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02-1618 State ex rel. Richard W. Ziervogel and Maureen A. McGinnity v. Washington Cty. Brd of Adjustment (58805)

By: dmc-admin//March 31, 2003//

02-1618 State ex rel. Richard W. Ziervogel and Maureen A. McGinnity v. Washington Cty. Brd of Adjustment (58805)

By: dmc-admin//March 31, 2003//

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This is because nothing in State v. Kenosha Cty. Brd. Of Adjustment, 218 Wis. 2d 396 (1998) supports plaintiffs’ contention that the Board must first determine whether the requested variance conflicts with the public purposes behind the shoreland setback restrictions and if it does not, the Board need not reach the ‘no reasonable use’ test.

“Such an interpretation conflicts with both the clear language in Kenosha County and in the Washington County ordinance that requires ‘no reasonable use’ of the property as a precondition for obtaining a variance. … The Kenosha County court unequivocally concluded that ‘unnecessary hardship requires that the property owner demonstrate that without the variance, he or she has no reasonable use of the property.’…

“Contrary to Ziervogel and McGinnity’s assertions, Kenosha County does not establish a balancing test or two-part test for determining whether to grant or deny a variance request. Both Kenosha County and the Washington County Code conclude that a successful variance applicant must prove that he or she has no reasonable use of the property without the requested variance. Ziervogel and McGinnity still have reasonable use of their property and the Board properly denied their request for a variance.”

Order affirmed.

Recommended for publication in the official reports.

CONCURRING OPINION: Brown, J. “While I agree with the majority’s conclusion that State v. Kenosha County Board of Adjustment, 218 Wis. 2d 396, 577 N.W.2d 813 (1998), did not establish a two-part test which boards of adjustment must use in deciding whether to grant or deny a request for a variance, I am convinced that Snyder v. Waukesha County Zoning Board of Adjustment, 74 Wis. 2d 468, 247 N.W.2d 98 (1976), did establish this test in certain circumstances and Kenosha County merely followed Snyder. Thus, I disagree with the majority’s view that there is not a two-part test in Wisconsin. However, I am satisfied, from my reading of the record, that while the Washington County Board of Adjustment was required to use a two-part test under the circumstances that it had before it, it did so. For this reason, I ultimately concur with the result reached by the majority.”

Dist II, Washington County, Resheske, J., Snyder, J.

Attorneys:

For Appellant: Maureen A. McGinnity, Milwaukee

For Respondent: Christine E. Ohlis, West Bend; P. Philip Peterson, Madison

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