Clark v. Waupaca County Bd. of Adjustment, 93-0397

• Decision Date: 30 June 1994
• Docket Number: No. 93-0397,93-0397
• Citation: 519 N.W.2d 782,186 Wis.2d 300
• Parties: Suzanne Baker CLARK, and Nancy Baker Woodburn, Plaintiffs-Appellants, v. WAUPACA COUNTY BOARD OF ADJUSTMENT, Defendant-Respondent.
• Court: Wisconsin Court of Appeals

Page 782

519 N.W.2d 782

186 Wis.2d 300

Suzanne Baker CLARK, and Nancy Baker Woodburn, Plaintiffs-Appellants, v. WAUPACA COUNTY BOARD OF ADJUSTMENT, Defendant-Respondent.

No. 93-0397.

Court of Appeals of Wisconsin.

Submitted on Briefs Oct. 8, 1993.

Opinion Released June 30, 1994.

Opinion Filed June 30, 1994.

Before EICH, C.J., GARTZKE, P.J., and SUNDBY, J.

GARTZKE, Presiding Judge.

Suzanne Clark and Nancy Woodburn appeal from a judgment affirming the decision of the Waupaca County Board of Adjustment. The board denied their request for variances under the county zoning ordinance to build a single-family dwelling on their platted lot. They assert that the board acted arbitrarily and capriciously without regard to the evidence before it, and failed to state valid reasons for denying the variances, and that compliance with the zoning requirements unreasonably prevents them from using their property for any purpose. The trial court held to the contrary, and we affirm.

Appellants' lake lot has been in their family since it was platted around 1905. According to appellants, it contains 4,889 square feet, is pie-shaped with fifty feet of public road frontage, and is about twenty-four feet wide at the Long Lake meander line and thirty-six feet wide at the seventy-five foot water setback line. ¹ Years after the platting, the county adopted a zoning ordinance.

The minimum residential single-family lot size under the ordinance is 20,000 square feet. In addition to requesting variance from the lot size requirement, appellants request setback side yard variances. According to appellants, construction of a dwelling complying with required yards and setbacks is not realistic--the building would be five feet, eight inches wide at its narrowest and twelve feet wide at its widest dimension. Appellants propose a dwelling with 570 square feet of first-floor living area.

The board gave three reasons for its decision to deny the request for variances. The first is a compound reason: the lot is too small for any kind of a reasonable home and the proposed dwelling would not conform to the surrounding dwellings in the neighborhood. Second, a discrepancy exists regarding the lot size and boundary lines. Third, appellants suffer no hardship without the variances because neighbors testified that they are willing to buy the lot for a price exceeding its assessed value.

Appellants sought certiorari review under § 59.99(10), STATS., in the circuit court. Although the circuit court affirmed the zoning board's decision, we examine the record de novo without deference to the views of the circuit court. Boynton Cab Co. v. DILHR, 96 Wis.2d 396, 405, 291 N.W.2d 850, 855 (1980). Our review is limited to: (1) whether the board kept within its jurisdiction; (2) whether it acted according to 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 issue the order or make the determination in question. Snyder v. Waukesha County Zoning Bd., 74 Wis.2d 468, 475, 247 N.W.2d 98, 102 (1976). The jurisdiction of the board is not challenged.

Our review is further limited by the principle that if our decision on one issue disposes of an appeal, we need not review the other issues raised. Sweet v. Berge, 113 Wis.2d 61, 67, 334 N.W.2d 559, 562 (Ct.App.1983). Thus, if we conclude that any one of the board's reasons for denying the variances at issue passes certiorari review, we affirm without commenting on the board's other reasons.

The evidence supports the board's first reason regarding a reasonable home and its conformance to the surrounding dwellings. On certiorari, we apply the substantial evidence test to determine whether the evidence is sufficient. Stacy v. Ashland County Dept. of Pub. Welfare, 39 Wis.2d 595, 602, 159 N.W.2d 630, 634 (1968). Substantial evidence is evidence of such convincing power that reasonable persons could reach the same decision as the board. Stacy, 39 Wis.2d at 603, 159 N.W.2d at 634. As the substantial evidence test is highly deferential to the board's findings, we may not substitute our view of the evidence for that of the board when reviewing the sufficiency of the evidence on certiorari. Van Ermen v. DHSS, 84 Wis.2d 57, 64, 267 N.W.2d 17, 20 (1978). If any reasonable view of the evidence would sustain the board's findings, they are conclusive. Nufer v. Village Bd., 92 Wis.2d 289, 301, 284 N.W.2d 649, 655 (1979). Even if we would not have made the same decision, in the absence of statutory authorization, we cannot substitute our judgment for that of the zoning authority. Buhler v. Racine County, 33 Wis.2d 137, 146-47, 146 N.W.2d 403, 408 (1966). No such statutory authorization exists.

The board's first reason for denying the variance is both reasonable and based upon facts of record. According to appellants, to construct a dwelling complying with the required yards and setbacks is unrealistic given the pie-shaped nature of the lot. Appellants themselves propose a dwelling with only 570 square feet of first-floor living area. The board's decision that the lot is too small for any kind of a reasonable home is one we must accept, and under the circumstances it is not arbitrary or capricious.

Substantial evidence supports the board's finding that the proposed dwelling would not conform to the surrounding dwellings. This is true for two reasons. The first has to do with the building site itself. Appellants produced evidence regarding twenty-one building sites, each having a...