40-foot “rear yard” requirement is a setback requirement

by Kaitlin Heinen and Gary Taylor

Quin R. Feuerstein v. Sawyer County Board of Appeals
(Wisconsin Court of Appeals, August 14, 2012)

In 2008, the Feuersteins presented a certified survey map (CSM) to Sawyer County (WI) for approval. The CSM was denied by the Sawyer County zoning administrator, however, because a boat house on the lot was only 10 feet from the rear lot line, which the zoning administrator identified as such because it roughly paralleled the shoreline.  As a result, the administrator concluded that the 40 foot rear yard setback found in the zoning ordinance was required to the rear of the boat house (not the principal residence as urged by the Feuersteins). The Sawyer County Zoning Board of Appeals upheld the administrator’s decision.  The Feuersteins appealed.

The Feuersteins’ argument was that the zoning ordinance is ambiguous, and therefore must be construed in favor of private property owners. The Feuersteins argued that the ordinance is ambiguous because it does not define “rear lot line,” and that the Board could not reasonably conclude that the lot line behind the boat house was the rear lot line.  However, “rear yard” is defined as an “open[,] unoccupied space on the same lot with the building between the rear line of the building and the rear line of the lot and extending the full width of the lot,” according to SAWYER COUNTY, WI, ZONING ORDINANCE § 2.1(106). Additionally, SAWYER COUNTY, WI, ZONING ORDINANCE § 18.4(a) states that 40 feet of yard is required in areas zoned as RR-1. The Feuersteins’ argument that the ordinance’s use of the phrase “yard required” instead of “setback” created ambiguity was rejected by the court.

The Feuersteins also argued that § 2.1(106)’s reference to building in the singular adds to the ordinance’s ambiguity; asserting that since their cabin is the principal building on their lot, then it is sufficiently distant from the lot line for their proposed CSM to comply with the ordinance.  However, The Wisconsin Court of Appeals disagreed, The ordinance clearly states in § 2.1 that references made in the singular include the plural. Additionally, SAWYER COUNTY, WI, ZONING ORDINANCE § 4.26(1) states that a permanent, roofed structure not attached to the principal building shall conform to the setback requirements.

The Court of Appeals stated that the setback requirements unambiguously apply to the Feuerstein’s boat house: “The ordinance is evidently clear when read as a whole in its requirement of a 40 foot setback from even the accessory buildings on the lot in question.”  The Wisconsin Court of Appeals affirmed the Board’s decision in upholding the order for the Feuersteins to comply with the 40 foot setback of the rear lot line from their boat house.

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