State v. Waushara County Bd. of Adjustment

• Decision Date: 18 May 2004
• Docket Number: No. 02-2400.,02-2400.
• Citation: 679 N.W.2d 514,271 Wis.2d 547,2004 WI 56
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. WAUSHARA COUNTY BOARD OF ADJUSTMENT, Defendant, G. Edwin HOWE and Suzanne Howe, Intervenors-Defendants-Appellants-Petitioners.
• Court: Wisconsin Supreme Court

271 Wis.2d 547

2004 WI 56

679 N.W.2d 514

STATE of Wisconsin, Plaintiff-Respondent, v. WAUSHARA COUNTY BOARD OF ADJUSTMENT, Defendant, G. Edwin HOWE and Suzanne Howe, Intervenors-Defendants-Appellants-Petitioners.

No. 02-2400.

Supreme Court of Wisconsin.

Oral argument December 4, 2003.

Decided May 18, 2004.

For the intervenors-defendants-appellants-petitioners there were briefs by Brian W. McGrath, Erik G. Weidig and Foley & Lardner, Milwaukee, and oral argument by Brian W. McGrath.

For the plaintiff-respondent the cause was argued by P. Philip Peterson, assistant attorney general, with whom on the brief was Peggy A. Lautenschlager, attorney general.

An amicus curiae brief was filed by Thomas D. Larson and Debra P. Conrad, Madison, on behalf of the Wisconsin Realtors Association.

An amicus curiae brief was filed by Daniel M. Olson, Madison, on behalf of the League of Wisconsin Municipalities.

An amicus curiae brief was filed by William P. O'Connor, Tracy K. Kuczenski, Mary Beth Peranteau and Wheeler, VanSickle & Anderson, S.C., Madison, on behalf of Wisconsin Association of Lakes, and oral argument by William P. O'Connor.

¶ 1. N. PATRICK CROOKS, J

G. Edwin and Suzanne Howe (Howes) appeal a decision of the Court of Appeals, District IV, affirming the circuit court's reversal of the Waushara County Board of Adjustment's (Board) decision to grant the Howes' request for an area variance. We must resolve the following issue: In light of the interplay between Snyder v. Waukesha County Zoning Bd. of Adjustment, 74 Wis. 2d 468, 247 N.W.2d 98 (1976), State v. Kenosha County Bd. of Adjustment, 218 Wis. 2d 396, 577 N.W.2d 813 (1998), and State v. Outagamie County Bd. of Adjustment, 2001 WI 78, 244 Wis. 2d 613, 628 N.W.2d 376, what is the correct legal standard to be applied by a board of adjustment when considering whether to grant an area variance? More specifically, is the correct legal standard whether the failure to receive the variance will create, for the property owner, an unnecessary hardship in light of the purposes of the zoning ordinance, or is it whether the owner will have no reasonable use of the property without a variance?

¶ 2. We conclude that, in evaluating whether to grant an area variance to a zoning ordinance, a board of adjustment should focus on the purpose of the zoning law at issue in determining whether an unnecessary hardship exists for the property owner seeking such variance. We further conclude that the facts of the case should be analyzed in light of that purpose, and that boards of adjustment must be afforded flexibility so that they may appropriately exercise their discretion. We also again emphasize and recognize the presumption that the board's decision is correct. We reaffirm Snyder's definition of the statutory term "unnecessary hardship" because it best encompasses the appropriate test for granting an area variance. "No reasonable use," as set forth in Kenosha County, is no longer applicable when an area variance is being considered. Moreover, while there is a claim that the variance implicates shoreland zoning concerns, it should be noted that the proposed addition would not bring the Howes' home any closer to Silver Lake. Thus, we reverse the decision of the court of appeals and remand the cause to the circuit court for further proceedings consistent with this opinion.

I

¶ 3. The Howes own a single family home located on a .324 acre parcel of land on Silver Lake in Waushara County. The Howes' property is bordered on the northeast by Silver Lake. State Highway 73 borders the southwest portion of the Howes' property. According to Waushara County Ordinance No. 76 § 2.14(1),¹ a 110-foot setback is required from the house on the property to Highway 73. Waushara County Ordinance No. 76 § 2.14(2)² further requires a 75-foot setback from Silver Lake's ordinary high water mark to the house. The Howes' lot is 120 feet deep. Thus, because there is no building envelope³ on their property, it is impossible for the Howes to comply with the abovementioned ordinances.

¶ 4. Waushara County Ordinance No. 76 § 2.14(3)⁴ allows for an averaged setback if there are existing homes on either side of the property in question that are built with less than the required 75-foot setback. Under § 2.14(3), the applicable setback requirement for the Howes' home is 35 feet. The Howes' home is between 30 to 34 feet from Silver Lake and, although its distance from Silver Lake is commensurate to that of its neighbors, the Howes acknowledge that it is still between one to five feet too close to Silver Lake. Nevertheless, the Howes home is not in danger of being destroyed. Because their home existed prior to the enactment of the ordinance, it is a legal nonconforming structure.⁵

¶ 5. Although the Howes primarily use their home as a seasonal residence, their long-term goal is to use the property as their primary residence in retirement. To this end, they acquired the adjoining lot and tore down the existing structure on the lot, so as to provide enough space for the construction of a small barn. In 1989, the Howes began a series of improvements to transition their home into a place suitable for retirement. The Howes' first improvement connected the existing garage on their property to their home. In 1994, the Howes added a second story to their home and constructed a roof over an existing deck. These improvements did not bring the Howes' home any closer to Silver Lake. In each case, the Howes request for a variance was granted. For their most recent improvement plans, the Howes applied for a building permit to construct a 10-foot by 20.5-foot addition to their living room and to build a 4-foot by 10-foot porch, which would extend their existing outside porch to the edge of their home once the living room addition was constructed. The Howes were denied the permit, pursuant to Waushara County Ordinance No. 76 § 2.10(2)(b),⁶ because the cumulative value of their previous improvements was in excess of 50 percent of their home's equalized assessed value.⁷

¶ 6. In 2001, the Howes requested that the Board grant them a variance from Waushara County Ordinance No. 76 § 2.10(2)(b). Before the hearing regarding the Howes' variance request, the Board viewed the Howes' property and noted that the proposed construction would not bring the home any closer to Silver Lake. The Board held a hearing and ultimately approved the Howes' variance application in accordance with Waushara County Zoning Ordinance No. 76 § 25.05.⁸ The Board concluded that enforcing the exact terms of the zoning ordinance would result in unnecessary hardship for the Howes. Using its powers under Wis. Stat. § 59.694(7)(c) (2001-02),⁹ the Board granted the variance.

¶ 7. At the request of the Department of Natural Resources (DNR), the State filed a complaint for certiorari review in Waushara County Circuit Court in accordance with Wis. Stat. § 59.694(10).¹⁰ The State asserted that it was aggrieved by the Board's decision to grant the Howes' variance because, pursuant to Wis. Stat. §§ 59.692 and 281.31, the DNR requires adherence to specific standards for protecting the shorelands of Wisconsin's navigable waters. The State contended that Waushara County Ordinance No. 76 § 2.10(2)(b) was required, in accordance with § 59.692(1m),¹¹ to zone all shorelands in an unincorporated area, in order to protect Wisconsin's shorelands. The Howes intervened in the State's suit against the Board.

¶ 8. The Waushara County Circuit Court reversed the Board's decision, which resulted in the denial of the Howes' variance application. Even though the Howes' variance request was based on the 50 percent rule, the court reasoned that shoreland zoning concerns were implicated nonetheless. The court agreed with the State that the reasonable use analysis set forth in Kenosha County was applicable to the Howes' variance request. Even after discussing and applying Justices Crooks' and Wilcox's concurrence in Outagamie County,¹² the circuit court in this case reasoned that the no reasonable use standard was implicated, because of concerns over shoreland zoning. The court concluded that there was an insufficient showing by the Howes that there would be no reasonable use of their property if the variance was not granted. The court reasoned that simply because the property will be less useful or less valuable did not mean that the Howes had no reasonable use of their property, thus failing the no reasonable use test. The circuit court further concluded that there were insufficient facts in the record to establish why the Board decided to grant the Howes' variance. The court noted that it could not discern whether the Board looked at the unnecessary hardship created in light of the purpose of the ordinance, or whether it thought that the no reasonable use test was applicable to the case at hand. The Howes appealed the circuit court's decision.

¶ 9. The court of appeals' majority, Judges Deininger and Lundsten, concluded that, as stated in State ex rel. Ziervogel v. Bd. of Adjustment, 2003 WI App 82, ¶ 21, 263 Wis. 2d 321, 661 N.W.2d 884,Kenosha County requires that no reasonable use of the property must be demonstrated by the property owners before a board may grant a variance. The court of appeals rejected the Howes' contention that they need only show unnecessary hardship in light of the purpose of the ordinance. The court noted that the Howes did not claim that they had no reasonable use of their property, absent the grant of a variance. Thus, the court noted, the Howes could only prevail if a standard other than that enunciated in Kenosha County and Ziervogel was applied. The court of appeals concluded that the circuit court correctly applied the Kenosha County standard and, as a result, affirmed the circuit court's decision not to grant the Howes a third variance to improve their home.

¶ 10. In her dissent, Judge Roggensack stated that she believed that the majority...