02-2400 State v. Waushara County Board of Adjustment
Zoning;
Variance; standard; “unnecessary hardship;” shorelands
Wisconsin
Supreme Court Affirmed
In
evaluating whether to grant an area variance to a zoning ordinance, a board of
adjustment should focus on the purpose of the zoning law at issue in determining
whether an unnecessary hardship exists for the property owner seeking such variance.
Further, the facts of the case should be analyzed in light of that purpose and
boards of adjustment must be afforded flexibility so that they may appropriately
exercise their discretion. On appellate review, the board’s decision is presumed
to be correct.
The
landowners own a single family home on a .324 acre shorefront parcel; a state
highway also borders the property; the required setbacks, 75 feet from the lake,
and 110 feet from the highway, completely eclipse any building envelope on the
parcel. The preexisting, nonconforming house on the parcel is 30 to 34 feet from
the lake. The landowners bought the adjacent parcel and began a series of improvements,
including a garage and a second story; when they filed the instant application,
for a 10 x 20 addition to their living room and a 4 x 10 porch, their permit was
denied based on the cumulative value of all improvements; the landowners sought
a variance of the cumulative value provision.
The
Board viewed the property, noted that the proposed construction would not bring
the home any closer to the lake, and ultimately approved the variance application,
concluding that enforcing the exact terms of the zoning ordinance would result
in unnecessary hardship for the landowners.
The
State sought appellate review, arguing that Wis. Stat. §§ 59.692 and
281.31, requires adherence to specific standards for protecting the shorelands
of Wisconsin’s navigable waters, over and above local zoning regulations.
The circuit court and the court of appeals concluded that Kenosha County Bd. of
Adjustment, 218 Wis. 2d 396, 577 N.W.2d 813 (1998) requires that no reasonable
use of the property must be demonstrated by the property owners before a board
may grant a variance.
We
must address the interplay between Snyder v. Waukesha County Zoning Bd. of Adjustment,
74 Wis. 2d 468, 247 N.W.2d 98 (1976), State v. Kenosha County Bd. of Adjustment,
218 Wis. 2d 396, 577 N.W.2d 813 (1998), and State v. Outagamie County Bd. of Adjustment,
2001 WI 78, 244 Wis. 2d 613, 628 N.W.2d 376, and determine the correct legal standard
to be applied by a board of adjustment when considering whether to grant an area
variance. More specifically, is the correct legal standard whether the failure
to receive the variance will create, for the property owner, an unnecessary hardship
in light of the purposes of the zoning ordinance, or is it whether the owner will
have no reasonable use of the property without a variance?
We
find no need to accept the landowners’ invitation to overrule Kenosha County.
Rather, the term “no reasonable use,” as set forth in Kenosha County,
is no longer applicable when consideration is being given to whether to grant
an area variance. We reaffirm Snyder’s definition of the statutory term “unnecessary
hardship” because it best encompasses the appropriate test for granting an
area variance.
While
there is a claim that the variance implicates shoreland zoning concerns, it should
be noted that the proposed addition would not bring the landowner’s home
any closer to Silver Lake.
DISSENTING
OPINION: Bradley, J., joined by Abrahamson, C.J. “The unfortunate result
of the majority opinion is that it sacrifices the constitutionally protected public
trust rights that all citizens have in the navigable waters of this state in order
to promote the local private interests of a few shoreland property owners. By
functionally overruling Kenosha County, it relaxes the standard necessary to obtain
a shoreland variance. In emphasizing flexibility for local boards of adjustment
and presuming that their decisions are correct, the majority dilutes appellate
review, which will invariably undermine the legislative directive for uniformity
of shoreland zoning. Cumulatively, this approach will vitiate the purposes behind
shoreland regulations of preserving the public interest in shoreland and the navigable
waters of this state.”
The
decision of the court of appeals is reversed, and the cause is remanded to the
circuit court for further proceedings consistent with this opinion.
Court
of Appeals, Crooks, J.
Attorneys:
For
Appellants: Brian W. McGrath, Erik G. Weidig and Foley & Lardner, Milwaukee.
For
Respondent: P. Philip Peterson, assistant attorney general, with whom on the brief
was Peggy A. Lautenschlager, attorney general.
http://www.wicourts.gov/html/sc/02/02-2400.htm
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