Ronald Just and Kathrin L. Just, His wife, Appellants, v. Marinette County, Respondent, State of Wisconsin, Impleaded Respondent

In 1961 the Just family purchased 36.4 acres of land in the town of Lake along the south shore of Lake Noquebay, a navigable lake in Marinette County. Subsequently an Ordinance was passed that designated the Just land a swamp and the Justs were required to obtain a conditional use permit before filling in some 500 sq ft of the land. In 1968 the Justs hauled sand onto the land without a conditional use permit in contravention of the Ordinance. The Court had to decide whether the wetland filling restrictions were unconstitutional because they amounted to a constructive taking of the Just’s land without compensation. Marinette county and the state of Wisconsin argued the restrictions of the conservancy district and wetlands provisions constituted a proper exercise of the police power of the state and did not so severely limit the use or depreciate the value of the land as to constitute a taking without compensation. The Court emphasized that this was a conflict between the public interest in stopping the degradation of natural resources, and an owner’s asserted right to use his property as he wishes. The protection of public rights could be accomplished by the exercise of the police power unless the damage to the property owner was too great and amounts to a confiscation. The securing or taking of a benefit not presently enjoyed by the public for its use was obtained by the government through its power of eminent domain. The distinction between the exercise of the police power and condemnation had been said to be a matter of degree of damage to the property owner. In the valid exercise of the police property, the damage suffered by the owner was said to be incidental. However, where the restriction was so great the landowner ought not to bear such a burden for the public good, the restriction had been held to be a constructive taking even though the actual use or forbidden use had not been transferred to the government so as to be a taking in the traditional sense. The Court held that the public purpose sought to be served by the Ordinance was the protection of navigable waters, and the public rights therein from the degradation and deterioration which would result from uncontrolled use and development of shore lands. This was not a case where an owner was prevented from using his land for natural and indigenous uses. The uses consistent with the nature of the land were allowed and other uses recognized and still others permitted by special permit. The shore land zoning ordinance prevented to some extent the changing of the natural character of the land because of such land’s interrelation to the contiguous water. The changing of wetlands and swamps to the damage of the general public of upsetting the natural environment and the natural relationship was not a reasonable use of that land which was protected from police power regulation. Accordingly the shore land zoning Ordinance was not held to be unconstitutional.