice Owen in State ex

rel Carter v. Harper (1923) 182 Wis. 148, 151, 153, 196

N.W. 451, 33 A.L.R. 269, as follows:

“The constitution of this state, sec. 13, art. I., pro-

vides that the property of no person shall be taken

for pubic use without just compensation therefor,

and the Fourteenth amendment of the federal con-

stitution provides that no person shall be deprived

of his property without due process of law. These

provisions are intended to secure the enjoyment of

most substantial and fundamental rights, and the

allegation that one is being deprived of his property

without just compensation or without due process

of law calls for most serious consideration. Jt has

long been settled, however, that these constitutional

provisions interpose no barrier to the exercise of the

police power of the state. Thus it was said in State

ex rel. Kellogg v. Currens, 111 Wis. 431, 87 N.W.

561, at p. 435, speaking of constitutional limitations

upon legislative power:

““These limitations, however, according to all

the authorities, state and federal, are to be read as

not extending so far as to deprive the states of their

power to so control the conduct of individuals as to

protect the welfare of the community —a power

commonly described as the “police power”. ’” * * *

“* * * As the interest of society justifies restraints

upon individual conduct, so also does it justify re-

straints upon the use to which property may be de-

voted. It was not intended by these constitutional

provisions to so far protect the individual in the use

of his property as to enable him to use it to the detri-

ment of society. By thus protecting individual rights,

society did not part with the power to protect itself

or to promote its general well-being. Where the in-

terest of the individual conflicts with the interest of

society, such individual interest is subordinated to

the general welfare. If in the prosecution of gov-

ernmental functions it becomes necessary to take

private property, compsenation must be made. But

incidental damage to property resulting from gov-

ernmental activities, or laws passed in the promotion

of the public welfare, is not considered a taking of

the property for which compensation must be made.”

(Emphasis supplied).

Keeping in mind the foregoing principles, is the ob-

jective of an ordinance in the nature of a zoning regula-

tion, which seeks to protect or preserve property values,

embraced within the term “general welfare”? It is the

contention of counsel for relator that it is not, because

such an ordinance does not tend to promote public health,

safety, or morals. We consider this as entirely too re-

strictive an interpretation of the term “general welfare”.

As pointed out by the New York court of appeals in

Wulfsohn v. Burden (1925), 241 N.Y. 288, 150 N.E.

120, 122:

“The [police] power is not limited to regulations

designed to promote public health, public morals, or

public safety, or to the suppression of what is offen-

sive, disorderly, or unsanitary, but extends to so

dealing with conditions which exist as to bring out

of them the greatest welfare of the people by pro-

moting public convenience or general prosperity.”

In the recent case of State ex rel. Wis. Luth. H.S. Con-

ference v. Sinar (1954), 267 Wis. 91, 95, 65 N.W. (2d)

43, this court upheld the constitutionality of a zoning

ordinance of the city of Wauwatosa which excluded pri-

vate schools other than private elementary schools from

class “A” residence districts, and stated:

“We have recognized that the term ‘general wel-

fare’ includes considerations of public convenience

and general prosperity. * * * The presence of the

school will lessen the taxable value of near-by homes

and will deter the building of new homes in the

area.” (Emphasis supplied.)

However, other considerations in addition to the pro-

tection of property values were also stressed in our opin-

ion in State ex Rel. Luth. H.S. Conference v. Sinar,

supra, to establish that the zoning restriction therein up-

held did promote the “general welfare’. Cases from

other jurisdictions holding that preservation of property

values are the legitimate objective of zoning ordinances

are: Wulfsohn v. Burden, supra; Beery v. Houghton

(1925), 164 Minn. 146, 204 N.W. 569, aff'd 273 U.S.

671, 47 Sup. Ct. Rep. 474, 71 L. Ed. 832; Rice v. Van

Vranken (1928), 132 Misc. 82, 229 N.Y. Supp. 32, aff'd

225 App. Div. 179, 232 N.Y. Supp. 506; Lionshead Lake,

Inc. v. Wayne Township (1952), 10 N.J. 165, 89 Atl.

(2d) 693, 698, appeal dismissed January 19, 1953 for

want of substantial federal question 344 U.S. 919, 73

Sup. Ct. Rep. 386, 97 L. Ed. 708.

The New Jersey court, in an opinion by Mr. Chief

Justice Vanderbilt, in the recent case of Fischer v. Bed-

minster Township (1952), 11 N.J. 194, 93 Atl. (2d)

378, 384, upheld the validity of a zoning ordinance in a

- rural community restricting lot sizes to a minimum of

five acres each, and declared:

“ * * * there would appear to be ample justifica-

tion for the ordinance in preserving the character of

the commuuity, maintaining the value of property

therein and devoting the land throughout the town-

ship to its most appropriate use.” (Emphasis sup-

plied.)

In the earlier New Jersey case of Griggs v. City of

Paterson (1944), 132 N.J.L. 145, 39 Atl. (2d) 231, it was

stated :

“The proper purpose of zoning is ‘conserving the

value of property and encouraging the most appro-

priate use of the land’. Gabrielson v. Glen Ridge

176 A. 676, 679, 13 N.J. Mise. 142.”

Mr. Edward D. Landels contributed an article entitled

“Zoning: An Analysis of its Purposes and its Legal Sanc-

tions” in 17 American Bar Association Journal 163. The

author of such article was a prominent member of the

Oakland, California, bar, who had served as special coun-

sel for the city of Oakland in zoning cases, and was a

member of the American City Planning Institute, Legal

Division. Such article contains the following pertinent

statement (p. 165):

“On analysis the primary objects of zoning are

found to be, not so much the protection of public

health and safety, as the protection of the value and

usefulness of urban land, and the assurance of sch

orderliness in municipal growth as will facilitate

the execution of the city plan and the economical

provision of public services.

“Zoning results chiefly from an appreciation of

the ‘inter-dependence of adjoining parcels of land’

in urban centers; from a realization that the value

and usefulness of each parcel, not only to the owner

but to the community, is vitally affected by the use

made of the adjoining parcel. It is predicated upon

a basic principle of urban land economics, that a

certain conformity in use stabilizes and insures the

value of land.”

While the great weight of authority holds that the

police power may be validly exercised in the enactment

of zoning ordinances having at least as one of their ob-

jectives the preservation of property values, the Michi-

gan court in Elizabeth Lake Estates v. Waterford Town-

ship (1947), 317 Mich. 359, 26 N.W. (2d) 788, held

that “the conservation of property values is not by itself

made a proper sole objective for the exercise of police

power’, in passing upon a Michigan statute authorizing

townships to adopt zoning ordinances “to promote pub-

lic sanitation, health, safety, and general welfare” even

though such statute also specified that “‘reasonable con-

sideration” should be given, among other things, to “con-

servation of property values”.

We consider it significant that the Michigan court in

the Elizabeth Lake Estates Case cited no authority other

than its own decisions in support of its conclusion. The

particular ordinance invalidated provided a minimum

of cubic feet contents and square feet of floor area for

new dwellings to be constructed in the zoned area, and

the court pointed out that this, in reality, had the effect

of prohibiting houses being erected costing below a cer-

tain sum. The court, therefore, could have grounded its

decision on the narrower ground that the ordinance had

no reasonable relationship to the objective of conserving

property values, instead of holding such objective im-

proper. In the instant case it is not urged that the ordi-

nance before us had the indirect effect of requiring homes

to be erected in the village to have a minimum cost, nor

do we believe such objection could be validly raised

against such ordinance. The Elizabeth Lake Estates Case

decision is directly contrary to the well reasoned opinion

of Mr. Chief Justice Vanderbilt of the New Jersey su-

preme court rendered in Lionshead Lake, Inc. v. Wayne

Township, supra, upholding a township zoning ordi-

nance requiring homes to have a minimum square foot-

age of floor space.

We have_no difficulty in arriving at the conclusion

that the protection of property values is an objective

which falls within the exercise of the police power to

promote the “general welfare”, and that it is immaterial

whether the zoning ordinance is grounded solely upon

such objective or that such purpose is but one of several

legitimate objectives. Anything that tends to destroy

property values of the inhabitants of the village neces-

sarily adversely affects the prosperity, and therefore the

general welfare, of the entire village. Just because, in

the particular case now before us, property values in

a limited area only of the village are at stake does not

mean that such threatened depreciation of property val-

ues does not affect the general welfare of the village as a

whole. If relator is permitted to erect a dwelling house

on its land of such nature as to substantially depreciate

the value of surrounding property, there is danger that

this same thing may be repeated elsewhere within the

village, thus threatening property values throughout the

village.

The learned trial court held that the objective of the

ordinance is grounded largely upon aesthetic considera-

tions, which are insufficient to justify the exercise of the

police power. While the ordinance does use the term

“architectural appeal”, a building permit is only author.

ized to be withheld in those cases where the architectural

appea: of the proposed structure is so at variance with

that of structures already constructed, or being construct-

ed, “as to cause a substantial depreciation in the property

values” in the immediate neighborhood. This court

pointed out in Jefferson County v. Timmel (1952), 261

Wis. 39, 61, 51 N.W. (2d) 518, that while the general

rule is that the zoning power may not be exercised for

purely aesthetic considerations, such rule was under-

aaa

going development. In view of the latest word spoken

on the subject by the United States supreme court in

Berman v. Parker (1954), 348 U.S. 26, 75 Sup. Ct. Rep.

98, 99 L. Ed. *63, this development of the law has pro-

ceeded to the point that renders it extremely doubtful that

such prior rule is any longer a law.

In Berman v. Parker the United States supreme court

had before it the question of the constitutionality of an

Act of Congress providing for slum clearance in the

District of Columbia under which appellants’ property

was included within the boundaries of the district to be

condemned for slum clearance purposes, although it

was used for store purposes and in no sense constituted

slum housing. Appellants urged that the act, insofar as

it permitted its property to be taken for such purposes,

could not be justified under the police power, but was in

violation of the “due process” clause of the Fifth amend-

ment. The court in a unanimous opinion by Mr. Justice

Douglas declared (75 Sup. Ct. Rep. at pp. 102, 103) :

“The concept of the public welfare is broad and

inclusive. See Day-Brite Lighting, Inc. v. State of

Missouri, 342 U.S. 421, 424, 72 S. Ct. 405, 407, 96

L. Ed. 469. The values it represents are spiritual as

well as physical, aesthetic as well as monetary. It is

within the power of the legislature to determine that

the community should be beautiful as well as

healthy, spacious as well as clean, well-balanced as

well as carefully patrolled. In the present case, the

Congress and its authorized agencies have made de-

terminations that take into account a wide variety of

values. It is not for us to reappraise them. Jf those

who govern the District of Columbia decide that the

Nation’s capital should be beautiful as well as sant-

tary, there is nothing in the Fifth Amendment that

stands in the way.” (Emphasis supplied.)

While the court in Berman v. Parker, supra, was deal-

ing with the “due process” clause of the Fifth amend-

ment, which restricts the power of Congress, and it is the

“due process’ clause of the Fourteenth amendment which

is applicable to state action, we consider such distinction

to be immaterial in considering the scope of the police

power and its exercise to promote the general welfare.

We now come to the last issue presented, viz., whether

the standards set by ordinance No. 129 for governing the

functioning of the Building Board of the village are so

indefinite as to subject applicants for building permits to

the arbitrary discretion of such board. It will be recalled

that the ordinance specifically provides for an appeal

from the decision of the Building Board to the village

Board of Appeals, and, of course, timely court review

by certiorari will always lie from the decision of the

Board of Appeals.

In order for a building permit to be refused under the

ordinance the Building Board must find, as a fact, that

the exterior architectural appeal and the proposed plan

of structure when erected shall not be so at variance with

those of structures already constructed, or in the course

of construction, “in the immediate neighborhood” * * *

“as to cause a substantial depreciation in the property

values of said netghborhood”. The two words of the ordi-

nance which have been singled out as being most objec-

tionable from the standpoint of indefiniteness are “netgh-

borhood” and “substantial”.

While several cases are cited in which courts have

been called upon to define the term “neighborhood” we

consider the decision of the Iowa court in Youtzy v.

Cedar Rapids (1911), 150 Iowa 153, 129 N.W. 351, as

being the most helpful. That case involved the taking

ne ee

of land by condemnation, and complaint was made by

the appellant land owner that witnesses had been per-

mitted to testify as to sale prices of lands which were so

far removed as to not be located in the neighborhood of

the property being condemned. The Iowa court, in its

opinion, conceded that property to be used by way of

comparison or illustration “should be in the same neigh-

borhood or so nearly similar to the one in question that

knowledge of the former, and of its value, will afford

some degree of aid to the intelligent and fair-minded

juror in estimating the value of the latter”. It then pro-

ceeded to define “neighborhood”, and stated :

“The tern. ‘neighborhood’ is one of quite indefi-

nite meaning, and it may well be that in some cases

the trial court will permit the inquiry to take a wider

territorial range in some cases than it would allow

in others. Certainly this court cannot attempt to

fix a standard of measurement, and say as a matter

of law that the similar property concerning which

inquiry may be made is such only as may be found

within a given number of feet, yards, or blocks of

the property condemned. Counsel for appellant

argues, in effect, that, as the word has been used in

cases of this class, ‘neighborhood’ has reference only

to adjoining property, but we think this cannot be.

The reasonable proposition is that the trial court 1s

vested with discretion to draw the line in each case

as shall seem just under all the circumstances devel-

oped by the testimony, and that, unless abuse of such

discretion is shown, its ruling will not be held re-

versible error.”

While the court in Youtzy v. Cedar Rapids, supra, was

defining the term “neighborhood” as used in a rule of

the common law, instead of a statute or ordinance, we

consider the foregoing quotation equally applicable to

its use in the instant case in ordinance No. 129. Clearly

“neighborhood”, as used in the ordinance, does extend

further than adjoining property and may vary according

to existing conditions. For example, in a section of the

village where the average building lot comprises several

acres, the limits of the neighborhood might well be held

to extend farther than in the case of an area in the village

where building lots average less than an acre each in area.

Although it is impossible for this court in this decision

to establish, in terms of measurement of feet, the radius

of the largest permissible area which would qualify as a

neighborhood under the ordinance, there is undoubtedly

in each case a point beyond which a court could hold, as a

matter of law, that certain property was not in the same

neighborhood as applicant’s property, and that it would

be an abuse of discretion if the Building Board deter-

mined otherwise. In case of a court review some effect

necessarily would have to be accorded the adjective “1m-

mediate” preceding the word “neighborhood” where the

latter first appears in the ordinance.

Just because some discretion is necessarily accorded the

board to determine the limits of a neighborhood, as ap-

plied to a particular applicant’s property, does not render

the ordinance void. Milwaukee v. Ruplinger (1914),

155 Wis. 391, 145 N.W. 42; and Pinkerton v. Buech

(1921), 173 Wis. 433, 181 N.W. 125. In the first men-

tioned of said two cases, this court upheld an ordinance

of the plaintiff city which prohibited anyone from carry-

ing on a junk shop in the city without a license, and

further provided “all applications for license under this

ordinance shall be made to the mayor, who may grant

or refuse to grant such license as to him may seem best

for the good order of the city”. The court held the ordi-

nance granting to the mayor the power to grant or refuse

licenses “as to him may seem best for the good order of

the city” set a sufficiently definite standard, and held the

ordinance constiutional. In the Pinkerton Case the con-

stitutionality of a statute providing for the licensing of

private detectives was upheld which required the ap-

proval of the application by the fire and police commis-

sion of the city and a finding by the secretary of state

that the applicant was “of good character, competency

and integrity.”

Turning now to the word “substantial” which has also

been attacked by relator as being too indefinite, we find

that the Washington supreme court Jn Re Krause’s

Estate (1933), 173 Wash. 1, 21 Pac. (2d) 268, 270, held

that the term “substantially” was not so indefinite as to

render the contract employing it to be unenforceable. The

particular contract provided “neither party shall have

the right to make a new will as to property which has

pursuant hereto been substantially benefited by the other

party’, with respect to which the court stated:

“*Substantial’ as an adjective means something

worthwhile as distinguished from something with-

out value, or merely nominal.”

This court is frequently required to apply the word-

ing of sec. 227.20(1)(d), Stats., “unsupported by sub-

stantial evidence in view of the entire record”, in cases

involving review of determinations by administrative

agencies under our Uniform Administrative Procedure

Act. We do not recall of any litigant ever having raised

the question that the word “substantial” therein rendered

such quoted portion of the statute indefinite and void.

Determining whether or not a proposed structure will

“substantially” depreciate property values in the area

is simply the reverse of the common question that must

be answered in the assessing of benefits resulting from a

public improvement in levying a special assessment

against the benefited property. There the question must

be determined whether or not the public improvement

benefits property, and if so what property and to what

extent.

It is our considered judgment that ordinance No. 129

constitutes a valid exercise of the police power of the

village of Fox Point, and its provisions are not so in-

definite or ambiguous as to subject applicants for build-

ing permits to the uncontrolled arbitrary discretion or

caprice of the Building Board.

By the Court. — Judgment reversed and cause remand-

ed with directions to quash the proceedings.

STATE OF WISCONSIN: IN SUPREME COURT

And afterwords to-wit on the 8th day of March, A. D.

1955, the same being the 61st day of said term, the fol-

lowing proceedings were had in said cause in this Court:

State ex rel Saveland Park Holding Corporation,

Respondent,

VS.

Donald G. Wieland, Building Inspector of

Village of Fox Point,

Aptellant.

Milwaukee Circuit Court

This cause came on to be peard on appeal from the

judgment of the Circuit Court of Milwaukee County and

was argued by counsel. On consideration whereof, it is

now here ordered and adjudged by this Court, that the

judgment of the Circuit Court of Milwaukee County,

in this cause, be, and the same is hereby, reversed with

costs against the said respondent taxed at the sum of Four

Hundred Ninety-three Dollars and Ninety-four Cents

($493.94).

And that this cause be, and the same is hereby, re-

manded to the said Circuit Court with directions to

quash the proceedings.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.