Lamar Central Outdoor, Inc. v. Board of Zoning Appeals of the City of Milwaukee

2005 WI 117, 700 N.W.2d 87, 284 Wis. 2d 1, 2005 Wisc. LEXIS 361
CourtWisconsin Supreme Court
DecidedJuly 12, 2005
DocketCase No. 2001AP3105
StatusPublished
Cited by28 cases

This text of 2005 WI 117 (Lamar Central Outdoor, Inc. v. Board of Zoning Appeals of the City of Milwaukee) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lamar Central Outdoor, Inc. v. Board of Zoning Appeals of the City of Milwaukee, 2005 WI 117, 700 N.W.2d 87, 284 Wis. 2d 1, 2005 Wisc. LEXIS 361 (Wis. 2005).

Opinions

DAVID T. PROSSER, J.

¶ 1. This is a review of an unpublished decision of the court of appeals, Lamar Central Outdoor, Inc. v. Board of Zoning Appeals, No. 2001AP3105, unpublished order (Wis. Ct. App. June 17, 2003). In a summary disposition, the court of appeals held that the Board of Zoning Appeals of the City of Milwaukee (the Board) failed to reasonably exercise its discretion when it denied Lamar Central Outdoor, Inc.'s (Lamar's) application for a dimensional area variance to raise the height of a billboard. The Board sought review in this court, and we now affirm because the Board did not proceed on the correct theory of law and because it failed to adequately express the reasoning on which it based its decision.

¶ 2. The Board considered Lamar's application on March 22, 2001. Since then, this court has issued three major decisions1 relating to the law of zoning variances. In light of the revised standards we announced in those [5]*5cases, and through no fault of its own, the Board did not proceed on the correct theory of law.

¶ 3. We also conclude that the record does not show that the Board reasonably exercised its discretion. We are sympathetic to the Board's concern, echoed in the amicus brief of the League of Wisconsin Municipalities, that many board members are not lawyers and cannot be expected to produce a finely tuned piece of legal reasoning in each case. Nevertheless, this Board like other boards must provide enough reasoning to allow a court to meaningfully review its decision. This reasoning need not be embodied in a written decision as long as it is reflected in a transcript of the proceedings.

¶ 4. Therefore, we remand the cause to the circuit court for entry of an order directing the Board to reconsider and, if necessary, rehear and decide this matter in conformance with the new standards governing area variances. On remand, the Board must apply the appropriate legal standards and adequately express the reasons for its decision on the record.

I. FACTS

¶ 5. Lamar leases property adjacent to Interstate Highway 43 (1-43) in Milwaukee for the purpose of maintaining an "outdoor advertising structure."2 The structure is currently 34 feet high and is intended to be visible to northbound and southbound traffic on 1-43. At some point in the past, the Wisconsin Department of Transportation (WDOT) planted trees between the structure and 1-43 to serve as a noise barrier. The trees have since grown tall enough to partially obstruct the structure as viewed from 1-43.

[6]*6¶ 6. At first, Lamar attempted to resolve the problem by asking WDOT to trim the trees.3 Unable to convince the WDOT to act, Lamar elected to try to raise the structure above the treetops. Lamar calculated that to be visible above the trees, the height of the structure had to increase 20 feet, to a total of 54 feet high. As the Milwaukee Code of Ordinances limits the maximum height of such structures to 40 feet, Lamar needed an area variance in order to lawfully increase the structure's height beyond the maximum height permitted by the zoning code. Lamar therefore requested an area variance from the Department of City Development (DCD). DCD denied that request.4 On February 7, 2001, Lamar appealed DCD's denial by filing an application with the Board requesting a dimensional variance to increase the height of the structure to 54 feet.

¶ 7. The Board's hearing on Lamar's application took place on March 22,2001. At the hearing, the Board gave representatives from several City of Milwaukee (City) departments the opportunity to comment on Lamar's application. The DCD had the first opportunity to comment, and its representative stated:

[W]e do oppose the variance request to raise this above the 40 foot height limit. We do not see that spirit and intent have been made. It just adds, you know, the [7]*7ordinance is designed to keep the signs at a — a height. We do not see any exceptional circumstances here that merit that.

¶ 8. The Department of Neighborhood Services and Department of Public Works also had the opportunity to comment, but did not. The Secretary of the Board noted that the local alderman had no opposition to the application.5

¶ 9. Lamar's representatives attempted to convince the Board to grant the variance. First, they presented the Board with several photographs of the property, showing the structure both before and after it became obscured by the trees. Next, Lamar presented the Board with several maps of the area surrounding the sign. One of the maps showed nearby locations at which the Board had approved variances for signs up to 100 feet high.

¶ 10. After Lamar's presentation, the Board discussed the application. As the Board's discussion is critical to our holding, we reproduce substantial portions of its debate:

BOARD MEMBER WINKLER: My comment to the board is that I think this is a perfect case that illustrates a hardship. This has been a convincing presentation to me. I think the original intent or the idea of... a hardship was to relieve a landowner from ... the diminished use of the property because of the configuration of the property. Now, here we have a little variance on that. It's ... the location of the property that's become isolated. It's not the shape of the property itself, although I think the way in which to read ... the variance requirement... of a hardship as it currently [8]*8applies to this property. We are faced with a very strong case of a hardship. That would he my comment.
CHAIRMAN ZETLEY: Further comments, questions?
BOARD MEMBER SZYMANSKI: I guess I'm not really in agreement with you on that one, Scotty. The applicant is citing some existing signage that we should use as a precedent to allow this advertising to be increased in height[ ]. Existing signage, I would hope, would further be diminished. Again, I'm not a sign aficionado. I would agree with... Mr. Richardson's comments that the spirit and intent has not been ... met. And I think the hardship also has not been met, because it is intended to wind up generating some additional revenue for this facility... I'm ... not of the — on the same side of the coin as you are, Scotty.
BOARD MEMBER WINKLER: I just think with the nature of the signs.... Signs always have two purposes. One to generate revenue, and one to make itself known, make itself visible. I don’t know what else you can do with a sign. And so if you can't go to surrounding signs as examples and then, also, illustrate as they have historically, how the property has become isolated and tree covered through no fault of their own. It's not self-imposed. And economics are always going to be ... an element of the presentation for a hardship in sign cases.
CHAIRMAN ZETLEY: But then, if that's the case, then it can't be met according to the standard.
BOARD MEMBER WINKLER: Well, I—
CHAIRMAN ZETLEY: You're arguing that, and that's — If they can't have revenue on the sign, that's a revenue issue. That's not — That doesn't meet the height — hardship criteria. Specifically, in the ... criteria it says it can't be based solely on economic criteria.
[9]

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Bluebook (online)
2005 WI 117, 700 N.W.2d 87, 284 Wis. 2d 1, 2005 Wisc. LEXIS 361, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lamar-central-outdoor-inc-v-board-of-zoning-appeals-of-the-city-of-wis-2005.