A Phantom Doctrine: The Origins and Effects of Just v. Marinette County

David P. Bryden

doi:10.1111/j.1747-4469.1978.tb00738.x

1 There have been a few such studies. See, e.g., David P. Bryden, Environmental Rights in Theory and Practice, 62 Minn. L. Rev. 163 (1978); Jeffery K. Haynes, Michigan's Environmental Protection Act in Its Sixth Year: Substantive Environmental Law from Citizen Suits, 53 J. Urb. L. 589 (1976); Joseph L. Sax & Joseph F. DiMento, Environmental Citizen Suits: Three Years' Experience Under the Michigan Environmental Protection Act, 4 Ecology L.Q. 1 (1974); Joseph L. Sax & Roger L. Conner, Michigan's Environmental Protection Act of 1970: A Progress Report, 70 Mich. L. Rev. 1003 (1972).Google Scholar

2 Bryden, supra note 1, at 210-17.Google Scholar

3 Id. at 213.Google Scholar

4 56 Wis. 2d 7, 201 N.W.2d 761 (1972).Google Scholar

5 See, e.g., Alan David Freeman, Give and Take: Distributing Local Environmental Control Through Land-Use Regulation, 60 Minn. L. Rev. 883, 959-60 (1976).Google Scholar

6 U.S. Const. amend. V. The state constitutional provisions, some of which are worded somewhat differently from the federal Just Compensation Clause, are discussed in Robert M. Anderson, American Law of Zoning § 3.26 (2d ed. Rochester, N.Y.: Lawyers Co-operative Publishing Co., 1976).Google Scholar

7 See generally Frank I. Michelman, Property, Utility, and Fairness: Comments on the Ethical Foundations of “Just Compensation” Law, 80 Harv. L. Rev. 1165, 1184-90 (1967).Google Scholar

8 See generally id.Google Scholar

9 See generally Jon A. Kusler, Open Space Zoning: Valid Regulation or Invalid Taking, 57 Minn. L. Rev. 1, 20-61 (1972).Google Scholar

10 Id.Google Scholar

11 E.g., Reserve Mining Co. v. Herbst, 256 N.W.2d 808 (Minn. 1977).Google Scholar

The executive director of the Minnesota Pollution Control Agency (MPCA), who has served in that position and, previously, as an MPCA staff attorney for a combined total of about five years, does not recall a single instance in which a regulatee (nearly all of them are represented by counsel) has even contended to the agency that application of a regulation to the company would be an unconstitutional taking. In her experience, the situations in which a company asserts that “we can't afford to comply with this regulation” tend to involve polluters whose discharges are relatively small and without much environmental impact “measurable or otherwise.” She does not know of any firms that have had to shut down because of an MPCA regulation except for two instances in which the firm was allegedly unable to bear the cost of capital investment for pollution-control equipment; and in those cases the economic position of the company was “very marginal” quite apart from the regulation. Telephone interview with Sandra Gardebring, executive director, Minnesota Pollution Control Agency (July 8, 1978).Google Scholar

12 See generally Kusler, supra note 9.Google Scholar

13 Id. at 36-47.Google Scholar

14 40 N.J. 539, 193 A.2d 232 (1963).Google Scholar

15 Id. at 543, 193 A.2d at 235.Google Scholar

16 Id. at 551-52, 193 A.2d at 239-40.Google Scholar

17 Id. at 553-54, 193 A.2d at 240.Google Scholar

18 Id. at 556-57, 193 A.2d at 242.Google Scholar

19 See, e.g., Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926) (residential zoning); Hadacheck v. Sebastian, 239 U.S. 394 (1915) (pollution control); Mugler v. Kansas, 123 U.S. 623 (1887) (prohibition).Google Scholar

20 There have, however, been some proposals to alleviate the taking problem by legislation, which of course does not entail revision of constitutional rules. E.g., Kusler, supra note 9, at 65-81.Google Scholar

21 Joseph L. Sax, Takings, Private Property and Public Rights, 81 Yale L.J. 149 (1971).CrossRef Google Scholar

22 Id. at 159-60.Google Scholar

23 Id. at 151-52.Google Scholar

24 Id. at 152-54.Google Scholar

25 Id. at 153.Google Scholar

26 Id.Google Scholar

27 Id. at 171-72.Google Scholar

28 Id. at 176.Google Scholar

29 Id. at 155, 159.Google Scholar

30 Id. at 159-60.Google Scholar

31 Id. at 161, 172, 175, 178.Google Scholar

32 Id. at 161.Google Scholar

33 Id. at 162.Google Scholar

34 Id. at 163.Google Scholar

35 Id. at 169.Google Scholar

36 Id. at 169-70.Google Scholar

37 Id. at 170.Google Scholar

38 Id. at 171.Google Scholar

39 “Simply stated, this [risk of excessive zeal] is the problem of controlling the government's economic self-interest in resolving problems with the smallest possible outlay of tax funds.”Id. This formulation may refer to those cases in which the government tries by regulation to enlarge its own proprietary interests, an inference that is reinforced by Sax's reference to his previous article on just compensation law, which was largely devoted to condemning that practice. Id. But he later characterizes the “excessive zeal” cases as ones in which “the judiciary may intervene at the extremes to hold a resolution of competing [private?] claims to be so misguided as to be beyond the bounds of the police power.”Id. Still later, these cases are described as ones where “the legislature has subordinated a judgment about maximization of social benefits to advancement of private gain.”Id. at 176. The examples given of this phenomenon, however, are public trust cases and abuses of the power of eminent domain, neither of which has much to do with excessively strict regulation. Id. at 176 n.53. Elsewhere, Sax implies that landowners should not be allowed to litigate the question of excessive zeal: “Given that diffuse claims are likely to be the novel and formerly unrepresented ones, and that those with a concentrated interest at stake [i.e., the regulatees] can be expected to make their views known, it is not unreasonable to leave conflict resolution to the legislature.”Id. at 171.Google Scholar

40 Id. at 171-72.Google Scholar

41 See, e.g., Sibson v. State, 115 N.H. 124, 336 A.2d 239 (1975). See generally Fred Bosselman, David Callies, & John Banta, The Taking Issue (Washington, D.C.: Government Printing Office, 1973).Google Scholar

42 56 Wis. 2d 7, 201 N.W.2d 761 (1972).Google Scholar

43 Is. at 15, 201 N.W.2d at 767.Google Scholar

44 Id.Google Scholar

45 Id. at 16-17, 201 N.W.2d at 767-68.Google Scholar

46 Id. at 23, 201 N.W.2d at 770.Google Scholar

47 Id.Google Scholar

48 Id. at 16-17, 201 N.W.2d at 768.Google Scholar

49 E.g., Bosselman, Callies, & Banta, supra note 41, at 161, 217-20, 260, 295-97.Google Scholar

50 Donald W. Large, This Land Is Whose Land? Changing Concepts of Land as Property, 1973 Wis. L. Rev. 1039, 1041-44, 1077-81.Google Scholar

51 86 Harv. L. Rev. 1582, 1592 (1973).Google Scholar

52 Robert C. Ellickson, Suburban Growth Controls: An Economic and Legal Analysis, 86 Yale L.J. 385, 424 n.103 (1977).Google Scholar

53 Freeman, supra note 5, at 959.Google Scholar

54 Id. at 948-49.Google Scholar

55 Id. at 960.Google Scholar

56 Id. at 949, 960-61.Google Scholar

57 Supra note 14.Google Scholar

58 See generally Raymond A. Haik, William C. Walton, & David L. Hills, Aspects of Water Resources Law in Minnesota 22-24 (Minnesota University Water Resources Research Center Bull. No. 11) (Minneapolis: Water Resources Research Center, University of Minnesota, 1969).Google Scholar

59 Apart from the possibility that he would not be legally liable in any event, id., the land-owner could usually avoid the problem by installing drainage pipe in the fill, or by constructing some type of diversion structure, thereby maintaining the previous drainage patterns of the land. Telephone interview with Wayne Golly, Pine County, Minnesota, zoning administrator (July 17, 1978).Google Scholar

60 Minn. Stat. Ann. $ 106.021, 106.211, 106.341 (West 1977); Wis. Stat. Ann. $ 88.17-.42 (West 1977).Google Scholar

61 Interview with William G. Peterson, former special assistant attorney general, Office of the Attorney General of the State of Minnesota, in Minneapolis (May 19, 1978). Telephone interview with Ed Brick, chief of Water Regulations section, Wisconsin Department of Natural Resources (July 17, 1978).Google Scholar

62 Id.Google Scholar

63 Minn. Stat. Ann. § 105.42 (West 1977); Wis. Stat. Ann. $ 30.12, 30.20 (West 1977).Google Scholar

64 Minn. Stat. Ann. $105.38(1), 105.42 (West 1977); Stevens v. State, 291 Minn. 263, 190 N.W.2d 482 (1971); Wis. Stat. Ann. § 30.10 (West 1977). Marshes that are deep enough to be suitable for canoeing are “navigable.” Baker v. Voss, 217 Wis. 415, 259 N.W. 413 (1935).Google Scholar

65 Generally, any area below the ordinary high-water mark of a lake is considered part of the “public water.” This mark is located by two methods: (1) if the area has been surveyed, the DNR relies on the survey; (2) otherwise, the DNR hydrologist for the region determines the location of the ordinary high-water mark on the basis of where the vegetation becomes terrestrial. Interview with Ron Shelito, Permits section, Division of Waters, Minnesota Department of Natural Resources (Nov. 1, 1977). Similar procedures are followed in Wisconsin. Telephone interview with Floyd Stautz, director, Bureau of Water Regulation and Zoning, Wisconsin Department of Natural Resources (July 14, 1978).Google Scholar

66 Stautz interview (July 14, 1978), supra note 65; Interview with Bruce Sandstrom, permits hydrologist, Waters section, Metropolitan Region, Minnesota Department of Natural Resources, in Minneapolis (May 19, 1978).Google Scholar

67 Shelito interview (Nov. 1, 1977), supra note 65; Stautz interview (July 14, 1978), id. See State v. Kuluvar, 266 Minn. 408, 416-17, 123 N.W.2d 699, 705-6 (1963).Google Scholar

68 This is a ridge of sand and gravel which is occasionally created along lakeshores in winter by ice expansion. The lateral movement of the ice pushes the shore deposits into a wall-like ridge that can reach 10-15 feet in height. Telephone interview with Professor Herbert Wright, director, Limnological Research Center, Department of Earth Sciences, University of Minnesota, in Minneapolis (July 11, 1978).Google Scholar

69 Sandstrom interview (May 19, 1978), supra note 66; Stautz interview (July 14, 1978), supra note 65.Google Scholar

70 Norman Williams, 1 American Land Planning Law § 18.02 (Chicago: Callaghan, 1974).Google Scholar

71 See generally Richard F. Babcock, The Zoning Game: Municipal Practices and Policies 20-28 (Madison: University of Wisconsin Press, 1966).Google Scholar

72 David P. Bryden, The Impact of Variances: A Study of Statewide Zoning, 61 Minn. L. Rev. 769, 787 n.84 (1977).Google Scholar

73 In addition to the shoreland zoning acts, the new authority of the Corps of Engineers over alterations of marshes should be considered. See text accompanying note 291 infra.Google Scholar

74 1965 Wis. Laws ch. 614, at 1089-1113, as amended, Wis. Stat. Ann. § 59.971 (1977); Minn. Stat. Ann. $ 105.485, 394.25(2) (West 1969), as amended, Minn. Stat. Ann. $ 105.485, 394.25(2) (West 1977).Google Scholar

75 More precisely: “counties may. zone all lands. in their unincorporated areas within the following distances from the normal high-water elevation of navigable waters.1,000 feet from a lake, pond or flowage; 300 feet from a river or stream or to the landward side of the flood plain, whichever distance is greater.” Wis. Stat. Ann. § 59.971(1) (West Cum. Supp. 1977). “‘Shoreland' means land located within the following distances from the ordinary high water elevation of public waters: (1) Land within 1,000 feet from the normal high watermark of a lake, pond, or flowage; and (2) land within 300 feet of a river or stream or the landward side of flood plain delineated by ordinance on such a river or stream, whichever is greater.” Minn. Stat. Ann. § 105.485(2)(a) (West 1977).Google Scholar

76 Wis. Stat. Ann. § 59.971(6) (West 1977); Minn. Stat. Ann. § 105.485(4) (West 1977).Google Scholar

77 See Minn. Reg. Cons. 74(d), 75(a) (1970); Wis. Adm. Code $ NR 115.02(2), 115.03(4) (1970).Google Scholar

78 Some rules not discussed in the text, particularly the sewage-disposal regulations, may indirectly preserve wetlands. See, e.g., Minn. Reg. Cons. 72(b)(5)(aa) (prohibition of septic tanks in low swampy areas); 74(a) (subdivision regulation).Google Scholar

79 Pollution control was the major purpose. See generally Bryden, supra note 72, at 787-815.Google Scholar

80 Douglas A. Yanggen & Jon A. Kusler, Natural Resource Protection Through Shoreland Regulation: Wisconsin, 44 Land Econ. 73, 82 (1968).Google Scholar

81 See Wis. Adm. Code $ NR 115.03(2)(d) (1970); Minn. Reg. Cons. 73(c)(2) (1970).Google Scholar

82 Wis. Adm. Code § NR 115.03 (1970).Google Scholar

83 Wisconsin Department of Natural Resources, Model Shoreland Protection Regulations (Dec. 1967) [hereinafter Wis. Model Ordinance].Google Scholar

84 Minn. Reg. Cons. 70-75 (1970).CrossRef Google Scholar

85 Minn. Reg. Cons. 77 (1970).Google Scholar

86 Minn. Reg. Cons. 76 (1970). See also Minn. Reg. Cons. 70(a), (b)(2) (1970).Google Scholar

87 Wis. Adm. Code § NR 115.02(3) (1970).Google Scholar

88 Preface to Wis. Model Ordinance, supra note 83, at ii.Google Scholar

89 Id.Google Scholar

90 Wis. Adm. Code § NR 115.03(2)(d) (1970).Google Scholar

91 Id. at (1).Google Scholar

92 E.g., Wis. Model Ordinance, supra note 83, at § 9.22 (requiring a special exception permit for filling or grading on all slopes of 20 percent or more, or of more than 1,000 square feet on slopes of 12-20 percent).Google Scholar

93 Id. at § 9.22(1).Google Scholar

94 Id. at $ 9.2, 9.22.Google Scholar

95 Id. at § 9.1.Google Scholar

96 Id. at § 9.4: “In granting a Special Exception Permit for filling, grading, lagooning, or dredging the Board may attach the following conditions in addition to the provisions specified in section 18.0 of this ordinance.” section 18.42 (“Standards Applicable to All Special Exceptions”) does not add anything significant, so far as wetlands are concerned, to the provisions of § 9.4.Google Scholar

97 Id. at § 9.42. The only provisions that do not pertain to sedimentation are conditions that “lagooning be conducted in such a manner as to avoid creation of fish trap conditions” and that “fill will not restrict a floodway or destroy the storage capacity of a flood plain.”Id. at $ 9.44, 9.46.Google Scholar

98 Id. at § 12.1. The topographical maps available in 1967-68 were outdated and inadequate. The soil survey maps were more current, and they are updated periodically. Interview with Ted Lauf, coordinator of special projects, Office of Planning and Analysis, Office of the Secretary of the Wisconsin Department of Natural Resources, telephone conversation (May 24, 1978).Google Scholar

99 Wis. Model Ordinance, supra note 83, at § 12.3.Google Scholar

100 The only really puzzling permitted uses are “golf courses” and “forestry,” insofar as these seem to be incompatible with preservation of a marsh. Perhaps the drafters wished to suggest the propriety of including some nonmarsh “open space lands” in conservancy districts. Such uses, though perhaps of dubious ecological value, would not create the problem of sewage disposal, which is one of the most common justifications for prohibiting residential development of wetlands. See text accompanying note 80 supra. Then, too, the drafters, who were well aware that the concept of conservancy zoning might not survive a constitutional attack, were trying to navigate the foggy passage between the Scylla of underregulation and the Charybdis of the Just Compensation Clause. See Jon A. Kusler, Water Quality Protection for Inland Lakes in Wisconsin: A Comprehensive Approach to Water Pollution, 1970 Wis. L. Rev. 35, 66-67. Before Just, it seemed doubtful that the courts would uphold regulations that substantially destroyed the economic value of a tract without evidence of a pollution danger. See generally Kusler, supra note 9; Yanggen & Kusler, supra note 80. Accordingly, the DNR may have felt obliged to allow a few more uses of land which were zoned conservancy than the logic of strict conservation would entail.Google Scholar

101 They are called “special exceptions” in the Wisconsin model ordinance; but the meaning is identical to that of the Minnesota “conditional uses”; and to avoid confusion I have used the latter term throughout.Google Scholar

102 Wis. Model Ordinance, supra note 83, at $ 12.48, 12.41, 12.44.Google Scholar

103 Id. at § 13.0 (Recreational-Residential District); $ 14.0 (General Purpose District).Google Scholar

104 See text accompanying notes 93-94 supra.Google Scholar

105 In certain circumstances, the permit may be denied because the site remains unsuitable for a soil-absorption sewage-disposal system. Wis. Model Ordinance, supra note 83, at § 5.34(2). But that constraint exists in all districts.Google Scholar

106 Cf. Yanggen & Kusler, supra note 80, at 83.Google Scholar

107 Kusler, supra note 100, at 54.Google Scholar

108 Id.Google Scholar

109 Cf. Bryden, supra note 72, at 793-95.Google Scholar

110 See, e.g., Wis. Model Ordinance, supra note 83, at § 6.11(1) (half-acre minimum lot size); $ 7.2 (75-foot building setback). These rules may have been designed to be roughly consistent with the preexisting pattern of development on Wisconsin lakes, so as to be defensible in litigation. At least for setbacks, however, that problem could have been dealt with adequately by the provision for variances in cases in which nearby preexisting development is closer to the lake than the new setback allows. Id. at § 5.36.Google Scholar

111 See generally N. William Hines, Agriculture: The Unseen Foe in the War on Pollution, 55 Cornell L. Rev. 740, 754 (1970).Google Scholar

112 Minn. Reg. Cons. 71, 71(a), 73(a) (1970).Google Scholar

113 Id. at 71(b).Google Scholar

114 Id. at 71(b)(1)(aa).Google Scholar

115 Id. at 71(b)(2).Google Scholar

116 Id. at 73(c)(2).Google Scholar

117 Id. at 76.Google Scholar

118 Id. at 77 (2.31).Google Scholar

119 Id. at 77 (2.32)(a).Google Scholar

120 Id. at 77 (2.33).Google Scholar

121 Id. at 77 (2.4).Google Scholar

122 Id. at 77 (2.5).Google Scholar

123 Id. at 77 (2.6).Google Scholar

124 Id. at 77 (2.43)(c); (2.53)(c); (2.63).Google Scholar

125 Id. at 77 (4.32).Google Scholar

126 Id. at 77 (2.31).Google Scholar

127 Wis. Model Ordinance, supra note 83, at § 12.1.Google Scholar

128 Telephone interviews with James Menter, principal drafter of the statewide standards, Minnesota Department of Natural Resources (July 18, 1978); and Ted Lauf, coordinator of special projects, Office of Planning and Analysis, Office of the Secretary, Wisconsin Department of Natural Resources (July 18, 1978).Google Scholar

129 Id.Google Scholar

130 Yanggen & Kusler, supra note 80, at 78.Google Scholar

131 Lauf interview (May 24, 1978), see note 98 supra.CrossRef Google Scholar

132 Wis. Stat. Ann. § 59.971(6) (West 1977).CrossRef Google Scholar

133 Lauf interview (May 24, 1978), see note 98 supra.Google Scholar

134 Id.Google Scholar

135 See Bryden, supra note 72, at 796-97.Google Scholar

136 The rest of this and the following paragraph paraphrases the feelings expressed by the chief drafter. Interview with James Menter, principal drafter of the statewide standards, Minnesota Department of Natural Resources, in Minneapolis (Aug. 19, 1977).Google Scholar

137 Minn. Stat. Ann. § 105.42 (West 1977).Google Scholar

138 Wisconsin: Buffalo, Crawford, Florence, Forest, Grant, Iowa, Juneau, La Crosse, Lafayette, Langlade, Outagamie, Shawano, Trempeleau, Washington.Google Scholar

Minnesota: Aitkin, Anoka, Becker, Big Stone, Blue Earth, Brown, Cass, Carver, Chippewa, Chisago, Cottonwood, Crow Wing, Douglas, Faribault, Fillmore, Grant, Kanabac, Kandiyohi, Lac Qui Parle, Le Sueur, Lincoln, Lyon, Mahnomen, Marshall, Meeker, Mille Lacs, Mower, Norman, Olmstead, Otter Tail, Pennington, Polk, Renville, Rock, St. Louis, Sherburne, Swift, Traverse, Todd, Wabasha, Wadena, Waseca, Washington, Wilkin, Winona, Yellow Medicine. County ordinances are on file with the author.Google Scholar

We gathered the ordinances and interviewed some of the zoning administrators between January 1977 and July 1978. Obviously, therefore, our information about the ordinances is not necessarily accurate for every county in both states as of any particular date; but the pattern that emerges from a study of the ordinances is so pronounced that a recent amendment here or there would not alter it appreciably.Google Scholar

139 Wisconsin: Buffalo (5 lakes); Crawford (1); Florence (91); Forest (195); Grant (21); Iowa (9); Juneau (16); La Crosse (3); Lafayette (1); Langlade (160); Outagamie (3); Shawano (55); Trempeleau (14); and Washington (52). The numbers of lakes are from Wisconsin Department of Natural Resources, Wisconsin Lakes 79 (1974).Google Scholar

140 In Aitkin County, for example, there are 178 lakes of 25 or more surface acres, Minnesota Department of Conservation, Inventory of Minnesota Lakes 18 (1968) [hereinafter cited as Minnesota Lakes], and the shorelines of at least 16 of these lakes are of predominantly wet soil. Minnesota Lakeshore Development Study, Minnesota's Lakeshore, pt. 2 at 17 (1970) [hereinafter cited as Minnesota Lakeshore]. In Becker County, 468 lakes are 25 acres or larger in size, Minnesota Lakes 29, and the shorelines of at least 24 of these are of predominantly wet soil. Minnesota Lakeshore 19-20. Crow Wing County has 358 lakes of 25 acres or more, Minnesota Lakes 124, and the shorelines of at least 15 are of predominantly wet soil. Minnesota Lakeshore 28-31. Isanti County has 112 lakes of 25 acres or more in size, Minnesota Lakes 182, and at least 11 have shorelines made up of predominantly wet soil. Minnesota Lakeshore 35. In Kandiyohi County, there are 290 lakes of 25 or more acres in size. Minnesota Lakes 213. Id. Of the lake basins of 150 or more acres, 43 have a maximum depth of 30 feet or less, indicating a possibly marshy shoreline. Minnesota Lakeshore 40-41; Interview with Will Craig, associate director, Center for Urban and Regional Affairs, University of Minnesota, in Minneapolis (March 1, 1978). In Mahnomen County, 174 lakes are 25 or more acres in size. Minnesota Lakes 266. At least 15 lakes have shorelines of predominantly wet soil. Minnesota Lakeshore 44. Otter Tail County, which has the largest number of lakes in Minnesota, Minnesota Lakes 306, has 714 lakes of 25 acres or more in size. Id. The shorelines of at least 33 of these are of predominantly wet soil. Minnesota Lakeshore 47-50. Pope County, which has 158 lakes of 25 or more acres in size, Minnesota Lakes 343, holds at least 17 lakes whose shorelines are of predominantly wet soil. Minnesota Lakeshore 51. In St. Louis County, there are 678 lakes of 25 acres or more in size, Minnesota Lakes 369, and at least 81 lakes which are 150 acres or larger and which are 30 feet deep or less at their maximum depth. Minnesota Lakeshore 111.Google Scholar

141 Wisconsin: Bayfield County Zoning Ordinance § 23.0 (1971). Telephone interview with Ray Clump. Bayfield County assistant zoning administrator (June 13, 1977); Calumet County Zoning Ordinance § 7.06 (1970), Telephone interview with DuWayne Klessig, Calumet County zoning administrator (Dec. 5, 1977); Clark County Zoning Ordinance § 12.0 (1970), Telephone interview with Earl Smith, Clark County zoning administrator (March 21, 1978); Columbia County Zoning Ordinance § 11.05 (1968), Telephone interview with Robert Irwin, Columbia County zoning administrator (Dec. 5, 1977); Dane County Zoning Ordinance § 10.155 (1972); Telephone interview with Luverne Enger, Dane County zoning administrator (Dec. 5, 1977); Green County Zoning Ordinance § 1.3 (1967), Telephone interview with Darwin Weber, Green County assistant zoning administrator (Dec. 5, 1977); Iron County Shorelands Protection Ordinance § 7 (1971), Telephone interview with Eugene Abelson, Iron County zoning administrator (June 16, 1977); Jefferson County Zoning Ordinance § 9 (1974), Telephone interview with W. O. Hoffman, Jefferson County zoning administrator (June 16, 1977); Kenosha County Shoreland Zoning Ordinance § 3.5 (1971), Telephone interview with Harry Sorenson, Kenosha County assistant zoning administrator (Dec. 5, 1977); Marathon County Zoning Ordinance § 9 (1971), Marathon County Zoning Maps; Marquette County Zoning Ordinance § 9.0 (1969), Telephone interview with Bjorne Peterson, Marquette County zoning administrator (Dec. 2, 1977); Menominee County Zoning and Shoreland Ordinance art. VII (1967), Telephone interview with Francis Keshena, Menominee County zoning administrator (Sept. 22, 1977); Polk County Shoreland Protection Zoning Ordinance § 12.0 (1973), Telephone interview with Ted Anderson, Polk County zoning administrator (June 10, 1977); St. Croix County Zoning Ordinance § 2.6 (1968), Telephone interview with secretary for Harold Barber, St. Croix County zoning administrator (Dec. 2, 1977); Sheboygan County Shoreland Regulations $ 72.04, 72.19 (1970); Vernon County Zoning Ordinance § 12.0 (1969), Telephone interview with Chester Erlandson, Vernon County zoning administrator (Dec. 5, 1977); Waushara County Zoning Ordinance § 5 (1967), Letter from Leo Sarnowski, Waushara County zoning administrator (Dec. 2, 1977).Google Scholar

Minnesota: Beltrami County Zoning Ordinance § 2.3 (1973), Telephone interview with William Patnaude, Beltrami County zoning administrator (Feb. 9, 1977); Benton County Zoning Ordinance § 7.8 (1973), Telephone interview with Al Barthelemy, Benton County assistant zoning administrator (Feb. 20, 1978); Clay County Zoning Ordinance No. 2, at § 2.04 (1977), Telephone interview with Mark Beardsley, Clay County zoning administrator (Feb. 21, 1978); Clearwater County Zoning Ordinance § II.A (1972), Telephone interview with Daniel Logelin, Clearwater zoning administrator (Feb. 14, 1977); Dodge County Zoning Ordinance § 5.4(1), Telephone interview with Cecil Samuelson, Dodge County zoning administrator (May 9, 1977); Goodhue County Zoning Ordinance § IV.B.8 (1976), Telephone interview with Joyce Bucher, Goodhue County zoning administrator (May 9, 1977); Houston County Zoning Ordinance § 308 (1973), Telephone interview with Richard Frank, Houston County zoning administrator (Feb. 28, 1977); Hubbard County Zoning Ordinance No. 2, Amend. No. 3, at § 2.3 (1971), Telephone interview with Vern Massie, Hubbard County zoning administrator (Feb. 28, 1977); Isanti County Zoning Ordinance § 8 (1977), Isanti County Zoning Map; Jackson County Zoning Ordinance § 2.3 (1976), Telephone interview with Gordon Olson, Jackson County zoning administrator (Mar. 17, 1978); Kittson County Shorelands Management Ordinance § 2.3 (1972), Telephone interview with Harvey Nielson, Kittson County zoning administrator (Apr. 20, 1977); Koochiching County Zoning Ordinance § 2.85 (1971), Telephone interview with Ruth McLinn, Koochiching County zoning administrator (Feb. 21, 1978); McLeod County Shorelands Management Ordinance § 2.3 (1973), Telephone interview with Ed Homan, McLeod County zoning administrator (Mar. 20, 1978); Pope County Shoreland Management Ordinance § 111.C.l (1972), Telephone interview with Michael Howe, Pope County zoning administrator (Mar. 2, 1977); Red Lake County Shoreland Ordinance § 2.3 (1972), Telephone interview with Lowell Ostenson, Red Lake County zoning administrator (Mar. 17, 1978); Redwood County Zoning Ordinance § 5 (1971); Redwood County Zoning Map; Rice County Zoning Ordinance § 21 (1973), Telephone interview with Merton Hoover, Rice County zoning administrator (Dec. 5, 1977); Roseau County Shoreland Management Ordinance § 2.3 (1973), Telephone interview with O. E. Thompson, Roseau County zoning administrator (Feb. 21, 1978); Scott County Zoning Ordinance § 5.31 (1976); Scott County Zoning Maps; Steele County Zoning Ordinance § 5.4 (1971), Telephone interview with Silvyn Pribyl, Steele County zoning officer (Mar. 7, 1977); Watonwan County Zoning Ordinance § 2.3 (1972), Telephone inter-view with Marvin Wellnitz, Watonwan County zoning administrator (Apr. 11, 1977).Google Scholar

142 Wisconsin: Douglas County Zoning Ordinance § 3.10 (1970), Telephone interview with Bill Flaherty, Douglas County assistant zoning administrator (June 13, 1977).Google Scholar

Minnesota: Cook County Zoning Ordinance § 12 (1975); Cook County Zoning Map; Itasca County Zoning Ordinance art. VI (1972), Telephone interview with James Sullivan, Itasca County zoning administrator (Dec. 1, 1977); Lake County Zoning Ordinance art. 19 (1973); Lake County Zoning Map (1976); Pine County Shoreland Management Ordinance § 2.3 (1973), Telephone interview with Wayne Golly, Pine County zoning administrator (Feb. 20, 1978); Pipestone County Shoreland Management Ordinance § 2.3 (1972), Telephone interview with Dennis Stoechman, Pipestone County zoning administrator (Feb. 20, 1978).Google Scholar

143 Freeborn County Shoreland Management Ordinance art. III § 1 (1972); Nobles County Ordinance for the Management of Shoreland Areas § 2.3 (1972). Several other ordinances in both Minnesota and Wisconsin contain various sorts of equally drastic departures from the state models.Google Scholar

Wisconsin: Burnett County Land Use Ordinance § 9.0 (1969) (trailer camps allowed as a conditional use); Eau Claire County Zoning and Administrative Provisions § 12.0 (1968) (private summer cottages allowed as a permitted use); Portage County Shoreland Supplementary Zoning Ordinance § 3.2 (1969) (seasonal dwellings allowed as a permitted use); Rusk County Zoning Ordinance Amendment § W-l (1971) (trailer camps allowed as a conditional use); Taylor County Shoreland Zoning Ordinance § 9.0 (1971) (single-family and seasonal dwellings allowed as conditional uses); Walworth County Zoning Ordinance § 3.4 (1974) (drainage allowed as a permitted use); Waupaca County Zoning Ordinance § 5 (1967) (farm dwellings allowed as a conditional use).Google Scholar

Minnesota: Carlton County Ordinance for the Management of Shoreland Areas § 2.33 (1972) (single-family dwellings, although not listed in the ordinance, are allowed as a conditional use). Interview with Albert S. Anderson, Carlton County zoning administrator, in Carlton (Aug. 24, 1977); Martin County Zoning Ordinance § 5.31 (1972) (although farm homes were not listed as a permitted or conditional use, the zoning administrator indicated that nearly all requests to build such homes had been granted), Telephone interview with Wayne Flohrs, Martin County zoning administrator (Mar. 17, 1978); Murray County Ordinance for the Management of Shoreland Areas at table 1 (1972) (single-family dwellings allowed as a conditional use); Nicollet County Zoning Ordinance § 1-210 (1965) (single-family dwellings allowed as a conditional use); Sibley County Zoning Ordinance § 7 (1971) (farm dwellings allowed as a permitted use; single-family dwellings, as a conditional use); Stearns County Shoreland Management Ordinance No. 44, at § 2.32(g) (1977) (single-family dwellings allowed as a permitted use with 40-acre minimum lot size); Stevens County Zoning Ordinance § 7 (1972) (farm dwellings allowed as a permitted use); Wright County Zoning Ordinance § 308 (1973) (farm dwellings allowed as a permitted use).Google Scholar

144 Dakota County Shoreland Zoning Ordinance § 421 (1973), Interview with Robert Chelseth, senior planner, Dakota County Planning Department, in Hastings (June 29, 1977); Lake of the Woods County Zoning Ordinance § 2.3 (1973), Telephone interview with Gary Lockner, Lake of the Woods County zoning administrator (Feb. 21, 1978); Morrison County Shoreland Ordinance § 2.2 (1972) (the special protection district differs from the model ordinance only in that it allows roads as a conditional use), Telephone interview with Lee McKinnon, Morrison County zoning administrator (Feb. 21, 1978).Google Scholar

Hennepin and Ramsey counties were not required to enact shoreland zoning ordinances, because each county had only one unincorporated township. Telephone interview with Mike Robinson, senior hydrologist, Division of Waters, Minnesota Department of Natural Resources (Feb. 21, 1978).Google Scholar

145 Chelseth, Lockner, and McKinnon interviews, supra note 144.Google Scholar

146 Adams County Shoreland Protection Ordinance § 8.0, 8.1 (1971); Ashland County Zoning Ordinance, Amendatory Ordinance § 15.4, 15.1 (1971); Barron County Land Use Ordinance § 2.2, 2.2.1 (1968); Brown County Shoreland Ordinance § 9.0, 9.1 (1969); Chippewa County Shoreland Sanitary, Subdivision, and Floodplain Management Ordinance § 12.0 (1968); Dodge County Zoning Ordinance § 3.1(9) (1968), Dodge County Zoning Map; Door County Zoning Ordinance § III.J. (1968); Dunn County Shoreland Zoning Ordinance § 2.6 (1968), Telephone interview with Howard Kruse, Dunn County zoning administrator (July 14, 1978); Fond Du Lac County Shoreland Zoning Ordinance § 11.0, 11.1 (1971); Green Lake County Sanitary Subdivision and Shoreland Protection Ordinance § 12.0, 12.1 (1968); Jackson County Zoning Ordinance § 3.7 (1969), Telephone interview with Steve Raith, Jackson County zoning administrator (July 13, 1978); Kewaunee County Shoreland and Flood Plain Zoning Ordinance § 12.0, 12.1 (1969); Lincoln County Zoning Ordinance § 13.0, 13.2 (1968); Manitowoc County Shoreland Flood Plain Zoning Ordinance § VI.C. (1967), Telephone interview with Mike Demske, Manitowoc County zoning administrator (July 13, 1978); Marinette County Shoreland Zoning Ordinance No. 24, at § 3.4 (1967); Monroe County Shoreland Zoning Ordinance § 12.0, 12.1 (1969); Oconto County Shoreland Protection Ordinance § 12.0, 12.1 (1974); Oneida County Zoning and Shorelands Protection Ordinance § 9.40(K), 9.40(K)(l) (1971); Ozaukee County Zoning Ordinance § 7.037, 7.037(1) (1969); Pepin County Zoning Ordinance § 19.0, 19.1 (1968); Pierce County Shoreland Protection Ordinance § 7.0, 7.1 (1968); Price County Zoning Ordinance § III.G. (1970), Telephone interview with Walter Purcaw, Price County zoning administrator (June 14, 1977); Racine County Zoning Ordinance § 7.035 (1969), Letter from Arnold Clement, Racine County zoning administrator, to Teresa Berg (Mar. 30, 1978); Richland County Zoning Ordinance No. 2, at § II.G. (1975); Rock County Shoreland Zoning Ordinance § 16.11, 16.11(1) (1971); Sauk County Shoreland Protection Ordinance § 12.0, 12.1 (1968); Sawyer County Zoning and Subdivision Ordinance § W-1 (1971), Telephone interview with David Heath, Sawyer County zoning administrator (June 13, 1977); Vilas County Land Zoning & Water Protection Ordinance § 8, 8.1 (1967); Washburn County Zoning Ordinance § 111-12 (1977), Telephone interview with David Simmons, Washburn County zoning administrator (June 10, 1977); Waukesha Shoreland and Floodland Protection Ordinance § 5 (1970), Interview with Richard Mace, assistant executive director, Waukesha Park and Planning Commission, in Waukesha (July 13, 1977); Winnebago County Shoreland Ordinance § 5 (1968), Telephone interview with Dennis Bianchi, Winnebago County zoning administrator (Dec. 1, 1977); Wood County Shoreland Zoning Ordinance § 9.0, 9.1 (1968).Google Scholar

Milwaukee County was not required to adopt shoreland zoning, because the entire county was incorporated. Telephone interview with Ted Lauf, coordinator of special projects, Office of Planning and Analysis, Office of the Secretary, Wisconsin Department of Natural Resources (July 17, 1978).Google Scholar

147 The Vilas ordinance is more fully discussed at pp. 450-71 infra.Google Scholar

148 Ashland, Dunn, Manitowoc, Price, Racine, Vilas, and Waukesha county ordinances, supra note 146. See also the ordinances for Jackson and Sawyer counties, id., which do not allow filling in conservancy districts but do allow drainage of wetlands as a conditional use.Google Scholar

149 The 7 counties listed in note 146, supra, comprise about 8 percent of Wisconsin's 72 counties. They contain 1,878 lakes, which is about 18 percent of the statewide total of 10,353. If we were to subtract Vilas County, whose ordinance is ambiguous about conservancy zoning, see text accompanying note 145, supra, there would be only 552 lakes—5 percent of Wisconsin's total—in the remaining 6 counties. Wisconsin Department of Natural Resources, supra note 139, at 79. Conservancy zoning in Vilas County is discussed at greater length at pp. 450-71 infra, as is Waukesha—another of the 7 counties—at pp. 471-86 infra.Google Scholar

150 “A ‘conservancy' district is required by the statutory minimum standards.” Just v. Marinette County, 56 Wis. 2d 7, 11, 201 N.W.2d 761, 765 (1972).Google Scholar

151 Marinette County, Marinette County Atlas and Plat Book, at inside of front cover (1976 ed.).Google Scholar

152 U.S. Department of the Interior, Office of Water Resources Research, Investigation of a Northeastern Wisconsin Lake Ecosystem: An Interdisciplinary Approach: Phase I-Approach and Preliminary Survey 9 (1972) [hereinafter cited as Phase I].Google Scholar

153 U.S. Bureau of the Census, Census of Population: 1970, Vol. 1, Characteristics of the Population, Pt. 51, Wisconsin 51-18 (Washington, D.C.: Government Printing Office, 1973).Google Scholar

154 Interview with Robert Brisson, natural resources agent for Marinette County, University of Wisconsin Extension Division, in Marinette, Wis. (June 29, 1977); Phase I, supra note 152, at 11; Wisconsin Department of Business Development, Marinette County Economic Profile 1 (1974).Google Scholar

155 Phase I, supra note 152, at 9.Google Scholar

156 Id. at 12, 13.Google Scholar

157 Id. at 13.Google Scholar

158 Id. at 12.Google Scholar

159 Id. at 11.Google Scholar

160 Id.Google Scholar

161 U.S. Bureau of the Census, supra note 153, at 51-446.Google Scholar

162 Marinette Eagle-Star, June 18, 1967, at 4 (reporting statement at a public meeting by Harold King, a University of Wisconsin Extension resource development agent for Marinette County and a principal drafter of the county ordinance).Google Scholar

163 Interview with John Folstad, author of Communications in Shoreland Zoning and Land Use (unpublished M.S. thesis on shoreland zoning in Marinette County for the University of Wisconsin, 1969), in Madison, Wis. (July 26, 1977).Google Scholar

164 Interview with Ray Kamps, Marinette County zoning administrator, in Marinette, Wis. (July 22, 1977).Google Scholar

165 See Letter from 27 citizens, including the Justs, to the Marinette County Board of Supervisors (July 25, 1967) (copy on file with the author).Google Scholar

166 Compare Marinette County Shoreland Zoning Ordinance No. 24, at § 3.4 (1967) [hereinafter cited as Shoreland Zoning Ordinance] with Wis. Model Ordinance, supra note 83, at § 12.1.Google Scholar

167 Shoreland Zoning Ordinance § 3.41; Wis. Model Ordinance, supra note 83, at § 12.38.Google Scholar

168 Shoreland Zoning Ordinance § 3.42(1); Wis. Model Ordinance, supra note 83, at § 12.41.Google Scholar

169 Shoreland Zoning Ordinance § 9.34; Wis. Model Ordinance, supra note 83, at § 18.44.Google Scholar

170 Compare Shoreland Zoning Ordinance § 3.42(4) with Wis. Model Ordinance, supra note 83, at § 12.48, 12.41, 12.44; see text accompanying notes 101-2 supra.Google Scholar

171 Compare Shereland Zoning Ordinance § 5.42, 5.44 with Wis. Model Ordinance, supra note 83, at § 9.2, 9.22, 9.1, 9.4, 9.42; see text accompanying notes 94-97 supra.Google Scholar

172 Compare Shoreland Zoning Ordinance § 2.29 with Wis. Model Ordinance, supra note 83, at § 9.22(1).Google Scholar

173 Shoreland Zoning Ordinance § 2.29.Google Scholar

174 Id. at § 2.29(a). One who desires a conditional use permit applies to the zoning administrator, who conducts an on-site inspection and submits a recommendation to the zoning committee. If the filling involves special problems or if an evaluation requires technical assistance, the zoning administrator asks the U.S. Soil Conservation Service to help prepare the recommendation. If the application is controversial, the committee may inspect the site. It is the responsibility of the five county-board members serving on the zoning committee to hold a public hearing concerning the application and then grant or deny the permit. Shoreland Zoning Ordinance § 9.31; Telephone interview with Ray Kamps, Marinette County zoning administrator (July 20, 1978).Google Scholar

175 Shoreland Zoning Ordinance § 9.31.Google Scholar

176 Just v. Marinette County, 56 Wis. 2d 7, 9, 201 N.W.2d 761, 764 (1972).Google Scholar

177 254 Marinette County Record 216 (Apr. 12, 1961).Google Scholar

178 U.S. Department of the Interior, Office of Water Resources Research, Investigation of a Northeastern Wisconsin Lake Ecosystem: An Interdisciplinary Approach. Phase II-Management Problems and Alternatives 2 (1973) [hereinafter cited as Phase II].Google Scholar

179 Id.; Marinette County Atlas and Plat Book, supra note 151, at 17.Google Scholar

180 Phase II, supra note 178, at 2.Google Scholar

181 Id. at 7.Google Scholar

182 Lake Noquebay [Wisconsin] Rehabilitation District Commission, Proposed Management Plan for Lake Noquebay 2 (May 25, 1977) (copy on file with the author).Google Scholar

183 Phase II, supra note 178, at 7.Google Scholar

184 Id. at 3. This malady is due to the fact that water currents trigger the release of parasites from snails. The parasites mistake humans for fish and attempt to burrow through the skin. Its thickness prevents successful entry, but the burrowing causes the skin irritation known as swimmer's itch. Infested water may be treated with copper sulfate. The chemical sinks to the bottom en masse. It kills snails and almost all other aquatic organisms. Therefore, treatments are usually limited to swimming beaches. Telephone interview with Richard Brugam, Limnological Research Center, Department of Earth Sciences, University of Minnesota (July 20, 1978).Google Scholar

185 This plant is unusually objectional because it becomes so extraordinarily dense that in the affected areas aquatic recreation is impossible. Telephone interview with Susan Aiken, Department of Botany, University of Minnesota (July 22, 1978).Google Scholar

186 186 Phacr II supra note 178, at 7, 12.Google Scholar

187 Id. at 25.Google Scholar

188 Id.Google Scholar

189 Thomas W. Thompson, The Biological Status of Lake Noquebay (1972) (copy on file with the author).Google Scholar

190 Phase II, supra note 178, at 13.Google Scholar

191 Id. at 13, 17.Google Scholar

192 Id. at 19.Google Scholar

193 Id. at 3, 4.Google Scholar

194 Phase I, supra note 152, at 30; Phase II, supra note 178, at 10.Google Scholar

195 Phase II, supra note 178, at 10.Google Scholar

196 Just v. Marinette County, 56 Wis. 2d at 13, 201 N.W.2d at 766. The opinion does not reveal the acreage, which we have calculated roughly on the basis of a topographical sketch of the tract introduced at the trial. See Record at 62 (Defense Exhibit E).Google Scholar

197 See note 68 supra.Google Scholar

198 56 Wis. 2d at 13, 201 N.W.2d at 766.Google Scholar

199 Id.Google Scholar

200 We inspected the tract on August 9, 1977. Obviously, on another date, or during another year, the amount of standing water on the land might be different.Google Scholar

201 Id.Google Scholar

202 56 Wis. 2d at 13, 201 N.W.2d at 766.Google Scholar

203 Personal inspection, supra note 200.Google Scholar

204 56 Wis. 2d at 13, 201 N.W.2d at 766.Google Scholar

205 Just had partly filled two of the five other lots. Record at 194 (testimony of Ronald Just).Google Scholar

206 Interview with Kathryn Just, in Marinette, Wis. (July 27, 1977).Google Scholar

207 Id.Google Scholar

208 Since filling is a conditional use in conservancy districts, supra note 170, presumably no one needs to ask for a variance. My guess is that, having filled a tract, the normal landowner considers that the conservancy district rules no longer apply and therefore that a formal rezoning is unnecessary. The ordinance does not say this, but it does define “wetland” in such a way as to exclude filled marshes. See text accompanying notes 174-75 supra.Google Scholar

209 Interview with Ray Kamps, Marinette County zoning administrator, in Marinette, Wis. (June 28, 1977). Karpps believes that a conservancy district landowner, in almost all cases, should be allowed to develop at least a portion of the land, because “I think they should be able to use their property.”Id. Describing the attitude of the committee as “lenient,” the chairman of the zoning committee says that he does not believe that the county should have the power wholly to deny a landowner the opportunity to develop his land. Interview with Fred J. Forst, in Wausaukee, Wis. (Aug. 23, 1977).Google Scholar

210 Interview with Ray Kamps, Marinette County zoning administrator, in Marinette, Wis. (July 26, 1977).Google Scholar

211 See text accompanying notes 94-97 supra.Google Scholar

212 Albert J. Westhaus conditional use permit (granted Feb. 7, 1968).Google Scholar

213 Interview with Ray Kamps, Marinette County zoning administrator, in Marinette, Wis. (Aug. 10, 1977).Google Scholar

214 Telephone interview with Robert Olson (Aug. 10, 1977). A “floating bog” is simply a mass of vegetation floating in the water; it is sometimes as much as five feet thick and covered with decaying matter and small plants that may create a false appearance of stability. Telephone interview with Ray Kamps, Marinette County zoning administrator (July 20, 1978).Google Scholar

215 Olson interview (Aug. 10, 1977), see note 214 supra.Google Scholar

216 Interviews with Paul Schroeder, real estate broker, in Wausaukee, Wis. (Aug. 17, 1977); Ray Kamps, Marinette County zoning administrator, in Marinette, Wis. (Aug. 5, 1977); Kenneth Sparr, deputy zoning administrator, in Marinette, Wis. (Aug. 11, 1977); Howard Lorenz, soil scientist for the Soil Conservation Service, in Marinette, Wis. (Aug. 10, 1977); Robert Brisson, natural resource agent for Marinette County, in Marinette, Wis. (Aug. 10, 1977); Milos Jerabek, deputy zoning administrator, in Pembine, Wis. (Aug. 11, 1977).Google Scholar

217 Record at 97 (testimony of Ronald Just). This description appears to be unduly modest. After high school, Just was employed by a surveyor; and he is now an equipment operator who does excavation and landscaping as an employee of his father-in-law. Even so, the Justs hardly fit the stereotype of wealthy real estate investors: in 1967, for example, their combined income was §13,000. Interview with Kathryn and Ronald Just, in Porterfield, Wis. (Aug. 22, 1977).Google Scholar

218 Interview with Kathryn Just, in Porterfield, Wis. (Aug. 22, 1977).Google Scholar

219 Interview with Ronald Just, in Marinette, Wis. (July 27, 1977). At the trial, however, Mrs. Just first testified that she was unaware that they were required to obtain permission to fill, though she later admitted that most of the filling had been done after they received a notice from the zoning administrator that a permit was necessary. Record at 143, 145. Mr. Just testified that the reason he had not applied for a permit was “because by the ordinance it isn't contiguous to the water and there isn't surface drainage into the lake,” Record at 205; he was not cross-examined about his motivation. See Record at 206-8.Google Scholar

220 Telephone interview with Kathryn Just (July 22, 1978).Google Scholar

221 Id.; Letter from Ray Kamps to Ronald Just (Feb. 1, 1968). Mrs. Just confirmed that the Justs had received this letter. Record at 144 (testimony of Kathryn Just).Google Scholar

222 56 Wis. 2d at 14, 201 N.W.2d at 766.Google Scholar

223 “We wouldn't consider a Marinette County lawyer because it's common knowledge that they deal with each other.” Interview with Kathryn Just in Marinette, Wis. (July 27, 1977).Google Scholar

224 Record at 17 (Justs' complaint). The problem was that, having initially voted to reject the proposed ordinance, the county board later met and voted to adopt it; and it was the latter meeting that allegedly had not been preceded by notice of a public hearing. Further, no motion for reconsideration of the ordinance was made prior to its adoption. Record at 33, 34 (Affidavit of Ronald and Kathryn Just).Google Scholar

225 Record at 20 (Justs' complaint). Although the complaint did not say so, it seems clear that the allegation that the site was not a “wetland” was meant to encompass all the requirements discussed in text at notes 232-48 infra.Google Scholar

226 Record at 20, 21 (Justs' complaint). The “prohibition” cited in the complaint was merely the section of the ordinance that required a conditional use permit for filling and the like. Id.; Shoreland Zoning Ordinance § 5.42(2).Google Scholar

227 Record at 26-27 (County's amended complaint).Google Scholar

228 Record at 27. In other words, the civil equivalent of a criminal “fine.”Google Scholar

229 In Marinette County, the district attorney handles all criminal prosecutions, while the corporation counsel of Marinette County handles all civil matters for the county. The latter there-fore represented the county in the Just litigation. Telephone interview with James Murphy, corporation counsel for Marinette County (July 26, 1978).Google Scholar

230 Interview with Wayne Peterson, attorney for the Justs, in Green Bay, Wis. (July 28, 1977). The corporation counsel does not remember whether he made such an offer, but he says that in any event “at certain junctures, such as when they were notified of the necessity of a permit, it would have been granted.” Interview with James Murphy, in Marinette, Wis. (Aug. 4, 1977). The trial judge recalls having been told by the corporation counsel that a conditional use permit would have been granted if the Justs had applied for one. Interview with the Hon. James Martineau, state circuit court judge, 20th circuit, in Marinette, Wis. (July 20, 1977).Google Scholar

231 Peterson interview, supra note 230.Google Scholar

232 Record at 93 (testimony of Kathryn Just). If the amount of fill within 300 feet of the lake had not been “more than 500 square feet,” no permit would have been necessary. Shoreland Zoning Ordinance § 5.42(2)(a).Google Scholar

233 See Record at 108-9.Google Scholar

234 Like the DNR model, the Marinette ordinance says that filling in a conservancy district is a conditional use, in accordance with the separate section of the ordinance devoted to filling and similar land alterations. Compare Shoreland Zoning Ordinance § 3.42(4) with Wis. Model Ordinance, supra note 83, at § 12.44. The filling section, in turn, again as in the model ordinance, requires a conditional use permit only if several circumstances coexist: the site is a “wetland”; it is “contiguous” to the water; and it has “surface drainage toward the water.” Compare Shoreland Zoning Ordinance § 5.42(2), 5.42(2)(a) with Wis. Model Ordinance, supra note 83, at § 9.22, 9.22(1).Google Scholar

235 Record at 187A (testimony of Franklin Gould, a land surveyor who had determined the heights of various spots on the tract and thereafter testified for the Justs). “The land slopes generally towards the lake. However, there is a pressure [or “ice”] ridge along the front of the property immediately along the water line, which is higher than the normal level of the rest of the property.”Google Scholar

236 Witnesses for county: Record at 34, 177-78 (testimony of LeRoy Lintereur, district game manager, Wisconsin Department of Natural Resources); Record at 153 (testimony of Ray Kamps, zoning administrator). Witnesses for Justs: Record at 196 (testimony of Ronald Just); Record at 214 (testimony of Carl Klukas, neighbor).Google Scholar

237 Record at 152 (testimony of Ray Kamps); id. at 176 (testimony of LeRoy Lintereur).Google Scholar

238 Record at 188 (testimony of Franklin Gould, surveyor); id. at 214 (testimony of Carl Klukas).Google Scholar

239 Record at 166 (testimony of LeRoy Lintereur).Google Scholar

240 Id. at 167 (responding, on cross-examination, to a hypothetical case).Google Scholar

241 Id. at 179.Google Scholar

242 See generally Kusler, supra note 100, at 42-43.Google Scholar

243 In at least one situation, however, a site can be within 300 feet of a lake without having surface drainage toward it, even if the lake's entire watershed is regarded as draining toward the lake. Suppose, for example, that the site were 280 feet from Lake A, but located on the distant side of a ridge running along Lake A's shoreline. In that event, the site might drain toward, and be within the watershed of, Lake B rather than Lake A.Google Scholar

244 E.g., In re Lancaster City Ordinance No. 27-1952, 374 Pa. 546, 548, 98 A.2d 34, 35 (1953).Google Scholar

245 E.g., First Virginia Bank of Tidewater v. Commonwealth, 212 Va. 654, 655, 187 S.E.2d 186, 187 (1972).Google Scholar

246 Record at 157-58.Google Scholar

247 Id. at 159-61.Google Scholar

248 Id. at 161.Google Scholar

249 Id. at 200-203.Google Scholar

250 He was asked to assume that the effective date was October 7, 1967. Id. at 219.Google Scholar

251 Id.Google Scholar

252 November 12, 1969.Google Scholar

253 Record at 220.Google Scholar

254 Id. at 228.Google Scholar

255 Id. at 225, 229-30.Google Scholar

256 Id. at 230. On redirect examination, the Justs' attorney managed in effect to elicit from the witness partial retractions of some of these concessions, see Record at 231, but on re-crossexamination he again conceded all these points. Id. at 236.Google Scholar

257 See, e.g., note 230 supra; text accompanying notes 209-12 supra; text accompanying notes 289-90 infra.Google Scholar

258 Record at 215 (testimony of Carl Klukas, neighbor).Google Scholar

259 Id. at 204 (testimony of Ronald Just); 215 (testimony of Carl Klukas, neighbor). On appeal, the Justs asserted, among other things, that the county was trying to preserve their land as “fish” and “duck” habitat. Text accompanying note 270 infra.Google Scholar

260 Of course, if one regards a hypothetical issue as substantial, then the taking issue in Just merits that characterization. Admittedly, courts often brush aside the argument that an attack on a regulation is premature until the regulatee has exhausted his administrative remedies, for instance, by applying for a variance. See, e.g., North Suburban Sanitary Sewer Dist. v. Water Pollution Control Comm'n, 281 Minn. 524, 534, 162 N.W.2d 249, 256 (1968). This is sometimes sensible, as in cases in which the legal claim does not involve factual issues and perhaps also in some cases in which it is clear that administrative relief would be denied. In Just, however, it was clear to everyone concerned, at least after the offer of a settlement, see text at note 230 supra, that the Justs could obtain a permit; and before then they had at least an excellent chance of obtaining one. See text accompanying notes 209-13 supra.Google Scholar

Although I have indicated that the applicability of the fill-permit requirement was a “genuine” issue, I suppose that the trial court was right in holding that the Justs had to apply for a permit. When the issue is merely whether one must apply for a permit that will impose certain erosion-control conditions, it seems wise to resolve doubts like those in Just in favor of the government.Google Scholar

261 Record at 68 (decision). Conceivably, this refers only to the issue whether the site was sufficiently marshy to be a “wetland.”Google Scholar

262 Id. at 69.Google Scholar

263 Id. at 70. The court also discussed the presumptive constitutionality of legislation, without, however, relying on open-space taking decisions. Id. at 72, 73.Google Scholar

264 Id. at 74.Google Scholar

265 Their attorney had expected to lose on this issue in the trial court, because before Just Wisconsin law greatly restricted the role of trial judges in deciding constitutional questions. Telephone interview with Wayne Peterson (July 20, 1978); 56 Wis. 2d at 25-26, 201 N.W.2d at 772. Rather surprisingly, he says that he raised the nonconstitutional issues at the trial only or chiefly to ensure that the supreme court “could not duck the constitutional issue” by holding that the record was inadequate because preliminary questions had not been adequately resolved. Peterson interview (July 28, 1977), see note 230 supra.Google Scholar

266 Brief for Appellants at 15.Google Scholar

267 Id. at 10.Google Scholar

268 Id. at 10, 11.Google Scholar

269 Id. at 18, 23.Google Scholar

270 Id. at 18.Google Scholar

271 Id.Google Scholar

272 Id. at 26.Google Scholar

273 “Like the Morris case, the appellants are prohibited not only from filling but from removing any top soil on their property without obtaining a permit.”Id. at 28.Google Scholar

274 Brief of Respondent State of Wisconsin at 2.Google Scholar

275 See text accompanying notes 84-92, 130-34, 138-43 supra.Google Scholar

276 Brief of Respondent State of Wisconsin at 2.Google Scholar

277 Brief of Respondent Marinette County at 9.Google Scholar

278 Brief of Respondent State of Wisconsin at 17.Google Scholar

279 Id. at 19. This was not a reference to the leniency of the zoning committee, but rather to one of the ordinance's standards for conditional use permits: “compatibility with uses on adjacent land.” Shoreland Zoning Ordinance § 9.32(8). The idea was that, since neighbors had developed their tracts, the “compatibility” language would support granting a permit to the Justs.Google Scholar

280 Brief of Respondent State of Wisconsin at 15; Brief of Respondent Marinette County at 9-10.Google Scholar

281 See note 260 supra.Google Scholar

282 Brief of Respondent State of Wisconsin at 20.Google Scholar

283 Id.Google Scholar

284 State v. Herwig, 17 Wis. 2d 442, 117 N.W.2d 335 (1962).Google Scholar

285 Brief of Respondent State of Wisconsin at 10.Google Scholar

286 See text accompanying notes 45-46 supra.Google Scholar

287 See text accompanying note 219 supra.Google Scholar

288 415 Marinette County Records 838.Google Scholar

289 Application of Robert Wiedemeier for conditional use permit, Sept. 13, 1976 [hereinafter all applications will be cited by the name of the applicant and the date the application was made; this and other such applications are on file in the office of the zoning administrator, county court-house, Marinette, Wis.]. Conditional use permit granted Sept. 21, 1976.Google Scholar

290 Telephone interviews with Patricia Wiedemeier (May 9 and July 20, 1978).Google Scholar

291 33 U.S.C.A. § 1344 (Cum. Supp. 1977); 33 Fed. Reg. 37,144 (1977) (to be codified in 33 C.F.R. § 323).Google Scholar

292 Id.Google Scholar

293 Telephone interviews with Denise Blackwell, applications examiner, and Michael Weburg, senior applications review specialist, Army Corps of Engineers (Apr. 26, 1978).Google Scholar

294 According to Ronald Spry, infra note 295, the EPA gave its initial approval without a field inspection and has now agreed to support the position of the Fish and Wildlife Service.Google Scholar

295 Letter from U.S. Army Corps of Engineers, Chicago District, to U.S. Fish and Wildlife Service, Green Bay District Office (Mar. 7, 1978). Information about the contents of this and the letters cited in succeeding footnotes was obtained from telephone interview with Ronald Spry, biologist, U.S. Fish and Wildlife Service, Green Bay District Office (May 5, 1978).Google Scholar

296 Letter from U.S. Fish and Wildlife Service to U.S. Army Corps of Engineers, Chicago District (Apr. 25, 1978).Google Scholar

297 Id.Google Scholar

298 Id.Google Scholar

299 U.S. Fish and Wildlife Service field inspection, Apr. 12, 1977 (information obtained from Spry interview, supra note 295).Google Scholar

300 U.S. Fish and Wildlife Service letter, supra note 296.Google Scholar

301 Since the controversy is still unresolved, the service, after furnishing the information described in text at notes 293-300 supra, finally decided not to give us further documentation. Our impression is that the service believes that this tract, though not extraordinarily significant when considered in isolation, should be preserved because it is indistinguishable from most other shore-land marshes, which are cumulatively very significant. From this perspective, the service views the Wiedemeier tract as important, for example, for waterfowl, although the correspondence that was previously read to us did not reflect that concern. Interview with Richard Hoppe, field supervisor, U.S. Fish and Wildlife Service (July 21, 1978).Google Scholar

302 Telephone interview with AI Ackerman, chief of regulatory functions, U.S. Army Corps of Engineers, Chicago District (July 20, 1978).Google Scholar

303 See Natural Resources Defense Council, Inc. v. Callaway, 392 F. Supp. 685 (D.D.C. 1975).Google Scholar

304 Telephone interviews with Walter Tarman, Waukesha County zoning administrator (May 2, 1978); John D. Anderson, Vilas County zoning administrator (May 2, 1978); Jean Pulley, Crow Wing County zoning office supervisor (May 2, 1978); Ray Kamps, Marinette County zoning administrator (May 2, 1978).Google Scholar

305 Of five original vendees and two subsequent buyers, all except Gerald Butman and Gilbert Abhold received conditional use permits to fill portions of their property. Butman and Abhold, as well as James Holbrook, Kenneth Moore, and William Schroeder, obtained building permits and presumably did not need fill permits. Donald Schroeder and Elmer Cherry were the only vendees to acquire fill permits but not building permits. We found no applications that had been denied. However, there had been considerable filling on these tracts prior to the ordinance, which was not true of the (last) Just tract.Google Scholar

306 Telephone interviews with Ray Kamps, Marinette County zoning administrator (July 20, 1978); Kathryn Just (July 22, 1978); Patricia Wiedemeier (July 20, 1978). The statement in the text may be an oversimplication. Just and Wiedemeier described the Wiedemeier tract as being essentially identical with and having the same plant life as the other tracts to the east. Kamps said the Wiedemeier tract was “probably” similar. He qualified this by saying that the other tracts were higher and might have been drier. Also, because some filling was done before he became zoning administrator, Kamps never saw all of the property in its natural state.Google Scholar

307 Record at 220, Just v. Marinette County, 56 Wis. 2d 7, 201 N.W.2d 761 (1972). Begotka appraised the tract as being worth §3,600-§3,700. He also stated that the land was valued at §10 per frontage foot. Since the lot had 366.7 front feet, text at note 196 supra, its value on this basis would have been §3,667.Google Scholar

308 Interview with Gary Begotka, in Lake Township, Wis. (Aug. 23, 1977).Google Scholar

309 The county had requested an injunction that would, among other things, require the Justs to remove the fill if they failed to obtain a permit. See text at note 227 supra. The trial court, perhaps inadvertently, omitted this portion of the requested relief. See Record at 74 (Decision).Google Scholar

310 Begotka interview (Aug. 23, 1977), supra note 308.Google Scholar

311 Id.Google Scholar

312 Id.Google Scholar

313 Interview with James Watson, real estate broker for the United Farm Agency, Crivitz, Wis., in Lake, Wis. (Aug. 24, 1977). Watson has been a United Farm Agency real estate broker for 7 years and a resident of the county for 30. He says that he is familiar with property values in the Lake Noquebay area.Google Scholar

314 Id. We inadvertently neglected to ask about its value unfilled, with permission to fill. In most circumstances, this would be a more useful comparison. Here, perhaps, it was less important since the Justs, and presumably therefore their relatives, seemed to have access to free or at least inexpensive fill. See text at note 206 supra. See also note 217 supra.Google Scholar

315 Robert Olson, July 16, 1973.Google Scholar

316 Id.Google Scholar

317 Telephone interview with Robert Olson (Aug. 10, 1977).Google Scholar

318 Id.Google Scholar

319 Olson application, supra note 315 (notation on back of application form).Google Scholar

320 Olson interview (Aug. 10, 1977), supra note 317.Google Scholar

321 Wisconsin Public Service Commission docket no. 2-WP-2313, Findings of Fact and Order of Denial at 3 (Aug. 5, 1966). The other channel was created before passage of the law requiring a state permit, supra note 63. Telephone interview with Ray Kamps, Marinette County zoning administrator (July 20, 1978).Google Scholar

322 Id. at 4.Google Scholar

323 Telephone interview with Charles Buisse (Aug. 9, 1977).Google Scholar

324 The Conservation Commission was a predecessor of the Department of Natural Resources, which assumed its functions after a governmental reorganization.Google Scholar

325 Wisconsin Public Service Commission docket no. 2-WP-2313, Reply Brief of the State Conservation Commission of Wisconsin, Objector, at 10, 11 (Aug. 5, 1966).Google Scholar

326 Charles Buisse, July 18, 1970.Google Scholar

327 Buisse interview (Aug. 9, 1977), supra note 323.Google Scholar

328 Letter from Ray Kamps to Charles Buisse (Oct. 10, 1970).Google Scholar

329 Id.Google Scholar

330 Buisse interview (Aug. 9, 1977), supra note 323.Google Scholar

331 Watson interview (Aug. 24, 1977), supra note 313.Google Scholar

332 Id.Google Scholar

333 Interview with Roger R. Trumm, district conservationist, Soil Conservation Service, Marinette County, in Marinette, Wis. (July 13, 1977).Google Scholar

334 Ronald Willems, July 1, 1972.Google Scholar

335 Record at 211, Just v. Marinette County, 56 Wis. 2d 7, 201 N.W.2d 761 (1972) (testimony of Carl Klukas).Google Scholar

336 Telephone interview with Carl Klukas (Aug. 9, 1977). Klukas himself maintains a small, screened-in area on the property, though not an ordinary dwelling. Telephone interview with Carla Khrusniak (Klukas's daughter) (July 26, 1978).Google Scholar

337 Klukas interview, supra note 336.Google Scholar

338 Id.; Telephone interview with Ronald Willems (Aug. 9, 1977).Google Scholar

339 Willems interview, supra note 338.Google Scholar

340 Willems application, supra note 334.Google Scholar

341 Id.Google Scholar

342 Inventory and Evaluation (Aug. 4, 1972) after on-site inspection by Ray Kamps, Marinette County zoning administrator; Gilbert Lea, Soil Conservation Service; LeRoy Lintereur, district game manager, Wisconsin Department of Natural Resources.Google Scholar

343 Id.Google Scholar

344 Ronald Willems, conditional use permit denied Aug. 14, 1972.Google Scholar

345 Klukas interview (Aug. 9, 1977), supra note 336; Willems interview (Aug. 9, 1977), supra note 338. Willems applied for the conditional use permit on July 1, 1972, and it was denied on Aug. 14, 1972, which was during the interval between the decision of the trial court in Just (Mar. 23, 1970) and that of the supreme court (Oct. 31, 1972).Google Scholar

346 Willems interview (Aug. 9, 1977), supra note 338.Google Scholar

347 Id.Google Scholar

348 Klukas interview (Aug. 9, 1977), supra note 336.Google Scholar

349 Id.Google Scholar

350 Interview with Ray Kamps, Marinette County zoning administrator, in Marinette, Wis. (Aug. 26, 1977). Kamps has been the zoning administrator since 1967. He was one of the few people in Marinette—officials or laymen—who mentioned Just spontaneously to us. But it was clear that he did not know about the sweeping language of the opinion; and when informed of it by us, he seemed inclined to disagree with it. One of the two deputy zoning administrators, employed as such since 1972, said that he had heard about (but had never read) Just and knew only that it had held that the wetlands portion of the ordinance was constitutional, which he took simply to mean that the county had the power to deny conditional use permit applications relating to alterations of wetlands. Telephone interview with Kenneth Sparr, deputy zoning administrator, Marinette County (Aug. 29, 1977). The other deputy, hired in 1975, has hardly any role in the conditional use permit process and has not heard of Just. Interview with Milos Jerabek, deputy zoning administrator, Marinette County, in Pembine, Wis. (Aug. 11, 1977). The chairman of the zoning committee, who appeared not to understand the concept of a taking even in a general sense, did not mention Just spontaneously when we asked him about takings, though he said that he had read “part” of the opinion–“not much.” He declined to interpret it, saying, “I really didn't follow that case.” He recalled it simply as a case in which the Justs violated the law and were fined. When asked whether Just had affected his approach to conditional use permit applications, he replied, “Absolutely not.” When we described the opinion as one that authorized preservation of shoreland marshes in their natural state, if necessary by prohibiting all development, he replied that the decision was unfair to landowners. Interview with Fred Forst, chairman, Marinette County Zoning Committee, in Wausaukee, Wis. (Aug. 23, 1977). Another member of the committee had heard of but had not read Just, was not entirely sure who had won the case, did not believe it had influenced him, and felt that under most circumstances a landowner should be allowed to alter a marsh enough to make it usable. Interview with Lawrence Theisen, in Porterfield, Wis. (Aug. 11, 1977). Another committee member, a close friend of the Justs, did not spontaneously mention the case when we asked about the taking issue, was unfamiliar with the opinion, indicated it had not influenced him, and said, “I feel that the property owner should have the privilege of filling enough to enjoy the property.” Interview with Henry Rademaker, in Wagner, Wis. (Aug. 11, 1977). The remaining two members of the committee spontaneously mentioned Just and were basically familiar with and in agreement with the bold language of the opinion, though they had not read it. Only one of them, however, believed that the opinion had influenced his response to permit applications. Interviews with John Kerski and C. Edward Collete, in Marinette, Wis. (Aug. 22, 1977).Google Scholar

351 Interview with Ray Kamps, Marinette County zoning administrator, in Marinette, Wis. (Aug. 25, 1977).Google Scholar

352 Kamps interview (Aug. 26, 1977), supra note 350.CrossRef Google Scholar

353 Vilas County Board of Supervisors, Vilas County Resource and Conservation Needs 5 (1971).Google Scholar

354 John Radloff, Vilas County Economic Indicators 1975, at 15 (1977).Google Scholar

355 Id.Google Scholar

356 Id. at 44.Google Scholar

357 Id. at 45.Google Scholar

358 John Anderson, Annual Report for the Year 1976 to the Vilas County Board of Supervisors (1977) (unless otherwise indicated, this and other unpublished material is on file in the zoning office, Vilas County Courthouse, Eagle River, Wis.).Google Scholar

359 Radloff, supra note 354, at 25.Google Scholar

360 In 1970, the median age was 38.6 years, compared with 28.1 years nationally; id. at 28; and 17 percent of the residents of Vilas County were over 64 years of age, compared with 10.7 percent nationally. Id. at 36. In 1969, the median family income for Vilas was 31 percent lower than the statewide figure. Id.Google Scholar

361 Vilas County Ordinance No. 72, at § 7.0-8.5 (1969); Interview with John Digert, former chairman, Vilas County Board of Supervisors, in Rhinelander, Wis. (July 6, 1977).Google Scholar

362 Vilas County Ordinance No. 72, at § 14.3 (1969); Interview with Charles Marquardt, chairman, Vilas County Zoning, Planning, and Pollution Control Committee, in St. Germain, Wis. (June 29, 1977).Google Scholar

363 8 Proc. Vilas County Board Supervisors 374 (Mar. 15, 1977).Google Scholar

364 Vilas County Zoning Ordinance (1933). The early ordinances were about one page long, including a zoning map; and in the 1933 ordinance a forestry district covered most of the county, allowing uses from forestry to private homes.Google Scholar

365 Interview with John Digert, former chairman, Vilas County Board of Supervisors, 1967-72, in Rhinelander, Wis. (July 6, 1977).Google Scholar

366 Interview with Herman Smith, University of Wisconsin Extension, area recreational resource agent, in Rhinelander, Wis. (July 6, 1977).Google Scholar

367 Vilas County Ordinance No. 72, at § 7.1 (1969). There is no separate section regulating filling in general. The Zoning, Planning, and Pollution Control Committee, a subcommittee of the Vilas County Board of Supervisors, is charged with administering the ordinance and with employing a zoning administrator. Id. at § 19.0, 21.0. The board of adjustment hears appeals from decisions of the zoning administrator or the committee and may grant variances or exemptions. Its members are appointed by the chairman of the board of supervisors and may not serve on the zoning committee. Id. at § 22.0.Google Scholar

368 Id. at § 7.1.Google Scholar

369 Id. at § 8.1.Google Scholar

370 Id. at § 8.3.Google Scholar

371 Interview with John Anderson, Vilas County zoning administrator, in Eagle River, Wis. (July 18, 1977).Google Scholar

372 Marquardt interview (June 29, 1977), supra note 362.CrossRef Google Scholar

373 Smith interview (July 6, 1977), supra note 366; Digert interview (July 6, 1977), supra note 361.Google Scholar

374 Advisory Committee on Zoning, Report to the Vilas County Board on the Proposed Zoning Ordinance (Nov. 14, 1967) (available in the county clerk's office).Google Scholar

375 Digert interview (July 6, 1977), supra note 361.Google Scholar

376 Vilas County Ordinance No. 72, at § 8.3 (1969).Google Scholar

377 Id. at § 7.0, 14.3; Anderson interview (July 18, 1977), supra note 371.Google Scholar

378 Anderson interview, supra note 371.Google Scholar

379 Marquardt interview (June 29, 1977), supra note 362.CrossRef Google Scholar

380 Proc. Vilas County Zoning, Plan., & Pollution Cont. Committee (July 7, 1977).Google Scholar

381 Vilas County Ordinance No. 72, at § 7.1 (1969).Google Scholar

382 Interview with John Anderson, Vilas County zoning administrator, in Eagle River, Wis. (June 27, 1977). In the context of our conversation, Anderson seemed to be referring to septic tank problems associated with wet soils rather than to erosion of the fill.Google Scholar

One permit was granted in spite of a soil conservation survey that concluded that the filling of the area in question “would eliminate areas of low-land habitat, which once filled could never be restored.” Letter from Kingsley Oelhafer, district conservationist, U.S. Soil and Conservation Service, to John Anderson, zoning administrator (July 19, 1972).Google Scholar

383 Interview with John Anderson, Vilas County zoning administrator, in Eagle River, Wis. (July 27, 1977).Google Scholar

384 Marquardt interview (June 29, 1977), supra note 362. Applications of Pallotine Fathers, 1971; Sidney Schmitz, 1974; William Rodd, 1976; Camp Interlaken, 1971; Arthur Colston, 1974.Google Scholar

385 Anderson interview (July 27, 1977), supra note 383.CrossRef Google Scholar

386 Camp Interlaken, 1971 (permit denied); Roderick McKinnon, 1973 (permit granted). In the first case, permission to fill a swamp 175 feet long by 75 feet wide was denied an applicant who wished to develop building sites; in the second, a nondeveloper was given a permit to fill a swamp 400 feet in diameter.Google Scholar

387 Anderson interview (July 27, 1977), supra note 383.CrossRef Google Scholar

388 Marquardt interview (June 29, 1977), supra note 362.CrossRef Google Scholar

389 Letter from John Anderson, Vilas County zoning administrator, to Lloyd Nysse (Oct. 7, 1975).Google Scholar

390 Letter from Ralph Slater, Vilas County zoning administrator, to Rodney Fochs (Aug. 16, 1971); Letter from John Anderson, Vilas County zoning administrator, to Rodney Fochs (Aug. 26, 1976).Google Scholar

391 Interview with John Anderson, Vilas County zoning administrator, in Eagle River, Wis. (July 20, 1977).Google Scholar

392 Departing from the pollution-control rationale he had offered as the general reason for conservancy zoning, the zoning administrator explained that in reducing the scope of projects “I play aesthetics more than anything.”Id.Google Scholar

393 Telephone interview with Thomas Whipperfurth (Aug. 12, 1977).Google Scholar

394 Letter from John Anderson, Vilas County zoning administrator, to Ralph Simmons (May 28, 1975).Google Scholar

395 Text accompanying note 382 supra.Google Scholar

396 Letter from John Anderson, Vilas County zoning administrator, to Thomas Lee (May 9, 1975).Google Scholar

397 Letter from John Anderson, Vilas County zoning administrator, to Walter Fast (Aug. 20, 1974).Google Scholar

398 Interview with John Anderson, Vilas County zoning administrator, in Eagle River, Wis. (Aug. 10, 1977); Inspection Report of Leroy Jensen, deputy zoning administrator, in reference to the application of Robert Basler, Sept. 4, 1974.Google Scholar

399 See text accompanying notes 213-15 supra.Google Scholar

400 E.g., interview with Ronald G. Cudnohoski, realtor, in Coleman, Wis. (July 19, 1977).Google Scholar

401 For obvious reasons, it seems inappropriate to list those who expressed to us their dislike of him.Google Scholar

402 Interview with John Anderson, Vilas County zoning administrator, in Eagle River, Wis. (June 23, 1977).Google Scholar

403 Quoting from Wis. A. County Code Administrators Newsletter 12 (June 1977).Google Scholar

404 See Vilas County Ordinance No. 72, at § 21.1 (1969).Google Scholar

405 Id.Google Scholar

406 Id.Google Scholar

407 Id.Google Scholar

408 Interview with John Anderson, Vilas County zoning administrator, in Eagle River, Wis. (July 19, 1977). Nor has any conservancy area landowner brought suit against the county. Telephone interview with John Anderson, zoning administrator (July 21, 1978).Google Scholar

409 Interviews with Timothy Vocke, Vilas County district attorney, in Eagle River, Wis. (June 27, 1977); Mark Mangerson, Vilas County district attorney, 1974-76, in Rhinelander, Wis. (July 13, 1977); James Mason, Vilas County district attorney, 1973-74, in Eagle River, Wis. (June 30, 1977). Although it was impossible to make this point without mentioning the district attorneys, I have chosen not to attribute any of the particular criticisms to particular individuals. In addition, it should be stressed that I have no idea where the blame lies in the controversies swirling about the zoning administrator. He gets along well enough with his fellow administrators to have been chosen president of the Wisconsin Association of County Code Administrators. Wis. A. County Code Administrators Newsletter, June 1977, at 1.Google Scholar

410 Vocke interview (June 27, 1977), supra note 409. One attorney said, for example, “Sure I sympathize with the guy who says ‘[expletive deleted].zoning.' “Mangerson interview (July 13, 1977), supra note 409. Another said, “You can't treat these people [the violators] like criminals. They haven't done anything that bad.” Mason interview (June 30, 1977), supra note 409.Google Scholar

411 Interview with John Anderson, Vilas County zoning administrator, in Eagle River, Wis. (July 15, 1977).Google Scholar

412 Vocke interview (June 27, 1977), Mangerson interview (July 13, 1977), and Mason interview (June 30, 1977), supra note 409; Interview with Calvin Burton, Vilas County district attorney, 1968-72, in Eagle River, Wis. (July 19, 1977).Google Scholar

413 Marquardt interview (June 29, 1977), supra note 362; Mason interview (June 30, 1977), and Mangerson interview (July 13, 1977), supra note 409; Interviews with John Anderson, Vilas County zoning administrator, in Eagle River, Wis. (June 28, 1978); and Kenneth Anderson, assistant Vilas County resource agent, in Eagle River, Wis. (July 6, 1977).Google Scholar

414 Marquardt interview (June 29, 1977), supra note 362.CrossRef Google Scholar

415 John Anderson interview (June 28, 1977), supra note 413.Google Scholar

416 Interview with Sidney Schmitz, in Lac du Flambeau, Wis. (July 14, 1977).Google Scholar

417 Interview with William Rodd, in Eagle River, Wis. (July 12, 1977).Google Scholar

418 Interview with Roger Reindl, in Presque Isle, Wis. (July 19, 1977).Google Scholar

419 List of violations available in zoning administrator's office, courthouse, Eagle River, Wis. Before 1972, John Anderson was not the zoning administrator. Interview with John Anderson, Vilas County zoning administrator, in Eagle River, Wis. (July 21, 1978).Google Scholar

420 Violations of Robert DuWe, 1974; Emil Kalous, 1974; Joe Schneider, 1974. Most violations are reported by other landowners. Telephone interview with John Anderson, Vilas County zoning administrator (Minneapolis to Eagle River, Wis.) (July 24, 1978).Google Scholar

421 Marquardt interview (June 29, 1977), supra note 362.CrossRef Google Scholar

422 Interview with John Anderson, Vilas County zoning administrator, in Eagle River, Wis. (July 15, 1977).Google Scholar

423 Violations of Robert Burns (corrected after receipt of letter from John Anderson, zoning administrator), 1977; Charles Kolbeck (corrected after receipt of letter from James Mason, Vilas County district attorney), 1974; Frank Janacek (corrected after receipt of letter from James Mason, Vilas County district attorney), 1973.Google Scholar

424 Violations of G. W. Voeltner, 1971; M. F. Stricker, 1972; Paul Roszko, 1972; Joe Schneider, 1974; Charles Kuhn, 1974; Robert DuWe, 1974. The zoning administrator indicated that these files were not returned for further information. Anderson interview (July 27, 1977), supra note 383. The district attorneys did not recall the specific cases.Google Scholar

425 Anderson interview (July 27, 1977), supra note 383.CrossRef Google Scholar

426 Vilas County v. Emil Kalous, Vilas County Court, 2-517 S.C. (1974).Google Scholar

427 Vilas County v. Michael DuWe, Vilas County Court, 2-406 S.C. (1974).Google Scholar

428 State of Wisconsin v. Clyde Ahlborn, Vilas County Court, 5655 M. (1971).Google Scholar

429 Vilas County v. Natural Lakes, Inc., Vilas County Court, 2-525 S.C., 2-672 S.C. (1974).Google Scholar

430 Proc. Vilas County Board Supervisors 5 (Nov. 12, 1974).Google Scholar

431 8 Proc. Vilas County Board Supervisors 393 (Jan. 18, 1977); Interview with John Anderson, Vilas County zoning administrator, in Eagle River, Wis. (June 23, 1977).Google Scholar

432 8 Proc. Vilas County Board Supervisors 393 (Jan. 18, 1977).Google Scholar

433 Interviews with Paul Miller, chairman, Vilas County Board of Adjustment, in Boulder Junction, Wis. (Aug. 3, 1977); and George Jackson, vice-chairman, Vilas County Board of Adjustment, in St. Germain, Wis. (Aug. 4, 1977).Google Scholar

434 Official Directory, Vilas County (1977) (available in Vilas county clerk's office).Google Scholar

435 Interviews with Eileen Hendrickson, secretary to the Vilas County zoning administrator, in Eagle River, Wis. (Aug. 15, 1977); and Eugene Radloff, resource agent, Vilas County Extension Office, in Eagle River, Wis. (Aug. 12, 1977).Google Scholar

436 Hendrickson interview (Aug. 15, 1977), supra note 435.Google Scholar

437 Vilas County Ordinance No. 72, at § 22.2 (1969).CrossRef Google Scholar

438 Record of Appeal of the Trout Lake Property Association to the Board of Adjustment (July 3, 1973).Google Scholar

439 Vilas County Register of Deeds, 202-479 (1966).Google Scholar

440 Record of Appeal of Arthur Colston, Proc. Vilas County Board of Adjustment (Oct. 28, 1974) (testimony of Arthur Colston); Telephone interview with Eileen Hendrickson, secretary to the Vilas County zoning administrator (Minneapolis to Eagle River, Wis.) (Mar. 17, 1978).Google Scholar

441 Interview with Arthur Colston, in Woodruff, Wis. (Aug. 24, 1977).Google Scholar

442 Id.Google Scholar

443 Interview with Donald Schuetz, in Woodruff, Wis. (Aug. 24, 1977).Google Scholar

444 Id.; Colston interview (Aug. 24, 1977), supra note 441.Google Scholar

445 Register of Deeds, 276-369 (1972).Google Scholar

446 Schuetz interview (Aug. 24, 1977), supra note 443.Google Scholar

447 Id.Google Scholar

448 Id.Google Scholar

449 Id.; Colston interview (Aug. 24, 1977), supra note 441.Google Scholar

450 Interview with Arthur Colston, in Woodruff, Wis. (Aug. 3, 1977).Google Scholar

451 Colston interview (Aug. 24, 1977), supra note 441.Google Scholar

452 Interview with William Walick, deputy zoning administrator, Arbor Vitae Township, in Eagle River, Wis. (Aug. 24, 1977).Google Scholar

453 Id.Google Scholar

454 Schuetz interview (Aug. 24, 1977), supra note 443; Colston interview (Aug. 3, 1977), supra note 450.Google Scholar

455 Telephone interview with Donald Schuetz (Minneapolis to Manitowish) (July 21, 1978). See text accompanying note 376 supra.Google Scholar

456 Proceedings of the board, supra note 440.Google Scholar

457 Letter from John Anderson, Vilas County zoning administrator, to Arthur Colston (May 11, 1973).Google Scholar

458 Letter from Arthur Colston to John Anderson (July 23, 1973).Google Scholar

459 Letter from John Anderson to Arthur Colston (Oct. 30, 1973).Google Scholar

460 Interviews with Arthur Colston, in Woodruff, Wis. (July 8 and Aug. 3, 1977).Google Scholar

461 Stroh first requested the zoning committee to review its decision; the request was denied a month later. Letter from John Anderson, zoning administrator, to Michael Stroh, attorney for Arthur Colston (July 18, 1974). He then appealed to the board of adjustment, but waited until September 17, 1974, to do so, far beyond the 10-day filing limit on appeals from permit denials. Vilas County Ordinance No. 72, at § 22.2 (1969). The board of adjustment therefore did not honor his notice of appeal. Letter from Paul Miller, chairman, Vilas County Board of Adjustment, to Michael Stroh (Sept. 19, 1974). On September 23, 1974, Stroh resubmitted the appeal, arguing that he was appealing from the committee's refusal to review the case and not from the permit denial and that the time limit therefore did not apply. On October 2, 1974, the board of adjustment agreed to hear the case. Letter from Paul Miller, chairman, Vilas County Board of Adjustment, to Michael Stroh (Oct. 2, 1974).Google Scholar

462 Letter from Paul Miller, chairman, Vilas County Board of Adjustment, to Arthur Colston (Nov. 7, 1974). For reasons which I am not free to reveal and which are not essential to an understanding of the case, the validity of this decision was not litigated.Google Scholar

463 Colston interview (July 8, 1977), supra note 460; Anderson interview (June 28, 1977), supra note 413; Miller interview (Aug. 3, 1978); and Jackson interview (Aug. 4, 1977), supra note 433.Google Scholar

464 Colston interview (Aug. 24, 1977), supra note 441.Google Scholar

465 Id.Google Scholar

466 Schuetz interview (Aug. 24, 1977), supra note 443.Google Scholar

467 Telephone interview with Nathan Marcks, assessor, Arbor Vitae Township (Eagle River to Appleton, Wis.) (July 20, 1977).Google Scholar

468 Id.Google Scholar

469 Id.Google Scholar

470 Id.Google Scholar

471 Schuetz interview (Aug. 24, 1977), supra note 443.Google Scholar

472 Vilas County Tax Rolls, Vilas County Assessor's Office, in Eagle River, Wis.Google Scholar

473 Interviews with Joseph Woloschek, assessor, Plum Lake and Land O'Lakes townships, in St. Germain, Wis. (July 12, 1977), and Emil Martinson, assessor, Conover Township, in Conover, Wis. (July 14, 1977).Google Scholar

474 Marinette: Interviews with Arthur Rein, assessor for Middle Inlet, in Middle Inlet, Wis. (July 12, 1977); Elmer Busick, assessor for Wagner, in Wagner, Wis. (July 12, 1977); William Caine, assessor for Wausaukee, in Wausaukee, Wis. (July 12, 1977).Google Scholar

Waukesha: Interviews with Fraland Campbell, assessor for town of Pewaukee, in Pewaukee, Wis. (July 25, 1977); Robert Morgan, assessor for Town of Summit, in Summit, Wis. (July 25, 1977); R. E. Moore, assessor for Town of Mukwonago, in Mukwonago, Wis. (July 26, 1977); James Winslow, assessor for Town of Genesee, in Genesee, Wis. (July 28, 1977); Darlene Cappel, assessor for Town of Vernon, in Vernon, Wis. (July 28, 1977); Donna Mae Zimmerman, assessor for Town of Lisbon, in Lisbon, Wis. (Aug. 1, 1977).Google Scholar

We did not interview assessors in Crow Wing County, nor did we interview every assessor in all three Wisconsin counties; but every one we did interview gave some combination of the responses indicated in the text.Google Scholar

475 Woloschek interview (July 12, 1977), supra note 473.Google Scholar

476 Record of Appeal of Arthur Colston, supra note 440.Google Scholar

477 Letter from Paul Miller, chairman, Vilas County Zoning Board of Adjustment, to Arthur Colston (Nov. 7, 1974).Google Scholar

478 Record of Appeal of Arthur Colston, supra note 440 (testimony of John Anderson, Vilas County zoning administrator, and Thomas D. Smith, assistant water resources management investigator, Wisconsin Department of Natural Resources).Google Scholar

479 Interview with Michael Stroh, attorney for Arthur Colston, in Eagle River, Wis. (Aug. 5, 1977).Google Scholar

480 Record of Appeal of Arthur Colston, supra note 440 (testimony of Arthur Colston, Exhibit 2).Google Scholar

481 Id.Google Scholar

482 Record of Appeal of Arthur Colston, supra note 440 (testimony of Thomas D. Smith, assistant water resource management investigator, Wisconsin Department of Natural Resources).Google Scholar

483 Id.Google Scholar

484 Record of Appeal of Arthur Colston, supra note 440 (testimony of Ronald Edwards).Google Scholar

485 Record of Appeal of Arthur Colston, supra note 440 (testimony of David Walstrom, public health inspector, Wisconsin Department of Health and Social Services).Google Scholar

486 Interview with John Anderson, Vilas County zoning administrator, in Eagle River, Wis. (Aug. 2, 1977).Google Scholar

487 Record of Appeal of Arthur Colston, supra note 440 (testimony of Arthur Colston).Google Scholar

488 Id. Telephone interview with John Anderson, Vilas County zoning administrator (July 21, 1978).Google Scholar

489 Record of Appeal of Arthur Colston, supra note 440.Google Scholar

490 Id.Google Scholar

491 Miller interview (Aug. 3, 1977), supra note 433.Google Scholar

492 Jackson interview (Aug. 4, 1977), supra note 433.CrossRef Google Scholar

493 Interview with John Anderson, Vilas County zoning administrator, in Eagle River, Wis. (Aug. 10, 1977).Google Scholar

494 Id.Google Scholar

495 Interview with Eileen Hendrickson, secretary to the Vilas County zoning administrator, in Eagle River, Wis. (Aug. 11, 1977).Google Scholar

496 Interview with William Egtvedt, member, Vilas County Zoning, Planning, and Pollution Control Committee, in Arbor Vitae, Wis. (Aug. 15, 1977).Google Scholar

497 Interview with Bernard Hletko, member, Vilas County Zoning, Planning, and Pollution Control Committee, in Washington Township, Wis. (Aug. 12, 1977).Google Scholar

498 Miller interview (Aug. 3, 1977), supra note 433.Google Scholar

499 Jackson interview (Aug. 4, 1977), supra note 433.CrossRef Google Scholar

500 Record of Appeal of Arthur Colston, supra note 440.Google Scholar

501 Id., quoting from Just v. Marinette County, 56 Wis. 2d 7, 1, 201 N.W.2d 761, 768 (1972).Google Scholar

502 See text accompanying note 472 supra.Google Scholar

503 Waukesha County Park and Planning Commission, Waukesha County Sand and Gravel Utilization Plan I-4 (1976).Google Scholar

504 Waukesha Park and Planning Commission, Park and Parkway Plan for Waukesha County 18 (1973).Google Scholar

505 Interview with Bruce Rubin, chief land use planner, Southeastern Wisconsin Regional Planning Commission, in Waukesha, Wis. (July 27, 1977).Google Scholar

506 Interview with Jack Koepp, realtor, in Pewaukee, Wis. (July 22, 1977).Google Scholar

507 Id.Google Scholar

508 Id.Google Scholar

509 Rubin interview (July 27, 1977), supra note 505.CrossRef Google Scholar

510 Koepp interview (July 22, 1977), supra note 506.CrossRef Google Scholar

511 See Waukesha County Zoning Ordinance (1946).Google Scholar

512 Interview with Randall Melody, Waukesha County chief research planner, in Waukesha, Wis. (July 1977); Waukesha County Ordinance § V, XX (1946).Google Scholar

513 Waukesha County Shoreland and Floodland Protection Ordinance (1970) [hereinafter cited as Waukesha County Ordinance].Google Scholar

514 Compare Waukesha County Ordinance § 5.01 (1959) with Waukesha County Ordinance § 5.01 (1970).Google Scholar

515 Compare Waukesha County Ordinance § 5.01; 3.04(5)(A); 3.07(7)(I); with Wis. Model Ordinance § 12.0, supra note 83.Google Scholar

516 Waukesha County Ordinance § 5.01.Google Scholar

517 Id. at § 3.04(5)(B).Google Scholar

518 Id.Google Scholar

519 Id. at § 3.07(7)(I).Google Scholar

520 See text accompanying notes 544-46 infra.Google Scholar

521 Interview with Jay Potter, assistant zoning administrator, Waukesha County Park and Planning Commission, in Waukesha, Wis. (July 21, 1977).Google Scholar

522 Waukesha County Ordinance § 4.02(2)(B).Google Scholar

523 Interview with Richard Mace, assistant executive director, Waukesha County Park and Planning Commission, in Waukesha, Wis. (July 27, 1977).Google Scholar

524 Interview with Richard Mace, assistant executive director, Waukesha County Park and Planning Commission, in Waukesha, Wis. (July 22, 1977).Google Scholar

525 Id.Google Scholar

526 Id.Google Scholar

527 Cf. David P. Bryden, The Impact of Variances: A Study of Statewide Zoning, 61 Minn. L. Rev. 769, 780 (1977).Google Scholar

528 Interview with Jay Potter, assistant zoning administrator, Waukesha County Park and Planning Commission, in Waukesha, Wis. (July 21, 1977).Google Scholar

529 Waukesha County Ordinance § 4.02(2)(B).Google Scholar

530 Interview with Walter Tarman, executive director and zoning administrator, Waukesha County Park and Planning Commission, in Waukesha, Wis. (July 22, 1977).Google Scholar

531 Id.Google Scholar

532 Jack Sheehan, Aug. 30, 1973. (The dates in this and the following footnotes that identify applications for dispensations refer to the dates on which the permits or zoning changes were granted or denied. The files are located in the Office of the Park and Planning Commission, County Courthouse, Waukesha, Wis.)Google Scholar

533 Robert Duston, July 6, 1976; Willard Starpe, Feb. 25, 1977; Esther Kemos, June 18, 1976.Google Scholar

534 Koepp interview (July 22, 1977), supra note 506.CrossRef Google Scholar

535 Id.; Letter from Walter Tarman, zoning administrator, to the plan commissions of the towns of Pewaukee and Delafield, Wis. (May 3, 1976).Google Scholar

536 Lake Country Rep., May 27, 1976, at 3, col. 4.Google Scholar

537 Pewaukee Lake Sanitary Sewer District, June 4, 1976.Google Scholar

538 Id., Exhibit A, at item J.Google Scholar

539 Waukesha County Ordinance § 19.02. The four-month figure was calculated by averaging the time periods between the filing of the application and the issuance of the permit.Google Scholar

540 Supra note 533.Google Scholar

541 Potter interview (July 21, 1977), supra note 528.Google Scholar

542 Interview with Kathy Kerstein, planner, Waukesha County Park and Planning Commission, in Waukesha, Wis. (July 15, 1977); Interview with Richard Mace, assistant executive director, Waukesha County Park and Planning Commission, in Waukesha, Wis. (July 21, 1977).Google Scholar

543 Potter interview (July 21, 1977), supra note 528.Google Scholar

544 Interview with Richard Mace, assistant executive director, Waukesha County Park and Planning Commission, in Waukesha, Wis. (July 25, 1977).Google Scholar

545 Legal fill: Douglas Gallogly, Jan. 27, 197. Illegal fills: William Kueht, Mar. 3, 1973; Joseph Zygowski, May 15, 1973; Point Realty, Mar. 24, 1977.Google Scholar

546 See note 545 supra.Google Scholar

547 Ronald Stein, Aug. 19, 1971; Milwaukee County Council, Boy Scouts of America, Dec. 6, 1973; William Nelson, Feb. 20, 1975.Google Scholar

548 Staff recommendation by Jerome Schwarzmeier, Waukesha County naturalist (Oct. 4, 1973).Google Scholar

549 Interview with Jerome Schwarzmeier, Waukesha County naturalist, in Waukesha, Wis. (July 26, 1977).Google Scholar

550 Milwaukee County, Boy Scouts of America, Dec. 6, 1973.Google Scholar

551 Interview with Ralph Henning, estimator, Wolf Construction Co., in Delafield, Wis. (Aug. 3, 1977); Interview with Paul Heller, city engineer, city of Waukesha, in Waukesha, Wis. (July 29, 1977).Google Scholar

552 Id.Google Scholar

553 Mace interview (July 21, 1977), supra note 542; Potter interview (July 21, 1977), supra note 528.Google Scholar

554 Interview with Jay Potter, assistant zoning administrator, Waukesha County Park and Planning Commission, in Waukesha, Wis. (Aug. 1, 1977).Google Scholar

555 Id.Google Scholar

556 Interview with Richard Mace, assistant executive director, Waukesha Park and Planning Commission, in Waukesha, Wis. (July 13, 1977).Google Scholar

557 Id. Interview with Jay Potter, assistant zoning administrator, Waukesha Park and Planning Commission, in Waukesha, Wis. (July 15, 1977); Tarman interview (July 22, 1977), supra note 530.Google Scholar

558 Mace interview (July 27, 1977), supra note 523.CrossRef Google Scholar

559 Interview with Kathy Kerstein, planner, Waukesha County Park and Planning Commission, in Waukesha, Wis. (June 27, 1977).Google Scholar

560 Id.Google Scholar

561 Mace interview (July 21, 1977), supra note 542.Google Scholar

562 Interview with John Heuser, in Summit, Wis. (Aug. 1, 1977).Google Scholar

563 Supra note 545.Google Scholar

564 Id.Google Scholar

565 Melody interview (July 8, 1977), supra note 512.Google Scholar

566 Figures calculated from analysis of the aerial photographs.Google Scholar

567 Randall Melody, chief research planner; Jay Potter, assistant zoning administrator; Kathy Kerstein, planner; Mary Finet, planner; Waukesha County Park and Planning Commission; Donald Reed, coordinator, Coastal Management Program, Southeastern Wisconsin Regional Planning Commission. All of these individuals are experienced interpreters of aerial photographs. Because we double-checked the interpretations of county officials against those of a regional official and also eventually acquired confidence in our own interpretive ability, we think that the remote possibility of biased interpretations by county officials can safely be ignored.Google Scholar

568 Supra note 551.Google Scholar

569 Supra notes 63-65 and accompanying text.Google Scholar

570 Waukesha County Ordinance § 3.05(2); Interview with Richard Mace, assistant executive director, Waukesha County Park and Planning Commission, in Waukesha, Wis. (Aug. 12, 1977).Google Scholar

571 See text accompanying notes 535-37 supra.Google Scholar

572 Interview with Jerome Schwarzmeier, Waukesha County Park naturalist, in Waukesha, Wis. (Aug. 3, 1977).Google Scholar

573 Southeastern Wisconsin Regional Planning Commission, A Regional Sanitary Sewerage System for Southeastern Wisconsin, Planning Report No. 16 (1974). Sixty-seven of the county's 107 conservancy districts are located in these 4 townships. Waukesha County Official Shoreland Zoning Maps (available in the Park and Planning Office, Waukesha, Wis.).Google Scholar

574 Interview with Jay Potter, assistant zoning administrator, Waukesha County Park and Planning Commission, in Waukesha, Wis. (June 24, 1977).Google Scholar

575 Tarman interview (July 22, 1977), supra note 530.CrossRef Google Scholar

576 Id.; Just v. Marinette County, 56 Wis. 2d 7, 17, 201 N.W.2d 761, 768 (1972).Google Scholar

577 Tarman interview (July 22, 1977), supra note 530.CrossRef Google Scholar

You just can't do anything. You must have a good reason. You have to be more careful when you deny something than when you approve. It's more likely to be challenged. If there's only half a sentence of a reason, why, then I suppose it could be challenged in court.⁵⁷⁹ Google Scholar

578 Mace interview (July 29, 1977), supra note 523.Google Scholar

579 Potter interview (Aug. 1, 1977), supra note 541.Google Scholar

580 The commission, which is the “county zoning agency” mentioned in the text accompanying note 519 supra, has responsibilities that include approving or denying all conditional use permit applications. Waukesha County Ordinance § 3.07(2); 20.01.Google Scholar

The corporation counsel also reports that Just has not affected any decision in the county: “Not here. Nothing here. Because we haven't had anything here.” Interview with Willis Zick, corporation counsel, Waukesha County, in Waukesha, Wis. (Aug. 11, 1977). The general feeling of the zoning staff is that all problems of siltation and drainage have been adequately solved by imposing conditions on the permits, that no significant wildlife areas or vegetation have been lost, and that to have denied any of the permits would have been to place an unreasonable burden on the land-owner: “Naturalists might try to save every weed, but we have to be reasonable.” Interview with Kathy Kerstein, planner, Waukesha County Park and Planning Commission, in Waukesha, Wis. (July 13, 1977).Google Scholar

581 Interview with Homer J. Williams, member, Waukesha County Park and Planning Commission, in Waukesha, Wis. (Aug. 10, 1977).Google Scholar

582 Id.Google Scholar

583 See text accompanying notes 90-97, 125 supra.Google Scholar

584 See John Borchert, Minnesota's Lakeshore, Part I: Summary Report of the Minnesota Lakeshore Development Study 13, fig. 10 (1970).Google Scholar

585 Crow Wing County Zoning Ordinance § 5.4-19-12 (1972) [hereinafter cited as Zoning Ordinance]. The classification system, imposed by the state as part of its minimum standards, is discussed more fully in Bryden, supra note 527, at 802-15.Google Scholar

586 On the other hand, the language of the fifth exclusion suggests an intention to prevent filling of lowlands such as marshes rather than higher land, where one would expect the danger of erosion to be, if anything, greater, if the land slopes toward the water.Google Scholar

587 Interviews with Dennis Olson, Crow Wing County zoning technician, in Brainerd, Minn. (June 30 and July 14, 1977).Google Scholar

588 Application of Mark Turnberg for dirtfill permit, Aug. 13, 1975; Application of Gary Skapyak for dirt fill permit, Aug. 21, 1975. See text accompanying notes 604-6 infra. (These applications, and the tape recordings of the hearings, are on file in the Crow Wing County Planning and Zoning Office, Brainerd, Minn.)Google Scholar

589 Zoning Ordinance § 18.1.Google Scholar

590 Id.Google Scholar

591 Id. at § 5.4-6-20.Google Scholar

592 Interviews with Lee Anderson, Crow Wing County zoning technician, in Brainerd, Minn. (Aug. 19, 1977), and Dennis Olson, Crow Wing County zoning technician, in Brainerd, Minn. (Aug. 18, 1977).Google Scholar

593 Olson interview, supra note 592.Google Scholar

594 Anderson interview (Aug. 19, 1977), supra note 592.CrossRef Google Scholar

595 Olson interview (June 30, 1977), supra note 587.Google Scholar

596 Id.Google Scholar

597 Id.Google Scholar

598 Zoning Ordinance § 18.1.Google Scholar

599 Olson interview (Aug. 18, 1977), supra note 592; Interview with Lee Anderson, Crow Wing County zoning technician, in Brainerd, Minn. (Aug. 17, 1977).Google Scholar

600 Interview with Dennis Olson, Crow Wing County zoning technician, in Brainerd, Minn. (Aug. 16, 1977).Google Scholar

601 Olson interview (June 30, 1977), supra note 587.Google Scholar

602 Charles Rueskin, dirtfill permit approved Mar. 19, 1975.Google Scholar

603 No one in the Crow Wing zoning office is styled “the zoning administrator”; instead, there are two “zoning technicians,” whose functions are similar to those of a single zoning administrator. I have called them “the zoning staff” herein.Google Scholar

604 Turnberg application, supra note 588. The Thirty Lakes Watershed District was approved in 1971 by the Minnesota Water Resources Board, pursuant to Minn. Stat. Ann. § 112.36-.39 (West 1977). The district lies entirely within Crow Wing County and covers approximately 150 square miles or about 4 townships in the north central portion of the county. It was established to preserve and protect the waters of this area in the face of rapid and extensive land development. A 5-member board of managers, appointed by the county board of commissioners, has responsibility for the administration of the business and affairs within the district. Under authority of Minn. Stat. Ann. § 112.43 (1), (5), (17) (West 1977), the managers adopted a permit program requiring district approval of shoreland filling. A person with property in an unincorporated area of Crow Wing County which also lies within the watershed district must apply for and obtain permits from both the planning commission and Thirty Lakes before filling shorelands. The county and the district coordinate their inspections so that each body weighs the same factors when considering an application. Telephone interviews with Dennis Olson, Crow Wing County zoning technician (Minneapolis to Brainerd, Minn.) (July 28, 1978); D. N. Werring, manager, Thirty Lakes Watershed District (Minneapolis to Brainerd, Minn.) (July 29, 1978).Google Scholar

605 Olson interview (Aug. 16, 1977), supra note 600; Interview with Lee Anderson, Crow Wing County zoning technician, in Brainerd, Minn. (Aug. 23, 1977).Google Scholar

606 Olson interview (Aug. 16, 1977), supra note 600.Google Scholar

607 Anderson interview (Aug. 17, 1977), supra note 599.Google Scholar

608 Id.Google Scholar

609 Charles Green, Nov. 12, 1975; Carroll Harp, June 24, 1976; Russell Hildebrandt, April 11, 1977. In two other cases, the zoning staff noted that the proposal affected only “marginal” habitat. Donald Stewart, Mar. 15, 1976; Norbert Bisanz, Jan. 12, 1977. Obviously, one could include these two in the list of cases in which habitat was mentioned, but that would be misleading.Google Scholar

610 Turnberg application, supra note 588; Skapyak application, supra note 588.Google Scholar

611 Raymond Pierson, June 20, 1975; R. F. Cote, Sept. 8, 1976.Google Scholar

612 Hildebrandt application, supra note 609.Google Scholar

613 See, e.g., Jesse Dukeminier, Jr., & Clyde L. Stapleton, The Zoning Board of Adjustment: A Case Study in Misrule, 50 Ky. L.J. 273 (1962).Google Scholar

614 Raymond Windarski, May 19, 1975; Turnberg application, supra note 588; Skapyak application, supra note 588; Roger Grommesch, Oct. 27, 1975; Hildebrandt application, supra note 609.Google Scholar

615 E.g., Turnberg application, supra note 588; Skapyak application, supra note 588; Hildebrandt application, supra note 609.Google Scholar

616 E.g., Green application, supra note 609; Pierson application, supra note 611.Google Scholar

617 Green application, supra note 609.Google Scholar

618 See generally Jon A. Kusler, Water Quality Protection for Inland Lakes in Wisconsin: A Comprehensive Approach to Water Pollution, 1970 Wis. L. Rev. 35, 42-44.Google Scholar

619 The chairman of the planning commission sends adjacent property owners a form letter in-forming them of the applicant's intent to fill, describing the proposal, and notifying them of the public hearing. The planning commission instituted this policy in 1976 for two reasons: to protect the applicant (on the theory that he might be held responsible for any adverse effects to neighboring property) and to allow the neighbor to present considerations that otherwise might be overlooked. Olson interview (July 14, 1977), supra note 587.Google Scholar

620 Sherman Liimatainen, Aug. 2, 1976; Alvin Guck, Sept. 13, 1976; Hildebrandt application, supra note 609.Google Scholar

621 Earl Loucks, Oct. 5, 1976.Google Scholar

622 Bisanz application, supra note 609.Google Scholar

623 Cote application, supra note 611.Google Scholar

624 Id.Google Scholar

625 See text accompanying note 45 supra.Google Scholar

626 Cote application, supra note 611.Google Scholar

627 Green application, supra note 609; Liimatainen application, supra note 620.Google Scholar

628 Hildebrandt application, supra note 609.Google Scholar

629 Id.Google Scholar

630 But cf. Schwermann v. Reinhart, 296 Minn. 340, 210 N.W.2d 33 (1973).Google Scholar

631 The county attorney's presence was noted at one of the hearings that involved an illegal fill; but he said nothing at any of the 23 hearings covered by this study.Google Scholar

632 Turnberg application, supra note 588.Google Scholar

633 Interviews with Herbert Moritz, planning commission member, in Brainerd, Minn. (Aug. 17, 1977); Francis Murphy, planning commission member, in Brainerd, Minn. (Aug. 18, 1977); Dale Carter, planning commission member, in Brainerd, Minn. (Aug. 19, 1977); Dennis Olson, Crow Wing County zoning technician, in Brainerd, Minn. (Aug. 19, 1977); Ruth Spence, planning commission member, in Brainerd, Minn. (Aug. 22, 1977); Merle Hanson, planning commission member, in Brainerd, Minn. (Aug. 22, 1977); Telephone Interviews with Lee Anderson, Crow Wing County zoning technician (Aug. 25, 1977); Joseph Ruttger, planning commission member (Nov. 22, 1977); and Donald Brophy, planning commission member (Nov. 22, 1977).Google Scholar

634 Murphy, Spence, Ruttger, and Brophy interviews, supra note 633.Google Scholar

635 Moritz, Olson, Carter, Hanson, Anderson interviews, supra note 633.Google Scholar

636 Hanson and Anderson interviews, supra note 633.Google Scholar

637 See text accompanying note 74 supra.Google Scholar

638 For a discussion of Minnesota's standards, see text accompanying notes 84-86, 112-16 supra.Google Scholar

639 See text accompanying notes 90-91 supra.Google Scholar

640 See text accompanying notes 101-2 supra.Google Scholar

641 See text accompanying note 117 supra.Google Scholar

642 See text accompanying note 135 supra.Google Scholar

643 See text accompanying notes 144-46 supra.Google Scholar

644 See text accompanying notes 257-58, 262 supra. Of course, such damage might have occurred, and might or might not have been preventable without wholly prohibiting filling.Google Scholar

645 See text accompanying notes 220-22 supra.Google Scholar

646 See text accompanying notes 208-09 supra.Google Scholar

647 See text accompanying notes 229-30 supra.Google Scholar

648 See text accompanying notes 288-90 supra.Google Scholar

649 See text accompanying note 294 supra.Google Scholar

650 See text accompanying notes 307, 314 supra.Google Scholar

651 Of course, it is possible that other regulations, such as sewage-disposal rules, have had this effect much more often.Google Scholar

652 This figure does not include the four cases in Waukesha County in which a rezoning was granted on the ground that the tract was not marshy.Google Scholar

653 See text accompanying notes 454-55 supra.Google Scholar

654 See text accompanying notes 485-86 supra.Google Scholar

655 See, e.g., Hadacheck v. Sebastian, 239 U.S. 394 (1915).Google Scholar

656 See text accompanying notes 490-92 supra.Google Scholar

657 See text accompanying notes 446-47 supra.Google Scholar

658 See text accompanying note 77 supra.Google Scholar

659 See text accompanying notes 210, 382, 545, 616-17 supra.Google Scholar

660 See text accompanying notes 95-97 supra.Google Scholar

661 See, e.g., text accompanying notes 210, 545, 616-17 supra.Google Scholar

662 See text accompanying notes 212, 391-92, 588 supra.Google Scholar

663 But see text accompanying notes 548-50 supra (Boy Scouts follow advice of county naturalist).Google Scholar

664 The Schuetz case may be an exception. See text accompanying notes 492-94 supra.Google Scholar

665 See note 350, text accompanying notes 350, 498-99 supra.Google Scholar

666 See text accompanying notes 350, 574-79 supra.Google Scholar

667 See note 350 supra.Google Scholar

668 See note 350, text accompanying notes 351-52, note 580, and text accompanying notes 580-81 supra.Google Scholar

669 For one thing, zoning officials are not famous for their fidelity to legal doctrines. See also text accompanying notes 490-92 supra.Google Scholar

670 See text accompanying notes 227-29 supra.Google Scholar

671 See text accompanying notes 45-48 supra.Google Scholar

672 See, e.g., State v. Johnson, 265 A.2d 711 (Me. 1970).Google Scholar

673 See text accompanying notes 227, 277 supra.Google Scholar

674 I am indebted to Professor Sax for having uncovered an example of a rather similar Wisconsin doctrine that the court subsequently modified. Joseph L. Sax, The Public Trust Doc-trine in Natural Resource Law: Effective Judicial Intervention, 68 Mich. L. Rev. 473, 514-16 (1970).CrossRef Google Scholar

675 See text accompanying notes 21-40, 53-56 supra.Google Scholar

676 E.g., Morris County Land Improvement Co. v. Township of Parsipanny-Troy Hills, 40 N.J. 539, 556-57, 193 A.2d 232. 241 (1963).Google Scholar

677 See generally Michelman, supra note 7.Google Scholar

678 See note 99 supra and accompanying text.Google Scholar

679 Wis. Model Ordinance § 12.44.Google Scholar

680 There may, for example, be a high ridge between the marsh and the lake; the fill site may, though within the “shorelands” jurisdiction, be a considerable distance from the water; and a holding tank may alleviate sewage disposal problems, as the Vilas County zoning administrator believes. See text accompanying note 489 supra.Google Scholar

681 Cf. text accompanying notes 250-53 supra.Google Scholar

682 See generally Freeman, supra note 5.Google Scholar

683 From driving around the countryside, one gets the impression that farmers are not being prevented from cultivating rather close to lakes and streams.Google Scholar

684 Wis. Model Ordinance § 7.2.Google Scholar

685 Wis. Model Ordinance § 8.0; see generally Bryden, supra note 72, at 795-96.Google Scholar

686 Supra note 60 and accompanying text.Google Scholar

687 During the past 10 years, the state of Minnesota has acquired fee title to 94,564 acres of land for “wildlife management areas.” About 60-70 percent of these are wetlands; the rest are associated uplands that provide cover, nesting materials and a general ecological buffer. The state confines its purchases to areas of at least 40 acres. Telephone interview with Michael Maurer, Division of Wildlife and Game, Minnesota Department of Natural Resources (July 31, 1978).Google Scholar

Wisconsin does not purchase wetlands as such, though of course it obtains them indirectly through the purchase of lands for fish, forests, game, or parks. It has just begun to establish procedures for inventorying these wetlands. Telephone interview with Douglas King, Office of Water Regulation and Zoning, Wisconsin Department of Natural Resources (July 31, 1978).Google Scholar

The federal government has purchased fee title to 61,093 acres of wetlands (as such) in Minnesota during the past 10 years; and 3,534 acres in Wisconsin since 1974. Telephone interview with William Harrison, Regional Office of U.S. Fish and Wildlife Service, Minneapolis, Minn. (July 31, 1978).Google Scholar

688 See, e.g., text accompanying notes 413-18 supra.Google Scholar

689 See, e.g., text accompanying notes 420-22 supra.Google Scholar

690 See, e.g., text accompanying notes 563-65, 601-6 supra.Google Scholar

691 See, e.g., text accompanying notes 423-25, 600 supra.Google Scholar

692 See, e.g., text accompanying notes 427-29, 603 supra.Google Scholar

693 Even in Crow Wing County, where there are tape recordings of the hearings, much of this information is lacking. See text accompanying notes 612-13, 617-18, 625, 629 supra.Google Scholar

694 See generally Richard F. Babcock, The Zoning Game: Municipal Practices and Policies 93-96 (Madison: University of Wisconsin Press, 1966).Google Scholar

695 See text accompanying notes 19-40 supra.Google Scholar

696 See, e.g., Minnesota law regarding shoreland development, Minn. Stat. Ann. § 105.485 (West 1977); Minnesota Wild and Scenic Rivers Act, Minn. Stat. Ann. § 104.31 (West 1977); Minnesota Critical Areas Act of 1973, Minn. Stat. Ann. § 116G.03 (West 1977).Google Scholar

697 Id.Google Scholar

698 Joseph L. Sax, Defending the Environment (New York: Alfred A. Knopf, 1971).Google Scholar

699 Sax, supra note 21, at 171.Google Scholar

700 It seems doubtful, for example, that Mr. Schuetz would find it worth his while to try to locate and organize the apparently small group of similarly situated landowners. See text accompanying notes 439-71 supra.Google Scholar

701 Sax, supra rote 21, at 161, 172, 175, 178.Google Scholar

702 See John H. Dales, Pollution, Property and Prices: An Essay in Policy-making and Economics 81-84 (Toronto: University of Toronto Press, 1968).Google Scholar

703 See, e.g., Hadacheck v. Sebastian, 239 U.S. 394 (1915); supra note 11 and accompanying text.Google Scholar

704 Babcock, supra note 694.Google Scholar

705 See generally Frank I. Michelman, Foreword: On Protecting the Poor Through the Fourteenth Amendment, 83 Harv. L. Rev. 7 (1969).Google Scholar

706 Sax, supra note 21, at 169-70.Google Scholar

707 Perhaps this inference is inaccurate, but he does not qualify his disapproval of the conservative wetlands decisions by mentioning that they might be justified on this or some similar ground. See Sax, supra note 21, at 159-61.Google Scholar

708 Railway Express Agency v. New York, 336 U.S. 106, 110 (1949); but see Ronda Realty Corp. v. Lawton, 414 Ill. 313, Ill N.E.2d 310 (1953).Google Scholar

709 See 1 Robert M. Anderson, American Law of Zoning § 6.01-.07 (2d ed. Rochester, N.Y.: Lawyers Co-operative Publishing Co., 1976).Google Scholar

710 Text accompanying notes 53-56 supra.Google Scholar

711 Text accompanying note 55 supra.Google Scholar

712 Southern Burlington County NAACP V. Township of Mount Laurel, 67 N.J. 151, 186, 336 A.2d 713, 731 (1975).Google Scholar

713 Supra note 687.Google Scholar

714 Text accompanying notes 288-304 supra.Google Scholar

715 See generally Bosselman, Callies, & Banta, supra note 41, at 88-104.Google Scholar

716 E.g., Home Building & Loan Ass'n v. Blaisdell, 290 U.S. 398 (1934).Google Scholar

717 Perhaps it is not so absurd; in some quarters the ideal has already been broached. For a response, see James E. Krier & Gary T. Schwarz, Book Review, 87 Yale L.J. 1295, 1299 (1978).Google Scholar

718 Supra note 715.Google Scholar

719 The most comprehensive exposition of the popular view to the contrary is Bosselman, Callies, & Banta, supra note 41, at 1-51. Written for the Council on Environmental Quality, this book begins with a lengthy effort to show that the taking issue is “pervasive,” as it surely is in certain senses. As the authors observe, “many people seriously believe that the Constitution gives every man the right to do whatever he wants with his land,”id. at 1, and consequently the taking argument is commonly among the many objections raised by opponents of strict land use controls. What this observation misses, however, are the facts that such objections usually (1) misstate the law and (2) are a relatively minor aspect of the enormous political problems confronting any state planner who tries to devise politically acceptable land use controls for rural areas. See, e.g., Bryden, supra note 527, at 792-97. Given the persistence of an amorphous body of substantive economic due process law in the states, under which courts not infrequently strike down regulations as “unreasonable” or “arbitrary and capricious” without relying on just compensation law, e.g., Reserve Mining Co. v. Herbst, 256 N.W.2d 808 (Minn. 1977), the taking issue may not be even the greatest legal constraint: in my experience, planners are much more worried about whether they can offer a plausible justification for a rule than about whether it will lead to unconstitutional takings, a problem that can be solved by variances in appropriate cases. See Bryden, supra note 527, at 796-815. Cf. text accompanying notes 483-84 supra.Google Scholar

There are, no doubt, exceptions, and coastal wetlands acts may be an example. See Bosselman, Callies, & Banta, supra note 41, at 3-6.Google Scholar

720 E.g., Naegele Outdoor Advertising Co. v. Village of Minnetonka, 281 Minn. 492, 162 N.W.2d 206 (1968).Google Scholar

721 See generally Roger A. Cunningham, Scenic Easements in the Highway Beautification Pro-gram, 45 Den. L.J. 167 (1968).Google Scholar

722 Supra note 60.Google Scholar

723 Wild and Scenic Rivers Act, 16 U.S.C. § 1271 (1976).Google Scholar

724 It is a characteristic mistake of legal scholars to suppose, as the authors of “The Taking Issue” seem to do, supra note 41, at 30-32, that just compensation law is a significant cause of the difficulties of imposing land-use controls along scenic rivers. The problem is almost entirely political, not legal. Just compensation law would not prevent a legislature from authorizing a state agency to (1) draft land-use controls for private lands along scenic rivers, (2) designate such rivers after public hearings, and (3) acquire fee title or scenic easements along the shores by eminent domain. Yet there is no state statute in the country that delegates all three of these powers; and most of the state rivers preservation acts do not come even close to doing so. Of course, strict land-use controls to preserve river shorelands may sometimes be deemed unconstitutional. But the vast majority of scenic river shorelands are not even protected by moderate, clearly constitutional land-use controls.Google Scholar

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A Phantom Doctrine: The Origins and Effects of Just v. Marinette County

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A Phantom Doctrine: The Origins and Effects of Just v. Marinette County

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