Fact that variance request was after-the-fact did not by itself justify denial

by Melanie Thwing

Mueller v. Chippewa County Zoning Board of Adjustment
(Wisconsin Court of Appeals, May 3, 2011)

Mark and Barbara Mueller own a home on a Class C highway in Chippewa County, Wisconsin. The County Code requires that all structures be set back at least thirty feet from a Class C highway. In 2001 the Muellers applied for a variance from the set back requirement to build a porch that would come within twenty-five feet of the highway. When applying for the variance the Muellers stated that without the porch the front steps of their home become covered in ice and snow creating a dangerous condition.

The variance was granted in August 2001 subject to certain conditions. The Muellers believed the conditions were too restrictive and asked to have the variance voided, which the Board of Adjustment did. Then in 2003 the county zoning official found the Muellers had gone ahead and built the porch without a variance. The Board denied an after-the-fact variance in March 2003 because the Muellers again rejected the conditions.

An order to remove the porch was issued in 2003 but no follow up occurred until 2008. At this point the Muellers again requested an after-the-fact variance. The Board held a hearing where Barbara Mueller testified that the roofline angle created ice and snow buildup. Also, she noted that before the porch huge icicles would hang off the front of the house. Finally, she pointed that it was an extreme hardship to not enter the house through the front door. The Board ultimately denied the variance.

The Muellers requested certiorari review in circuit court. The case was remanded to the Board for reconsideration because they did not explain reasoning for denying the variance. On remand the Board found that the application did not demonstrate unnecessary hardship as required under Wis. Stat. § 59.694(10).  The Muellers again sought certiorari review and the circuit court reversed the Board’s decision.

The Board appealed to the Wisconsin Court of Appeals arguing that the Muellers did not demonstrate several elements critical to proving unnecessary hardship: 1.) The hardship was not unique to the property, 2.) It was self-created, 3.) There were alternative means to alleviate the hardship, and 4.) The variance was after-the-fact.

The Court of Appeals looked at whether the board was within its jurisdiction, if it proceeded on correct theory of law, and whether the decision was arbitrary.

The Court of Appeals rejected the first argument of the Board – that the hardship was not unique. After testimony from the Muellers the Board simply stated that the condition was not unique. However, the circuit court pointed out that “Most buildings don’t have a buildup of ice creating a hazard.” The board could not have, based on the evidence, found that the hardship was not unique to the property itself.

Secondly, the evidence does not support that the hardship was self-created. The Board identified the hardship as the removal cost of the porch if the variance was not granted; however, the Muellers never argued that the hardship was the expense of removal. Rather, it was because of the ice and snow accumulation.  The Court of Appeals found that the ice and snow accumulation was not “self-created” by the Muellers.

Third, the Court determined that the Board could not reasonably have found that the hardship would be alleviated without the porch. The Board stated that the Muellers and guests could have entered through the garage, or they could pour a heated sidewalk. According to the courts none of these are feasible options.

Finally, from the transcripts it could be concluded that the Board primarily based its decision on that fact that the request was after the fact. Also, the Court pointed out that an identical variance was granted in 2001. Nothing in Wis. Stat. § 59.694(7)(c) distinguishes between before or after-the-fact variances.

The Board argues that granting an after-the-fact variance would, “unduly undermine the zoning code’s requirement of needing a permit or variance before beginning any construction” and would be against public interest. If this reasoning were correct, no person would ever be able to obtain a variance after-the-fact. Further, the Board did not cite any authority to support this argument. The decision of the circuit court was affirmed.

Board’s variance denial had substantial support in the record

by Melanie Thwing

Lauderdale Lakes Lake Management District v. Walworth County
(Wisconsin Court of Appeals, March 16 2011)

Lauderdale Lakes Lake Management District (the District) owns property in Walworth County, WI. This property mainly consists of the Lauderdale Lakes Country Club and 6.8-acres of waterfront wetland area. This wetland is zoned C-4 “Lowland Resource Conservation District.” The original intent in purchasing the property was to prevent further development.  In 2003 the land was put under a perpetual conservation easement.

The District allows a weed-harvesting boat and Water Safety Patrol boats to dock on the property, and allows access by school and scout groups as well as the general public. All of these are permitted uses. The District filed a request for a zoning permit with the Walworth County Land Use and Resource Management Department to expand an existing boardwalk from six to seven feet in width, and to construct a new four foot-wide boardwalk and three decks.  The total project would create over 2,000 additional feet of decking on the property.  Walworth County ORD. Art. III, Div. 2, § 74-167 prohibits structures within seventy-five-feet of the shoreline. The proposed boardwalk would fall within this setback and the Department denied the permit.

The District then filed a petition for a variance with the Zoning Board of Adjustment (the Board). At the public hearing the District explained that the addition of walkways would: (1) help transport fuel without having to drive through the wetlands, (2) promote better public access, (3) promote public safety by easier access to transport injured boaters from the lake, (4) prevent wetland damage from pedestrian and vehicular traffic.  Residents spoke at the hearing both for and against the permit. Ultimately the Board denied the variance request because: (1) no exceptional circumstances were proven, (2) property is a wetland and flood plain, (3) only one four-foot-wide walkway is permitted in the Ordinance, (4) any hardship was self-created, (5) it would affect the entire community, (6) this large of an increment would set a precedent, (7) approving would undermine the zoning ordinance, (8) did not meet necessary criteria, (9) would increase impervious surfaces and runoff. The circuit court affirmed.

The District appealed to the Wisconsin Court of Appeals, who determines whether the Board was within their jurisdiction, used a correct theory of law, whether they acted arbitrarily, and if they made the decision based on sound evidence.

The District first argued the Board exceeded its jurisdiction by making a decision not supported by evidence and one that was outside their expertise. However, both pro and con arguments were considered at the public hearing and after receiving written submissions. The Board acted within its authority.

Next the District argues that the Board misinterpreted and misapplied the law concerning unnecessary hardship. Under  Wis. Stat. § 59.694(7)(c) the legislature has given boards of adjustment discretion to grant variances where zoning regulations would result in “unnecessary hardship not justified by the underlying purposes of the ordinance in question.” But in the ninety-one-page hearing and decision transcript it was clear that the Board considered the setback requirements in relation to the Ordinance’s purpose and intent. It also considered whether the property was unique and a hardship would occur.  This property was not unique when compared to any other C-4 zoning property. The purpose of the zoning is, “to preserve, protect, and enhance the county’s lakes, streams and wetland areas and provides that proper regulation of these areas ‘will serve to maintain and improve water quality, both ground and surface; prevent flood damage; protect wildlife habitat; prohibit the location of structures on soils which are generally not suitable for such use; protect natural watersheds; and protect the water-based recreation resources of the county.’”  Further, the District purchased the property to preserve it, making its claim of hardship self-created by the desire to expand beyond the permitted uses. Adding the board walk would simply increase the number of people trampling through the property and protected land. This would be directly against the intent of the ordinance, which is to protect and preserve wetlands.

Next the District argues that the Board’s decision was arbitrary because it was based on the board members’ objections to the project, not the application of the evidence to the criteria for granting a variance.  The Court pointed out that the written decision from the Board explained and gave numerous reasons for the denial based on the criteria. This argument was rejected.

The Court of Appeals determined that the Board reasonably found that the permit would not be in the best interest of the public and would cause more harm that benefit to the wetland,.

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.

Minnesota Supreme Court adopts restrictive interpretation of “unnecessary hardship”

GT NOTE:  This is an interesting case for Iowa planners and board of adjustment members because the Minnesota Supreme Court is interpreting variance language in the Minnesota statutes that is identical to that found in the Iowa Code.  They reach the same conclusions as previous Iowa court cases.

by Melanie Thwing

Krummenacher v. City of Minnetonka
(Supreme Court of Minnesota, June 24, 2010)

JoAnne Liebeler owns property in Minnetonka, MN. There is a detached garage on the property, which sits 17 ft from the property line. Minnetonka City Code §300.10 states that a detached garage must be set at least 50 feet from the property line, but the structure was built before this ordinance and thus grandfathered in. In March 2008, a variance was filed by Liebeler, which is required by Minnesota Stat. to add a living space above the nonconforming garage.

A public hearing occurred in March where her neighbor, Krummenacher, spoke against the variance. He argued that this addition obstructed his view. The request was ultimately approved with the planning commission stating: 1.) an undue hardship would occur without it, 2.) a unique circumstance of nonconformity,  3.) compliance with the intent of the ordinance, and 4.) the variance would not alter the neighborhood character.

Krummenacher challenged the Commissions decision with the City Council, who ultimately sided with the Commission. Krummenacher then filed an appeal in district court, which affirmed, and the Court of Appeals, which also affirmed. Finally he appealed to the Supreme Court of Minnesota.

He argued that 1.) Minnesota Stat. § 462.357 does not allow the City to grant a variance that would expand a nonconforming use, 2.) the approval was arbitrary and 3.) the district court erred because they did not require the City to produce additional documents.

Krummenacher first argues that Minnesota Stat. § 462.357 1(e) does not allow the expansion of a nonconforming use. The statute itself states in part A. that any nonconforming use in place before the statute may continue to be used but not expanded. However, part B. states that they may permit expansion to, “prevent, and abate nuisances and to protect the public health, welfare, or safety.” Section B. also grants cities discretion to issue permits.

The Supreme Court looks at Minnetonka City Code § 300.29(g)(1) which allows for expansion as long as a variance is obtained. Because the State entrusted the power within the city to issue permits, and because Liebeler did this, the City was within its authority to consider a variance for a nonconforming use.

Next, Krummenacher argues that the decision was arbitrary because the correct standard to define “undue hardship” was not applied. He argues that the standard in Minnesota Stat. § 462.357 subd. 6., requires proof of the property not being usable, that the landowner is in a difficult spot because the structure was in place before the property was bought, and the essential character of the neighborhood would not be altered.

The City urged that the “reasonable manner” standard set forth in the Minnesota Court of Appeals case of Rowell v. Board of Adjustment of Moorhead. was used, and is an appropriate interpretation of state law.  It claimed the variance was a reasonable request because of the overall topography of the land. The Minnesota Supreme Court, however, declined to follow the lead of the Court of Appeals in Rowell.  It pointed out that the plain language states that the property must show that it cannot be put to “reasonable use” without the variance.  The Supreme Court looked to a decision in Stadsvold where they defined the difference between “undue hardship” which applies to Minnesota municipalities, and “practical difficulties” which applies to area variances in Minnesota counties. This distinction does not leave any room for the “reasonable manner” standard from Rowell. Instead the precedent from Curry v. Young is the correct to use, which establishes a more rigorous standard for “undue hardship.”  Thus the “reasonable manner” standard used by the City, although it has been used for over 20 years, cannot continue to be used.  The Court explained:

We recognize that the Rowell “reasonable manner” standard represents a longstanding interpretation of the undue hardship standard in Minn. Stat. § 462.357, subd. 6, and that Minnesota municipalities have been granting variances under the “reasonable manner” standard for many years. We also recognize that our decision will result in a restriction on a municipality’s authority to grant variances as compared with the “reasonable manner” standard. But whatever value we may find in a more flexible standard, particularly with regard to area variances, we cannot ignore the plain language of the statute. See State v. Peck, 773 N.W.2d 768, 773 (Minn. 2009) (“We have no opportunity to ignore part of the legislature’s definition.”). We are unable to interpret the statutory language to mean anything other than what the text clearly says—that to obtain a municipal variance, an applicant must establish that “the property in question cannot be put to a reasonable use if used under conditions allowed by the official controls.” Minn. Stat. § 462.357, subd. 6. Therefore, unless and until the legislature takes action to provide a more flexible variance standard for municipalities, we are constrained by the language of the statute to hold that a municipality does not have the authority to grant a variance unless the applicant can show that her property cannot be put to a reasonable use without the variance.

Board of adjustment given substantial latitude in interpreting county ordinance

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.





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