Claimants fail to demonstrate unnecessary hardship in request for variance from 5-acre minimum lot size

by Kaitlin Heinen

Gordon & Kathy Michaels v. Town of Farmington, et al.
(Wisconsin Court of Appeals, January 3, 2012)

Gordon and Kathy Michaels have operated a 340-acre dairy farm in the Town of Farmington since the 1970s and hoped to develop or sell the land to fund their retirement.  In 2005, the Town adopted a new zoning code and revised its subdivision ordinance.  The zoning ordinance established 5-acre minimum lot sizes.  The subdivision ordinance limited the number of building permits that could be issued per year. The Michaelses sought a variance to allow them to develop their acreage into 1½-acre lots.  They claimed they could not sell their farm to a developer due to a unique and unnecessary hardship as a result of the ordinances and other stray voltage issues.  The circuit court ordered the Town to convene the Board of Zoning Appeals and allow the Michaelses a hearing, but the BOZA denied their variance request.

When the Michaelses appealed this decision, the circuit court remanded the case and ordered the BOZA to issue a decision that stated its reasons for denying the variance. The BOZA clarified that the Michaelses’ evidence was based solely on economics, and the stray voltage issues did not qualify as an unnecessary hardship because the Michaelses still operated their dairy farm.  The circuit court concluded that the BOZA’s decision was not arbitrary, oppressive, or unreasonable and that the BOZA could reasonably deny the Michaelses’ variance request, which the Michaelses appealed to the Wisconsin Court of Appeals.

The Michaelses argue that since they spent six years trying to get the hearing, it was unfair for the circuit court to allow the BOZA a “do-over” to supplement its earlier decision.  The Wisconsin Court of Appeals disagreed and held that the circuit court properly remanded the case to the BOZA for it to better express its reasonings for denying the Michaelses’ variance request.

Next, to determine whether a variance imposes an unnecessary hardship depends on whether compliance with the restrictions would unreasonably prevent the owner from using the property for a permitted purpose. The BOZA noted that to grant a variance to the zoning ordinance, it had to find beyond a reasonable doubt the existence of all of the following:  “(1) preservation of the intent of the ordinance; (2) ‘exceptional, extraordinary, or unusual circumstances or conditions’; (3) preservation of the property rights of others; (4) the variance request was not due to self-imposed hardship or solely on the basis of economic hardship; and (5) the absence of decrement.” The BOZA found that the Michaelses proved none of these criteria.  Instead it found that the primary use for the Michaelses’ property is agricultural; that granting a variance to allow 200+ residential building sites is not consistent with the primary zoning; that the Michaelses continue to farm the property despite the stray voltage issues; that the Michaelses’ motivation was based solely on economic considerations (the property would be sold for less than they hoped without a variance); that granting a variance is not necessary to preserve their property rights to farm their land; and that granting a variance is contrary to the purpose and spirit of the zoning code because it would change the agricultural conduct of the area and would alter the density and distribution of the Town’s population.

The Michaelses also argued that the 2005 ordinance severely limited growth with no sunset provision, which causes an unconstitutional permanent moratorium. However, this claim applies to a  rate-of-development (ROD) bylaw enacted fifteen years earlier, which limited the number of building permits the town could issue in a year.  Although similar to the Town’s subdivision ordinance, the ROD ordinance was not at issue in case because the Michaelses never applied for a number of building permits over the limit. Furthermore, the Michaelses failed to demonstrate, beyond a reasonable doubt, that an unnecessary hardship results from compliance with the Town’s ordinances.

Finally, the Michaelses argue they are entitled to attorney fees under 42 U.S.C. § 1988(b) in this action. However, the circuit court concluded that the Michaelses’ procedural and substantive due process rights were not abridged.  They were afforded a remedy by getting the hearing to which they were entitled. They also did not establish either that the 2005 ordinance is “clearly arbitrary and unreasonable,” with “no substantial relation to the public health, safety, morals or general welfare,” or that they were the victim of administrative action that “shocks the conscience.” Public welfare certainly can be related to the orderliness of community growth by the minimum-lot size ordinance in question.  Thus the Michaelses have not shown that the circuit court erroneously exercised its discretion in denying their bid for attorney fees.

The Wisconsin Court of Appeals affirmed the Town of Farmington’s Board of Zoning Appeals’ decision.

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