02-2400 State v. Waushara County Board of Adjustment (60927)

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The landowners own a single family home on a .324 acre shorefront parcel; a state highway also borders the property; the required setbacks, 75 feet from the lake, and 110 feet from the highway, completely eclipse any building envelope on the parcel. The preexisting, nonconforming house on the parcel is 30 to 34 feet from the lake. The landowners bought the adjacent parcel and began a series of improvements, including a garage and a second story; when they filed the instant application, for a 10 x 20 addition to their living room and a 4 x 10 porch, their permit was denied based on the cumulative value of all improvements; the landowners sought a variance of the cumulative value provision.

The Board viewed the property, noted that the proposed construction would not bring the home any closer to the lake, and ultimately approved the variance application, concluding that enforcing the exact terms of the zoning ordinance would result in unnecessary hardship for the landowners.

The State sought appellate review, arguing that Wis. Stat. §§ 59.692 and 281.31, requires adherence to specific standards for protecting the shorelands of Wisconsin’s navigable waters, over and above local zoning regulations. The circuit court and the court of appeals concluded that Kenosha County Bd. of Adjustment, 218 Wis. 2d 396, 577 N.W.2d 813 (1998) requires that no reasonable use of the property must be demonstrated by the property owners before a board may grant a variance.

We must address the interplay between Snyder v. Waukesha County Zoning Bd. of Adjustment, 74 Wis. 2d 468, 247 N.W.2d 98 (1976), State v. Kenosha County Bd. of Adjustment, 218 Wis. 2d 396, 577 N.W.2d 813 (1998), and State v. Outagamie County Bd. of Adjustment, 2001 WI 78, 244 Wis. 2d 613, 628 N.W.2d 376, and determine the correct legal standard to be applied by a board of adjustment when considering whether to grant an area variance. More specifically, is the correct legal standard whether the failure to receive the variance will create, for the property owner, an unnecessary hardship in light of the purposes of the zoning ordinance, or is it whether the owner will have no reasonable use of the property without a variance?

We find no need to accept the landowners’ invitation to overrule Kenosha County. Rather, the term “no reasonable use,” as set forth in Kenosha County, is no longer applicable when consideration is being given to whether to grant an area variance. We reaffirm Snyder’s definition of the statutory term “unnecessary hardship” because it best encompasses the appropriate test for granting an area variance.

While there is a claim that the variance implicates shoreland zoning concerns, it should be noted that the proposed addition would not bring the landowner’s home any closer to Silver Lake.

DISSENTING OPINION: Bradley, J., joined by Abrahamson, C.J. “The unfortunate result of the majority opinion is that it sacrifices the constitutionally protected public trust rights that all citizens have in the navigable waters of this state in order to promote the local private interests of a few shoreland property owners. By functionally overruling Kenosha County, it relaxes the standard necessary to obtain a shoreland variance. In emphasizing flexibility for local boards of adjustment and presuming that their decisions are correct, the majority dilutes appellate review, which will invariably undermine the legislative directive for uniformity of shoreland zoning. Cumulatively, this approach will vitiate the purposes behind shoreland regulations of preserving the public interest in shoreland and the navigable waters of this state.”

The decision of the court of appeals is reversed, and the cause is remanded to the circuit court for further proceedings consistent with this opinion.

Court of Appeals, Crooks, J.

Attorneys:

For Appellants: Brian W. McGrath, Erik G. Weidig and Foley & Lardner, Milwaukee.

For Respondent: P. Philip Peterson, assistant attorney general, with whom on the brief was Peggy A. Lautenschlager, attorney general.