State v. Kenosha County Bd. of Adjustment

• Decision Date: 19 February 1997
• Docket Number: No. 96-1235,96-1235
• Citation: 569 N.W.2d 54,212 Wis.2d 310
• Parties: STATE of Wisconsin, Plaintiff-Appellant,d v. KENOSHA COUNTY BOARD OF ADJUSTMENT, Defendant-Respondent. . Oral Argument
• Court: Wisconsin Court of Appeals

Page 54

569 N.W.2d 54

212 Wis.2d 310

STATE of Wisconsin Plaintiff-Appellant,d v. KENOSHA COUNTY BOARD OF ADJUSTMENT, Defendant-Respondent.

No. 96-1235.

Court of Appeals of Wisconsin.

Oral Argument Feb. 19, 1997.

Opinion Released July 9, 1997.

Opinion Filed July 9, 1997.

[212 Wis.2d 311] On behalf of the plaintiff-appellant, the cause was submitted on the briefs of James E. Doyle, Attorney General, and Ann M.

Zimmerman, Assistant Attorney General, with oral argument by Ann Zimmerman

On behalf of the defendant-respondent, the cause was submitted on the brief and oral argument of Debra S. Bursinger, of Kenosha.

Before SNYDER, P.J., and BROWN and NETTESHEIM, JJ.

NETTESHEIM, Judge.

The State of Wisconsin appeals from a judgment upholding a variance granted by the Kenosha County Board of Adjustment to Janet Huntoon. The State contends that the Board proceeded on an incorrect theory of law as to what constitutes an "unnecessary hardship" for purposes of a variance request. The State also contends that the Board's decision is unreasonable because it is not supported by the evidence. We reject both of the State's arguments. We affirm the judgment upholding the grant of the variance.

FACTS

Janet Huntoon owns six adjoining parcels of land on Hooker Lake, a navigable body of water located in the Town of Salem, Kenosha County. Huntoon's residence stands on the only developed parcel. On March 24, 1995, Huntoon applied to the Board for a variance from the shoreland setback ordinance which requires a 75-foot setback for all structures adjacent to navigable bodies of water. Huntoon requested a variance for the construction of a 14 foot by 23 foot deck to be attached to the lake side of the home. The deck would reduce the existing 78-foot setback of the home to 64 feet, thus creating a structure in violation of the shoreland setback ordinance.

The Department of Natural Resources (DNR) reviewed Huntoon's request and wrote a letter to the Board recommending that Huntoon's request be denied. The DNR advised the Board that Huntoon could not meet the statutory standards for granting a variance because Huntoon could not show unnecessary hardship. The DNR additionally noted that the deck, if built, would result in a nonconforming structure contrary to the intent of the shoreland zoning statutes and the public interest. Nevertheless, following a public hearing on May 4, 1995, the Board voted to grant Huntoon's variance request.

On June 5, 1995, the State initiated a certiorari review proceeding in the circuit court. On July 6, 1995, the Board held another public hearing to reconsider Huntoon's variance request. ¹ At this hearing, the Board again approved the variance.

Based on the Board's July 6 decision, the State filed a second certiorari review action on July 31, 1995. The circuit court consolidated the two certiorari actions. In the circuit court, the State argued that the Board had proceeded on an incorrect theory of law and that the evidence did not support the Board's grant of the variance. The circuit court rejected these arguments and affirmed the Board's decision. The State appeals.

DISCUSSION

When conducting statutory certiorari judicial review, our standard of review of the circuit court's ruling is de novo. See Nielsen v. Waukesha County Bd. of Supervisors, 178 Wis.2d 498, 511, 504 N.W.2d 621, 626 (Ct.App.1993). Our review of a certiorari action is limited to determining: (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. See Klinger v. Oneida County, 149 Wis.2d 838, 843, 440 N.W.2d 348, 350 (1989). We accord a presumption of correctness and validity to the decision of the board when reviewing a decision by statutory certiorari. See id. Thus, the board's findings will not be disturbed if any reasonable view of the evidence sustains them. See Snyder v. Waukesha Section 12.21-4(g)2 of the Kenosha County General Zoning and Shoreland/Floodplain Zoning Ordinance (Ordinance) provides that structures in the R-4 zoning district, which includes Huntoon's property, shall be no less than 75 feet from the ordinary highwater mark of any navigable water. ² The Board is empowered to grant variances from the terms of the ordinance provided the variance "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." Section 59.694(7)(c), STATS.; ³ see also Ordinance § 12.36-1.

County Zoning Bd. of Adjustment, 74 Wis.2d 468, 476, 247 N.W.2d 98, 103 (1976).

The party seeking a variance must prove that an unnecessary hardship will result if the variance is not granted. See Arndorfer v. Sauk County Bd. of Adjustment, 162 Wis.2d 246, 253, 469 N.W.2d 831, 833 (1991). The hardship must be unique to the property and not a condition personal to the landowner. See Snyder, 74 Wis.2d at 479, 247 N.W.2d at 104. Additionally, the hardship may not be self-created or merely a matter of personal convenience. See id. at 478, 247 N.W.2d at 104. Finally, the variance cannot be contrary to the public interest. See Arndorfer, 162 Wis.2d at 256, 469 N.W.2d at 835.

The Board's decision to grant Huntoon's variance request was based on its finding that Huntoon had proven an unnecessary hardship unique to her property. In addition, the Board concluded that the grant of the variance was not against the public interest.

The Proper Test

Before we can address the parties' arguments, we must first address a threshold issue--what is the proper test for measuring unnecessary hardship in an area variance case? The parties disagree on this question. The State contends that the test is the "no feasible use" test which this court applied in State v. Winnebago County, 196 Wis.2d 836, 540 N.W.2d 6 (Ct.App.1995). There, we stated that the applicant must show that "no feasible use can be made of the property" without a variance. See id. at 844, 540 N.W.2d at 9.

The Board contends that the proper test is the "unnecessarily burdensome" test as set forth by the supreme court in Snyder. There, the court stated, "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 ... would render conformity with such restrictions unnecessarily burdensome.' " Snyder, 74 Wis.2d at 474-75, 247 N.W.2d at 102 (quoted source omitted). The Board, also relying onSnyder, says that the "no feasible use" test is reserved for a use variance case--not an area variance case such as this.

We resolve this dispute by beginning with the applicable statute, § 59.694, STATS. In subsec. (1), the statute provides for the creation of a board of adjustment and authorizes the board to "in appropriate cases and subject to appropriate conditions and safeguards, make special exceptions to the terms of the ordinance in harmony with its general purpose and intent and in accordance with general or specific rules therein contained." Section 59.694(1). At subsec. (7), the statute recites the board's powers with greater specificity. Relevant to this case is the authority recited at § 59.694(7)(c):

To authorize upon appeal in specific cases variance from the terms of the ordinance that 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 We note that this statute speaks of "unnecessary hardship" as the test for a variance grant. It does not speak of the "no feasible use" test or the "unnecessarily burdensome" test. Nor does the statute make any distinction between use or area variances. RATHKOPF'S THE LAW OF ZONING AND PLANNING ⁴ has observed that the statutes governing use variances and area variances fall into three categories:

of the ordinance shall be observed and substantial justice done.

(1) those which allow use and nonuse [area] variances and which allow nonuse [area] variances to be granted upon a showing of practical difficulty; (2) those which allow use and nonuse [area] variances and require a showing of unnecessary hardship for both; and (3) those which do not allow use variances and require unnecessary hardship for the granting of nonuse [area] variances. [Footnote omitted.]

Comparing these categories to the statutory language of § 59.694(7)(c), STATS., it would appear that our statute falls into the second category--allowing both use and area variances under the unnecessary hardship test.

However, in Snyder our supreme court spoke to both area variances and use variances and, despite the uniform language of the statute, used different language when reciting the "unnecessary hardship" test for each. As to an area variance, the court recited the language we have already quoted: " '[w]hether compliance with the strict letter of the restrictions ... would unreasonably prevent the owner from using the property for a permitted purpose or would render conformity with such restrictions unnecessarily burdensome.' " Snyder, 74 Wis.2d at 475, 247 N.W.2d at 102 (quoted source omitted). However, when reciting the test for a use variance, the court stated, " '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.' " Id. at 474, 247 N.W.2d at 102 (quoted source omitted). Thus, while the statute speaks of unnecessary hardship as the uniform test for both use and area variances, ...