“Substantially similar” new construction in floodplain is not the same as elevating existing structure authorized by permit
by Victoria Heldt
Delbert E. Johnson and Nancy L. Johnson v. Pierce County Zoning Board of Adjustment
(Wisconsin Court of Appeals, March 6, 2012)
The Johnsons own a piece of property that abuts the Mississippi River in Pierce County, Wisconsin. It is undisputed that the area is a floodplain and, therefore, the Johnsons’ mobile home, screened-in porch, and deck are nonconforming uses under Pierce County’s zoning ordinances. In April 2010 James Kleinhans (the county zoning administrator) issued the Johnsons a land use permit to floodproof the existing structures on the property. The permit consisted of the application, a materials list, and a hand-drawn plan of the project. The plan ordered for the elevation of all three structures onto a new concrete foundation.
In June 2010, Kleinhans observed that the Johnsons’ construction did not conform to the plan. The screen porch was still sitting on the ground and a new structure had essentially been built where the mobile home previously sat. It did not resemble the preexisting mobile home or deck so Kleinhans rescinded the permit and issued a stop work order. The Johnsons appealed the decision to the Pierce County Zoning Board of Adjustment (Board) arguing that the construction did not violate the permit. They testified that the preexisting mobile home had been destroyed by a flood before the permit was issued, so they could not elevate it in its ruined state. They also claimed that Kleinhans was aware that the Johnsons did not plan to elevate the entire structure when he issued the permit. They stated they tried to incorporate as much of the old structure as possible (windows, siding, paneling) in reconstruction. Kleinhans responded by saying that if he had known the Johnsons were not elevating the existing structure in its previous state he would not have issued the permit. The Board concluded that the Johnsons used the permit to construct a “substantially different building” and upheld the revocation of the permit. The circuit court affirmed the Board’s decision. The Johnsons appealed.
The Johnsons argued several points. First, the Johnsons contended that the Board proceeded on an incorrect theory of law. They argued that the county’s zoning ordinance does not comply with Wis. Stat. §§ 59.69 and 59.692. The Johnsons argued that specifically ch. 238 of the Pierce County zoning code conflicts with the previously mentioned Wis. Stat. The Court pointed out, however, that the Johnsons relied on language within that section of the zoning code to support their argument later in the appeal. The Johnsons may not argue that a part of the zoning code conflicts with statute while simultaneously relying on the code for their argument. The Court noted further that the Johnsons did not make this claim before the Board and therefore forfeited the right to raise the argument on appeal.
The Johnsons argued that the structure they built was “substantially similar” to the original structure and, therefore, was not a violation of the permit. The Court ruled that, since the Johnsons provided no legal authority for the notion that a “substantially similar” structure is allowable under a permit, it would not consider the argument. The Court concluded that the Board did not act on an incorrect theory of law.
The Johnsons claimed that the evidence presented did not support the Board’s conclusion. To begin its analysis, the Court acknowledged that deference is given to an agency’s decision on appeal and that “the Board is the sole judge of the weight and credibility of the evidence presented.” The Court found that the evidence presented did indeed support the Board’s decision. The permit issued allowed the Johnsons to elevate the existing structures and observation showed that the Johnsons instead constructed a new structure. Johnson confirmed that he did not elevate the previously existing structure because it was ruined. He also failed to dispute that the new structure did not include the previous porch and deck or that the Johnsons were attempting to sell the porch. Photographs were submitted in support of all these facts.
The Johnsons further argued that the Board improperly disregarded Johnson’s testimony in which he claimed that Kleinhans already knew of his plan to modify the structure. The Court noted that the Board is the proper judge of witnesses’ credibility and that it apparently found Kleinhans’ testimony more credible. The Johnsons also claimed that the Board could not rely on Kleinhans’ testimony because he was never sworn in. The Court responded by stating that the rules of evidence do not apply in administrative procedures. Furthermore, the letter sent to the Johnsons and the record of the permit provided sufficient evidence that the Johnsons’ activities did not comply with the permit. The Johnsons finally argued that the materials list attached to the permit served as evidence that Kleinhans authorized the new construction. The Court pointed to Kleinhans’ testimony in which he admitted that some new construction was allowed under the permit only because “the new foundation’s footprint was slightly larger than that of the existing structures.” Nevertheless, the primary purpose of the permit was to allow floodproofing to existing structures. The Court rejected the argument that the Board’s decision was unsupported by the evidence.
Finally, the Johnsons purported that the Board’s decision was arbitrary, oppressive, and unreasonable. The Johnsons first support the argument by stating that the decision was based on an incorrect theory of law and was unsupported by the evidence. The Court already rejected those arguments in previous sections. The Johnsons also claim that the decision prevents them from using their property and renders the property useless. The Court noted that the Johnsons did not provide any support for these claims and that the Johnsons never asserted these claims before the Board. They also failed to explain why the alleged uselessness of their property should allow them to violate their permit. The Court found that the Board appropriately considered the evidence and came to a reasonable conclusion. It affirmed the Board’s revocation of the Johnson’s permit.