State v. Outagamie Cty. Bd. of Adjustment

Decision Date29 June 2001
Docket NumberNo. 98-1046.,98-1046.
Citation2001 WI 78,628 N.W.2d 376,244 Wis.2d 613
PartiesSTATE of Wisconsin, Plaintiff-Respondent, v. OUTAGAMIE COUNTY BOARD OF ADJUSTMENT, Defendant, David and Barbara WARNING, Intervening Defendants-Respondents-Petitioners.
CourtWisconsin Supreme Court

For the intervening defendants-respondents-petitioners there were briefs by Richard J. Carlson and Silton, Seifert, Carlson & Gamble, S.C., Appleton, and oral argument by Richard J. Carlson.

For the plaintiff-appellant the cause was argued by Jeffrey M. Gabrysiak, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.

An amicus curiae brief was filed by John A. Kassner and Brennan, Steil, Basting & MacDougall, S.C., Madison, on behalf of the Wisconsin Builders Association, and oral argument by John A. Kassner.


This is a zoning case in which we review a conclusion reluctantly reached by the court of appeals that the law of this state may require a basement to be destroyed in order to save it from being flooded. Judge Michael Hoover aptly noted the irony in his opinion for the court of appeals: "applicable law compels a harsh result" in that "we order the certain destruction of [a] basement in order to avoid the possibility that it may be damaged in a flood." State v. Outagamie County Bd. of Adjustment, No. 98-1046, unpublished slip op. at 2 (Wis. Ct. App. Sept. 22, 1998).

¶ 2. David and Barbara Warning own a ranch home in the Town of Bovina, located in the 100-year Flood Fringe District of Outagamie County. The Warnings' basement floor falls below the flood protection elevation required by the county's floodplain zoning ordinance. The Warnings wanted to add a sun porch onto their home, but were denied a building permit because of the basement floor violation. They sought and obtained a variance to allow the nonconforming basement to continue to exist.

¶ 3. The State, for the Department of Natural Resources (DNR), initiated certiorari review in the circuit court, contending that the basement was illegal and the variance improperly granted. The circuit court affirmed the issuance of the variance. The court of appeals reversed, noting, however, the anomaly of using a zoning law the purpose of which is to protect basements to precipitate the likely regulatory destruction of one.

¶ 4. What compelled this anomalous result, according to the court of appeals, was our decision in State v. Kenosha County Board of Adjustment, 218 Wis. 2d 396, 415, 577 N.W.2d 813 (1998), as well as Wis. Admin. Code § NR 116.13(2) (Register, June 1996, No. 486). Kenosha County eliminated the previous distinction between area and use variances and established a "no reasonable use of the property" standard for the issuance of either type of variance, thereby making all variances almost impossible to obtain. The administrative rule prohibits outright the issuance of a variance to allow a basement floor that falls below the regional flood elevation to continue to exist.

¶ 5. Kenosha County's establishment of a single standard for measuring the "unnecessary hardship" required for the issuance of both use and area variances has practically eliminated the efficacy of variance procedure as a remedy against individual injustices caused by sweeping land use regulations, as the Warnings' case vividly demonstrates. Such a radical change in variance law was unwarranted. I would overrule the case and restore the distinction between use and area variances to the law of zoning in this state. Two members of the court join me in this conclusion.1 Two other members of the court read Kenosha County differently, but nevertheless conclude that it is not an impediment to the Warning's variance, and therefore concur.2 Four members of the court3 join me in concluding that because Wis. Admin. Code § NR 116.13(2) categorically prohibits variances for any deviation from basement elevation requirements in floodplains, it inexorably conflicts with the discretionary authority over variances vested in local boards of adjustment by state statute, and therefore must give way. Accordingly, we reverse the court of appeals, and reinstate the circuit court's decision affirming the Outagamie County Board of Adjustment's issuance of a variance to the Warnings.

¶ 6. Before proceeding, a word about the stakes, which the dissent suggests I have mischaracterized. As a practical matter, this case is about a too-deep basement, which may or may not eventually be subject to an enforcement action but presently is preventing a homeowner from building a sun porch. If that were all there was to it, we never would have granted review. As a legal matter, however, the stakes are very high. This case is about an erroneous precedent of this court that severely restricts almost to the point of eliminating the availability of zoning variances in this state, and a DNR rule that conflicts with a statute. The dissent is therefore correct that the authority of the DNR and the principles of stare decisis are on the line.

¶ 7. But more fundamentally, this case is about individual private property rights, the scope of the police power to regulate them through zoning, and the statutory authority of local boards to strike a balance between the two through variances. My focus is not on saving the basement or allowing the sun porch, but on restoring balance and common sense to the law of zoning in this state. The irony inherent in the notion of destroying a basement in order to save it only serves to illustrate the flaws in the erroneous precedent and the conflicting rule; it does not provide the ultimate justification for this opinion.


¶ 8. The relevant facts are undisputed. David and Barbara Warning own 1.77 acres of land in the Town of Bovina in Outagamie County. The Warnings' property is located within the 100-year Flood Fringe District of Outagamie County and is regulated by the Outagamie County Zoning Ordinance and the Outagamie Shoreland-Floodplain-Wetland Ordinance (collectively, "the Ordinance").

¶ 9. The Ordinance defines "flood fringe" as "[t]hat portion of the floodplain outside of the floodway, which is covered by floodwaters during the regional flood. It is generally associated with standing water rather than rapidly flowing water." Ordinance § 16.05. The Ordinance defines "regional flood" as a flood which, because of the area's physical characteristics, may be expected to occur "once in every 100 years." Id. The chance of a regional flood occurring in any given year, therefore, is one percent. Id. The Ordinance requires that the first floor of a residential building located in the flood fringe, including a basement floor, be two feet above regional flood elevation. Ordinance § 16.32(4)(b)1.

¶ 10. In 1980, the Warnings applied for and received a conditional use permit from the Outagamie County Zoning Committee to place fill and a mobile home on their property, which they knew was in the Flood Fringe District. The County required the placement of fill on the land so that the mobile home would be at the proper elevation. The mobile home complied with flood proofing requirements.

¶ 11. In 1984, the Warnings applied for and received a second building permit to replace the mobile home with a permanent single-family home. The building inspector issued a building permit to the Warnings but did not advise them that they needed to obtain a zoning permit from the Outagamie County Zoning Department, and they did not do so.

¶ 12. With the building permit in hand, the Warnings constructed a three-bedroom ranch house with a basement and attached garage. The basement floor of the house fell 3.7 feet below the 100-year regional flood elevation and 5.7 feet below the flood protection elevation, in violation of the Ordinance and the Wisconsin Administrative Code.4

¶ 13. In 1995, 11 years after their home was built, the Warnings applied for a third building permit, this time to add a sun porch to their home. The Outagamie County zoning administrator denied the Warnings' request because their home did not meet the flood protection elevation requirements due to the basement floor violation. The zoning administrator informed the Warnings that without a variance, they could not obtain a building permit to add the sun porch to their nonconforming structure.

¶ 14. The Warnings applied to the Outagamie County Board of Adjustment for an "after the fact" variance for their nonconforming basement floor.5 A hearing was held, and the DNR appeared and opposed the variance, arguing that the Warnings' home was not merely nonconforming but "an illegal structure" and that the variance criteria could not be met.

¶ 15. The Warnings noted, and the zoning administrator conceded, that there were other homes in the area with basements below regional flood elevation, but they had apparently been built before the Ordinance was in place. The Warnings also noted that there was no history of flooding in the area, and that filling in the basement or trying to sell the home without a variance would cause a substantial loss. They also pointed out that the sun porch itself would comply with the Ordinance as it would be constructed on fill above flood protection elevation.

¶ 16. There was no community opposition to the variance; only the zoning administrator and the DNR representative objected. They argued that the Warnings had not satisfied the criteria for a variance under the Ordinance. Neither the zoning administrator nor the DNR representative cited § NR 116.13(2) as prohibiting the Board from granting any variance at all in these circumstances.

¶ 17. The Board of Adjustment made findings and voted unanimously to grant the 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.

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