Arndorfer v. Sauk County Bd. of Adjustment

• Decision Date: 05 June 1991
• Docket Number: No. 89-0603,89-0603
• Citation: Arndorfer v. Sauk County Bd. of Adjustment, 162 Wis.2d 246, 469 N.W.2d 831 (Wis. 1991)
• Parties: Ronald ARNDORFER and Joan Arndorfer, Petitioners-Respondents-Petitioners, v. SAUK COUNTY BOARD OF ADJUSTMENT, Appellant.
• Court: Wisconsin Supreme Court

Page 831

469 N.W.2d 831

162 Wis.2d 246

Ronald ARNDORFER and Joan ArndorferPetitioners-Respondents-Petitioners, v.SAUK COUNTY BOARD OF ADJUSTMENT, Appellant.

No. 89-0603.

Supreme Court of Wisconsin.

Argued Jan. 3, 1991.

Decided June 5, 1991.

Thomas P. Krukowski, argued, Ann M. Barry and Krukowski & Costello, Milwaukee, on the briefs, for petitioners-respondents-petitioners.

Eugene R. Dumas, argued, and Sauk County Corp.Counsel, Baraboo, on the brief, for appellant.

BABLITCH, Justice.

Petitioners, Ronald and Joan Arndorfer(the Arndorfers), seek review of a court of appeals' decision reversing a circuit court judgment which had reversed a decision by the Sauk County Board of Adjustment(Board).The Board denied the Arndorfers' request for a variance to use a holding tank sewage system on their land.The Board found that the Arndorfers were not entitled to the variance because they had not proven unnecessary hardship as required by the Sauk County Sewage System Ordinance (Ordinance).The Arndorfers contend that the Board's decision was arbitrary and unreasonable and that they will suffer unnecessary hardship if the variance is not granted.We conclude that the record is inadequate to determine whether the Andorfers met their burden of establishing that their hardship is unique to their land.However, we further conclude the record provides no rational basis for the Board's decision.Therefore, we remand this case to the Board for further factual findings and redetermination of all issues, including whether the Arndorfers have established unnecessary hardship.

In 1983, Ronald and Joan Arndorfer purchased a 109 acre farm in the Town of Winfield in Sauk County to be used as a recreation and hunting retreat.The Arndorfers improved the land and built living quarters.They also installed a holding tank sewage system in the fall of 1986.In July, 1987, the Arndorfers applied to the Sauk County Board of Adjustments for a variance to allow them to use the holding tank, pursuant to secs. 25.08(3)(g)(2)and25.09(2)(e)(3) of the Ordinance.

Section 25.08(3)(g)(2) of the Ordinance provides that holding tanks:

Shall be prohibited for use to serve new construction except in areas where a sanitary district has been formed.Where unnecessary hardship would otherwise result, persons aggrieved by this prohibition may appeal for a variance, in accordance with s. 25.09(2)(e)(3) of this Ordinance.

Section 25.09(2)(e)(3) of the Ordinance provides:

As may be provided in this Ordinance, the Board of Adjustment shall have the power, in passing upon appeals where it is alleged that unnecessary hardship would result from the carrying out of the strict letter of the Ordinance, to authorize such variance from the terms of this Ordinance as will not be contrary to the public interest and so that the spirit of the Ordinance shall be observed and substantial justice done.

The Arndorfers alleged that without a variance they would suffer unnecessary hardship because a soil percolation test had determined that the soils at their site would not support a conventional septic or pressurized mound sewage system.In addition, because the property was serviced by running water, a privy was prohibited under state regulations.

In August, 1987, the Board held a public hearing and unanimously denied the Arndorfers' requested variance because they had failed to establish unnecessary hardship.The Board based its decision on several grounds.First, the Board determined that the variance should not be granted because "there was evidence that the Arndorfers may be able to locate a more conventional, alternative system of sewage disposal on [their] property" and holding tanks should only be considered as "a last resort after other approved sewage disposal systems have been ruled unavailable."Second, the Board found that the Sauk County Board of Supervisors, intended sec. 25.08(3)(g)(2) to prohibit holding tanks to serve new construction except in areas where a sanitary district has been formed.Third, the Board found that the variance was inappropriate in this case because variances should generally only be allowed when the need for the variance arises from the unique characteristics of the particular property involved.The Board concluded that the Arndorfers' property was not unique because it was quite likely that numerous properties or building sites in the area required holding tanks to be suitable for residential development.

Pursuant to sec. 59.99(10), Stats., the Arndorfers petitioned for certiorari review of the Board's decision.The original taped recording of the Board's public hearing was unintelligible and no transcript of the hearing was otherwise available to serve as a basis for review of the Board's decision denying the variance.Both parties agreed to enter into a Stipulation of Facts to reconstruct the record for purposes of appeal.

The Stipulation introduced the following facts into the record:

2.That, due to on-site conditions, a privy or holding tank constitute the only types of private sewage systems available to service Petitioners' dwelling on the subject premises under applicable regulations.

3.That, insofar as Petitioners' dwelling on the subject premises is served by running water, a privy is not allowed under applicable regulations.

4.That the sizing, construction and installation of any holding tank is subject to subsecs.83.18(5), (6) and (7), I.L.H.R. Wis.Adm.Code, and the proper interpretation or application of said provisions of the Code is not presently before this Court.

5.That no evidence has been presented to the Board of Adjustment indicating that the Petitioners or anyone else has attempted to establish a town sanitary district, as authorized by s. 60.71, Wis.Stats., which would include the subject premises; such a district would have the authority to allow Petitioners to utilize a holding tank on the subject premises in conformance with applicable regulations.

In addition to the Stipulation, the record submitted to the circuit court included the exhibits introduced into evidence at the public hearing.Among other things, this written record contains the Arndorfers' Notice of Appeal for the variance, their letter of explanation for seeking the variance, and soil test results from their property.The Arndorfers' Notice of Appeal asserted that their neighbor had a recently installed holding tank.

The circuit court reviewed the stipulated facts and the written record and determined that the Arndorfers were entitled to a variance.The court of appeals reversed the circuit court, finding that the Board's denial of a variance to permit the use of the holding tank was not arbitrary, oppressive, or unreasonable.The court of appeals concluded that the Arndorfers had not proved "uniqueness," which it found to be an essential element of unnecessary hardship.The court also found the Stipulation of Facts irrelevant for purposes of this appeal and based its decision on the written record.Judge Sundby dissented, concluding that the evidence in the record did not support the Board's findings.The Arndorfers appealed and we granted their petition for review pursuant to sec. 809.62, Stats.

When reviewing the decision of a county board of adjustment, a court shall accord a presumption of correctness and validity to the Board's decision.Snyder v. Waukesha County Zoning Board, 74 Wis.2d 468, 476, 247 N.W.2d 98(1976).Therefore, the Arndorfers carry a dual burden on this appeal in order to be granted a variance.First, the Arndorfers must overcome the presumption of correctness accorded to the Board's decision.Second, as required by the Ordinance, the Arndorfers must establish that they will suffer unnecessary hardship if a variance is not granted.See 3 Anderson, American Law of Zoning 402 (3d ed. 1986)("[I]t ... [is] an established rule that a board of adjustment is empowered to grant a variance only where the applicant has proved that a literal application of the zoning regulations will result in unnecessary hardship.").The necessity of placing the burden upon the applicant to prove unnecessary hardship is explained in McQuillin, Municipal Corporations, sec. 25.167 at 337(3d ed. 1983):

A party applying or appealing for relief to a zoning board of adjustment or review has the burden of proof of facts entitling him to that relief.Since a hearing before a board is not necessarily an adverse proceeding, the applicant is not entitled to have his petition allowed merely because no witnesses appear in opposition, but the applicant must comply with the proof required by statute and ordinance whether there is or is not opposition to his petition....Unless an applicant is required to establish by proof all the essential elements of his right to relief, a board of review would have the power to nullify the zoning ordinance under the guise of exceptions or variances.(Footnotes omitted.)

We limit our review of judgments entered on statutory certiorari review when the circuit court does not take additional evidence to the following:

'(1)[w]hether 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.'Klinger v. Oneida County, 149 Wis.2d 838, 843, 440 N.W.2d 348(1989)(quotingBrookside v. Jefferson Board of Adjustment, 131 Wis.2d 101, 120, 388 N.W.2d 593(1986)).

The dispositive issue in this case is whether the Arndorfers have met their burden of proving unnecessary hardship, which includes the burden of proving "uniqueness."At the outset, we wish to emphasize that our review is limited to the facts contained in the Stipulation of Facts and the written record.The use of a stipulation between parties to reconstruct a missing or damaged...