Miswald v. Waukesha County Bd. of Adjustment

• Decision Date: 01 May 1996
• Docket Number: No. 95-1642,95-1642
• Citation: 550 N.W.2d 434,202 Wis.2d 401
• Parties: David MISWALD and Gail Miswald, Petitioners-Respondents, d v. WAUKESHA COUNTY BOARD OF ADJUSTMENT, Respondent-Appellant.
• Court: Wisconsin Court of Appeals

Page 434

550 N.W.2d 434

202 Wis.2d 401

David MISWALD and Gail Miswald, Petitioners-Respondents,^d v. WAUKESHA COUNTY BOARD OF ADJUSTMENT, Respondent-Appellant.

No. 95-1642.

Court of Appeals of Wisconsin.

Submitted on Briefs March 1, 1996.

Opinion Released May 1, 1996.

Opinion Filed May 1, 1996.

[202 Wis.2d 404] On behalf of the respondent-appellant, the cause was submitted on the briefs of William J. Domina, Assistant Corporation Counsel.

On behalf of the petitioners-respondents, the cause was submitted on the brief of James W. Hammes, of Cramer, Multhauf & Hammes of Waukesha.

Before BROWN, NETTESHEIM and SNYDER, JJ.

NETTESHEIM, Judge.

The issue on appeal is whether the Waukesha County Board of Adjustment correctly calculated the allowable size of David and Gail Miswald's proposed residence on the shores of Lake Okauchee in the Town of Oconomowoc, Waukesha County, when considering the Miswalds' variance request. The board based its calculation solely on the size of the Miswalds' residential lot, to the exclusion of two other nearby lots which the Miswalds also own. Based on this computation, the board granted the Miswalds a variance, but not to the extent sought by the Miswalds.

The circuit court reversed the board's ruling and remanded the matter back to the board. The court held that the county's prior imposition of a deed restriction, requiring the three Miswald parcels to be sold as a single unit, mandated the board to consider the three parcels as one for purposes of the requested variance.

We conclude that the board's action was within its jurisdiction and decided under a correct theory of law. We also conclude that the action was not arbitrary, oppressive or unreasonable and was supported by the evidence. Accordingly, we reverse the circuit court's order and confirm the board's decision.

FACTS

The Miswalds are the owners of three separate parcels of land located on and near Lake Okauchee in Kraenzlein's Subdivision in the Town of Oconomowoc, Waukesha County. The first lot fronts the lake, has a total area of 4015 square feet and is the site of the Miswalds' present one-story, 730 square foot ranch home. Forest Bay Road runs along the back of this lot.

The second lot is an off-lake parcel located behind the Miswalds' lakefront lot on the other side of Forest Bay Road. This lot is a small, vacant, fifteen- by twenty-foot parcel.

The third lot is a noncontiguous off-lake parcel, also located on the other side of Forest Bay Road. This lot lies approximately two hundred feet west of the lakefront parcel, has an average width of fifty feet, an average depth of 164.25 feet and a total area of 8212 square feet, including a road right-of-way. The combined area of all three parcels is 12,227.5 square feet.

In 1986, the board approved the Miswalds' request for a variance to construct a detached garage on the third lot. The variance was necessary, in part, because the proposed garage would be located on a lot which did not include the Miswalds' principal residential building. However, as a condition of the variance grant, the board imposed a deed restriction requiring that the Miswald lots could not be sold separately. ¹

This brings us to the current matter. On June 6, 1994, the Miswalds submitted a proposal to the board to raze their existing ranch home and construct a twenty-eight by forty-two foot two-story residence on the lakefront lot, with each floor approximately 1200 square feet in area. This proposal required the Miswalds to obtain a variance from the floor area ratio, open space, road setback and shore setback provisions of the Waukesha County Shoreland and Floodland Protection Ordinance. The ordinance, inter alia, requires open space square footage of 10,000 square feet and a floor area ratio maximum of 15% of the lot size.

The board's staff analyzed the Miswalds' proposal and prepared a recommendation. Based on the size of the Miswalds' residential lakefront lot, the staff calculated that the Miswalds' proposal produced: (1) 3098 square feet of open space, whereas the ordinance required 10,000 square feet; and (2) a floor area ratio of 45.7%, whereas the ordinance permitted a maximum of 15%. Alternatively, based on the combined size of all the Miswald lots, the staff calculated that the proposal produced: (1) open space of 10,470.5 feet, in compliance with the ordinance; and (2) a floor area ratio of 21.9%, still in excess of the maximum permitted by the ordinance.

The staff recommended a partial grant of the Miswalds' variance request with various conditions. These included restricting the proposed home to a single-story structure of thirty feet by forty feet with an exposed basement with a finished living area. On July 7, 1994, the board, with exceptions not relevant here, adopted the staff recommendation. Neither the staff recommendation, the board's decision nor the parties' briefs set out the floor area ratio resulting from this approval.

The Miswalds requested a reconsideration of the board's decision, and the matter was placed on the board's calendar for the next meeting. Subsequently, the Miswalds submitted a modified proposal for a twenty-eight by forty-two foot three-story home consisting of an unfinished, exposed basement, 1176 square feet on the first floor and 798 square feet on the second floor.

Again, the board's staff conducted an analysis of the Miswalds' new request and issued a further recommendation. Based only on the size of the residential lot, the Miswalds' new proposal produced the same open space area as their original proposal: 3098 square feet versus the 10,000 square feet required by the ordinance. In addition, the new proposal produced a floor area ratio of 36%, still in excess of the 15% maximum permitted by the ordinance. Alternatively, by combining all the lots, the open space area was 10,507 square feet, in compliance with the ordinance; however, the floor area ratio was 18.5%, still in excess of that permitted by the ordinance.

Again, the staff recommended a partial grant of the Miswalds' modified variance request. The staff recommended a one-story thirty- by forty-foot structure with an exposed basement. Unlike the earlier recommendation, this recommendation set out the resulting open space and floor area ratio. Limiting the calculation to only the residential lot size, the staff's recommendation produced 4100 square feet of open space and a floor area ratio of 22.6%.

The board, however, approved a twenty-five by forty-foot two-story structure with an exposed basement. On the basis of the size of the residential lot, this produced a floor area ratio of 28.3% and open space of 4300 square feet. On this basis, the board partially granted the variance.

On September 30, 1994, the Miswalds filed a certiorari appeal in the circuit court claiming that the board erred when it refused to factor all three lots into the computation. The circuit court agreed with the Miswalds. The court concluded that because the board had imposed the prior deed restriction requiring the Miswalds' three lots to be sold as a unit, the board was required to combine the Miswalds' three lots for the purpose of measuring the floor area ratio. The court remanded the matter back to the board for further consideration under this directive. The board appeals.

DISCUSSION

When conducting statutory certiorari judicial review, our standard of review of the circuit court's ruling is de novo. Nielsen v. Waukesha County Bd. of Supervisors, 178 Wis.2d 498, 511, 504 N.W.2d 621, 626 (Ct.App.1993). We accord a presumption of correctness and validity to the decision of the board when reviewing a decision by statutory certiorari. Id.

The board first argues that the Miswalds did not file their appeal within thirty days of the board's decision as mandated bys 59.99(10), STATS. ² It reasons that the thirty-day We reject the board's argument that it reached a definite and final decision at the July hearing because the subject was raised and discussed at that hearing. Unlike the board's September decision, the July decision did not expressly say that the calculation was limited to the residential lot only. More importantly, however, the July decision clearly stated that the board's decision was tentative and conditional. In its final sentence, the decision states:

time limit under the statute commenced when the board first partially approved the variance on July 7, 1994. The board maintains that the issue of whether the Miswalds could combine their three lots was resolved at that meeting. The Miswalds respond that their appeal is timely because the matter was not resolved with finality until the board's decision of September 14, 1994. We agree with the Miswalds that this appeal is timely taken from the latter board decision.

NOTICE: The approval of the decision contained on this sheet may be taken up at the next scheduled Board of Adjustment Hearing. Consequently, the language contained herein may be subject to change or modification.

Thereafter, the board subsequently issued a notice of public hearing to be held on August 10, 1994, to further address this matter. It is unclear from the record whether this action was a routine follow-up to the board's prior conditional order or whether it was prompted by the Miswalds' request for reconsideration. In either event, it is clear that the board did not see its July decision as the final word on the matter.

In contrast, the September 14, 1994, board decision speaks directly to the calculation issue. And, although this decision also contains the same concluding language indicating that the matter might be taken up at a further hearing, the record does not reveal that any further hearings concerning this issue occurred. ³ Since the Miswalds filed their appeal on September 30, 1994, within the thirty-day time limit under § 59.99(10), STATS., we address the appellate issue on the merits.

The common law certiorari standard of review applies to ...