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Variance Case Analysis

By: dmc-admin//March 24, 2004//

Variance Case Analysis

By: dmc-admin//March 24, 2004//

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The decision is noteworthy not only for restoring the distinction between use and area variances is a welcome one, but for the absence of any discussion of whether the variance at issue is actually an area variance.

Arguably, the variance in the case at bar is actually a use variance pursuant to a variety of different theories.

First, there is authority suggesting that a variance to allow an extension of a nonconforming use is a use variance. Young, 3 Anderson’s Law of Zoning 20.06 at 425 (4th ed.1996).

Second, there is the theory that variances to shoreland ordinances are always, in effect, use variances. Judge Brown put forth this theory in his concurring opinion in the case at bar: "A requested variance in a shoreland zoning case, whether it is perfunctorily denominated by the landowner as an ‘area variance’ or a ‘use variance,’ nevertheless can defeat the whole purpose of the ordinance if granted. Thus, employment of the strict ‘no reasonable use’ standard is logically and environmentally correct where the shoreland zoning ordinance is considered. Ziervogel v. Washington County Bd. of Adjustment, 2003 WI App 82, 263 Wis.2d 321, 345, 661 N.W.2d 884.

Under this theory, shoreland ordinances are not area variances because they do not "promote uniformity of development, lot, and building size," but protect navigable public waters.

Third, there is the theory that variances which appear to be area variances can actually be use variances in disguise, as recognized in State v. Outagamie County Bd. of Adjustment, 2001 WI 78, 244 Wis.2d 613, 640, 628 N.W.2d 376.

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Wisconsin Supreme Court

Related Article

Distinction between use, area variances

For example, in the case at bar, were the variance to be granted, the effect would be to enable the home to go from being a summer home to a year-round home. That is arguably a change in use for which the higher "no reasonable use" standard is appropriate.

The decision is silent as to the character of the lake. Year-round homes could be the norm or the exception on the lake. Such considerations can be taken into account by boards of adjustments, but by failing to discuss the theory, the court’s decision could be interpreted to mean that such considerations have no role in determining whether a use or area variance is at issue.

Thus, the decision does not merely restore the distinction between use and area variances, but implicitly rejects numerous theories that could narrow the definition of an area variance.

– David Ziemer

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David Ziemer can be reached by email.

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