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Just v. Marinette County

ELR Citation: 3 ELR 20167
Nos. Nos. 106, 107, 201 N.W.2d 761/4 ERC 1841/56 Wis. 2d 7, (Wis., 10/31/1972)

A Wisconsin shoreland zoning ordinance that restricts a landower's right to alter the natural character of private lands near navigable waters is upheld. The Court makes the following distinction: presently enjoyed public rights may be protected from harm through zoning under the police power unless the damage to the property owner is too great and amounts to a confiscation; on the other hand, benefits not presently enjoyed by the public can be obtained only by eminent domain. Because the state has a present obligation under the public trust doctrine to protect wetlands, the ordinance is not providing a new benefit for the public, but is only protecting the existing public right to natural wetlands. Thus, the zoning ordinance is a valid exercise of the policy power and is not confiscatory. Plaintiffs are restrained from dumping fill on their private wetland property without the required conditional use permit.

Counsel for Plaintiffs
Wayne R. Peterson
Evrard, Evrard, Duffy, Holman, Faulds and Peterson
227 Cherry St.
Green Bay, WI 54301

Counsel for Defendants
James E. Murphy
Corp. Counsel, Marinette County
1712 Dunlop Square
Marinette, WI 54143