## Facts

- Charles Carter owned a lot in Milwaukee and, in 1919, built and operated a dairy and milk-pasteurizing plant on it.
- By 1921, Carter asserted the business had outgrown the plant and that additional space was needed to operate in compliance with city and state health regulations.
- Carter applied for a permit to construct an addition to the existing building.
- The Milwaukee building commissioner denied the permit because the property was located in a “residence district” under a zoning ordinance adopted pursuant to Wis. Stat. § 62.23.
- The ordinance divided the city into multiple use districts and limited permissible uses in each; Carter’s dairy use was nonconforming in a residence district.
- The ordinance provided that a building devoted to a nonconforming use in a residence district could not be enlarged unless the use was changed to a conforming use.
- Carter sought mandamus to compel issuance of the permit; the circuit court overruled Carter’s demurrer to the commissioner’s return, quashed the alternative writ, and dismissed the action.

## Issues

1. Whether a zoning ordinance prohibiting enlargement of a nonconforming business structure in a residence district (unless converted to a conforming use) is a valid exercise of the police power.
2. Whether the ordinance, as applied to Carter, was unreasonable or oppressive so as to violate due process or amount to a taking requiring compensation.
3. Whether the ordinance’s district classifications denied equal protection or granted unlawful special privileges.

## Decision

- The Wisconsin Supreme Court affirmed the circuit court’s dismissal of the mandamus proceeding.
- The court held the zoning ordinance, including the restriction on enlarging nonconforming uses in residence districts, was a valid police-power regulation related to public health, safety, morals, or general welfare.
- The court rejected claims that the ordinance was confiscatory or violated due process because it did not require cessation of the existing use and did not deprive Carter of all beneficial use of the property.
- The court rejected equal-protection and special-privilege challenges because the ordinance operated generally by district classifications and treated similarly situated properties within a district alike.
- Because the permit denial was authorized by a valid ordinance, Carter was not entitled to mandamus.

## Legal Principles

- Zoning ordinances adopted under statutory authority are constitutional when their restrictions bear a real and substantial relation to public health, safety, morals, or general welfare and are not arbitrary or oppressive.
- A municipality may allow continuation of existing nonconforming uses while barring their enlargement to prevent intensified incompatibility with residential districts.
- A regulation does not become a compensable taking merely because it reduces profitability or limits expansion; it is significant that the owner retains some beneficial use, including continued existing use.
- District-based classifications in a comprehensive zoning plan do not violate equal protection or create unlawful special privileges when they apply uniformly within districts and rest on rational distinctions among areas.

## Conclusion

The court sustained Milwaukee’s comprehensive zoning scheme and its ban on enlarging nonconforming uses in residence districts, holding the restriction a reasonable police-power measure that neither effected an unconstitutional taking nor violated equal protection, and therefore did not support mandamus to compel issuance of a building permit.


State ex rel. Carter v. Harper, 182 Wis. 148, 196 N.W. 451, 33 A.L.R. 269 (1923)