‘No reasonable use’ necessary for variance

Listen to this article

“The purposes of zoning laws demand that variances be granted sparingly and only when the applicant has demonstrated that he or she will have no reasonable use of the property, in the absence of a variance.” Judge Harry G. Snyder Wisconsin Court of Appeals

For a property owner to obtain any variance from a shoreland ordinance, he must show that he has no reasonable use of the property without it, the Wisconsin Court of Appeals held on March 26.

Richard W. Ziervogel and Maureen A. McGinnity own a house on a 1.4 acre lot with approximately 200 feet of shore frontage on Big Cedar Lake in Washington County. They originally purchased the home as a summer home, but now wish to move there year-round and want to construct a 10-foot vertical expansion to add a bedroom, bathroom and office space.

The house is only 26 feet from the ordinary high watermark, but conformed to all ordinances when built, and is thus, a legal nonconforming use.

In 2001, Washington County amended its shoreland zoning ordinance to prohibit any expansion of any portion of an existing structure within 50 feet of the ordinary high watermark. The home is entirely within that mark.

Ziervogel and McGinnity app-lied to the Washington County zoning administrator for a permit to construct their proposed addition, but the zoning administrator denied the permit based on the shoreland ordinance.

Ziervogel and McGinnity then appealed to the Board of Adjust-ment for a variance, but the Board denied the request, because denial of the variance “would not make [the] property useless.”

Ziervogel and McGinnity filed an action for certiorari review of the Board’s decision, but Washington County Circuit Court Judge David C. Resheske affirmed, as did the court of appeals, in an opinion written by Judge Harry G. Snyder, and joined by Judge Daniel P. Anderson. Judge Richard S. Brown wrote a concurring opinion.

No Reasonable Use

The court began by addressing what law to apply. In the Supreme Court’s most recent consideration of variances, State v. Outagamie County Board of Adjustment, 2001 WI 78, 244 Wis.2d 613, 628 N.W.2d 376, only portions of the majority opinion garnered the support of a majority of justices. Other portions were supported by only three justices, including that part maintaining that the court should reinstate the use/area variance distinction abrogated in State v. Kenosha County Board of Adjustment, 218 Wis.2d 396, 577 N.W.2d 813 (1998).

Because only three justices supported overruling Kenosha County, the court determined, “Although Outagamie County may contain relevant discussions, … the only portions that have any precedential value are sections IV and V, neither of which addresses the issue before us. We conclude that our analysis is governed by the standards set forth in Kenosha County.”

Refusing to apply any of Outagamie County, the court correspondingly refused to apply either of two proffered tests put forth by Ziervogel and McGinnity. They first argued that both Kenosha County and Outagamie County require a balancing of the public interest and the purpose of the ordinance against the rights of the property owner.

Second, they argued that Outagamie County sets forth a two-part test: (1)
whether the proposed variance violates the purpose of the zoning ordinance at issue; and (2) a determination of whether the property owners have any reasonable use of the property if the variance is denied, if it does violate the purpose.

The court concluded that neither test is established by the decision in Kenosha County. Nevertheless, the court proceeded to set forth the purpose of shoreland zoning ordinances, citing Kenosha County: “The basic purpose of a shoreland zoning ordinance is to protect navigable waters and the public rights therein from the degradation and deterioration which result from uncontrolled use and development of shorelands.”

The court then turned to the specific Washington County ordinance, which defines what constitutes an “unnecessary hardship” that would permit a variance as follows:

“Any unique and extreme inability to conform to the provisions of this chapter due to special conditions affecting a particular property which were not self-created and are not solely related to economic gain or loss. Unnecessary hardship is present only where, in the absence of a variance, no reasonable use can be made of the property.”

Based both on the Washington County ordinance and the decision in Kenosha County, the court set forth the rule that, “The purposes of zoning laws demand that variances be granted sparingly and Kenosha County states that ‘[o]nly when the applicant has demonstrated that he or she will have no reasonable use of the property, in the absence of a variance, is an unnecessary hardship present.’ (quoting Kenosha County).”

Because Ziervogel and McGinnity still have reasonable use of their property without the variance, the court affirmed the denial of their request for a variance.

The Concurrence

Judge Brown wrote a concurring opinion, concluding that the proposed two-part test should be applied, stating, “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.”

Brown ultimately concurred with the majority, however, because he concluded that the board of adjustment did apply the two-part test.

Brown set forth the two-part test as follows:

“First, the zoning authority must decide whether the requested variance conflicts with the purpose of the statute. … If the request strikes at the very purpose of the zoning ordinance, the landowner must then meet a very strict definition of the unnecessary hardship standard — that no reasonable use can be made of the property in the absence of a variance. The second part of the test is for the zoning adjustment board to apply this strict definition and determine whether the requester can make reasonable use of the property without the variance.

“Conversely, if the request does not conflict with the purpose of the ordinance, then there is no reason why the request should not be granted and the requester need not jump through any further hoop. Thus, if the variance request is not at odds with the purpose of the ordinance, there is no second part of the test. The variance may be granted because, to not do so, would be to force an unnecessary restriction on a request that does not violate the spirit of the zoning ordinance.”

Elaborating on the test, Brown compared ordinances that establish setback requirements in residential neighborhoods with those for homes on shorelines. A one-foot variance in a residential neighborhood would not conflict with the purpose of controlling density, while a one-foot variance for a riparian home would conflict with the ecological and aesthetic purposes behind the shoreland ordinance.

	Links Wisconsin Court of Appeals Related Article Case Analysis

Applying the test to the variance at issue, Brown concluded as follows: “Ziervogel and McGinnity say that the purpose is to prevent encroachment to the lake. That is not so. The purpose of the ordinance is to prevent any kind of expansion of ripar
ian property that violates the setback requirements of the county’s shoreland zoning ordinance. The house sits perilously close to the lake as it is. The idea is to prevent any improvement that would expand the use of the house. The request violates the purpose of the ordinance. Thus, for Ziervogel and McGinnity to prevail, they had to convince the Board that, without the variance, they could not reasonably use the property. That is the second part of the test. They lose here too. They can still make use of their home the way it is.”

Brown then went on to discuss the difference between area variances and use variances, voicing support for the rejection of that distinction in the concurring opinion of Justice Crooks in Outagamie County.

Click here for Case Analysis.

David Ziemer can be reached by email.