State Ex Rel. Ziervogel v. Washington County Board of Adjustment

2003 WI App 82, 661 N.W.2d 884, 263 Wis. 2d 321, 2003 Wisc. App. LEXIS 307

• Court: Court of Appeals of Wisconsin
• Decided: March 26, 2003
• Docket: 02-1618
• Status: Published

Opinions

SNYDER, J.

¶ 1. Richard W Ziervogel and Maureen A. McGinnity appeal from an order of the circuit court denying their petition for certiorari review of the Washington County Board of Adjustment's denial of their request for a zoning variance. Ziervogel and McGinnity argue that the Board ignored the standards set forth in State v. Outagamie County Board of Adjustment, 2001 WI 78, 244 Wis. 2d 613, 628 N.W.2d 376, and State v. Kenosha County Board of Adjustment, 218 Wis. 2d 396, 577 N.W.2d 813 (1998), and proceeded on an incorrect theory of law and that its decision was arbitrary and unreasonable. We disagree and conclude that the Board applied the proper standard of review in denying Ziervogel and McGinnity's request for a variance. We therefore affirm the order of the circuit court.

FACTS

¶ 2. Ziervogel and McGinnity own a house on a 1.4 acre lot with approximately 200 feet of shore frontage on Big Cedar Lake in Washington county. While they originally purchased the home as a summer home, they now wish to move there year-round and propose construction of a 10-foot vertical expansion to add bedroom, bathroom and office space. It is questionable whether this is a second- or third-floor addition to the house.

¶ 3. The house has a legally nonconforming setback of 26 feet from the ordinary high watermark and Ziervogel and McGinnity claim that notwithstanding the size of the lot, the house is located on the only area suitable for building. At the time Ziervogel and McGin-nity purchased the property, the property conformed to all zoning ordinances. However, in June 2001, Washington county amended the relevant ordinance, § 23.13(3)(d) of the Shoreland, Wetland and Floodplain Zoning section of the Washington County Code, to prohibit any expansion of any portion of an existing structure within 50 feet of the ordinary high watermark. Ziervogel and McGinnity's entire home is within 50 feet of the ordinary high watermark.

¶ 4. Around the beginning of September 2001, Ziervogel and McGinnity applied to the Washington county zoning administrator for a permit to construct their proposed addition. The zoning administrator denied the permit based on § 23.13(3)(d).

¶ 5. After a denial of this permit application, Ziervogel and McGinnity applied to the Board for a variance, in addition to a zoning permit to the Washington County Planning and Parks Department. The Board met on October 22, 2001, and conducted a public hearing on Ziervogel and McGinnity's request for a variance to build the addition to the home. At the hearing, a letter from the Department of Natural Resources recommending the Board deny the variance request was submitted and read into the record.

¶ 6. The Planning and Parks Department did not disagree with the DNR. The assistant administrator of the Planning and Parks Department, Herb Wolf, discussed the adoption of the Washington county shore-land ordinance, which became effective June 1, 2001. Wolf read into the record the definition of "unnecessary hardship" as defined in the Washington County Code.

¶ 7. Ziervogel and McGinnity argued before the Board that their requested variance would not impair the public's interest; the proposed addition would not expand their legally nonconforming use because the proposed addition was a strictly vertical expansion. Ziervogel and McGinnity further argued that the expansion would not affect anyone else's enjoyment of the lake, the neighbors on both sides did not object and there was adequate existing tree cover to block the view of the proposed addition from the lake.

¶ 8. The Board unanimously voted to deny Zier-vogel and McGinnity's variance request, concluding that denial of the variance "would not make [the] property useless." Ziervogel and McGinnity filed an action for certiorari review of the Board's decision. The circuit court upheld the Board's decision. Ziervogel and McGinnity appeal.

DISCUSSION

¶ 9. On certiorari review, we limit our review to (1) whether 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 Board might reasonably make the order or determination in question, based on the evidence. Kenosha County, 218 Wis. 2d at 410-11. In this case, Ziervogel and McGinnity's challenge focuses on the last three criteria.

¶ 10. Ziervogel and McGinnity's basic argument is that both Kenosha County and Outagamie County require a test to determine if the variance should be granted and that the Board failed to utilize this test. Ziervogel and McGinnity first argue that both Kenosha County and Outagamie County require a balancing test, balancing the public interest and the purpose of the zoning ordinance against the rights of the property owner. However, Ziervogel and McGinnity also argue that Kenosha County and Outagamie County both set forth a two-part test: (1) whether the proposed variance violates the purpose of the zoning ordinance at issue and (2) a determination of whether the property owners have any reasonable use of the property if the variance is denied (i.e., the "no reasonable use" standard). Ziervogel and McGinnity argue that it is only after a determination that the requested variance is in conflict with the public interest that the "no reasonable use" standard applies; ih other words, if the Board were to determine that the requested variance is not in conflict with the public interest, then the Board need not reach the "no reasonable use" step. We disagree that either of the two tests advanced by Ziervogel and McGinnity has been established by case law.

¶ 11. We must first address Ziervogel and McGinnity's extensive reliance on Outagamie County. Only a small portion of Outagamie County is of any precedential value and the portion with precedential value in no way overruled or invalidated the provisions of Kenosha County. As Ziervogel and McGinnity correctly note in their brief, the Outagamie County court issued multiple decisions. The lead opinion was authored by Justice Sykes, joined in the opinion's entirety by Justices Bablitch and Prosser. Outagamie County, 2001 WI 78 at ¶¶ 1, 5 n.1. These three justices voted to overrule Kenosha County. Outagamie County, 2001 WI 78 at ¶ 5.

¶ 12. However, in a concurring opinion, Justices Crooks and Wilcox disagreed it was necessary to overrule Kenosha County and deferred to the principle of stare decisis. Outagamie County, 2001 WI 78 at ¶ 5 nn.2 & 3, ¶ 71. Justices Crooks and Wilcox joined only in sections IV and V of the lead opinion. Outagamie County, 2001 WI 78, ¶ 5 nn.2 & 3. Justices Abrahamson and Bradley dissented. Id. at ¶¶ 119-150.

¶ 13. Although Outagamie County may contain relevant discussions, only majority opinions of the court have any precedential value. See Doe v. Archdiocese of Milwaukee, 211 Wis. 2d 312, 334 n.11, 565 N.W.2d 94 (1997). Thus, in Outagamie County, the only portions that have any precedential value are sections IV and V neither of which addresses the issue before us.¹ We conclude that our analysis is governed by the standards set forth in Kenosha County.

¶ 14. Wisconsin has a long history of protecting its water resources, its lakes, rivers and streams, which depend on wetlands for their proper survival. Kenosha County, 218 Wis. 2d at 406. To ensure this protection, the legislature has authorized the DNR to develop water conservation standards and to disseminate these general recommended standards and criteria to local municipalities. Id. The purpose of state shoreland zoning standards is to further the maintenance of safe and healthful conditions; prevent and control water pollution; protect spawning grounds, fish and aquatic life; control building sites, placement of structure and land uses; and reserve shore cover and natural beauty. Id. The basic purpose of a shoreland zoning ordinance is to protect navigable waters and the public rights therein from the degradation and deterioration which result from uncontrolled use and development of shorelands. Id.

¶ 15. The State, through an enabling statute, Wis. Stat. § 59.694(7) (1999-2000),² has given county boards of adjustment the power to grant exceptions to zoning regulations known as "variances." The boards are empowered

[t]o authorize upon appeal in specific cases variances from the terms of the ordinance that will not be contrary to the public interest, where, owing to special conditions, a literal enforcement of the provisions of the ordinance will result in unnecessary hardship, and so that the spirit of the ordinance shall be observed and substantial justice done.

Sec. 59.694(7)(c); see also Kenosha County, 218 Wis. 2d at 406-07.

¶ 16. Washington county has authorized the use of that state-granted power by its Board of Adjustment through the portion of the Washington County Code addressing Shoreland, Wetland and Floodplain Zoning, which reads, in part:

Uncontrolled use of the shorelands, damage to wetlands, and uncontrolled development and use of the floodplains, lakes, ponds, flowages, rivers or streams of Washington County and pollution of the navigable waters and all land within the shorelands, wetlands and floodplains of Washington County would adversely affect the public health, safety, convenience, and general welfare and impair its tax base. The Legislature of Wisconsin has delegated responsibility to the Counties to further the maintenance of safe and healthful conditions; prevent and control water pollution; protect spawning grounds, fish and aquatic life; control placement of structures and land uses; to preserve shore cover and natural beauty; and to provide sound floodplain management and regulations for all floodplains within unincorporated areas of the County. This responsibility is hereby acknowledged by Washington County, Wisconsin.

Washington County Code § 23.01(2). These ordinances were established "[flor the purpose of promoting the public health, safety, convenience, welfare and to provide a uniform basis for the preparation, implementation and administration of sound shoreland, wetland, and floodplain regulations for all unincorporated areas of the County.. . ." Washington County Code § 23.01(3).

¶ 17. The Washington County Code sets out more fully several standards and guidelines for the Board to consider in determining whether to grant a variance:

Any deviation from the standards of this chapter, for which a County permit has been denied by the administrator, may be allowed only upon written request for a variance submitted to the administrator, after a public hearing and the issuance of a variance by the County Board of Adjustment. The Board may authorize in specific cases such variance from the terms of the chapter as will not be contrary to the public interest where, owing to special conditions affecting a particular property, a literal enforcement of the provisions of this chapter would result in unnecessary hardship as defined in sub. 23.18(77). A variance shall:

1. Be consistent with the spirit and purpose of this chapter as stated in sub. 23.01(3).

2. Not permit a lower degree of flood protection in the floodway area than the flood protection elevation, as defined in sub. 23.18(32). In the floodfringe area, a lower degree of flood protection than the flood protection elevation may only be allowed pursuant to sub. 23.13(5) (b).

3. Not be granted because of conditions that are common to a group of adjacent lots or premises. (In such a case, the zoning ordinance would have to be amended following proper procedures.)

4. Not be granted unless it is shown that the variance will not be contrary to the public interest and will not be damaging to the right of other persons or property values in the area.'

5. Not be granted for actions which require an amendment to this chapter or the map(s) described in sub. 23.02(4).

6. Not have the effect of granting or increasing a use of property which is prohibited in a particular zoning district.

7. Not be granted solely on the basis of economic gain or loss.

8. Not be granted for a self-created hardship.

9. Be consistent with soil and water conservation practices when no reasonable alternative exists. An example would be an animal waste control project where existing structures are already nonconforming.

10. Not allow any alteration of an historic structure, including its use, which would preclude its continued designation as an historic structure.

Washington County Code § 23.15(6)(e) (emphasis added).

¶ 18. The language used in the county ordinance setting forth the conditions under which variances may be granted is virtually identical to the language used in the statute providing for variances. Both the statute and the ordinance specify that a variance may be granted only where it is not "contrary to the public interest." Wis. Stat. § 59.694(7)(c); Washington County Code § 23.15(6)(e). The legislature has defined the public's interest in restricting shoreland development as several interests, including maintaining health and safety, minimizing pollution, sustaining aquatic life and preserving natural beauty. Kenosha County, 218 Wis. 2d at 407-08.

¶ 19. In addition, both the statute and the Washington county ordinance specify that the variance applicant must demonstrate "special conditions" to justify granting the variance and both specify that a variance applicant must demonstrate "unnecessary hardship" to justify receiving the variance. However, only the Washington County Code defines the latter term:

Any unique and extreme inability to conform to the provisions of this chapter due to special conditions affecting a particular property which were not self-created and are not solely related to economic gain or loss. Unnecessary hardship is present only where, in the absence of a variance, no reasonable use can be made of the property.

Washington County Code § 23.18(78) (emphasis added).

¶ 20. Again Ziervogel and McGinnity argue both that the Board should have conducted a balancing test, balancing the public interest and the purpose of the zoning ordinance against the rights of the property owner, and that the Board should have engaged in a two-part test, first determining whether the proposed variance conflicts with the purpose of the zoning ordinance at issue and then determining whether the property owners have any reasonable use of the property if the variance is denied. Ziervogel and McGinnity misinterpret the holding of Kenosha County.

¶ 21. Nothing in Kenosha County supports the contention that the Board must first determine whether the requested variance conflicts with the public purposes behind the shoreland setback restrictions and if it does not, the Board need not reach the "no reasonable use" test. Such an interpretation conflicts with both the clear language in Kenosha County and in the Washington county ordinance that requires "no reasonable use" of the property as a precondition for obtaining a variance.

¶ 22. The Kenosha County court explicitly stated numerous times throughout the opinion that "[b]oth the statute and the ordinance specify that a variance applicant show 'unnecessary hardship' to justify receiving the variance." Kenosha County, 218 Wis. 2d at 409. The Kenosha County court unequivocally concluded that "unnecessary hardship requires that the property owner demonstrate that without the variance, he or she has no reasonable use of the property." Id. at 398.

¶ 23. While the purpose of the zoning ordinance should not be lost in the determination of whether to grant a variance, the proper test is whether a feasible use is possible without the variance. Id. at 413. When the record before the Board demonstrates that the property owner would have a reasonable use of his or her property without the variance, the variance request should be denied. Id. at 414.

¶ 24. The purposes of zoning laws demand that variances be granted sparingly and Kenosha County states that "[o]nly when the applicant has demonstrated that he or she will have no reasonable use of the property, in the absence of a variance, is an unnecessary hardship present." Id. at 421.

¶ 25. The unambiguous holding of Kenosha County does not require a balancing test or a two-part test; we cannot read Kenosha County any other way but to conclude that a successful variance applicant must prove that he or she has no reasonable use of the property without the requested variance. Subsequent case law has interpreted Kenosha County the same:

Kenosha County Board of Adjustment instructs that an "unnecessary hardship" can be found only if the applicant has demonstrated that no reasonable use of the property exists without a variance. In other words, the burden is on the applicant to demonstrate through the evidence that without the variance he or she is prevented from enjoying any reasonable use of his or her property.

State ex rel. Spinner v. Kenosha County Bd. of Adjustment, 223 Wis. 2d 99, 107, 588 N.W.2d 662 (Ct. App. 1998) (citation omitted).

¶ 26. Assuming that Kenosha County established a balancing or two-part test, which we cannot, and that Ziervogel and McGinnity's request met the requirements of said test, their variance request would still fail pursuant to the terms of the Washington County Code. Washington County Code § 23.15(6)(e) specifically states, "The Board may authorize in specific cases such variance ... as will not be contrary to the public interest where ... a literal enforcement of the provisions of this chapter would result in unnecessary hardship as defined in sub. 23.18(7[8])."³ Washington County Code § 23.18(78) concludes that "unnecessary hardship" exists "only where, in the absence of a variance, no reasonable use can be made of the property."

¶ 27. The standards established by the State are only the reasonable minimum standards required by counties; counties in this state have broad authority to zone shoreland areas in a manner that is more restrictive than the minimum standards set forth by the DNR. County of Adams v. Romeo, 191 Wis. 2d 379, 384 n.1, 528 N.W.2d 418 (1995); see also Wis. Admin. Code § NR 115.01(1).

¶ 28. The Washington County Code makes no provision for any balancing or two-part test; a variance applicant can only receive a variance where a denial of a variance, leads to no reasonable use of the property. Ziervogel and McGinnity have not met this burden.

CONCLUSION

¶ 29. Contrary to Ziervogel and McGinnity's assertions, Kenosha County does not establish a balancing test or two-part test for determining whether to grant or deny a variance request. Both Kenosha County and the Washington County Code conclude that a successful variance applicant must prove that he or she has no reasonable use of the property without the requested variance. Ziervogel and McGinnity still have reasonable use of their property and the Board properly denied their request for a variance.

By the Court. — Order affirmed.

1 Section TV addressed whether Wis. Admin. Code § NR 116.13 forecloses the issuance of a variance in that case and section V addressed whether the issuance of the variance was consistent with the procedures and standards of the Outagamie County Shoreland/Floodplain/Wetland Zoning Ordinances. State v. Outagamie County Bd. of Adjustment, 2001 WI 78, ¶¶ 54-67, 244 Wis. 2d 613, 628 N.W.2d 376. Thus, Outagamie County is of no precedential value to us here.

2 All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

3 Washington County Code § 23.15(6) (e) refers to § 23.18(77) for the definition of unnecessary hardship; however, unnecessary hardship is actually defined in § 23.18(78).