Arndorfer v. Sauk County Board of Adjustment

453 N.W.2d 168, 154 Wis. 2d 333, 1990 Wisc. App. LEXIS 66
CourtCourt of Appeals of Wisconsin
DecidedJanuary 11, 1990
DocketNo. 89-0603
StatusPublished

This text of 453 N.W.2d 168 (Arndorfer v. Sauk County Board of Adjustment) is published on Counsel Stack Legal Research, covering Court of Appeals of Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Arndorfer v. Sauk County Board of Adjustment, 453 N.W.2d 168, 154 Wis. 2d 333, 1990 Wisc. App. LEXIS 66 (Wis. Ct. App. 1990).

Opinions

DYKMAN, J.

The Sauk County Board of Adjustment appeals from a judgment reversing the Board's decision denying the Arndorfers' request for a variance to construct a holding tank sewage system on their land. The issue is whether the Board's denial of the variance was arbitrary, oppressive or unreasonable. We conclude it was not. Therefore, we reverse the trial court's judgment with instructions to reinstate the decision of the Board.

BACKGROUND

In 1983, Ronald and Joan Arndorfer bought a 109 acre farm in the Town of Winfield, Sauk county, to be used as a recreation and hunting retreat. They improved the land and built living quarters. Soil tests indicated that a septic tank and drainfield could not be used. Moreover, because the Arndorfers' land was serviced by running water, a privy was prohibited under state regulations. The Arndorfers installed a holding tank sewage system.

Pursuant to secs. 25.08(3)(g)(2)1 and 25.09(2)(e)(3)2 of the Sauk County Private Sewage System Ordinance, [336]*336the Arndorfers sought a variance for the holding tank. Section 25.08(3) (g)(2) of the Ordinance prohibits the use of holding tanks to serve new construction, except where a sanitary district has been formed. Section 25.09(2)(e)(3) of the Ordinance provides that the Board has the power to grant a variance on, among other things, a showing of unnecessary hardship.

In July, 1987, the Arndorfers appealed to the Board for a variance. The Board held a public hearing and later unanimously denied the request for the variance. The Board found that the Arndorfers had not shown unnecessary hardship; that soil conditions on their land were not unique to the area; and that they might be able to use a more conventional system of sewage disposal.

Pursuant to sec. 59.99(10), Stats.,3 the Arndorfers petitioned for certiorari review of the Board's decision. No transcript of the public hearing was available due to [337]*337technical problems with the tape recorder. Consequently, the parties supplemented the written record by stipulating to certain facts. Among other things, the parties stipulated that "due to on-site conditions, a privy or holding tank constitute the only types of private sewage systems available to service Petitioners' dwelling on the subject premises under applicable regulations" and that "insofar as Petitioner's dwelling on the subject premises is served by running water, a privy is not allowed under applicable regulations."

The circuit court reversed the Board's decision, concluding that the Arndorfers had shown unnecessary hardship and were entitled to a variance. The court found the denial of the variance unreasonable given that the Arndorfers' sewage disposal problems were due to characteristics unique to the property and that they had no alternative but to use a holding tank or else violate other regulations by not installing a sewage system.

STANDARD OF REVIEW

On appeal from a judgment or order entered on cer-tiorari, we do not review findings of the circuit court. We review the record of the board to which certiorari is directed. State ex rel. Harris v. Annuity & Pension Board, 87 Wis. 2d 646, 651, 275 N.W.2d 668, 671 (1979). When the circuit court does not take evidence, the common-law certiorari standard of review applies. Klinger v. Oneida County, 149 Wis. 2d 838, 843, 440 N.W.2d 348, 350 (1989). Review is limited to "(1) [w]hether the board kept within its jurisdiction; (2) whether it proceeded on a correct theory of law; (3) whether its action was arbitrary, oppressive or unreasonable and represented its will and not its judgment; and (4) whether the evidence was such that it might reasonably make the order or determi[338]*338nation in question." St. ex rel. Brookside v. Jefferson Bd., 131 Wis. 2d 101, 120, 388 N.W.2d 593, 600-01 (1986).

In Klinger, 149 Wis. 2d at 845-46, 440 N.W.2d at 351, the supreme court declined to identify the proper standard of review when the circuit court takes evidence the board did not receive on an issue going to the merits of the board's decision. We do not reach that question here.

At trial, the parties supplemented the record before the Board by stipulating to certain facts. We need not determine whether, by accepting the stipulation, the court was "taking evidence" within the meaning of sec. 59.99(10), Stats. For the purposes of this appeal, the stipulation is irrelevant. We resolve the dispositive issue based on the written record the Board received. We review that record to determine whether the denial of the variance was arbitrary, oppressive, or unreasonable.

DISCUSSION

Section 25.09(2).(e)(3) of the Ordinance sets forth three requirements for granting a variance from the holding tank prohibition:

(1) Strict enforcement of the Ordinance will result in unnecessary hardship;
(2) The variance cannot be contrary to the public interest; and
(3) The variance cannot offend the spirit of the Ordinance.

The issue is whether the Arndorfers have met their burden of showing unnecessary hardship.

[339]*339Under Wisconsin law, use and area variances require a showing of unnecessary hardship.4 See sec. 59.99(7)(c), Stats.5 (variances from county ordinances allowed on showing of "unnecessary hardship"). The supreme court discussed the unnecessary hardship standard in Snyder v. Waukesha County Zoning Board, 74 Wis. 2d 468, 247 N.W.2d 98 (1976).6 The Snyder court said that whether unnecessary hardship exists is "best explained as '[w]hether compliance with the strict letter of the restrictions . . . would unreasonably prevent the owner from using the property for a permitted purpose or would render conformity with such restrictions unnecessarily burdensome.'" Id. at 475, 247 N.W.2d at [340]*340102 (quoting 2 Rathkopf, The Law of Zoning and Planning, 45-28 (3rd ed. 1972)).

The Snyder court recognized that unnecessary hardship also requires landowners to show that the conditions creating the hardship are unique to their land. Snyder, 74 Wis. 2d at 477-79, 247 N.W.2d at 103-04. The uniqueness requirement is only briefly mentioned in Snyder. Because the court held that the hardship was self-created, it did not need to consider whether Snyder's plight was unique. While no other Wisconsin decision has discussed uniqueness, authorities uniformly recognize that the hardship complained of must be unique to the owner's land. See e.g., 3 Rathkopf, The Law of Zoning and Planning, sec. 38.03[3] at 38-31 (release No. 27, 2/88) ("[I]t seems indisputable that in order to be 'unnecessary' a hardship must uniquely affect the land for which the variance is applied.").

If the hardship is common to the area or neighborhood, then the zoning restrictions are likely unreasonable. 8 McQuillin, Municipal Corporations, sec.

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Related

Schalow v. Waupaca County
407 N.W.2d 316 (Court of Appeals of Wisconsin, 1987)
State Ex Rel. Harris v. Annuity & Pension Board
275 N.W.2d 668 (Wisconsin Supreme Court, 1979)
Klinger v. Oneida County
440 N.W.2d 340 (Wisconsin Supreme Court, 1989)
Snyder v. Waukesha County Zoning Board of Adjustment
247 N.W.2d 98 (Wisconsin Supreme Court, 1976)
State ex rel. Markdale Corp. v. Board of Appeals
133 N.W.2d 795 (Wisconsin Supreme Court, 1965)

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Bluebook (online)
453 N.W.2d 168, 154 Wis. 2d 333, 1990 Wisc. App. LEXIS 66, Counsel Stack Legal Research, https://law.counselstack.com/opinion/arndorfer-v-sauk-county-board-of-adjustment-wisctapp-1990.