Snyder v. Waukesha County Zoning Bd. of Adjustment

Decision Date30 November 1976
Docket NumberNo. 75--185,75--185
Citation247 N.W.2d 98,74 Wis.2d 468
CourtWisconsin Supreme Court

Patrick L. Snyder, Oconomowoc, for appellant; Herro, Snyder, Chapman & Snyder, Oconomowoc, on brief.

August Fabyan, Waukesha, for respondent; Willis J. Zick, Waukesha County Corp. Counsel, Waukesha, on brief.

Love, Brown, Love & Phillips, Waukesha, amicus curiae for Alfred V. jurevics.

HANLEY, Justice.

The sole issue presented on these appeals is whether the board of adjustment properly exercised is administrative discretion in denying appellant's applications for variance.

Appellant seeks a variance from the ordinance enacted pursuant to sec. 59.971, Stats. Under sec. 59.99(7)(c), Stats., the county board of adjustment is empowered

'(t)o authorized upon appeal in specific cases such variance from the terms of the ordinance as will not be contrary to the public interest, where, owing to special conditions, a literal enforcement of the provisions of the ordinance will result in unnecessary hardship, and so that the spirit of the ordinance shall be observed and substantial justice done.' (emphasis

Sec. 17.03(1)(c), WCSFP Ord., provides:

Sec. 17.03(1)(c), WCSFP Ord, provides:

'The Board of Adjustment shall have the following powers as defined by statute:

'. . .

'(c) To authorize upon appeal in specific cases such variance from the terms of this Ordinance as will not be contrary to the public interest, where owing to special conditions a literal enforcement of the provisions of this Ordinance will result in practical difficulty or unnecessary hardship, so that the spirit of this Ordinance shall be observed, public safety and welfare secured, and substantial justice done.' (emphasis added).

Thus, although the element of practical difficulty is not included under the statute, it does appear in the ordinance.

Appellant relies upon the factor of practical difficulty and makes citation to the Waukesha County Zoning Ordinance and sec. 62.23(7)(e) 7, Stats., enactments which include practical difficulty as a ground for variance from the zoning ordinance. However, the Waukesha County Zoning Ordinance, enacted pursuant to sec. 59.97, Stats., is inapplicable here for this case relates to the Waukesha County Shoreland and Floodland Protection Ordinance. Sec. 62.23(7)(e) 7, Stats., is also inapplicable because that section relates to the powers of the boards of appeals for cities.

Thus, because sec. 59.99(7)(c), Stats., does not include the element of practical difficulty while the ordinance dsoes, a question arises as to the relevance of appellant's arguments relating to claimed practical difficulty. However, although the terms 'unnecessary hardship' and 'practical difficulty' are insusceptible to precise definition and are often stated disjunctively in zoning enactments, the authorities generally recognize that there is no practical difference between them. Rathkopf states:

'The overlapping of the concepts of practical difficulty and undue hardship in so many factual situations and the lack of real reason for treating the two situations differently, has caused courts to treat the two terms as if they were synonymous . . ..' 2 Rathkopf, The Law of Zoning and Planning 45--20 (3d ed. 1972).

See also 5 Williams, American Planning Law, sec. 145.06, at 122 (1975); Brown v. Beuc, 384 S.W.2d 845, 852 (Mo.App.1964); 165 Augusta Street v. Collins, 9 N.J. 259, 263, 87 A.2d 889, 891 (1952).

The problems involving the definition of these terms arise particularly from the fact that the conditions upon which a landowner typically bases a claim for a use variance are more easily spoken of as imposing an unnecessary hardship, while the conditions prompting application for an area variance are more easily termed practical difficulties. Therefore, the fact that area variances are considerably easier to obtain than use variances creates the impression that a minimal showing of difficulty will establish the element of practical difficulty and entitle the landowner to a variance. However, area variances are not more easily obtained because practical difficulties are something much less severe than unnecessary hardship, but because area variances do not involve great changes in the character of neighborhoods as do use variances. This relates to what hardships or practical difficulties may be considered unnecessary or unreasonable in light of the purpose of the zoning law.

The danger of discerning a significant difference between the terms unnecessary hardship and practical difficulties is that while the hardship required for a variance is qualified by the word 'unnecessary,' the difficulties only need be 'practical.' The term practical difficulties encompasses virtually any problem, and thus grounds for a variance could be established by only a minimal showing.

Therefore, we think that there should be no significant practical distinction drawn between the terms unnecessary hardship and practical difficulties, and where it appears, the phrase 'practical difficulty or unnecessary harship' should be construed as a whole, for where peculiar and exceptional practical difficulties, which justify a variance, exist, unnecessary hardship will also exist. 165 Augusta Street, supra at 263, 87 A.2d at 891.

This conclusion permits the court to consider appellant's claims of practical difficulty despite the fact that sec. 59.99(7)(c), Stats., empowering the board of adjustment to authorize variances, refers only to unnecessary harship.

In State ex rel. Markdale Corp. v. Board of Appeals, 27 Wis.2d 154, 133 N.W.2d 795 (1965), the court considered, in relation to an appeal for a use variance, the definition of unnecessary hardship. The court first took note of the New York rule that to justify a finding of unnecessary hardship, it must appear that the property cannot yield a reasonable return when used for the permitted purposes. Id. at 162, n. 2, 133 N.W.2d at 799, n. 2; See Otto v. Steinhilber, 282 N.Y. 71, 24 N.E.2d 851 (1939). The court then stated:

'A note entitled 'Zoning Variances,' 74 Harvard Law Review (1961), 1396, 1401, suggests the following definition of 'unnecessary hardship' as used in zoning statutes and ordinances with respect to the power of appeals boards to grant variances:

"Since the main purpose of allowing variances is to prevent land from being rendered useless, 'unnecessary hardship' can best be defined as a situation where in the absence of a variance no feasible use can be made of the land." 27 Wis.2d at 163, 133 N.W.2d at 799.

When considering an area variance, the question of whether unnecessary hardship or practical difficulty exists is best explained as '(w)hether compliance with the strict letter of the restrictions governing area, set backs, frontage, height, bulk or density would unreasonably prevent the owner from using the property for a permitted purpose or would render conformity with such restrictions unnecessarily burdensome.' 2 Rathkopf, The Law of Zoning and Planning 45--28 (3d ed. 1972).

Appellant claims that strict enforcement of the ordinance will result in unnecessary hardship or practical difficulty for the reasons that (1) the porch, as already substantially completed, would have to be removed; (2) the lot is substandard in size; (3) the porch could not be attached to other sides of the home; (4) appellant needs the porch to enjoy lake living for his family including six children; and (5) the porch would add to the value of the house.

The board of adjustment concluded that no hardship existed which was not self-created and that a variance would increase the nonconformity of an already nonconforming structure.

This case is before the court on certiorari, and thus, review is limited to: (1) whether the board kept within its jurisdiction; (2) whether it proceeded on 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. State ex rel. DeLuca v. Common Council, 72 Wis.2d 672, 676, 242 N.W.2d 689, 692 (1976); Westgate Hotel, Inc. v. Krumbiegel, 39 Wis.2d 108, 115, 158 N.W.2d 362, 365 (1968).

In State ex rel. Schleck v. Zoning Board of Appeals, 254 Wis. 42, 52, 35 N.W.2d 312, 316--17 (1948) this court stated:

'Whether a variance shall be authorized in a particular case is to be determined by the Board in the exercise of its discretion. When it acts within the powers conferred upon it and its action is not arbitrary or capricious there is no violation of the property owner's constitutional rights.'

The decision of the board will be arbitrary of capricious if it is unreasonable or without a rational basis. Weaver v. Wisconsin Personnel Board, 71 Wis.2d 46, 54, 237 N.W.2d 183, 186 (1976).

In reviewing the decisions of the adjustment board in this case it must be kept in...

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