WAPA LEGAL UPDATE

SPECIAL ALERT

By Michael R. Christopher, DeWitt, Ross & Stevens S.C.

March 23, 2004 

Gary Peterson asked me to report on a Wisconsin Supreme Court decision made on March 19, 2004, which has clarified the legal standard by which zoning boards of adjustment measure “unnecessary hardship” when determining whether to grant area zoning variances.  In addition to the parties in Ziervogel v. Washington County Board of Adjustment, there were a number of stakeholders that submitted briefs, including the Attorney General, the Wisconsin Builders Association, the League of Wisconsin Municipalities, the Wisconsin Realtors Association, and the Wisconsin Association of Lakes.  In a 5-0 decision, with Justices Abrahamson and Bradley not participating, the Court reversed the Court of Appeals decision, holding that for area variance applications, the standard to be applied is no longer that “no reasonable use of the property” can be attained before a variance could be granted.  Instead, the Supreme Court approved a standard much more favorable to property owners, namely, whether compliance with the strict letter of the applicable restrictions would be overly burdensome and would unreasonably prevent the owner from using the property for a permitted purpose.

FACTS AND PROCEDURAL HISTORY

The petitioners owned a house on a 1.4 acre lot with approximately 200 feet of lakeshore frontage on Big Cedar Lake in Washington County.  The petitioners purchased the home in 1996 and used it as a summer home.  They now wanted to live in the house year round which required the construction of a 10 foot vertical addition to the structure consisting of two bedroom-bathroom suites and an office.  In 1996, such an addition would have been permissible but in 2001 Washington County amended its Shoreland Zoning Ordinance to prohibit any expansion of any portion of any existing structure that was within 50 feet of the ordinary high-water mark of the lake.  Since the petitioners home had a legal nonconforming setback of 26 feet from the ordinary high-water mark of the lake, the petitioners sought a variance to go ahead with their plans.

After the Washington County Board of Adjustment considered letters in opposition to the requested variance from the Wisconsin Department of Natural Resources and from the Washington County Department of Planning and Parks, the Board denied the variance because they felt that the petitioners had failed to show that they would have no reasonable use of their property without the variance.  Both the Washington County Circuit Court and the Court of Appeals affirmed the Board’s decision,  citing the “no reasonable use of the property” test as enunciated in the 1998 decision in State v. Kenosha County Board of Adjustment.  In order to better appreciate the legal and policy significance of the decision made by the Supreme Court last week, a brief summary of the types of variances and the legal standard used to consider those variances both before and after the Ziervogel decision would be helpful. 

The legislature has by statute vested local boards of adjustment with broad discretionary power to authorize variances where the strict enforcement of zoning regulations results in unnecessary hardship to individual property owners.  “Unnecessary hardship,” however is not defined in the statute.  What the Supreme Court decided in Kenosha County was to merge the previously distinct legal standards for unnecessary hardship in both use and area variance cases. 

Courts have long recognized a distinction between use variances, which permit a landowner to put property to an otherwise prohibited use and area variances, which provide exceptions from such physical requirements as setbacks, lot area and height limits.  Thus, the Court was persuaded that because use and area variances address the integrity of zoning ordinances in qualitatively different ways, different standards to evaluate variances from those distinct types of zoning regulations was quite justified. 

That single standard of “no reasonable use of the property” was an extremely high bar for applicants to reach in order to justify a requested variance.  The Ziervogel court concluded that to apply this highly restrictive standard to all variances was unworkable and unfair.  Also, for area zoning regulations which regulate restrictions such as lot area, density, height, and setbacks, applicants need not meet the “no reasonable use of the property” standard that is applicable to use variance applications.

Despite the fact that this Court has established a much more flexible standard to define “unnecessary hardship” in area variance cases, the Court confirmed a number of judicial rules used to define “unnecessary hardship.”  These rules include the need to find that the hardship must be based on conditions unique to the property, that the hardship cannot be self-created and that the board of adjustment is to evaluate the hardship in light of the purpose of the applicable zoning restriction.

The court felt that a less stringent and more flexible definition of unnecessary hardship for area variances allowed variance procedure to function as the regulatory “escape valve” it was meant to be.  The Court felt that the “no reasonable use” standard left boards of adjustment with almost no flexibility and emasculated the concept of “discretion” from any real meaning.  Also, the court concluded that the “no reasonable use” definition of unnecessary hardship to all variances had drained the variance statute of its meaning and effect.

The consequences of this Court overturning the Kenosha County standard and reinstating the 1976 test for area variances as stated in Snyder v. Waukesha County Zoning Board of Adjustment, strikes a blow in favor of individual property rights.  A unanimous Supreme Court concluded that the previous standard had nearly extinguished the statutory discretion of local boards of adjustment.  From a planning perspective, the standard to be used to evaluate requests for area variances will result in many more deviations from zoning codes.  Property owners would argue that this flexibility is needed.  Planners might see this decision as a trend away from zoning code provisions that set consistent community standards.