Kewaunee, Green Bay & Western Railroad v. City of Green Bay
Kewaunee, Green Bay & Western Railroad v. City of Green Bay
Opinion of the Court
The action is brought by the plaintiff railroad company against the city of Green Bay to1 enjoin enforcement of the city’s zoning ordinance as against described premises of the plaintiff and to have the tract declared industrial as distinguished from residence property. The defendant by cross complaint demands that the property be adjudged residential.
The plaintiff’s tract is four hundred feet long north and south, forty feet wide at the street at the south end, and sixty
The zoning ordinance puts the block wherein the plaintiff’s tract is located with the surrounding blocks in a “second residential” district. The main line of plaintiff runs through this block-a little east of its center. Contiguous residences occupy the four sides of the block, except that three lots east of the north end of plaintiff’s tract are vacant. The residential tracts adjacent to' the plaintiff’s tract facing west are approximately one hundred forty feet deep; those facing north, about one hundred feet; those facing east, from eighty on the north to one hundred twenty on the south; Two residences east of the railroad track facing south are on tracts about sixty feet deep. Next west of the plaintiff’s tract is an automobile garage and repair shop, and next to> that facing south on the southwest corner of the block is a grocery store. The latter two tracts were SO' occupied when the zoning ordinance was adopted.
The lessee of the warehouse informed the plaintiff in December, 1936, that he needed a larger warehouse and would have to move unless plaintiff provided him with a larger one. The plaintiff, desiring to keep him as a tenant, applied to the defendant Manders, the building inspector of the city, for a
The testimony and the photographs in evidence show that the land facing all the streets surrounding the block in which plaintiff’s track is located is occupied by residences that are attractive in appearance, and suitable for second-class residence property in zoning ordinances, and the premises adjacent to them are well kept. Photographs in evidence also show that the addition to the warehouse desired to be erected by the plaintiff would not render the plaintiff’s tract more subject to objection by owners and occupants of residences in the neighborhood from any standpoint than is the property in its present condition, and no more subject to such objection than is the garage and repair shop adjacent.
The plaintiff claims that the zoning ordinance is void because not properly enacted; that its tract is in fact classified as industrial property by the ordinance, or if not, is void for uncertainty in respect of its said tract; and that enforcement of the ordinance against plaintiff’s property in suit according to its terms as construed by the defendant would result in depriving the plaintiff of its property without due process.
The ordinance does not describe the boundaries of the different classes of property. It merely divides the city into1 six districts, denominated as “A to F,” and recites that “the boundaries of such districts are shown upon the map hereto attached and made a part of this ordinance, being designated as ‘Zoning Map.’ ” No map is attached to' the ordinance or ever was. A map was finally produced which was found by the court to have been filed with the ordinance. It does not show six districts marked as “A, B, C, D, E, and F” as the ordinance recites. No such letters appear on it. It bears a “legend” showing seven distinct and different district markings, six of which are denominated as indicating first residential, second residential, first business, second business, industrial, and unrestricted. The other is designated as suburban.
The marking of the plaintiff’s railroad at the location of its property involved is marked on the map precisely as “industrial districts” are marked, except that a light line appears in or near the middle of the marking. Measured by the scale on the map the marking indicates a width of one hundred feet as nearly as the eye can judge on application of a scaled ruler. Other railroad lines'are marked in the same way on the map, but plaintiff’s road is not so marked on the map east of the Fox river except near the east limits of the map where the marking indicates a width of about fifty feet and at the extreme limits of about half that width for a distance of about one thousand feet. The portion of the plaintiff’s line not marked as “industrial” extends for over three fourths of a mile through a second residential district. The map measured by its scale indicates the zoned area as about four miles
The property in suit was purchased by the plaintiff for the purpose of accommodating small industries. The company would not have bought it had they not considered that the map and the ordinance indicated it was dedicated to' such use. The engineer of the company examined the zoning map in the city engineer’s office, measured the marking at the location of the property by the scale on the map and concluded that a strip one hundred feet wide was designated on the map as for industrial use. We consider that his inference was correct— that by the “great weight and clear preponderance of the undisputed evidence” — the map itself — establishes a strip one hundred feet wide as industrial property. The right of way is only thirty feet wide; the map marks a strip one hundred feet wide at the location the same as industrial property is marked, and does not SO' mark the railroad line for three fourths of a mile east of the river or at the west zoning-limits ; the property was in use as industrial when the zoning-ordinance was passed, and had a building on it so used and
By the Court. — The judgment of the circuit court is reversed, with directions to enter judgment according to the prayer of the complaint.
Reference
- Full Case Name
- Kewaunee, Green Bay & Western Railroad Company v. City of Green Bay, imp.
- Status
- Published