University Place

Wisconsin's Land Use Planning Law Landmarks

– Welcome everyone to Wednesday Nite @ the Lab. I’m Tom Zinnen. I work at the University of Wisconsin-Madison Biotechnology Center. I also work for the Division of Extension Wisconsin, 4-H. And on behalf of those folks and our other co-organizers, PBS Wisconsin, the Wisconsin Alumni Association, and UW-Madison Science Alliance, thanks again for coming to Wednesday Nite @ the Lab. We do this every Wednesday night, 50 times a year. Tonight, it’s my pleasure to introduce to you Brian Ohm. He’s a professor in the Department of Planning and Landscape Architecture. He’s also a state specialist with Extension and is an affiliate with the Nelson Institute for Environmental Studies and with the School of Law. He got his undergraduate degrees in history and political science from St. Olaf College in Minnesota, and got his master’s in history here at UW-Madison. He also got his law degree here at the School of Law, UW-Madison. Tonight, he’s going to be speaking with us about Wisconsin Landmarks in Land Use Law. Would you please join me in welcoming Brian Ohm to Wednesday Nite @ the Lab?

– Thank you for that introduction, Tom. I’m honored to be part of the University Place series and to be able to share with you Wisconsin’s unique story that brings together my interests in land use planning, history, and law. Welcome, and thank you to you all for participating. Land use issues have a rich history in Wisconsin that make the state an interesting place to study land use. The history involves people, places, and events that have allowed the state to serve as a laboratory of democracy for the nation. The term “Laboratory of Democracy” was coined by United States Supreme Court Justice Lewis Brandeis in 1932 to describe how, in his words, “a single courageous state may, if its citizens choose, serve as a laboratory and try novel, social, and economic experiments without risk to the rest of the country.” At certain points in Wisconsin’s history, events related to the use of land raised issues where society demanded a response from their government.

Wisconsin experimented with approaches to addressing those issues. And as a result, Wisconsin can lay claim to numerous first in the nation programs that have served as examples for other states, including rural zoning, the Great River Road, scenic easements, greenbelt communities, soil conservation, rails-trails, nationally significant land use court decisions, and more. I will explore these important historic landmarks, covering a roughly 75-year period from the early 1900s to the 1970s. Some of the innovations address urban land use issues, others address rural land use issues. As we’ll see, the urban and rural innovations are intertwined. All the innovations reflect an effort to use the law to address the contemporary needs of society to work for the greater public good. It is interesting to note that many of the landmarks we will explore tonight have ties to the University of Wisconsin. Land use has long been an important theme at the University of Wisconsin-Madison. The academic journal Land Economics was founded at UW in 1925 by noted economist Richard T. Ely.

University Professor Aldo Leopold articulated the land ethic in his 1949 book A Sand County Almanac. There are many other examples. One person who is central to tonight’s story is Jacob H. Beuscher, or Jake, as he was known. He was a legal pioneer who identified land use law as a distinct area of academic interest. He was born April 4, 1907 in Cudahy, Wisconsin into a family of lawyers. He graduated from the University of Wisconsin Law School in 1930 and earned a graduate degree from Yale Law School in 1932. He practiced law in his family’s firm and then joined the University of Wisconsin Law School faculty in 1935, where he remained on the faculty until his sudden death in 1967. He initially taught courses in property law and real estate law, and was a lover of nature and was interested in the conservation of natural resources. In the 1930s, he began writing about various facets of land use control.

With the rapid pace of development following the end of World War II, land use and conservation issues became more prominent. Beuscher had observed that despite a 600-year history of controls over the use of land, the law of land use had been ignored. He reached out to other prominent property and real estate law professors from law schools around the United States, and in the mid 1950s hosted a seminar in Madison to explore the social claims promoting land use controls. In 1955, he published the first case book on land use law and pioneered the first land use law course in the nation, which he titled Land Use Controls. Similar courses began to be offered in law schools and in urban regional planning programs around the United States. His students went on to become influential land use law scholars at other law schools. Professor Beuscher also epitomized the Wisconsin Idea. The Wisconsin Idea has its roots in the Progressive Era in Wisconsin during the early 1900s, and promotes taking the knowledge of the University and applying it to address the real world issues of Wisconsin and beyond. This article from The Progressive magazine in 1910 highlights the important role of the University in helping local governments. Professor Beuscher was a participant in public policy.

He used his expertise to help local governments, regional planning commissions, state agencies, and the legislature in countless ways. He served on numerous governmental committees, was an advisor to various special legislative studies, and was involved in the drafting of most of the conservation and land use legislation adopted by the Wisconsin legislature from the mid 1950s until his death in 1967. He was involved with several of the innovations I’ll discuss later. Perhaps influenced by the Wisconsin Idea, Professor Beuscher became one of the founders of the Law in Action movement in legal education. Law in Action focused on how law worked in real life. Beuscher observed that the law as stated and the law as practiced were two quite different things. He noted the changing nature of the law, stating, “I believe that the law is a living thing. It is not a collection of black letter rules handed down from on high. Law is constantly evolving.” His focus was not on what the law is, but on what it can be made to do and by what means.

According to Professor Beuscher, “Law as it is made by our courts, legislators, and administrative agencies is not an end in itself; it is a means to policy goals, particularly in the allocation of resources.” Professors Beuscher’s observation that law is not an end in itself, but a means to achieving society’s goals, provides the context for understanding how Wisconsin responded to important land use events that resulted in the following land use planning landmarks. So let’s begin our exploration of Wisconsin’s role in the evolution of land use law by looking at how the state responded to two major land use events of the early 1900s. The first event was urbanization. By the late 1800s, the city of Milwaukee was one of the nation’s major urban centers. From 1895 to 1899, it boasted the tallest building of the world, the City Hall, which still stands today. The city experienced rapid growth in the 1800s and early 1900s. Industry was booming. By the time of the 1920 census, the city had a population of over 450,000 people, making it the 13th largest city in the United States. More notable, however, was that according to the census, Milwaukee ranked as the second densest city in the United States, after New York City.

This is a rather remarkable accomplishment, given the fact that most of the residential buildings in Milwaukee were single-family detached homes or duplexes, not the row houses or apartment buildings found in large East Coast cities. This development pattern resulted in Milwaukee being called the “City of Homes.” The extent of the built up area in Milwaukee is reflected in this map prepared in 1919. There was little regulation of development in the early 1900s. By way of background, it is important to understand that in the United States, local governments are generally considered creatures of the state, and must derive their powers from the state constitution or enactments of the state legislature called enabling laws. By the late 1800s, the Wisconsin legislature had passed a few laws enabling Wisconsin cities to adopt limited land use controls. In 1889, in response to fires in cities, including the Great Chicago Fire, the Wisconsin legislature enabled cities to regulate certain buildings and structures, depending on the fire risk involved. In 1914, Wisconsin became the first state in the nation to adopt a statewide commercial building code. However, residential development was unregulated. There was no residential building code; there was no zoning.

Lots became smaller and smaller, sometimes resulting in multiple homes being built on a single lot. People squeezed into basements, attics, and back alley sheds. This led to congestion and slum conditions in parts of the city. In addition, industrial uses were scattered around the city and were often near residential areas, negatively impacting the quality of life of the nearby residents. Other cities in the United States were also facing issues related to urbanization. In 1916, New York City became the first city in the United States to adopt a zoning ordinance. The Wisconsin legislature quickly followed New York’s lead, and in 1917, the legislature passed a law enabling Wisconsin cities to adopt zoning ordinances. The City of Milwaukee set out to follow New York’s experiment in land use law and drafted a zoning ordinance. Edward Bassett, the primary architect of New York’s zoning ordinance, helped prepare the draft for Milwaukee. And in 1920, the Milwaukee Common Council adopted the zoning ordinance, becoming one of the first cities to follow New York’s approach.

The purpose of Milwaukee’s ordinance was to bring about orderly development of the city by designating uses that could be made of land, the density of development, and the height and bulk of structures built on the land. The zoning ordinance established four use districts or zones: a residence zone, a local business zone, a commercial and light manufacturing zone, and an industrial zone. Existing uses that did not conform to the designated district could not expand unless changed to a use that conformed to the district. The residence district attempted to address the congested conditions found in the city by limiting the density of development by requiring larger lot sizes. The city had just emerged from the Spanish flu epidemic, which might have given urgency to adopting the ordinance, since people living in congested areas showed a diminished power of resistance to the disease. Mayor Daniel Hoan, Milwaukee’s socialist mayor from 1916 to 1940, called the ordinance “perhaps the greatest single achievement ever made by Milwaukee.” The zoning ordinance was not without controversy. Shortly after it was adopted, a property owner with a use that did not conform to the new zoning district in which the property had been placed sued the city, alleging the ordinance violated the Wisconsin and the United States Constitutions. In one of the first court cases in the United States examining the legality of zoning, the Wisconsin Supreme Court determined the ordinance was constitutional. The decision came three years before the United States Supreme Court upheld the constitutionality of zoning.

And the Wisconsin case was cited by the United States Supreme Court in its decision. The Wisconsin court’s decision, written by Justice Walter C. Owen, acknowledged the basis for the lawsuit. According to his statement, “that the legislation authorized so-called zoning ordinances and is of comparatively recent origin, and is not unnatural that those adversely affected should regard them as an unjust and unwarranted interference with their property rights.” But the court found that societal needs prevail over individual interests. As stated by the court, “the rights preserved to the individual by the United States and Wisconsin Constitutions are held in subordination to the rights of society.” The court also acknowledged the private law of nuisance and trespass, doctrines that had been in place for centuries, and as summarized by the court, “one has always been required to use his property so as not to injure his neighbors.” Rather than one property owner bringing a lawsuit against a neighboring property owner, the new use of zoning put the city in the position of establishing the rules for what would be an appropriate use of land. The court approved the purpose of zoning, rhetorically asking, “Can it be said that an effort to preserve various sections of the city from harmful intrusions is unreasonable?” The court answered the question, stating, “The purpose of the law is to bring about an orderly development of our cities. Everyone who has observed the haphazard development of cities has appreciated the desirability of regulating the growth and development of our urban communities.”

The court’s decision embraced the ideal form of development promoted by the city’s zoning ordinance, stating, “The home-seeker craves fresh air, sunshine, and well-kept lawns, beyond the noise of commercial marts and the dirt and smoke of industrial plants. Fresh air and sunshine adds to the happiness of the home and has a direct effect upon the well-being of the occupants.” Finally, the court focused on the use of zoning to preserve the desirability of the area. As stated by the court, “If such regulations stabilize the value of property, promote the permanency of desirable home surroundings, and if they add to the happiness and comfort of the citizens, they thereby promote the general welfare.” Zoning was accepted as a means of improving the human condition. One of the major advocates behind Milwaukee zoning was Charles Whitnall, a conservationist, who was active in the development of the Milwaukee parks system, and led many of the city’s planning efforts. Whitnall was a member of the Socialist Party, and in 1910, he was elected as city treasurer, as the Socialist Party swept many of the city’s elected positions. Prior to that, he had been appointed to the city’s planning commission, one of the first planning commissions created in the United States. According to Whitnall, unregulated capitalism had created the congestion, and it would be up to the socialists to reverse the trend. Whitnall advocated for zoning as a means of decentralizing Milwaukee to promote social equity.

He envisioned a future where in his words, “There will be no slums, no dark alleys, no intersections where children and heavy traffic meet, no congestion and overcrowding, no subways, no skyscrapers, and no lack of recreation facilities.” Whitnall’s aversion to skyscrapers was reflected in the city’s new zoning ordinance that prohibited buildings higher than 125 feet in the downtown. Zoning would help address what in Whitnall’s mind was the problem of urbanization. As an advocate for creating urban open space by setting aside land for public parks, Whitnall argued that the failure to conserve nature was as much an urban problem as a rural one, citing the destruction of the forests by lumbermen in northern Wisconsin. Whitnall was referring to the problems of the cutover, Wisconsin’s other major land use event of the early 1900s that shaped state and local government policy for decades. During the period from 1873 to 1900, the lumber industry was booming. An estimated 60 billion board feet were cut by Wisconsin’s sawmills. The lumber helped build Chicago, St. Louis, Milwaukee, and other cities. By 1898, however, only about 13% of the once abundant original pine forests of northern Wisconsin remained.

The clear cutting of the forests devastated the environment, and the economy of northern Wisconsin collapsed. People and businesses abandoned the northern counties. The cutover lands were said to look like the scarred battlefields of World War I. The state was left to address the environmental and economic problems of the cutover. Agriculture was successful in the southern part of the state and many people stressed the positive aspects of converting the cutover land for agriculture. The University of Wisconsin College of Agriculture was a leader in promoting the agricultural potential of the cutover, as seen as this article from the Chicago Record-Herald in 1908. Tens of thousands of farm families moved to northern Wisconsin as an experiment. However, the climate, soils, lack of infrastructure to serve farms, and a downturn in the farm economy in the early 1920s quickly resulted in a failed experiment. The state changed its course of action, and again, with the help of the University of Wisconsin, tried a new experiment, reforestation. The state developed a comprehensive strategy for reforesting northern Wisconsin.

Part of the strategy involved moving farm families off the land planned for reforestation. To that end, the state developed a resettlement program. Along with the state, the newly created federal Resettlement Administration within the U. S. Department of Agriculture, part of Roosevelt’s New Deal, helped with resettlement of the families. After the people were removed from the farms scattered across northern Wisconsin, the state had to figure out a way to keep people off the land that was going to be reforested. The state looked to Milwaukee’s experiment with zoning. If zoning could be used to keep incompatible uses out of certain areas, perhaps zoning could be used in rural areas to keep incompatible uses out of areas planned for reforestation. In 1928, the Wisconsin legislature enabled rural counties to enact zoning ordinances. The 1928 law amended a law passed by the legislature in 1923.

The 1923 law was intended to create a regional approach to control growth outside the city limits of Milwaukee, where the city’s zoning ordinance did not apply. The 1923 law enabled Milwaukee County to adopt zoning to regulate unzoned land outside the boundaries of the City of Milwaukee to protect rural property against unregulated expansion of urban areas. This was one of the first regional approaches in the United States. The 1929 law amended the statute enacted in 1923 to address the land use situation in the cutover region. The amendments permitted any county board to enact a zoning ordinance to determine the areas within which agriculture, forestry, and recreational uses could be located and incompatible uses excluded. The intent of the law was to prevent scattered development, which demanded roads, schools, and other public facilities. While Milwaukee was using zoning to decentralize residential development, rural zoning was going to be used to centralize residential development. In 1931, Wisconsin attorney general John W. Reynolds Sr. was asked to provide an opinion of whether zoning could be used in the rural areas.

He wrote an opinion in support of rural zoning, equating the problem of the cutover to the haphazard development of cities. Reynolds stated, “The county zoning statute “is undoubtedly in the public welfare. The cutover areas of northern Wisconsin speak as eloquently against haphazard development as any city condition. The spotting of these lands with remote or abandoned farms, resulting in separately settled districts with insufficient population or value to support roads and schools or to afford the comforts of living that this day should give to all, the misdirected efforts to farm lands not well suited to agriculture, with resulting personal grief and social loss; the far-reaching economic ill-effects of stripping the state of timber, the fire hazard of the cutover lands, and the fire hazard of human habitations in their midst, all cry out for planning, for social direction of individual effort.” According to Reynolds, if zoning is an appropriate means to address urbanization, it is also an appropriate means to address the problems of the cutover. Zoning supports the general public welfare in both approaches. About four years after the legislature had enabled rural zoning, Oneida County adopted the first rural zoning ordinance in the United States. This marker stands today on the front lawn of the Oneida County Courthouse in Rhinelander. The University of Wisconsin helped draft the ordinance and helped educate the citizens about the application of the ordinance, another example of the Wisconsin Idea. The approach to addressing the problems of the cutover shares an interesting connection to the next experiment, Greendale.

The Resettlement Administration of the United States Department of Agriculture, who had helped resettle people in the areas to be reforested in northern Wisconsin, had other ideas. The Resettlement Administration also created what is now the Village of Greendale in 1935. The Resettlement Administration had purchased 3,400 acres of farmland near Milwaukee to demonstrate a new kind of suburban community that would combine the advantage of both city and county life, and provide affordable housing and provide employment for workers who had lost their jobs during The Great Depression. Greendale was one of three experimental Greenbelt communities built by the federal government during the Depression. The other two were Greenbelt, Maryland, near Washington D. C. , and Greenhills, Ohio, north of Cincinnati. Greendale would provide public housing. The concept of public housing was not new to Milwaukee. In 1923, the city built a new subdivision to demonstrate a new form of development, influenced by the garden cities movement: single-family detached dwellings with larger lot sizes than elsewhere in the city, with more space for lawns.

The subdivision, called Garden Homes, was the first municipally funded public housing project in the United States. In the case of Greendale, the public housing would be built and owned by the federal government, a new approach. Construction of Greendale began in 1936, and the first families moved in on April 30th, 1938. The federal government built 572 living units in 366 buildings, each with an average of 5,000 square feet for lawns and gardens. The original downtown included a village hall, several villages, a volunteer fire station, schools, and a cooperative market. As the owner of the property, the federal government rented homes to families based on income, need, and family size. Some exceptions were made for those with special skills, such as medical doctors and other professionals. In 1949, the federal government gave Greendale residents the right to purchase their homes from the government. The transfer of ownership from the federal government to the people was largely complete by 1952. Today, the historic part of the village of Greendale remains a desirable place to live.

The other New Deal programs also provided for demonstration projects as opposed to regulatory programs. One important project was the Coon Creek Watershed in Vernon County in southwestern Wisconsin. Across the nation, floods, droughts, and dust storms of the 1930s were driving people off their farms. In 1933, Congress created a new federal agency, the Soil Erosion Service, as part of FDR’s New Deal. The Soil Erosion Service selected Coon Creek Watershed as the first watershed in which to demonstrate the values of soil conservation measures to farmers. Soil erosion was a problem for many farmers and negatively impacted the productivity of their land for agriculture. Coon Creek was subject to frequent intense floods, and the 91,000-acre Coon Creek Watershed was representative of a much larger area. The thought was that the methods that proved successful here could be spread throughout the United States. This sign is located just outside the village of Coon Valley. Through cooperation with farmers, the Soil Conservation Service, working with the University of Wisconsin, again, hoped to demonstrate how farmers could incorporate soil conservation practices in their farming operations to achieve sustained productivity and increase the farmers’ incomes.

Important to the selection of Coon Creek was the cooperation the agency anticipated from farmers who lived in the area. The Soil Conservation Service partnered with the farmers and along with the Civilian Conservation Corps, another New Deal program, began working on projects and promoting practices that included reforesting pastures, filling in and vegetating gullies, strip cropping, contour farming, fencing off woodlots, and stream bank restoration. By 1935, more than half of the valley’s 800 farmers had signed cooperating agreements. The success contributed to the passage of the Soil Conservation Act of 1935, which made the Soil Erosion Service a permanent agency in the U. S. Department of Agriculture. The work begun by the Soil Erosion Service continues today through the programs of the Natural Resource Conservation Service. Wisconsin continued to experiment with other approaches to conservation. In 1936, the governor of Missouri envisioned the development of a scenic parkway along the Mississippi. Three years later, the 10 Mississippi River states established the Mississippi River Parkway Planning Commission to plan a scenic parkway along both sides of the river, extending from the Gulf of Mexico to the headwaters of the Mississippi in Lake Itasca, Minnesota.

But World War II interrupted all work on the project. After the war in 1949, Congress authorized the National Park Service and the Bureau of Public Roads to study the idea. In 1951, the two agencies submitted the study titled “Parkway for the Mississippi” to Congress. That study declared that the essence of the parkway concept is to provide a park-like corridor, which institutes the motor road from uncontrolled development along the roadsides. The study noted the need for land use controls to preserve the scenic beauty of the corridor by preventing incompatible development along the parkway. The study recommended the acquisition of development rights from property owners along the parkway. The states would purchase what were called scenic easements, extending from the road right-of-way up into the bluffs along the Mississippi. By purchasing the easements, the state would acquire the development rights, thereby not allowing uses incompatible with the parkway concept, such as billboards. The easement concept would allow the land to continue to be used for farming and other pursuits consistent with the parkway’s scenic objectives. The purchase of development rights for scenic purposes was a new concept, and was perceived to have many public benefits.

As noted in the study, this method of scenic conservation should result in large savings over outright purchase, retire less farmland from the tax rolls, and attach the pastoral views permanently to the parkway without cost to the public for maintenance. William H. Wright, a leading scholar on the preservation of open space, noted that paying for the easements allowed the rest of the community an opportunity to contribute to the preservation of open space. In 1951, Wisconsin began to purchase scenic easements along the corridor plan for the parkway. This was the first state-supported purchase of development rights programs in the United States. The state built the first section of the parkway in 1953 near Trempealeau, Wisconsin, where this marker stands today. The Federal-Aid Highway Act of 1954 designated the parkway as the Great River Road and provided federal funding for the project. The Wisconsin Highway Commission, predecessor to the Wisconsin Department of Transportation, was responsible for negotiating with property owners for the acquisition of the scenic easements. A few property owners did not want to sell easements to the state. So the Highway Commission used the power of eminent domain to acquire scenic easements through the condemnation process.

One property owner challenged the use of eminent domain for the acquisition of scenic easements. In another landmark decision, the Wisconsin Supreme Court upheld the use of eminent domain to acquire the scenic easements. The court held, “The concept of the scenic easement springs from the idea that there is enjoyment and recreation for the traveling public in viewing a relatively unspoiled natural landscape. The enjoyment of scenic beauty is a public right.” National attention was focused on Wisconsin as the pioneer state in the establishment of a program of scenic easements. Professor Beuscher was involved in establishing the legal foundation for the easements. Several conferences were held in Madison so other states could learn from Wisconsin’s experiment. These remarks by R. C. Leverich, the District Chief of Right of Way for the State Highway Commission at a 1966 conference on scenic easements, reflect Wisconsin’s innovative leadership to protect scenic beauty for future generations.

He stated, “We in Wisconsin have a head start, but we are still walking. May I invite you to enter the race to preserve beauty with us. Think Scenic Beauty. Make it a total program. The rewards to you, your children, and your children’s children should be worth the time and effort now.” The 1967 Wisconsin scenic easements along the Great River Road today covers over 6,000 acres and involve over 600 parcels. The easements are still in place today and continue to protect the scenic beauty of the area. As a leader in the use of easements to protect cultural and natural resources, in 1982, Wisconsin became the first state in the country to adopt the Uniform Conservation Easement Act, the current model law for enabling the use of conservation easements. Wisconsin’s Water Resources Act, adopted in 1966, provides the opportunity for a due experiment to protect natural resources for the benefit of the public. In the mid 1960s, concern over the impact of incompatible development on land adjacent to the waters of the state prompted the legislature to pass the landmark Water Resources Act.

Professor Beuscher was one of the main drafters of the law. Among other things related to protecting the waters of the state, the law took the unprecedented step of requiring counties to adopt shoreland zoning ordinances that applied to the unincorporated areas of the county. These are the areas outside the boundaries of cities and villages. The counties had to adopt the shoreland zoning by January 1 of 1968. The Act also required that county cities and villages adopt floodplain zoning ordinances by the same date to protect the public’s investment in the floodways and protect from flood hazards. Wisconsin’s experiment mandating shoreland floodplain zoning attracted national attention. The bold step of the state mandating zoning was among a handful of state programs from around the United States highlighted in a federal study entitled “The Quiet Revolution in Land Use Controls.” The study, published in 1971, was an effort to support Nixon’s proposed Land Use Policy Act of 1971. The Act never passed Congress, but would’ve provided funding to states to encourage certain land use reforms to address issues of sprawl. The Act would’ve joined the other major environmental laws of the 1970s, such as the Clean Air Act and the Clean Water Act.

The study reported that this idea of a quiet revolution meant that “this country is in the midst of a revolution in the way we regulate the use of land. It is a peaceful revolution, a quiet revolution, and its supporters include both conservatives and liberals. The regime being overthrown is the system under which entire patterns of land development have been controlled by thousands of individual local governments, each seeking to maximize its tax base and minimize its social problems, and caring less what happens to all the others. The tools of the revolution are new laws taking a wide variety of forms, but each sharing a common theme– the need to provide some degree of state or regional participation in the major decisions that affect the use of our increasingly limited supply of land.” Wisconsin was part of the revolution. A property owner challenged the constitutionality of the shoreland zoning program. In a landmark decision of the Wisconsin Supreme Court in 1972, the Just versus Marinette case, the Wisconsin Supreme Court upheld the shoreland zoning program. The court’s decision reflected the enduring legacy of the cutover. According to the court, “The great forests of our state were stripped on the theory man’s ownership was unlimited. The despoilage was in the failure to look to the future and provide for the reforestation of land. An owner of land has no absolute and unlimited right to change the essential natural character of land so as to use it for a purpose for which it was unsuited in its natural state and which injures the rights of others.”

The final innovation I want to mention is the Elroy-Sparta Trail. At one time, the rail line between Elroy and Sparta, Wisconsin was part of the Chicago and North Western Railway’s main line, connecting Chicago with the Twin Cities and the Dakotas. However, during the early 1900s, the company built a new route so that the Elroy-Sparta line was used less and less as time passed. In the early 1960s, the company began the process of abandoning the rail line. And in 1964, the Interstate Commerce Commission authorized the Chicago North Western Railroad to abandon the line. The Wisconsin Conservation Department, now the Wisconsin Department of Natural Resources, had an idea for a different use for the railroad right of way, and designated a hiking and biking trail on the abandoned railroad right of way. The Chicago and North Western Railroad removed the tracks in 1965 but left the steel and wood bridges, station buildings, fencing, whistle posts, and three tunnels. On March 3, 1966, the state purchased the right of way for $12,000. A year later, the Elroy-Sparta State Trail opened to the public, the first rail-to-trail of its kind in the United States.

The innovations represented by these landmarks should be a source of pride for Wisconsin. Today, every state has a bike trail on an abandoned rail corridor. There are a total of over 24,000 miles of completed rails-to-trail projects in the United States. Since Wisconsin’s early experiment with easements to protect scenic views along the Great River Road, conservation easements have become a common tool used by governments, federal, state, and local and private conservation organizations throughout the United States to preserve farmland and natural and cultural resources. Today, conservation easements protect over 24 million acres in the United States for the future generations. Rural zoning helped reforest northern Wisconsin, and shoreland zoning still protects the waters of the state in rural areas. The Soil Conservation Service’s efforts in Coon Creek helped demonstrate to farmers in Wisconsin and other states more profitable and sustainable farming practices and provide the foundation for the current programs of the Natural Resource Conservation Service. The zoning story is a bit more complex. Today, we find zoning in many areas of the country, both urban and rural. It is not used everywhere.

For example, the city of Houston, Texas is the largest city without zoning. And there are large areas of rural Wisconsin with no zoning. As Professor Beuscher taught us, law, in this case, zoning, is not an end in itself, but a means to an end. Milwaukee had introduced zoning as a way to address the problems of urbanization. Charles Whitnall and others who influenced early zoning worked to make Milwaukee less urban. The end sought through zoning was to promote a different type of development where single-family homes are protected from incompatible uses, and the density of development is reduced in an attempt to address congestion. In addition, the City of Milwaukee built the garden homes subdivision, and as an example of a new type of development, reflecting the suburban ideal. The federal government also promoted suburbanization with the Greendale project. Over time, zoning was increasingly designed to accommodate the automobile, and local governments would use lot size and other zoning requirements to exclude individuals who could not afford to live in the area, and use zoning to limit the types of housing that could be built in the community. By the 1990s, people began to question whether the suburban form of development was appropriate.

More and more people were attracted to downtowns of the older cities as a place to live. In the 1990s, people began to advocate for the reform of zoning to allow for a new urbanism, focusing on human-scaled urban design where communities are designed for pedestrians and not the automobile. Where density is increased so communities are more compact and walkable. Where multiple forms of transportation are encouraged. Where uses are mixed, so housing and shopping are in close proximity to one another. Where public spaces are accessible. And where a range of housing types are provided in the community, so they are more inclusive. Zoning was introduced in Milwaukee in 1920 to address housing issues. Housing affordability is a major issue today, and many people blame zoning regulations as a reason for why housing is unaffordable. Housing advocates are joining the growing chorus of voices advocating for zoning reform.

How we define the public welfare continues to evolve. Our land use laws likewise will continue to evolve to address the needs of society, but there will be challenges as we shape the laws of how we use the land to better serve the needs of all members of society. We need to learn from the past and be open to innovation. Thank you for watching.