by Kaitlin Heinen
State of Wisconsin v. Manitowoc County Board of Adjustment
(Wisconsin Court of Appeals, February 13, 2013)
In 2010, Rebecca Rach built a house on Wilke Lake in the Town of Schleswig. When she purchased another piece of land at the back of her residence, the Town built a road on part of it to give 4 lake residents access to a main road. The remainder of the land is wetland. Rach petitioned the Manitowoc County Board of Adjustment for a variance to construct a 4’ x 50’ walkway and a 40’ x 40’ patio adjacent to a concrete porch on the east side of her house, facing the lake. The patio would intrude 49 feet into the 75-foot required shoreland setback. Rach argued that without the variance, she would suffer an unnecessary hardship because there was no other place on her lot to construct a patio. Board members conducted an on-site inspection of Rach’s property and held a hearing on her request. Rach and her husband presented a landscaping plan showing that the patio would be built with materials and plantings to aid infiltration and catch any runoff. The Town stated in a letter that its board and planning commission both approved Rach’s variance request. However, the Wisconsin Department of Natural Resources, by a letter from a shoreland zoning specialist, opposed the variance, citing the lack of unnecessary hardship and the negative effects the patio and walkway encroachment would have on the lake.
Rach’s husband testified that they could not have built their house further back because the land behind their house was for sale after they had built and that, with the remainder of the land being wetland, there is no room to build a patio. A Board member even commented, “I don’t think [the DNR shoreland zoning specialist] realized that…. He wasn’t there [at the property].” So the Board concluded that Rach faced an unnecessary hardship because the wetlands behind the house is not suitable for a patio; the landscaping of the patio would handle runoff; and the variance would not be against the public interest because the landscaping would screen the patio from the lake, beautify the shoreline, and create a buffer to prevent runoff. The Board reduced the walkway’s width from 48 to 42 inches and the patio’s length from 40 feet to 20 feet, cutting the setback intrusion to 29 feet. The variance was approved as modified. The State filed a complaint in the circuit court, which affirmed the Board’s decision. So the State appealed to the Wisconsin Court of Appeals.
The Wisconsin Court Appeals reviewed the Board’s decision by applying the substantial evidence test to determine whether the evidence before the Board was sufficient. Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” In its review, the court must presume the correctness of the Board’s decision. When a variance request is before the Board, it must decide whether denying the variance would impose an unnecessary hardship on the landowner. Unnecessary hardship must be based on conditions unique to the property itself and cannot be self-created. The State argued that Rach failed to produce sufficient evidence of “unnecessary hardship” and that the hardship Rach faced was self-created because she built the house a year before applying for the variance, choosing its size and where to situate it on the lot. The State also argued that a patio is not essential and if Rach wants one she can build it, instead of a garage, at the back of the house. However, the court reasoned that even if Rach could construct the patio on the wetland, substantial evidence existed to support the Board’s decision because the State’s arguments ignored that building the patio behind the house would leave Rach without a garage—”disagreeable in Wisconsin.”
The Board must evaluate the hardship with the purpose of the zoning restriction in mind, and a variance cannot be against the public interest. The purpose of a shoreland zoning ordinance “is to protect navigable waters and the public rights therein from the degradation and deterioration which results from uncontrolled use and development of shorelands.” Since the Board considered the purpose of the ordinance and after viewing the site and taking testimony from the Town and the DNR, it modified the variance by imposing conditions designed to protect the shoreland setback zone. It found that, as modified, the construction would not be against the public interest. The Board acted within its authority, so the Wisconsin Court of Appeals concluded that the Board’s decision to grant the variance to Rach was supported by sufficient evidence.