Fact that variance request was after-the-fact did not by itself justify denial

by Melanie Thwing

Mueller v. Chippewa County Zoning Board of Adjustment
(Wisconsin Court of Appeals, May 3, 2011)

Mark and Barbara Mueller own a home on a Class C highway in Chippewa County, Wisconsin. The County Code requires that all structures be set back at least thirty feet from a Class C highway. In 2001 the Muellers applied for a variance from the set back requirement to build a porch that would come within twenty-five feet of the highway. When applying for the variance the Muellers stated that without the porch the front steps of their home become covered in ice and snow creating a dangerous condition.

The variance was granted in August 2001 subject to certain conditions. The Muellers believed the conditions were too restrictive and asked to have the variance voided, which the Board of Adjustment did. Then in 2003 the county zoning official found the Muellers had gone ahead and built the porch without a variance. The Board denied an after-the-fact variance in March 2003 because the Muellers again rejected the conditions.

An order to remove the porch was issued in 2003 but no follow up occurred until 2008. At this point the Muellers again requested an after-the-fact variance. The Board held a hearing where Barbara Mueller testified that the roofline angle created ice and snow buildup. Also, she noted that before the porch huge icicles would hang off the front of the house. Finally, she pointed that it was an extreme hardship to not enter the house through the front door. The Board ultimately denied the variance.

The Muellers requested certiorari review in circuit court. The case was remanded to the Board for reconsideration because they did not explain reasoning for denying the variance. On remand the Board found that the application did not demonstrate unnecessary hardship as required under Wis. Stat. § 59.694(10).  The Muellers again sought certiorari review and the circuit court reversed the Board’s decision.

The Board appealed to the Wisconsin Court of Appeals arguing that the Muellers did not demonstrate several elements critical to proving unnecessary hardship: 1.) The hardship was not unique to the property, 2.) It was self-created, 3.) There were alternative means to alleviate the hardship, and 4.) The variance was after-the-fact.

The Court of Appeals looked at whether the board was within its jurisdiction, if it proceeded on correct theory of law, and whether the decision was arbitrary.

The Court of Appeals rejected the first argument of the Board – that the hardship was not unique. After testimony from the Muellers the Board simply stated that the condition was not unique. However, the circuit court pointed out that “Most buildings don’t have a buildup of ice creating a hazard.” The board could not have, based on the evidence, found that the hardship was not unique to the property itself.

Secondly, the evidence does not support that the hardship was self-created. The Board identified the hardship as the removal cost of the porch if the variance was not granted; however, the Muellers never argued that the hardship was the expense of removal. Rather, it was because of the ice and snow accumulation.  The Court of Appeals found that the ice and snow accumulation was not “self-created” by the Muellers.

Third, the Court determined that the Board could not reasonably have found that the hardship would be alleviated without the porch. The Board stated that the Muellers and guests could have entered through the garage, or they could pour a heated sidewalk. According to the courts none of these are feasible options.

Finally, from the transcripts it could be concluded that the Board primarily based its decision on that fact that the request was after the fact. Also, the Court pointed out that an identical variance was granted in 2001. Nothing in Wis. Stat. § 59.694(7)(c) distinguishes between before or after-the-fact variances.

The Board argues that granting an after-the-fact variance would, “unduly undermine the zoning code’s requirement of needing a permit or variance before beginning any construction” and would be against public interest. If this reasoning were correct, no person would ever be able to obtain a variance after-the-fact. Further, the Board did not cite any authority to support this argument. The decision of the circuit court was affirmed.