PUBLISHED OPINION
Case No.: 93-0847
†Petition for
Review filed.
Complete
Title
of
Case:TOWN OF PORTLAND,
AND DODGE COUNTY,
Plaintiffs-Respondents,
v.
WISCONSIN ELECTRIC POWER COMPANY,
Defendant-Appellant. †
Submitted
on Briefs: December 3, 1993
COURT COURT OF
APPEALS OF WISCONSIN
Opinion
Released: December 21, 1995
Opinion
Filed: December
21, 1995
Source
of APPEAL Appeal from an order
Full
Name JUDGE COURT: Circuit
Lower
Court. COUNTY: Dodge
(If
"Special" JUDGE: Joseph
E. Schultz
so
indicate)
JUDGES: Dykman,
Sundby, and Brown, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSFor the defendant-appellant the
cause was submitted on the briefs of James H. Baxter III of Quarles
& Brady of Milwaukee.
Respondent
ATTORNEYSFor the plaintiffs-respondents the
cause was submitted on the brief of Robert M. Hesslink, Jr. and Natalie
M. King of Hesslink Law Offices, S.C. of Verona.
COURT OF APPEALS DECISION DATED AND RELEASED December
21, 1995 |
NOTICE |
A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule 809.62,
Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 93-0847
STATE OF WISCONSIN IN
COURT OF APPEALS
TOWN
OF PORTLAND,
AND
DODGE COUNTY,
Plaintiffs-Respondents,
v.
WISCONSIN
ELECTRIC POWER COMPANY,
Defendant-Appellant.
APPEAL
from an order of the circuit court for Dodge County: JOSEPH E. SCHULTZ, Judge.
Affirmed in part and reversed in part.
Before
Dykman, Sundby and Brown, JJ.
SUNDBY,
J. The appellant electric power utility, Wisconsin Electric
Power Company (WEPCO), appeals from an order denying its claim against Dodge
County for its cost of relocating its utility structures from the Town of
Portland's highway setback. We affirm
that part of the order denying WEPCO's claim for the cost of relocating the
utility's aboveground structures, but reverse the order insofar as it denies
WEPCO's claim to recover the cost of relocating its underground
structures.
While
WEPCO presents a number of reasons why the County must compensate it for
relocating its utility structures, we identify two dispositive issues:
(1) Could the Town condition
occupation of its highway setback by WEPCO's overhead utility structures upon
WEPCO's agreement that it would remove such structures at its expense when
necessary for improvement of the highway?
We conclude that it could.
(2) Does
§ 5.12(3) of the Town's highway setback ordinance except WEPCO's underground
structures from the requirement that WEPCO agree to pay the cost of relocating
its utility structures when necessary for improvement of the highway? We conclude that § 5.12(2) of the Town's
setback zoning ordinance requires a removal agreement only as to WEPCO's
aboveground utility structures.
In
1990, Dodge County widened and rebuilt County Trunk Highway I (CTH I) in the
Town of Portland. The County owns the
right-of-way in fee simple. WEPCO
concedes that it could have located its utility structures in the highway right-of-way
and would have been liable for the cost of relocation, upon order of the
County; however, it acquired easements in the highway setback, and between 1978
and 1983, located its aboveground and underground structures in the setback
area to avoid the cost of relocating its structures if the highway was
improved.
In
the trial court, there was some jousting as to whether the highway setback was
imposed by the Dodge County Zoning Ordinance or the Town of Portland Zoning
Ordinance. The parties now agree that
the Portland Zoning Ordinance applies.
Section 5.11, Town of Portland Zoning Ordinance (PZO), prohibits new
signs, new buildings or other new structures between the setback line and the
highway. However, § 5.12 provides in
part:
The
following kinds of structures may be placed between the setback line and the
highway:
1) Open fences.
2) Telephone,
telegraph and power transmission poles and lines and microwave radio relay
structures may be constructed within the setback lines, and additions to and
replacements of existing structures may be made, provided the owner will file
with the Town of Portland an agreement in writing to the effect that the owner
will remove all new construction, additions and replacements erected after the
adoption of this Ordinance at his expense, when necessary for the improvement
of the highway.
3) Underground structures not capable of
being used as foundations for future prohibited overground structures.
WEPCO
did not file with the Town an agreement to relocate its utility structures.
WEPCO
does not challenge the Town's authority to require setbacks from Town highways
within which buildings and other structures may not encroach. The validity of such restrictions is firmly
established. Rathkopf states that:
Today, zoning
setback and yard requirements are considered by courts to promote a variety of
public purposes. They are held to
relate to provision for light and air, fire protection, traffic safety,
prevention of overcrowding, rest and recreation, solving drainage problems,
protecting the appearance and character of a neighborhood, conserving property
values, and may, in particular cases, promote a variety of aesthetic and
psychological values as well as ecological and environmental interests.
3 The Law of
Zoning and Planning § 34B.02[2] (1995).
In
1928, the Wisconsin Supreme Court stated:
The contention
that the setback provision of the zoning ordinance ... is unconstitutional and
invalid, on the grounds that it violates the "due process" and equal
protection clauses of the federal constitution, is not tenable.
Bouchard v. Zetley, 196 Wis. 635, 645, 220 N.W. 209, 213 (1928). The court relied on Gorieb v. Fox,
274 U.S. 603, 608 (1927), where the Court said:
The remaining
contention is that the ordinance, by compelling petitioner to set his building
back from the street line of his lot, deprives him of his property without due
process of law. Upon that question the
decisions are divided, as they are in respect of the validity of zoning
regulations generally. But, after full
consideration of the conflicting decisions, we recently have held (Euclid
v. Ambler Realty Co., 272 U.S. 365, ante, 303, ____ A.L.R. ____,
47 Sup. Ct. Rep. 114), that comprehensive zoning laws and ordinances,
prescribing, among other things, the height of buildings to be erected (Welch
v. Swasey, 214 U.S. 91, 53 L. ed. 923, 29 Sup. Ct. Rep. 567) and the
extent of the area to be left open for light and air and in aid of fire
protection, etc., are, in their general scope, valid under the Federal
Constitution. It is hard to see any
controlling difference between regulations which require the lot owner to leave
open areas at the sides and rear of his house and limit the extent of his use
of the space above his lot and a regulation which requires him to set his
building a reasonable distance back from the street. Each interferes in the same way, if not to the same extent, with
the owner's general right of dominion over his property. All rest for their justification upon the
same reasons which have arisen in recent times as a result of the great
increase and concentration of population in urban communities and the vast
changes in the extent and complexity of the problems of modern city life. Euclid v. Ambler Realty Co., supra,
p. 386. State legislatures and city
councils, who deal with the situation from a practical standpoint, are better
qualified than the courts to determine the necessity, character and degree of
regulation which these new and perplexing conditions require; and their
conclusions should not be disturbed by the courts unless clearly arbitrary and
unreasonable. Zahn v. Board of
Public Works, 274 U.S. 325, ante, 1074, 47 Sup. Ct. Rep. 594,
and authorities cited. (Decided May 16,
1927.)
WEPCO
argues, however, that § 5.12(2), PZO, makes clear that the only reason the Town
prohibits transmission poles and lines in the highway setback area is to hold
down the cost of acquiring additional right-of-way for future highway
expansions. It contends that this is not
a legitimate police power purpose. We
conclude that § 5.12(2) does not establish such purpose; WEPCO's argument is
speculative. WEPCO relies on State
ex rel. Tingley v. Gurda, 209 Wis. 63, 69-70, 243 N.W. 317, 320 (1932),
where the court held that a city could not use its police power to depress the
value of property which it might on some future occasion wish to take by
eminent domain. In Tingley,
after the city annexed the block containing plaintiff's property, it rezoned
the property residential even though it was "absolutely surrounded by
property devoted to uses incompatible with and repugnant to a use for
residential purposes." Id.
at 69, 243 N.W. at 320. The city, in
effect, took plaintiff's property without just compensation. That is not the case here.
Section
5.12(2), PZO, does not prohibit utility lines and poles in the setback area; in
fact, it allows them if the utility agrees to remove them at its cost if that
should become necessary upon improvement of the highway. Section 5.12 was enacted in 1971, long
before the widening of CTH I was dreamed of in any highway engineer's
imagination. We see no reason why a
municipality should deny its residents the benefits of open space and highway
safety simply because at some future date the highway may be improved. The Town could have excluded WEPCO from the
setback area and forced it to use the highway right-of-way where it would have
been required by state and common law to bear the expense of relocation if
improvement of CTH I became necessary.
WEPCO should encourage the municipalities through which it must pass to
allow it to place its structures in highway setbacks. That policy could postpone when WEPCO would have to relocate its
utility structures if the highway widening could be done without taking the
area in which it has placed its lines and poles. Further, by staying out of the right-of-way, WEPCO would
contribute to highway safety and esthetics.
However,
§ 5.12(3), PZO, does not require the utility to file with the Town an agreement
to remove underground structures when necessary for the improvement of the
highway. Section 5.12 provides in
part: "The following kinds of
structures may be placed between the setback line and the highway: ... 3) Underground
structures not capable of being used as foundations for future prohibited
overground structures." WEPCO has
not agreed, and was not required as a condition of occupying the setback area
to agree, to remove the underground structures at its expense, when necessary
for the improvement of CTH 1. In the
absence of a relocation agreement, WEPCO's underground structures are located
where neither the County nor the Town may require their removal without paying
just compensation for their taking. See
Wis. Const. art. I, § 13. The Town's failure to require a utility to
file a relocation agreement for its underground structures may have been a
drafting error but we cannot by judicial construction supply language to
express what the Town Board may have intended.
The Town Board may have had good reasons for treating underground structures
different from aboveground structures.
We
therefore conclude that the Town or County could not require WEPCO to remove
its underground utility structures at its cost. How WEPCO may enforce its claim for just compensation for that
cost is not before us.
By
the Court.—Order affirmed in
part and reversed in part.