Case Notes by Richard Lehmann, Boardman, Suhr, Curry & Field

BOARD OF APPEALS CAN SET RULES LIMITING THE REHEARING OF PREVIOUSLY-DECIDED CASES.

The City of Waukesha Board of Appeals has a rule that no variance decision can be reheard, either upon new application or a request for reconsideration, unless there has been a substantial change in conditions. A couple bought a residential property in the hope that they could operate it as a duplex. Apparently unbeknownst to them, a previous would-be buyer had been turned down for a variance for duplex use. The new purchasers sought their own variance. The board of appeals refused to hear the case because the applicants had submitted no evidence of substantial change in conditions. This was appealed to the circuit court which struck down the zoning board’s rule on constitutional grounds.

On appeal, the court of appeals has ruled in favor of the board of appeals. The appeal decision turned entirely upon the validity of the rule.

The applicant argued that the state statutes governing the board of appeals entitle everyone who applies to have a hearing. The court disagreed, saying that the statute also allows a board to establish rules for the conduct of its proceedings. Those rules can limit rehearings or repetitive applications for the same relief. In other words, applicants are entitled to rehearing unless that entitlement is negated by rules of the board. The applicants next argued that they were entitled to a hearing because they were not the applicants in the prior case. Again, the court of appeals disagrees, saying that a new purchaser is entitled to be heard on a variance application only if there has been some change in the circumstances, beyond change in ownership.

The court of appeals held that the rule is justified for the purpose of efficiency and giving board of appeals decisions finality.

In a footnote, the court of appeals characterized variance proceedings as administrative, rather than quasi-judicial. However, the characterization had no bearing on the outcome of the case. The characterization was based upon language in State ex rel. Nagawicka Island Corp. v. City of Delafield, 117 Wis.2d 23, 26, 343 N.W.2d 816, 818 (Ct. App. 1983), a case that was drawing a distinction between a variance matter at the board of appeals and a legislative rezoning by the town board. It is hard to see how the Nagawicka Island case helps explain whether a variance matter is quasi-judicial in nature.

Tateoka v. City of Waukesha Board of Zoning Appeals, Case No. 97-1802, Ct. App. District 2, June 24, 1998. Recommended for publication.

ORDINANCE VIOLATIONS ARE PUBLIC NUISANCES.

A property owner used his property to store dismantled and inoperative motor vehicles and numerous semi-trailer boxes. Starting in 1993, the town adopted a batch of ordinances, some zoning and some freestanding, dealing with trailer boxes and junkyard conditions. The town then attempted to enforce these ordinances. The circuit court found the property to be a junkyard without a valid permit as well as an area where trailer boxes were stored without required conditional use permits. The court ordered a $300 forfeiture and removal.

The court focused on Wisconsin Statutes §823.07 stating that repeated or continuous violation of local government ordinances is a public nuisance and may be enforced through injunctive relief sought by the municipality. These involve ordinances under sec. 66.052 of the statutes dealing with offensive industries.

Town of Fulton v. Schiffer, Case No. 97-3429, Ct. App. District 4, June 18, 1998. Unpublished.

The Kenosha County Board of Adjustment granted an 11-foot setback variance to allow a deck to be added to a lake home. The contours of the lot were such that the deck was the only way the owner could have a level outdoor seating area facing the lake. The zoning board felt the property owner was entitled to such an amenity to make her property comparable to other lakefront homes and to avoid a loss in property value. The granting of the variance was upheld by the Circuit Court and the Court of Appeals. The Wisconsin Supreme Court, however, reversed.

In the decision issued May 27, 1998, the Wisconsin Supreme Court articulates a single, across-the-board test for determining eligibility for zoning area or dimensional variances. That test is "unnecessary hardship" and the meaning is that, without the variance, no reasonable or feasible" use can be made of the property. Applying that test to this property, the court concludes that residential use without an outdoor seating area is reasonable and feasible as demonstrated by the fact that the house has not had the amenity of a patio or a deck for approximately 60 years.

The court believes that variances should be granted sparingly since they inherently conflict with the purpose of zoning laws, that purpose being to have uniform standards for particular districts or types of uses. That purpose should be compromised only when it results in a property having no feasible use.

The court clearly articulates that no reasonable/feasible use means more than the impossibility of establishing a single use otherwise available in the zoning district. In this case, the single use that was made impossible by the setback was a house having an outdoor seating area facing the lake. However, a house without an outdoor seating area facing the lake was feasible and did not require a variance. Therefore, no variance can be granted.

The court also criticized the zoning board for supplying evidence in support of the variance when that evidence had not been presented by the applicant at the public hearing. The court describes a variance hearing before a Board of Appeals or Adjustment as "not necessarily an adverse proceeding." However, the court strongly states its view that the applicant has the responsibility to comply with the burden of proof as to all of the conditions for eligibility for a variance.