Variance Case Analysis

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If the decision in this case is any indication, judges and attorneys may soon be longing for reestablishment of the use and area variance distinction.

The two opinions in this case run to 59 paragraphs, and still manage to confuse the law, while the decision could easily have been written in a three paragraph summary opinion, if only Wisconsin still adhered to the distinction.

Contrary to the views of a majority of the Supreme Court and Judge Brown, the distinction is not artificial, as long as one recognizes, as the court of appeals did in State v. Winnebago County, 196 Wis.2d 836, 540 N.W.2d 6 (Ct.App.1995), that it is possible for a use variance to “masquerade” as a mere area variance, and identify it as such.

Unfortunately, until the distinction is reestablished, all the ado over nothing found in this decision will likely remain the norm.

The shoreland variance at issue here, seeking an addition to a nonconforming home, is a use variance. Therefore, to obtain it, the owners must show they can make no reasonable use of the property without one. They failed to make that showing, and thus, the denial of the variance was proper.

At least Judge Brown’s concurring opinion correctly states the law as set forth in Justice Crooks’ concurring opinion in Outagamie County and looks to the purpose of the ordinance at issue.

Furthermore, as protracted as that process may be, if done correctly, it is a process that will ultimately produce the same results as if the use/area variance distinction were employed.

The majority opinion, however, as Judge Brown recognized, holds, on its face, more than once, that no variance of any kind can ever be granted absent a showing of “no reasonable use,” regardless of the purpose of the ordinance — a holding patently contrary to the decision of the Supreme Court in Outagamie County.

In Outagamie County, five justices on the court agreed that a variance was properly granted, although a home’s basement was too deep and violated a floodplain ordinance. Furthermore, the two dissenters in that case appeared to agree with that proposition as well, although they disagreed with the ultimate result.

Applying the analysis used by the majority in the case at bar, however, the variance in Outagamie County could not have been granted, because the property owners would have had reasonable use of the property even without a variance.

Accordingly, the only way to interpret the analysis employed in the majority opinion and not conflict with Outagamie County is to limit it to variances for shoreland property — but not other property, including floodplains, even though “shoreland, wetland, and floodplain zoning” are frequently regarded as one.

Such a bright-line rule is tenable, because arguably, variances from shoreland zoning invariably conflict with the purpose of that zoning, and thus, must require a showing of “no reasonable use” to be granted.

Accepting that the purpose of all shoreland zoning as to restrict nonconforming uses and eliminate such uses as quickly as possible, then all variances must inevitably be contrary to that purpose.

As noted, however, although “shoreland, wetland and floodplain zoning” are invariably grouped together, and a variance for shoreland property may necessarily conflict with the purpose of the zoning, a variance in a floodplain need not so conflict, as demonstrated by Outagamie County.

This raises a question as to whether the Washington County ordinance is consistent with statutory intent.

	Links Wisconsin Court of Appeals Related Article ‘No reasonable use’ necessary for variance

Section 59.694(7)(c) provides that county boards of adjustment are empowered
“[t]o authorize upon appeal in specific cases variances 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.”

The Washington County ordinance, however, which applies not only to shoreland, but floodplains, also, permits variances only where unnecessary hardship is shown, and states, “Unnecessary hardship is present only where, in the absence of a variance, no reasonable use can be made of the property.”

Thus, a variance such as that granted in Outagamie County would be barred by the Washington County ordinance, if not necessary for reasonable use of the property, even if “substantial justice” required it be granted.

– David Ziemer

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David Ziemer can be reached by email.