Wisconsin shoreland owner satisfies unnecessary hardship standard for requested variances

by Melanie Thwing

State of Wisconsin v. City of Oconomowoc Zoning Board of Appeals
(Wisconsin Court of Appeals, March 16, 2011)

Tony Pipito, Inc owns Club Porticello Restaurant located in the shoreland zone of Silver Lake in Oconomowoc, WI. In 2008 Pipito was granted variances from the City of Oconomowoc Zoning Board of Appeals to enclose two stoops a stairwell and replace retaining walls. This also added 300 square feet to the non-lakeside entrance of the restaurant. Pipito had actually completed the work before the variances were granted.  The State of Wisconsin appealed the granting of the variances to the circuit court,which affirmed the City of Oconomowoc Zoning Board of Appeals’ decision to grant to variances. The State now appeals to the Court of Appeals.

According to State v. Washington County Bd. Of Adjustment, “Area zoning… regulates density, setbacks, frontage, height, and other dimensional attributes, in order to promote uniformity of development, lot size and building configuration and size… [A]rea variances provide an increment of relief (normally small) from a physical dimensional restriction such as building height, setback, and so forth…”

The State first argues that Pipito failed to prove any unnecessary hardship, which is the standard for granting area variances in Wisconsin. According to state court caselaw in Wisconsin, the unnecessary hardship standard is

[W]hether compliance with the strict letter of the restrictions governing area, set backs, frontage, height, bulk or density would unreasonably prevent the owner from using the property for a permitted purpose or would render conformity with such restrictions unnecessarily burdensome….[V]ariance requests are always evaluated in light of the purpose of the zoning ordinance and the public interests at stake….  Whether the [unnecessary hardship] standard is met in individual cases depends upon a consideration of the purpose of the zoning restriction in question, its effect on the property, and the effect of a variance on the neighborhood and larger public interest.  The established requirements that the hardship be unique to the property and not self-created are maintained, and the burden of proving unnecessary hardship remains on the property owner…

The Board held that without the variance an unnecessary hardship would occur. The variances for the stoops and stairwell required only a minimal footprint expansion. There was minimal detrimental effect to the lakeshore because these variances would not encroach on the shoreline. Further, they were necessary for safety and code requirements and protected visitors. Finally the updates improved the overall appearance of the community and neighborhood.  The original retaining walls needed replacing to serve their purpose and to protect the lake, and the work on the retaining walls was in fact mandated by approvals given by the Department of Natural Resources and the City of Oconomowoc.

Next, the State argued that Pipito could have build a new restaurant or moved the existing structure to the northern part of the property. The Court of Appeals rejects this argument. Pipito was not seeking to relocate the restaurant. The board specifically found that if this were to happen the extensive excavation required would result in greater harm to Silver Lake than that caused by the modifications requested under the variance. The Court concluded that the board weighed both options and acted reasonably.

Next, the State argued that the board did not consider public interest in protecting the waters. Again the Court rejects this claim. The board noted that the changes were minimal in effect and moving the restaurant would be detrimental to the lake. Further, Pipito was required to take precautions, including a shoreland buffer zone, to stop any adverse impact that may result from the variances.

Finally, the State argues that the board prejudged the request in favor of Pipito because changes were made to the property prior to obtaining the variances. The Court also rejects this argument. The board simply made a decision based on the physical characteristics of the property, not the fact that Pipito acted without the variances. The decision of the circuit court is affirmed.

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