by Allison Arends
James C. Rule v. Iowa County Board of Adjustment
(Wisconsin Court of Appeals, March 18, 2010)
James Rule owned two parcels of land in the Town (township) of Dodgeville Iowa County, both of which were zoned A-1, Exclusive Agricultural. Quarrying operations are allowed in A-1 with a conditional use permit. Rule operated a quarry operation on one of the parcels of land and planned to extend his operation to his adjacent property, but was required to first apply for a conditional use permit in order to begin mining. Before applying, Rule sought to determine whether the Board would waive one of the Iowa County Zoning ordinance provisions which stated, “active mining shall not take place within five hundred feet of any residential district or any structure used for dwelling purposes.”
Rule filed an application with the Board requesting a variance that allowed mining at least 200 feet from the residential district boundary or 500 feet from a residential dwelling. Rule’s interpretation of the ordinance was that the active mining had to be at least 500 feet from either the residential district boundary or a dwelling. Neighboring property owners objected to Rules application for two reasons, (1) the variance requested was a use variance, not an area variance, which the Board does not have authority to grant and (2) the ordinance dictates that active mining must be at least 500 feet from the boundary line of a residential district and not from the dwellings within the district.
At the hearing, the Board heard position statements from both parties as well as a legal opinion from the Iowa County attorney. The attorney concluded Rule’s petition to be for a use variance and therefore, in his opinion, the Board did not have authority to grant the permit. The attorney also noted that active mining, under the ordinance, must be a minimum of 500 feet from a residential district boundary line, not the dwellings within that district. Based on the attorney’s opinion the Board voted, “to deny the application for non-metallic mining within 500 feet of the residential district.” The circuit court affirmed the Board’s decision.
On appeal, Rule contested the Board and circuit court’s decisions that he sought a use variance instead of an area variance, and their construction of the 500-foot requirement. Rule argued that he was seeking an area variance because he was looking to only modify the “area restriction” created by the condition (4)(b) of the AB-1 subsection. The court first evaluated how much deference a county board of adjustment’s has in the interpretation of a county ordinance, and concluded that the board’s construction of the ordinance is lawful if it is reasonable and there is not a more reasonable interpretation.
In order to determine whether the Board erred in identifying Rule’s petition as a use variance, the court looked to the distinction between the two types of variances:
“A use variance is one that permits a use other than that prescribed by the zoning ordinance in a particular district. An area variance … has no relationship to a change of use. It is primarily a grant to erect, alter, or use a structure for a permitted use in a manner other than that prescribed by the restrictions of a zoning ordinance. Area variances usually modify such features as setbacks, frontage requirements, height, or lot size”
Because a use variance has more of an impact on a community than an area variance, the standards for obtaining a use variance are higher, and the property owner must show that, “in absence of a variance, no reasonable or feasible use can be made of the property.” the court found the Board’s decision, which identified Rule’s requested variance as a use variance, to be reasonable because, “the 500-foot requirement was intended to protect the neighboring residential properties from the significant impact of a mining operation and that this purpose distinguishes it from restricting on building heights and set backs, which are typically the subject of area variances.”
In response to Rule’s second claim, the court found that the Board was reasonable in its construction of the ordinance, which recognized that active mining must be at least 500 feet away from a residential district boundary line or any dwelling which is not located within a residential boundary line. The court found Rule’s construction of the ordinance unreasonable because the obvious purpose of the ordinance is to protect neighboring residences from the disturbances of quarry operation. The court found that it is reasonable to ensure that all dwellings in a residential district, even those that are not yet built, are protected by a 500-foot buffer zone.