State v. Outagamie County Bd. of Adjustment

• Decision Date: 22 September 1998
• Docket Number: No. 98-1046,98-1046
• Citation: 222 Wis.2d 220,587 N.W.2d 215
• Parties: NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. State of Wisconsin, Plaintiff-Appellant, v. Outagamie County Board of Adjustment, Defendant, David and Barbara Warning, Intervening Defendants- Respondents.
• Court: Wisconsin Court of Appeals

Page 215

587 N.W.2d 215

222 Wis.2d 220

NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES.

State of Wisconsin, Plaintiff-Appellant, v. Outagamie County Board of Adjustment, Defendant, David and Barbara Warning, Intervening Defendants-

Respondents.

No. 98-1046.

Court of Appeals of Wisconsin.

Sept. 22, 1998.

APPEAL from a judgment of the circuit court for Outagamie County: JOHN A. DES JARDINS, Judge. Reversed.

Before Cane, C.J., Myse, P.J., and Hoover, J.

HOOVER, J.

The State appeals a judgment affirming the decision of the Outagamie County Board of Adjustment granting a variance to the intervening defendants, David and Barbara Warning. The State claims that the Warnings did not meet the requirements for a variance under the applicable legal standard. The State further contends that WIS. ADM.CODE § NR 116.13(2) prohibits granting any variance that would result in a floor elevation below the regional flood elevation. We conclude that the Warnings have not met the requirements for a variance and that, in any event, § NR 116.13(2) forecloses issuance of a variance to allow a floor elevation below the regional flood elevation.

I. Background

David and Barbara Warning own a 1.77 acre parcel of land located in the Town of Bovina, Outagamie County. The land is located within the 100-year Flood Fringe District of Outagamie County and is regulated by the Outagamie County Shoreland-Floodplain-Wetland ordinance.

In 1980, the Outagamie County Zoning Committee granted a conditional use permit to place fill and a mobile home on this parcel. The mobile home complied with the flood proofing requirements. In 1984, the town issued a building permit to replace the mobile home with a stick-built three-bedroom ranch style home with an attached garage. The Outagamie County Zoning Department was not contacted at that time to obtain a shoreland zoning permit or sanitary permit for the construction of the new home. Consequently, the Warnings' basement floor elevation of 764.5 feet fell 3.7 feet below the 100-year regional flood elevation of 768.2 feet and 5.7 feet below the flood protection elevation in violation of the Outagamie County ordinance and the Wisconsin Administrative Code.

In 1995, the Warnings requested the zoning department to issue a permit for a proposed sun room addition to their residence. The department denied the request because their home did not meet the flood protection elevation requirements. The Warnings filed an application for a variance with the board of adjustment. The Warnings sought an "after-the-fact" variance for their nonconforming basement floor. A hearing was held on November 1, 1996, to consider the petition. The Wisconsin Department of Natural Resources appeared and opposed the variance. The board granted the Warnings a variance, reasoning that:

[T]he hardship experienced by the Warnings was caused by the Town of Bovina and the negligence of the town building inspector for issuing a building permit for the three bedroom ranch style home in 1984. The hardship is not based solely on economic gain or loss, the loss would be substantial.

The State filed a complaint for certiorari to the circuit court seeking review of the board's decision. The circuit court affirmed the decision of the board. The State contends that the court erred by applying the "unnecessarily burdensome" test under State v. Kenosha County Bd. of Adjust., 212 Wis.2d 310, 569 N.W.2d 54 (Ct.App.1997), and by finding that the hardship was unique to their property because "there are no other properties in the neighborhood that do not comply with basement depth requirements of the permit that was issued in error." The State further argues that WIS. ADM.CODE § NR 116.13(2) forbids the issuance of a variance for a basement floor below the regional flood elevation.

II. Analysis

We begin by emphasizing that the applicable law compels a harsh result we would have preferred to avoid. The State pursues this matter presumably motivated by principle, to promote the greater public good by protecting the integrity of certain zoning ordinances. For David and Barbara Warning, however, the practical effect of the State's efforts is that we order the certain destruction of their basement in order to avoid the possibility that it may be damaged in a flood. Nonetheless, we must agree with the State's assertion that the circuit court applied the incorrect standard of law. ¹ Our role as judiciary limits our authority to follow the law, not to rewrite it. State v. Ozaukee County Bd. of Adjust., 152 Wis.2d 552, 564-65, 449 N.W. 47, 52 (Ct.App.1989).

This court's review of a certiorari action is limited to:

(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.

Brookside v. Jefferson County Bd. of Adjust., 131 Wis.2d 101, 120, 388 N.W.2d 593, 600 (1986).

The board's power to issue a variance is codified in the Wisconsin statutes under § 59.694(7)(c), S TATS., which provides:

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 of the ordinance shall be observed and substantial justice done. (Emphasis added.) ²

The burden is on the applicants, the Warnings, to establish unnecessary hardship. See Arndorfer v. Sauk County Bd. of Adjust., 162 Wis.2d 246, 253, 469 N.W.2d 831, 833 (1991). In proving "unnecessary hardship" the Warnings must show: (1) no feasible/reasonable use can be made of the land; (2) "uniqueness" of the condition affecting the parcel; and (3) the variance will not be contrary to public interest. State v. Kenosha County Bd. of Adjust., 218 Wis.2d 396, 577 N.W.2d 813 (1998); State v. Winnebago County, 196 Wis.2d 836, 843, 540 N.W.2d 6, 9 (Ct.App.1995).

First, the Warnings must show that no reasonable use can be made of the land. Neither the board nor the circuit court made any findings in this regard. However, there is uncontroverted evidence that a reasonable use may be made of the Warnings' property. They previously had a mobile home on the property, which complied with the flood proofing requirements. There is also evidence that the Warnings could have built a single family residence on their property that complied with the code. Timothy Roach from the DNR testified at the hearing that if the Warnings' basement had been flood proofed, the County could have issued a permit for the residence in 1984. Thus, it is possible for the Warnings to use their property for residential purposes as long as their residence is flood proofed. ³

The trial court relied on our decision in Kenosha County, 212 Wis.2d at 320, 569 N.W.2d at 59, which held that the test to prove unnecessary hardship was "unnecessarily burdensome" rather than "no feasible use." The Wisconsin Supreme Court, however, recently reversed this holding. See Kenosha County, 218 Wis.2d at 413-14, 577 N.W.2d at 821-22, where the court emphasized:

We agree that the State's definition of unnecessary hardship--no reasonable use of the property without a variance--is compatible with the concerns we expressed in Snyder. This articulation is also consistent with the recent decision in Winnebago County, 196 Wis.2d 836, 540 N.W.2d 6, where the court of appeals held that the proper test is not whether a variance would maximize the economic value of the property, but whether a feasible use is possible without the variance.

This definition also clarifies that in Snyder we did not mean that a variance could be granted when strict compliance would prevent the property owner from undertaking any of a number of permitted purposes. Rather, when the record before the Board demonstrates that the property owner would have a reasonable use of his or her property without the variance, the purpose of the statute takes precedence and the variance request should be denied. (Emphasis omitted.)

We are bound by the supreme court's interpretation and must therefore follow the "no reasonable use" standard in our decision.

Second, the Warnings must show "uniqueness" of the condition affecting their parcel. The trial court concluded that the hardship was unique to the Warnings' property because "there are no other properties in the neighborhood that do not comply with basement depth requirements of the permit that was issued in error." For a condition to be "unique," however, it must not be shared by nearby land. See id. at 420, 577 N.W.2d at 824. "Practical difficulties or unnecessary hardship do not include conditions personal to the owner of the land, but rather to the conditions especially affecting...