State v. Kenosha County Bd. of Adjustment

• Decision Date: 27 May 1998
• Docket Number: No. 96-1235,96-1235
• Citation: 218 Wis.2d 396,577 N.W.2d 813
• Parties: STATE of Wisconsin, Plaintiff-Appellant-Petitioner, v. KENOSHA COUNTY BOARD OF ADJUSTMENT, Defendant-Respondent.
• Court: Wisconsin Supreme Court

Page 813

577 N.W.2d 813

218 Wis.2d 396

STATE of Wisconsin, Plaintiff-Appellant-Petitioner, v. KENOSHA COUNTY BOARD OF ADJUSTMENT, Defendant-Respondent.

No. 96-1235.

Supreme Court of Wisconsin.

Argued March 3, 1998.

Decided May 27, 1998.

For the plaintiff-appellant-petitioner the cause was argued by Lorraine C. Stoltzfus, Assistant Attorney General, with whom on the briefs was James E. Doyle, Attorney General.

For the defendant-respondent there was a brief by Debra S. Bursinger, Senior Assistant Corporation Counsel, and Kenosha County Corporation Counsel's Office, Kenosha and oral argument by Debra S. Bursinger.

Amicus curiae was filed by William P. O'Connor, Jennifer s. McGinnity, and Wheeler, Van Sickle & Anderson, S.C., Madison for The Wisconsin Association of Lakes, Inc.

¶1 JANINE P. GESKE, Justice

On this review we consider whether the Kenosha County Board of Adjustment (Board) properly applied the legal standard for determining unnecessary hardship in order to grant a petition for an area variance. The Board determined that the variance applicant, Ms. Janet Huntoon, would suffer unnecessary hardship if she were denied a variance enabling her to build a deck extending into the protected shoreyard of Hooker Lake. The circuit court, the Honorable Michael Fisher presiding, upheld the Board's decision, and the court of appeals affirmed. ¹ We conclude that the legal standard of unnecessary hardship requires that the property owner demonstrate that without the variance, he or she has no reasonable use of the

property. We conclude that the Board did not properly apply this legal standard and that its decision to grant the variance was not reasonably based on the evidence. We therefore reverse the decision of the court of appeals and remand for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

¶2 Janet Huntoon owns six adjoining parcels of land on property abutting Hooker Lake, a navigable body of water located in the town of Salem, in the county of Kenosha, Wisconsin. Five of the lots in this unincorporated area are undeveloped; a house was built on the sixth lot in 1936 by Huntoon's grandfather. The home is in the R-4 Urban Single Family Residential zoning district. The land running between the house and the lake is sloped. When the house was built, 33 concrete steps were laid along the slope down to the lake. Huntoon's family has continuously owned the house and the parcels.

¶3 In anticipation of her move into the house, Huntoon sought to construct a deck facing the lake. Huntoon had all of the pine trees and shrubs on the slope in front of her house and facing the lake removed, based on her builder's statement that she would not need a variance to build the deck.

¶4 After clearing the vegetation in the area and making measurements, Huntoon discovered that she would need a zoning variance. Without the deck, the existing house sits 78 feet away from the ordinary high-water mark of Hooker Lake. As proposed, the 14-foot by 23-foot deck would violate both the state statute and the county ordinance requiring a 75-foot setback for all structures adjacent to navigable bodies of water in unincorporated areas.

¶5 Sections 59.971 ² and 144.26 OF THE WISCONSIN STATUTES³ require counties to zone the shorelands of navigable waters. Pursuant to those provisions, the Kenosha County General Zoning and Shoreland/Floodplain Zoning Ordinance (Kenosha County Shoreland Ordinance) was adopted. Section 12.21-4(g)2 of the ordinance requires that structures in the R-4 zoning district be no less than 75 feet away from the ordinary high-water mark of any navigable water. This provision tracks Section NR 115.05(3)(b)1 (1985) of the Wisconsin Administrative Code, a statewide provision applying to unincorporated areas and requiring a minimum setback of 75 feet from the ordinary high-water mark of an adjacent body of water to the nearest part of a building or structure, except piers, boathouses, and boat hoists. The 75-foot setback provision is an environmental conservation measure. See Wis. Stat. § 144.26; Wis. Admin. Code. § NR 115.01(2); and Kenosha County Shoreland Ordinance at 12.01-2(a).

¶6 On March 22, 1995, Huntoon filed an application with the Kenosha County Office ¶7 Huntoon then petitioned the Kenosha County Board of Adjustment for a zoning variance to allow construction of the deck. ⁴ The Department of Natural Resources (DNR) reviewed the request and recommended that the Board deny it. The DNR asserted that Huntoon could not meet the statutory requirement of unnecessary hardship, and that constructing the deck would be contrary to the purpose of the shoreland zoning statutes and the public interest.

of Planning and Development requesting approval of her plans to construct a 14-foot by 23-foot attached deck, and to reduce her shoreline setback to 64 feet. The Office of Planning and Development denied the application because the proposed deck would violate the setback requirement.

¶8 On May 4, 1995, the Board conducted a public hearing on Huntoon's petition. Huntoon explained that she intended to move into the house in the near future. She testified that a deck would update the house, make the house look more attractive, and be used for recreational purposes and a view of the lake. According to the transcript of that hearing, neither Huntoon nor her representative Phillip Cayo mentioned any concern about a safety problem.

¶9 The Board unanimously voted to grant the variance request. The hearing minutes show that the Board approved the variance for the following reasons:

1. There are many properties surrounding the lake that are much closer than the petitioner proposes, including a number of homes on the north side of the lake which is the same side as the petitioner and further west who are almost right up to the lake.

...

3. Homes built prior to the enactment of the ordinance should be granted special consideration particularly when we are dealing with the lake view, which is why taxes are higher. To deny this request would be confiscatory and unreasonable.

4. The owner did not cause the situation, therefore the problem is not self created.

5. The petitioner's request is modest.

6. The steep incline from the waters edge to the subject residence is dangerous and the construction of a deck as proposed would provide greater safety.

7. The variance, if granted, meets all the standards and guidelines set forth in 12.36-13 of the Kenosha County Zoning ordinance.

¶10 At the DNR's request, the State initiated a certiorari proceeding, pursuant to Wis. Stat. § 59.99(10), ⁵ in Kenosha County Circuit Court on June 5, 1995, for review of the Board's action. On July 6, 1995, the Board conducted a public hearing to reconsider its grant of the variance. In the interim between the two Board meetings, Huntoon's deck was built.

¶11 The Board took testimony from Huntoon and Cayo at this second hearing. Huntoon testified that "I believe the steep slope limits the use of the property because there's no room there for anything as far as like a table or chairs or anything at the top of that hill." Huntoon also stated "I can't use that front area of the house without something there as far as to use to walk on and things like that. So, and as valuable as that property is, I would like to have some reasonable use out of it rather than just leave it bare in the front and not even be able to walk out there."

¶12 Huntoon's representative, Cayo, also testified at the second Board meeting. His remarks included the following:

"Even though we created a deck for pleasure, we did not impact any way on the lake, which was one of our big concerns.... All of a sudden now we have a home that was built and to replace the front stoop and make it look like a more modern, a more, a home that's where you can enjoy yourself at the lake ..." ¶13 The only reference to safety by either witness was Cayo's remark that

"[i]n this case, that little bitty front porch, I would call it just a stoop, a step off was removed and a nice, a nice deck put on. The old stoop that was 60 years we figure ... sixty, sixty some five years old, it was about time somebody took it off, off the front of that house before somebody fell off of it and got hurt, so ..."

¶14 After taking testimony, the Board supplemented its previous reasoning with the following findings of fact and analysis:

1. Unnecessary Hardship--

Petitioner has stated the house was built in the 1930's prior to shoreland zoning setbacks by her mother's family. She also stated that approximately 15' of shoreline has been lost since then, due to erosion. She has further stated that there are other structures directly in her view across the lake with less setback from the lake.

The Board finds that strict conformity with the ordinance in Janet Huntoon's case would be unnecessarily burdensome because she would be denied a use that a great many other lakefront property owners do enjoy at a much closer setback than the 64' in question. (emphasis in original)

Janet Huntoon has not had a real estate appraiser give a value loss should a deck be denied, but it is the Board's belief that there would be a loss of value if setback relief is denied.

2. Unique Property Limitation--

The petitioner has stated that the property in question is situated on a hill overlooking the lake. The steep slope to the lake is covered with mature trees and vegetation except for the portion in a direct line to the lake from her house and proposed deck. She has also stated that there is not a flat area on the lake front side of her house and that the existing door faces the lake.

The Board finds that the petitioner is faced with unique limitations caused by:

a. The steep slope to the lake which begins as you exit the house, the deck will provide a safety barrier

b. An estimated 15' of shoreline has been lost due to erosion.

3. Protection of the Public Interest--

The Board believes that the public interest is...