Allen v. Waukesha County Bd. of Adjustment
| Decision Date | 18 February 1998 |
| Docket Number | No. 96-3202,96-3202 |
| Citation | 217 Wis.2d 289,577 N.W.2d 386 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. Jeffrey ALLEN, Petitioner-Respondent-Cross-Appellant, v. WAUKESHA COUNTY BOARD OF ADJUSTMENT, Respondent-Appellant-Cross-Respondent. |
| Court | Wisconsin Court of Appeals |
APPEAL and CROSS-APPEAL from an order of the circuit court for Waukesha County: MARIANNE E. BECKER, Judge. Reversed.
Before SNYDER, P.J., and NETTESHEIM and ANDERSON, JJ.
The Waukesha County Board of Adjustment (the Board) appeals from a circuit court decision reviewing its denial of a variance request and remanding the case to the Board for further factfinding. 1 The circuit court concluded that there was insufficient evidence in the record to uphold the Board's finding that the homeowner, Jeffrey Allen, had failed to meet the "undue hardship" requirement for the variance. The Board appeals, claiming that: (1) its decision should be upheld because Allen failed to prove the undue hardship element; (2) the circuit court erred in its decision because it shifted the burden to prove unnecessary hardship to the Board; and (3) Allen has failed to show any additional hardship from that presented by earlier variance requests. Allen cross-appeals, arguing that the Board's consideration of a "floor area ratio" (FAR) requirement was incorrect because he owns a legally nonconforming lot. 2
We conclude that Allen is correct; Allen's lot is governed by a provision of the Shoreland, Floodland Protection Ordinance that exempts nonconforming lots from the FAR requirements. Thus Allen, in this instance, is not required to obtain a variance. See WAUKESHA COUNTY, WIS., ORDINANCE, APPENDIX B--SHORELAND, FLOODLAND PROTECTION ORDINANCE § 3.10(2)(E) (1986) (hereinafter, ORDINANCE). We therefore reverse the Board's decision which was grounded in its conclusion that a variance was required. In light of our decision, remanding the case to the Board is unnecessary.
Allen owns a legally nonconforming lake parcel that has been grandfathered in by the above ordinance. See id. Allen's lot is 50 feet wide and approximately 288 feet long, or 14,400 square feet; a conforming lot would be 20,000 square feet. See ORDINANCE § 11.04(2)(A). The lot contains a single family residence, a boathouse and a detached garage. Allen applied for a zoning permit to make certain alterations to the home, which included a cantilevered second story addition over an existing deck and a "mudroom" entrance into the kitchen over the existing foundation. The Waukesha County Parks and Land Use Department refused to grant the zoning permit because the proposed addition would exceed what it considered the maximum allowable FAR for Allen's nonconforming lot. Allen then requested a variance from the FAR requirement. This request was originally heard by the Town of Oconomowoc Plan Commission and was approved. The variance request indicated that the proposed construction would increase the FAR of the Allen property from 21.9% to 23%. 3
Allen's wife, Linda, appeared before the Board to request the variance. The Board denied the Allens' request to construct the mudroom and second floor addition, although it did approve their plan to construct a deck which was to be attached to the second floor addition. Allen then commenced a certiorari appeal of the Board's decision in circuit court.
The circuit court remanded the case to the Board to take additional evidence. The court neither affirmed nor reversed the Board, but merely stated that it was "reluctant to affirm the Board's action by substituting our own reason for denying the variance where the Board has denied the variance request by citing reasons that are unsupported by the record" (citing Arndorfer v. Sauk County Bd. of Adjustment, 162 Wis.2d 246, 258-59, 469 N.W.2d 831, 835-36 (1991)). The circuit court ruled that it was "unable to make a determination that the [Board] did not [substitute] its will rather than its judgment, [and therefore] the matter is remanded to the [Board] to take further evidence, allowing the Petitioners to demonstrate or fail to demonstrate unnecessary hardship as that term is defined in Snyder and Arndorfer, and then rendering a decision based on the law ...." It is from this decision that the Board appeals.
Under a certiorari standard, we review the Board's decision de novo. See Miswald v. Waukesha County Bd. of Adjustment, 202 Wis.2d 401, 408, 550 N.W.2d 434, 436 (Ct.App.1996). On certiorari review, we are limited to:
(1) whether the board kept within its jurisdiction;
(2) whether it proceeded on a correct theory of law;
(3) whether its action was arbitrary, oppressive or unreasonable and represented its will and not its judgment; and
(4) whether the evidence was such that it might reasonably make the order or determination in question.
Id. at 410-11, 550 N.W.2d at 437. While a board's decision should be accorded a "presumption of validity and correctness," see id. at 411, 550 N.W.2d at 437, the threshold issue presented is whether the Board correctly construed the applicable sections of the ordinance. The construction of an ordinance is a question of law which we review de novo without deference to the circuit court. See State ex rel. Beidler v. Zoning Bd. of Appeals, 167 Wis.2d 308, 310, 481 N.W.2d 669, 671 (Ct.App.1992). However, it is the petitioner's initial duty to convince the court that the Board's interpretation is incorrect. See id. at 311, 481 N.W.2d at 671. Allen has done so here; we conclude that the Board misconstrued the applicable ordinance sections when it required him to show undue hardship and obtain a variance because he was unable to meet the FAR requirements.
The first step is to determine if the language of the ordinance is clear or ambiguous; the test of ambiguity is whether the statute is capable of being construed in more than one way by reasonable people. See R.W.S. v. State, 156 Wis.2d 526, 529, 457 N.W.2d 498, 499 (Ct.App.1990), aff'd, 162 Wis.2d 862, 471 N.W.2d 16 (1991). We conclude that the ordinance is ambiguous. It is not clear from the plain language whether the FAR requirements are applicable to nonconforming lots. We therefore construe the applicable sections in order to determine this issue.
In any construction, we are to consider not only the disputed section, but also related sections. See Pulsfus Poultry Farms v. Town of Leeds, 149 Wis.2d 797, 804, 440 N.W.2d 329, 332 (1989). Furthermore, when one section deals with a subject in general terms and another deals with a part of the same subject in a more detailed way, the two should be harmonized if possible. See State v. Amato, 126 Wis.2d 212, 217, 376 N.W.2d 75, 78 (Ct.App.1985). If there is any conflict the specific section prevails over the general. See American Fed'n of State, County & Mun. Employees v. Brown County, 140 Wis.2d 850, 854, 412 N.W.2d 167, 169 (Ct.App.1987), aff'd, 146 Wis.2d 728, 432 N.W.2d 571 (1988). We turn to the ordinances governing area regulations for lots in an R-3 residential zoning district.
Allen owns a legally nonconforming lot with 50 feet of shoreland in an area zoned R-3 residential. Section 3.10 of the applicable ordinance is entitled "Area regulations" and includes three different points of regulation. The first paragraph is entitled "Floor area" and specifies minimum and maximum floor area requirements for residences and how to compute those ratios for existing homes. See ORDINANCE § 3.10(1). Because the issue presented by this appeal concerns the Board's determination that Allen is constrained by FAR requirements which prohibit him from adding on to his residence, we consider the language of the one paragraph which pertains to the maximum FAR permitted. Section 3.10(1)(B) reads:
The maximum total floor area of the buildings on a lot shall not exceed that permitted under the floor area ratio as hereinafter specified by the regulations for the district in which such building is located.
The "regulations for the district" in which Allen's home is located specify a FAR of 15%.
Subsection (2) is entitled "Lot size." It begins with the following provision:
(A) No lot shall hereafter be created and no building shall be erected on a lot of less land area or minimum average width than hereinafter specified by the regulations of the district in which such building is located except as may be provided in subsection 3.10(2)(E) of this Ordinance. No lot may be created which has less than one hundred (100) feet of frontage on a navigable river or lake . [Emphasis added.]
Because Allen's lot does not conform to the lot size regulations for this area, we consider the provisions of § 3.10(2)(E):
(E) Where a lot has less land area [than that] specified in section 3.10(2)(A) and was of record at the time of passage of this ordinance, such lot may be used for any purpose permitted in such district, but not for residential purposes for more than one (1) family; provided, however, that in no case shall the setback and offset requirements be reduced to less than that required in the R-3 zoning district and the open space requirements be reduced to less than ten thousand (10,000) square feet per family. [Emphasis added.]
Finally, § 3.10(3) is entitled "Open space" and outlines the amount of usable open space that must be retained on a lot. This paragraph states that "[n]o building shall reduce the usable open area of [any] lot to less than that hereinafter specified by the regulations for that district ...." ORDINANCE § 3.10(3)(A). In the case of conforming lots in the R-3 zoning district, each lot must include 15,000 square feet of usable open space in order to comply with this regulation.
Allen claims that § 3.10(2)(E) of the ordinance is the applicable section for his nonconforming lot, and because this paragraph does not include...
To continue reading
Request your trial