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COURT OF APPEALS DECISION DATED AND FILED August 21, 2001 Cornelia G. Clark Clerk of Court of Appeals |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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APPEAL from a judgment of the circuit court for Rusk County: eugene d. harrington, Judge. Affirmed.
Before Hoover, P.J., Peterson and Vergeront, JJ.
¶1 HOOVER, P.J. Donivan and Karen Molitor appeal a judgment that affirmed the Rusk County Board of Adjustment’s decision to deny their request for a side yard setback variance. They argue that the board failed to follow proper procedure, its decision was not supported by the evidence and it erroneously applied the law. We disagree and affirm the judgment.
STATEMENT OF THE CASE
¶2 The
Molitors own a parcel of land sixty-feet wide located on the Lake Holcombe
Flowage. The County concedes that the
ordinance governing setbacks and permissible lot widths was amended after the
Molitors’ property was created.[1] The ordinance now requires the side yards to
be a minimum of fifteen feet each, and the combined side yards must equal
thirty-five feet. Rusk County, Wis., Rev. Ordinances 17.57 SW-1
§ 4.02 (1998). The minimum
lot width is now 100 feet. Id.
at § 4.01. The County does not
dispute that these amendments made the entire subdivision, of which the Molitor
property was a part, nonconforming.
¶3 On
August 6, 1998, the Molitors applied for and were issued a land use permit to
build an addition to their home and a garage.
Because the structure/house was a prior nonconforming use, the zoning
technician, Yvonne Johnson, issued the permit under § 10.15, which provides:
No
structural alteration, addition or repair to any building or structure with a
nonconforming use or any nonconforming building or structure, over the life of
the building or structure, shall exceed 50 percent of its current real estate
tax equalized fair market value for that year to be applied to all future
improvements, unless it is permanently changed to conform to the requirements
of this ordinance.
Johnson reasoned:
According
to my calculations, your fair market value on the home is $52,395. This makes your 50% dollar amount
26,197. Using the estimates that you
have provided me, I have calculated that the amount of the proposed improvement
will be $4,039. This amount will be
applied to the 50% that you are allowed to spend which will leave you $22,158
to use for future additions or structural improvements.
If
there are changes to the project which will affect the 50% amount, please
contact the zoning office so I can make the necessary changes to the permit on
file.
¶4 On
September 14, 1998, the Molitors sought to modify their permit because they
decided to enlarge the addition to their house. The new zoning administrator, CeCe Teske, reviewed the
request. She discovered that a previous
addition had been added to the nonconforming structure in 1995 and concluded
that the base line for the 50% value should have been established in 1995
instead of 1998. She found that the
1995 permit erroneously listed the addition and house as meeting the
fifteen-foot setbacks. Teske testified
that the Molitors, and not a survey, provided the previous zoning administrator
with the property line landmarks. The
board found the same fact. Teske
visited the site and measured the distances.
She determined that the actual distance from the lot line to the house
was at or less than thirteen feet. The
survey that was later completed confirmed that the building was 12.2 feet from
the property line. She also found that
the 1995 addition was twice as large as permitted.
¶5 After
discussing the situation with Donivan, Teske reported that he suggested
removing the additions from the house and adding them to the garage he planned
to build on the property. Teske
approved this solution on October 26, 1998.
¶6 The
Molitors later decided that they were not satisfied with this solution and
applied for a variance. After a public
hearing, the Rusk County Board of Adjustment denied the request. The board applied the standards found
§ 11.5 of the ordinance:
The
board of adjustment may grant upon application a variance from the dimensional
standards of this ordinance where an applicant convincingly demonstrates that:
1. Literal enforcement of the provisions of the
ordinance will result in unnecessary hardship on the applicant;
2. The hardship is due to special conditions
unique to the property;
3. Such variance is not contrary to the public
interest ….
The board unanimously concluded that enforcement of the ordinance
would not result in unnecessary hardship and that the hardship claimed was not
due to unique conditions of the property.[2]
¶7 The
Molitors appealed the decision to the circuit court and requested that the
court take evidence or appoint a referee to take evidence. The court remanded the case to the board for
it to hold a public hearing and take evidence in response to certain specific
questions. The board issued findings of
fact for circuit court review.
¶8 The
circuit court affirmed the variance denial.
The Molitors now appeal.
Standard
of Review
¶9 Our scope of review of the board’s decision is limited to four questions: (1) whether the board stayed within its jurisdiction; (2) whether it proceeded on a correct theory of law; (3) whether its action was arbitrary, oppressive or unreasonable, representing its will instead of its judgment; and (4) whether the evidence was such that the board might reasonably have made the determination under review. State v. Kenosha County Board of Adj., 218 Wis. 2d 396, 410-11, 577 N.W.2d 813 (1998).[3]
¶10 Because the circuit court considered
additional evidence
as permitted under Wis. Stat. §
59.694(10),[4] we
review the record as augmented by the second board hearing. See Lakeshore Dev. Corp. v. Plan
Comm’n, 12 Wis. 2d 560, 565,
107 N.W.2d 590 (1961). The board’s findings of fact
will be upheld if substantial evidence supports its decision, even if
substantial evidence also supports the opposite conclusion. See CBS, Inc. v. LIRC, 219
Wis. 2d 564, 568 n.4, 579 N.W.2d 668 (1998).
Substantial evidence means relevant, credible and probative evidence
upon which reasonable persons could rely to reach a conclusion. See Princess House, Inc. v. DILHR,
111 Wis. 2d 46, 54, 330 N.W.2d 169 (1983).
The board, and not the reviewing courts, determine the weight and
credibility of the evidence. Delta
Biological Resources v. Board of Zoning Appeals, 160 Wis. 2d 905, 915,
467 N.W.2d 164 (Ct. App. 1991). Reviewing courts are hesitant to
interfere with administrative decisions and accord to the board’s decision a
presumption of correctness and validity. See Snyder v. Waukesha
County Zoning Board of Adj., 74 Wis. 2d 468, 476, 247 N.W.2d 98 (1976).
DISCUSSION
¶11 The
Molitors raise five arguments relating to errors the board and circuit court
made. It is necessary to resolve the
questions of law regarding the proper standards before we address the arguments
related to the sufficiency of the evidence.
I.
Standard for Reviewing Variances
¶12 The
heart of the Molitors’ appeal is whether the standard as enunciated in
Kenosha County, 218 Wis. 2d at 411, applies to this case.[5] In Kenosha County, a property
owner was denied a variance to build a deck on a lake house. Id. at 401. The proposed deck violated the
seventy-five-foot setback requirement. Id. Upon review, the supreme court reasoned that
an applicant has the burden to prove that a variance is required to avoid an
unnecessary hardship.[6] Id. at 410. It determined that unnecessary hardship
could only be proved where the property owner has no reasonable use of the
property without the variance. Id.
at 411.
¶13 The
Molitors contend that the board should have applied the standard found in Snyder,
74 Wis. 2d at 474. The Molitors read Snyder
to require proof of a “practical difficulty” rather than an “unnecessary
hardship.” The Molitors appear to
interpret “practical difficulty” as a less onerous burden than “unnecessary
hardship.” We disagree. Snyder explained: “[A]lthough the terms ‘unnecessary hardship’
and ‘practical difficulty’ are insusceptible to precise definition and are
often stated disjunctively in zoning enactments, the authorities generally
recognize that there is no practical difference between them.” Id. at 472.
¶14 The
Molitors further contend that Kenosha County does not apply to
their case because Kenosha County resolved the standard for
shoreline setbacks, not side lot setbacks.
Kenosha County answers the Molitors’ argument when it
quoted a previous case to demonstrate that “unnecessary hardship” should apply
to all aspects of an area variance, not just a setback from the waterfront.
In
a previous application of the zoning statute, we described an unnecessary
hardship as where “compliance with the strict letter of the restrictions
governing area, set backs, frontage … would unreasonably prevent the owner from
using the property for a permitted purpose or would render conformity with such
restrictions unnecessarily burdensome.”
Id.
at 412 (quoting Snyder, 74 Wis. 2d at 475, citing 2 Rathkopf, The Law of Zoning &
Planning, 45-28 (3d ed. 1972)).
The court did not differentiate between side setbacks and waterfront
setbacks.
¶15 Once
an appellate court interprets legislation, its interpretation becomes a part of
the enactment as much as if it appeared expressly therein, unless the
legislative body subsequently amends the legislation. See Salerno v. John Oster Mfg. Co., 37 Wis. 2d 433,
441, 155 N.W.2d 66 (1967). There has
been no amendment to Wis. Stat.
§ 59.694 (7)(c) since Kenosha County. Thus, we conclude that the proper standard
to be applied to this case is whether the Molitors have no reasonable use of
the property without the variance.
II.
Sufficiency of the Evidence
¶16 The
Molitors first contend that the board failed to make findings of fact to
support its decision and that the board failed to make a sufficient record of
the proceedings.
¶17 Under
Wis. Stat. § 59.694(3), the board
is required only to keep minutes of its proceedings, showing the vote of each
member upon each question, or, if absent or failing to vote, indicating that
fact. The statute further mandates that
the minutes be filed immediately in the office of the board of adjustment and
shall be a public record. The board
followed this procedure and filed a signed decision articulating the reasons
for the variance denial.
¶18 The
circuit court had further questions and remanded the case to the board to make findings
relevant to those questions. The board
held a hearing and recorded the proceedings in a transcript. The Molitors concede that nothing in the
case law commands that the board prepare written findings of fact, conclusions
of law and judgment. We conclude that
the board satisfied the statutory requirements for recording the proceedings.[7]
¶19 Next,
the Molitors argue that substantial evidence does not support the decision.
They contend that they suffered an unnecessary hardship and that their property
was unique, qualifying them for a variance.
¶20 The
Molitors carry a dual burden on this appeal in order to be granted a
variance. See Arndorfer v. Sauk
Cty. Board of Adj., 162 Wis. 2d 246, 253, 469 N.W.2d 831 (1991). First, they must overcome the presumption of
correctness accorded to the board’s decision.
Id. Second, they
must show that they will suffer unnecessary hardship if a variance is not
granted. Id.
[T]he
question of whether unnecessary hardship … exists is best explained as
“[w]hether compliance with the strict letter of the [zoning] 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 255 (quoting 2 Rathkopf, supra,
at 45-28, as cited in Snyder, 74 Wis. 2d at 474-75). To be an unnecessary hardship, it must be
related to a unique condition affecting the subject property. Id. If the hardship applies to the neighboring lands as well as the
subject property, it is not unique, and the owner should seek legislative
relief, rather than administrative relief.
Id. at 256. To
grant variances in these cases would “be unfair to owners who remain subject to
the general restrictions of the zoning ordinance, and it would endanger the
community plan by piecemeal exemption.”
Id. (quoting 3 Anderson,
American Law of Zoning, 474-76 (3d ed. 1986)). In addition, to be an unnecessary hardship,
the variance must not be contrary to the public interest. Id.
¶21 A
zoning authority has the power to enact ordinances that limit the change or
extension of nonconforming uses. Schroeder
v. Dane County Board of Adj., 228 Wis. 2d 324, 339, 596 N.W.2d 472
(Ct. App. 1999). Thus, Rusk County had
the authority to adopt an ordinance that established side yard setbacks and,
given pre-existing nonconforming lots, prohibit further building beyond
setbacks without a variance. The County
also had the authority to establish a rule that a building permit will only be
issued for additions on nonconforming structure up to 50% of the assessed
building value. Variances are granted
sparingly. Kenosha County,
218 Wis. 2d at 421 (citing 3 Ziegler,
Rathkopf’s The Law of Zoning & Planning, § 37.06 at 37-81 (4th
ed. 1993). As described above, the
ordinance requires the board to examine three criteria to determine whether a
variance is appropriate. Here, the
first two, unnecessary hardship and uniqueness, are dispositive. We therefore do not address the public
interest standard. See Norwest Bank Wisconsin Eau Claire, N.A., v.
Plourde, 185 Wis. 2d 377,
383 n.1, 518 N.W.2d 265 (Ct. App. 1994).
¶22 A
property’s “uniqueness” in the case law is interpreted as a means for proving
unnecessary hardship. See Kenosha
County, 218 Wis. 2d at 409 (citing Arndorfer, 162 Wis. 2d
at 254). Arndorfer noted:
Hardship
is not peculiar to the applicant’s land if it is shared by a neighborhood or an
entire area; a shared hardship will not support the granting of a use variance
to relieve it. … Where the hardship imposed upon an applicant’s property is no
greater than that suffered by nearby lands, the board of adjustment may not
grant a variance to relieve it.
Id.
at 255-56 (quoting 3 Anderson, supra,
at 474-76).
¶23 To
the extent the shoreland regulations have been amended to impose limitations on
lot sizes and side yard setbacks, they apply to all lots on Lake Holcombe and
all other navigable bodies of water in Rusk County. The Molitors concede that other lots in their subdivision are
nonconforming. A condition that applies
to multiple properties does not make a single property unique. Their remedy is with the legislature, not
the board of adjustment. As we stated
above, the Molitors have the burden on this issue and they have not shown that
their property is unique.
¶24 Nowhere
in the record is there any testimony or other evidence that the Molitors’ home
is unlivable, unsafe, that it has been damaged or destroyed or that they can
make no reasonable use of the property.
The Molitors are charged with full knowledge of zoning ordinances. Willow Creek Ranch v. Town of Shelby,
2000 WI 56, ¶162, 235 Wis. 2d 409, 482, 611 N.W.2d 693. They chose not to have a survey completed
before beginning construction on the addition to their house. They built an addition twice as large as
that approved. The record supports the
conclusion that they created a self-imposed hardship. Their hardship is therefore not unnecessarily burdensome.
¶25 The
board has discretion to deny a variance for an addition that does not satisfy
the ordinance’s purpose. The evidence
shows that the Molitors’ proposed addition would violate the setback limit in
1998 and also in 1995. The applicant bears
the burden to demonstrate that the variance should have been granted. The Molitors did not meet that burden. The board was within its discretion to
conclude that the 1998 proposed construction exceeded both the setback
requirements and the rule allowing only 50% of the value to be invested in
remodeling the nonconforming house.[8]
¶26 The
board had substantial evidence before it to determine that the Molitors’
request did not meet two of the three standards required by ordinance for
approval of a variance. The board
applied the proper standards of law and properly denied the variance. We affirm the trial court’s decision to affirm
the board.
By the Court.—Judgment affirmed.
Not recommended for publication in the official reports.
[1] The Molitors refer
to significant legislative history of the ordinance, the proof of which is not
in the record. However, we address only
what is in the record. See Wis. Stat. Rule § 809.15(2); In re Eberhardy,
102 Wis. 2d 539, 571, 307 N.W.2d 881 (1981).
Moreover,
the legislative history would only be relevant if the current ordinances were
ambiguous. Landis v. Physicians
Ins. Co., 2001 WI 86, ¶15, ___ Wis. 2d ___, 628 N.W.2d 893; State
v. Ozaukee Cty. Board of Adj., 152 Wis. 2d 552, 559, 449 N.W.2d 47 (Ct.
App. 1989). We are satisfied that the
setback ordinance is not ambiguous.
[2] The majority of the board also determined that a variance would be contrary to the public interest.
[3] The court remanded the case to the board
for additional fact finding, see Wis.
Stat. § 59.694(10) (1997-98), and then
applied those facts to its own conclusions of law. Both parties present their arguments as if we are reviewing both
the board and the circuit court. In an appeal of a trial court order affirming an
agency decision, however, we review the agency’s decision, not the trial
court’s. See Sterlingworth Condo.
Ass’n v. DNR, 205 Wis. 2d 710, 720, 556 N.W.2d 791 (Ct. App.
1996). Neither party has demonstrated
why the trial court’s remand to the board for additional fact finding would
change this axiom.
[4] All references to the Wisconsin Statutes are to the 1997-98 version unless otherwise noted.
[5] Members of our supreme court disagree on whether its recent decision in State v. Outagamie County Board of Adj., 2001 WI 78, ___Wis. 2d ___, 628 N.W.2d 376, modified the standard in Kenosha County. Justices Sykes, Prosser, Crooks and Wilcox agreed that an owner must only show unnecessary hardship in light of the purpose of the applicable zoning regulations. Justices Sykes and Prosser perceived that Kenosha County should be overruled to arrive at this standard. Justices Crooks and Wilcox, however, viewed Kenosha County as already applying this same “purpose” standard. See Outagamie Cty., 2001 WI 78 at ¶¶68, 69, 73, 81 and 83. It is unnecessary to resolve this conflict for the purpose of this decision.
[6] The court interpreted Wis. Stat. § 59.694(7)(c), which provides:
Powers of board. The board of adjustment shall have all of the following powers:
.…
(c) To 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.
[7] The Molitors also argue that because the record is so inadequate, it is “impossible to determine if the Court of Appeals kept within its jurisdiction.” Because we conclude that the record has been sufficiently memorialized, we dismiss this argument without resolving whether the Molitors mean the circuit court, the board or, although quite unlikely, the court of appeals.
[8] The Molitors contend that the
zoning administrator was without authority to revoke the building permit. Although this case is before us on a review
of the variance denial, we note that even where a permit was issued, if based
upon an erroneous reading of an ordinance by the official charged with its
enforcement, this would not prevent the municipality from later enforcing the
ordinance as written. See Village
of Wind Point v. Halverson, 38 Wis. 2d 1, 5, 155 N.W.2d 654 (1967); Snyder,
74 Wis. 2d at 477 (a building permit cannot confer the right to violate the
ordinance). We dismiss their laches,
estoppel and unclean hands arguments on the same grounds.
The Molitors also make reference to “political infighting, pettiness, and outright fraud” being the cause of the variance denial. The only evidence they cite is that the new zoning administrator disagreed with the previous zoning administrator whether a building permit should have been granted. The new administrator explained that after a site visit and discovery that the previous administrator had based the permit on boundaries supplied by the Molitors, the permit was not properly issued. The Molitors provide no other support for this claim of political infighting. We do not address the issue further.
To the extent we have not addressed other arguments the Molitors have raised, the arguments are deemed rejected. See State v. Waste Mgmt., 81 Wis. 2d 555, 564, 261 N.W.2d 147 (1977).