Posted by: Patricia Salkin | June 8, 2009

Wisconsin Appeals Court Discusses Distinction Between Use and Area Variances

Driehaus owns more than seventeen acres of property, with over six hundred feet of frontage on Geneva Lake. The property is zoned C-2, Upland Resource Conservation District and included two residences and an eight-car garage. The garage was built in 1906 and is located less than three feet from the property’s boundary line. The Walworth County Shoreland Zoning Ordinance (shoreland ordinance) requires a twenty-foot minimum side yard setback for all dwellings in a C-2 zoning district. In 1999, Driehaus applied for a building permit to make certain improvements to the garage and convert the upper portion storage area to a single-family residence but the permit was denied because the shoreland ordinance only allows one principal structure to be located on a lot. Driehaus then filed an application for a zoning permit to “rehab” the existing two-story garage with the County and was again unsuccessful.

 On April 5, 2000, Driehaus filed an application with the County zoning committee for a conditional use permit (CUP) for a planned residential development for three dwellings. The zoning committee voted to conditionally approve the CUP; however, one of the conditions imposed was that Driehaus obtain all required zoning permits, including a variance to the twenty foot lineal side yard setback requirement found in the shoreland ordinance. The zoning committee then decided to hold further proceedings and to make its own decision on the variance and did not refer the matter to the Board of Adjustment. The committee held a hearing on the variance and voted to grant Driehaus a variance to the twenty foot lineal side yard setback requirement. The neighboring property owners then filed a lawsuit challenging the zoning committee’s decision to grant the variance.

 The circuit court dismissed the lawsuit but was overturned in an earlier Court of Appeals decision. The Court of Appeals in the earlier action held that the zoning committee had no jurisdiction to consider the variance and sent the case back to the County for a decision on the variance by the Board of Adjustment. The Board of Adjustment denied the variance. Driehaus then challenged the Board’s denial of the variance. The Circuit Court upheld the denial. Driehaus then appealed the Circuit Court’s decision to the Court of Appeals. On appeal, Driehaus argued that the Board applied the wrong legal rule to the facts of the case. Rather than focus on the dimensional aspects of the variance, he asserts, the Board denied his petition based on the proposed use of the property. Under State ex rel. Ziervogel v. Washington County Bd. of Adjustment, 2004 WI 23, 269 Wis. 2d 549, 676 N.W.2d 401, the standard for granting an area variance is “unnecessarily burdensome” while the standard for granting a use variance is the more stringent “no reasonable use” standard.

 The Court of Appeals did not agree that the Board applied the wrong standard. The Court of Appeals noted that under Ziervogel, use can be a factor in the board of adjustment’s consideration of area variances. The Court of Appeals then went on to note that in this case the Board’s decision rested on several findings, including: (1) the garage could continue to be used for storage as it has been without a variance, (2) the “hardship” of needing another dwelling was self-created and of a personal nature, (3) the setback requirements were not unnecessarily burdensome to Driehaus’ 17.91 acre lakeshore estate, (4) the detriment to the neighboring properties was apparent, and (5) a variance under these facts would undermine the purpose of the zoning law. The Court of Appeals upheld the variance concluding that the Board’s findings represented an appropriate application of the law to a reasonable view of the facts, and its decision was neither oppressive nor arbitrary. 

Driehaus v. Walworth County, 2009 WL 839027 (Wis. App. 4/1/2009).

 The opinion can be accessed at:

 This abstract was prepared by Prof. Brian Ohm for the Wisconsin Chapter of the American Planning Association (April 2009 caselaw update).

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