Variance
Case Analysis
March
24, 2004
The
decision is noteworthy not only for restoring the distinction between use and
area variances is a welcome one, but for the absence of any discussion of whether
the variance at issue is actually an area variance.
Arguably,
the variance in the case at bar is actually a use variance pursuant to a variety
of different theories.
First,
there is authority suggesting that a variance to allow an extension of a nonconforming
use is a use variance. Young, 3 Anderson's Law of Zoning 20.06 at 425 (4th ed.1996).
Second,
there is the theory that variances to shoreland ordinances are always, in effect,
use variances. Judge Brown put forth this theory in his concurring opinion in
the case at bar: "A requested variance in a shoreland zoning case, whether
it is perfunctorily denominated by the landowner as an 'area variance' or a 'use
variance,' nevertheless can defeat the whole purpose of the ordinance if granted.
Thus, employment of the strict 'no reasonable use' standard is logically and environmentally
correct where the shoreland zoning ordinance is considered. Ziervogel v. Washington
County Bd. of Adjustment, 2003 WI App 82, 263 Wis.2d 321, 345, 661 N.W.2d 884.
Under
this theory, shoreland ordinances are not area variances because they do not "promote
uniformity of development, lot, and building size," but protect navigable
public waters.
Third,
there is the theory that variances which appear to be area variances can actually
be use variances in disguise, as recognized in State v. Outagamie County Bd. of
Adjustment, 2001 WI 78, 244 Wis.2d 613, 640, 628 N.W.2d 376.
For example,
in the case at bar, were the variance to be granted, the effect would be to enable
the home to go from being a summer home to a year-round home. That is arguably
a change in use for which the higher "no reasonable use" standard is
appropriate.
The
decision is silent as to the character of the lake. Year-round homes could be
the norm or the exception on the lake. Such considerations can be taken into account
by boards of adjustments, but by failing to discuss the theory, the court's decision
could be interpreted to mean that such considerations have no role in determining
whether a use or area variance is at issue.
Thus,
the decision does not merely restore the distinction between use and area variances,
but implicitly rejects numerous theories that could narrow the definition of an
area variance.
-
David Ziemer
David
Ziemer can be reached by email.
