Distinction
between use, area variances
By
David Ziemer
Wisconsin Law Journal
March
24, 2004
 |
| “The
‘no reasonable use’ standard is largely disconnected from the purpose of area
zoning, fails to consider the lesser effect of area variances on neighborhood
character, and operates to virtually eliminate the statutory discretion of local
boards of adjustment to do justice in individual cases.” Hon.
Diane S. Sykes
Wisconsin Supreme Court |
The Wisconsin
Supreme Court reinstated the distinction between use and area variances from zoning
laws, so that a property owner no longer is required to meet the “no reasonable
use” standard to obtain an area variance.
Richard
W. Ziervogel and Maureen A. McGinnity own a house on a 1.4 acre lot with approximately
200 feet of shore frontage on Big Cedar Lake in Washington County. They originally
purchased the home as a summer home in 1996, but now wish to move there year-round
and want to construct a 10-foot vertical expansion to add bedroom, bathroom and
office space.
The
house is only 26 feet from the ordinary high watermark, but conformed to all ordinances
when they bought it, and is thus, a legal nonconforming use. In 2001, Washington
County amended its shoreland zoning ordinance to prohibit any expansion of any
portion of an existing structure within 50 feet of the ordinary high watermark.
Ziervogel
and McGinnity applied to the Washington County zoning administrator for a permit
to construct their proposed addition. The zoning administrator denied the permit
based on the shoreland ordinance.
Ziervogel
and McGinnity appealed to the Board of Adjustment for a variance, but the Board
denied the request, concluding that denial of the variance “would not make
[the] property useless.”
On
certiorari review, Washington County Circuit Court Judge David C. Resheske affirmed,
as did the court of appeals, in a published decision, 2003 WI App 82, 263 Wis.2d
321, 661 N.W.2d 884.
The
Supreme Court granted review, and reversed in a unanimous decision by Justice
Diane S. Sykes. Chief Justice Shirley S. Abrahamson and Justice Ann Walsh Bradley
did not participate.
| What
the court held Case:
State of Wisconsin ex rel. Ziervogel v. Washington County Board of Adjustment,
No. 02-1618. Issue:
Are area and use variances subject to the same standard? Holding:
No. Only if a property owner seeks a use variance is he required to show no reasonable
use of the property without it. Counsel:
Maureen A. McGinnity, Milwaukee, for appellant; Kimberly A. Nass, Christine E.
Ohlis, Madison, for respondent. |
Variance
Purposes
The
court concluded, “the distinctions in purpose and effect of use and area
zoning make the perpetuation of a single, highly-restrictive ‘no reasonable
use of the property’ standard for all variances unworkable and unfair. Use
zoning regulates fundamentally how property may be used, in order to promote uniformity
of land use within neighborhoods or regions. Area zoning regulates lot area, density,
height, frontage, setbacks, and so forth, in order to promote uniformity of development,
lot, and building size.”
The
court found that restricting variances to those property owners who would have
“no reasonable use” of their property without a variance may be justifiable
in use variance cases, but that applying the same strict standard to area variances
is unjustifiable.
The
court reasoned, “The ‘no reasonable use’ standard is largely disconnected
from the purpose of area zoning, fails to consider the lesser effect of area variances
on neighborhood character, and operates to virtually eliminate the statutory discretion
of local boards of adjustment to do justice in individual cases.”
History
| Counsel’s
Perspective: Ziervogel/Mcginnity
Maureen
A. McGinnity
Foley & Lardner,
Milwaukee Impact
of decision: This decision has cleared up confusion in the law affecting area
variances across the State of Wisconsin. The
most significant impact is that it has restored the discretion vested in local
boards of adjustment to balance private property interests against public interests.
The “no reasonable use” standard from State v. Kenosha County Board
of Adjustment, 218 Wis. 2d 396, 577 N.W.2d 813 (1998), had deprived the local
boards of that discretion. What
attorneys should take away from the case: If at first you don’t succeed,
try, try, try again. This issue was brought before the Supreme Court a few years
ago in State v. Outagamie County Board of Adjustment, 2001 WI 78, 244 Wis. 2d
613, 628 N.W.2d 376. At that time, three justices were prepared to overrule the
Kenosha standard, but could not get a majority. So practitioners should always
keep in mind that if they see something wrong in the way the law is applied, keep
trying to change it. Another
important point is to analyze the precedent to find the common threads and figure
out how to harmonize them. It is important to distinguish the earlier bodies of
law while directing the arguments toward the issues in the current case in order
to explain to the court why an earlier decision was wrong. Washington
County Board of Adjustment
William P. O’Connor
Wheeler, Van Sickle
& Anderson, SC
Madison Impact
of decision: The decision will increase the discretion of boards of adjustment
to grant “area” variances. I agree with the court (and zoning treatise
writers) that the impacts of “area” variances are often less consequential
than “use” variances. But the dimensional standard under shoreland zoning
requiring buildings to be set back 75 feet from the water is not inconsequential.
It is a statewide standard that every county is obliged to enact and enforce because
the Legislature has determined it necessary to protect public waterways. The Court’s
mandate requires zoning boards to consider the purposes of the shoreland building
setback when they consider these dimensional variances. The Wisconsin Association
of Lakes urged the court to recognize that some “area” variances raise
significant public issues and to use a more refined filter to determine which
variances should be tested under a relaxed standard. I expect most boards of adjustment
will continue to grant variances from the shoreland setback only in exceptional
circumstances. But the revised “unnecessarily burdensome” standard will
expand the power of local zoning boards to grant variances from the shoreland
setback than the “no reasonable use” standard in effect before the court’s
decision. What
attorneys should take away from the case: I think the case illustrates how little
attention the Legislature has given to the zoning statutes. Most of the zoning
provisions are unchanged from the model 1921 Standard State Zoning Enabling Act.
But zoning practice involves critical public issues, important property rights
and big money. Since the state law is antiquated and over-generalized, there is
a lot of room for creative legal work by practitioners, including municipal lawyers
and those representing private clients. |
Reviewing
the history of variances in Wisconsin, the court found that Wisconsin, like the
majority of jurisdictions, long treated use and area variances as distinct.
Snyder
v. Waukesha County Zoning Bd. of Adjustment, 74 Wis.2d 468, 247 N.W.2d 98 (1976).
The
distinction was abolished in State v. Kenosha County Bd. of Adjustment, 218 Wis.2d
396, 577 N.W.2d 813 (1998), making all variances subject to the “no reasonable
use” standard.
In
State v. Outagamie County Bd. of Adjustment, 2001 WI 78, 244 Wis.2d 613, 628 N.W.2d
376, the court divided on what standard should apply. Three justices voted to
overrule Kenosha County; and four voted to retain Kenosha County but disagreed
on its application.
Reconsidering
to the issue in the case at bar, the court unanimously concluded that the distinction
in Snyder must be reestablished, stating, “A forthright recognition of these
differences in purpose and effect of use and area zoning and variances requires
perceptibly different standards for the evaluation of use and area variance applications.
Henceforward, area variance applicants need not meet the ‘no reasonable use
of the property’ standard that is applicable to use variance applications.”
Rationale
The
court found, “Use and area variances ... threaten the integrity of zoning
ordinances in qualitatively different ways, and generally to a different extent.
Use variances by their nature have the potential to bring about great changes
in neighborhood character, but area variances usually do not have this effect.
While area variances provide an increment of relief (normally small) from a physical
dimensional restriction such as building height, setback, and so forth, use variances
permit wholesale deviation from the way in which land in the zone is used. Accordingly,
the measure of unnecessary hardship for use and area variances is different (cites
omitted).”
The
court added, “Application of the ‘no reasonable use’ standard to
area variances overwhelms all other considerations in the analysis, rendering
irrelevant any inquiry into the uniqueness of the property, the purpose of the
ordinance, and the effect of a variance on the public interest.”
Discussing
the role of zoning boards, the court concluded, “For the statutory discretionary
authority to be meaningful, boards of adjustment must have the opportunity to
distinguish between hardships that are unnecessary in light of unique conditions
of the property and the purpose of the ordinance, and hardships that do not warrant
relief, either because they are inconsequential or not unique or because a variance
would unduly undermine the purpose of the ordinance or the public interest. Boards
of adjustment must ‘have some very real flexibility in granting variances.’
Under the ‘no reasonable use’ standard, however, boards of adjustment
are effectively prohibited from considering the graduated nature of intrusions
upon the strict letter of area restrictions. The ‘no reasonable use’
standard, therefore, leaves boards of adjustment with almost no flexibility and
empties the concept of ‘discretion’ of any real meaning (cite omitted).”
Local
Ordinances
Turning
to the Washington County Ordinance at issue, the court found that, because it
mirrored the now-inapplicable Kenosha County standard, it exceeded the authority
granted the county in Wis. Stats. sec. 59.694(7).
Accordingly,
the court reversed. Because the Board based its decision solely on its ordinance,
and the Kenosha County standard now overruled, the court remanded for the board
to consider the variance in light of the Snyder definition of unnecessary hardship
for area variances — whether compliance with area zoning restrictions “would
unreasonably prevent the owner from using the property for a permitted purpose
or would render conformity with such restrictions unnecessarily burdensome.”
Snyder, 74 Wis.2d at 475.
Click
here for Case Analysis.
David
Ziemer can be reached by email.
