COURT OF APPEALS DECISION DATED AND FILED March 18, 2008 David R. Schanker 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
Before
¶1 PER CURIAM. Stephen Chicilo appeals a circuit court judgment upholding the Washburn County Board of Adjustment’s decision denying his request for a variance. Chicilo argues the Board applied the wrong standard, and its decision lacked a factual basis and represented the Board’s will rather than its judgment. He also argues the circuit court should have allowed him to conduct discovery. We reject his arguments and affirm the judgment.
Background
¶2 Prior to 2000, Chicilo owned an 11.65 acre parcel on
¶3 In 2003, Chicilo decided to tear down the existing cabin and
build a larger one on the same site. He
obtained a sewer permit, but did not apply for a variance. Chicilo then tore down the existing cabin and
began constructing the new one. During
construction, the
¶4 Chicilo applied to the Board for a variance. He claimed he had torn down the existing cabin only because the zoning office had told him the only permit he needed was the sewer permit. Chicilo asked for an exception to the setback requirement for that reason and because the current location of the cabin was the “only practical location” for a building on the property. The Board refused to grant the variance. The Board’s written findings stated there was insufficient evidence to show Chicilo had no alternate building site, Chicilo’s hardship was self-created, and the structure would be contrary to the public interest because it would result in runoff to the lake and damage to shoreline vegetation.
¶5 Chicilo petitioned the circuit court for certiorari review.[1] He also served a set of interrogatories on the Board. The court refused to allow discovery, and ultimately affirmed the Board’s decision denying the variance based on the existing record.
Discussion
¶6 On certiorari review, we review the Board’s decision, not the circuit court’s decision.[2] Roberts v. Manitowoc County Bd. of Adj., 2006 WI App 169, ¶10, 295 Wis. 2d 522, 721 N.W.2d 499. Our review is limited to the following questions:
(1) did the Board keep within its jurisdiction; (2) did the Board proceed on the correct theory of law; (3) was the action of the Board arbitrary, oppressive, or unreasonable, and did it represent the will of the Board rather than its judgment; and (4) was the evidence such that the Board could have reasonably reached the determination under review.
¶7 Chicilo first argues the Board proceeded on an incorrect
theory of law. When a landowner requests
an area variance—as opposed to a use variance—the Board must decide whether denying
the variance would impose an “unnecessary hardship” on the landowner.[3] State
ex rel. Ziervogel v.
¶8 Chicilo takes the chair’s statement out of context. The Board chair began the meeting by stating the correct unnecessary hardship standard and stated the correct standard again at the beginning of deliberations. The Board also applied the correct standard in its written findings. Indeed, the hearing in this case took place because the circuit court remanded with instructions to apply the unnecessary hardship standard. Chicilo argued an unnecessary hardship was present because of the lack of an alternative building site. Taken in this context, the chair’s notes simply reflected skepticism about Chicilo’s argument that no alternate site was available, not an application of the incorrect standard. We are satisfied the Board applied the correct unnecessary hardship standard to Chicilo’s variance request.
¶9 Chicilo argues the Board could only have reached the
conclusion it did by applying the “no reasonable use” standard. However, Chicilo had the burden of proving
enforcement of the setback requirements would create an unnecessary hardship. See Ziervogel, 269
¶10 Second, Chicilo argues the Board applied the wrong standard by relying
on his failure to apply for a variance before tearing down the existing cabin
and his sale of part of the land to his sister. However, whether a hardship is self-created is
a proper consideration in determining whether an unnecessary hardship
exists. Ziervogel, 269
¶11 Third,
Chicilo argues no evidence supported the Board’s conclusion that a variance
would not be consistent with the purpose of the ordinance because a variance
would cause runoff and damage to shore cover.
The parties dispute the meaning of several photographs in the record,
which the circuit court concluded showed damage to shore cover due to Chicilo’s
new cabin.[4] However, whether a variance is consistent
with the purpose of the ordinance is only one component of whether an
unnecessary hardship exists.
¶12 In addition, we see no reason why the Board could not rely on
its experience on the likely ecological consequences of Chicilo’s proposal. Chicilo was building a new, substantially
larger 1,200 square foot cabin only forty-four feet from the lake. One Board member expressed the opinion that
it was “obvious” that construction would result in increased runoff. As with other aspects of an unnecessary
hardship, Chicilo had the burden of showing a variance was consistent with the
public interest. See Ziervogel, 269
¶13 Fourth, Chicilo argues the Board’s decision was arbitrary and
capricious, representing its will rather than its judgment. This test is met only if the Board’s findings
are “unreasonable or without a rational basis,” or if no “reasonable view of the evidence sustains
them.” Snyder v.
¶14 Chicilo
argues this standard was met because the Board considered a town board
recommendation that his variance be denied. Chicilo apparently was not given notice his
variance would be discussed at the town board meeting. However, the Board’s consideration of the town
board recommendation was relatively brief, and the Board recognized the
recommendation was advisory. The Board
chair stated, “although we respect the towns and we do want their input … in
this case we have enough other stuff to base a decision on.” Another member flatly stated the town board
recommendation was “not relevant.” We
are satisfied the Board reached its own conclusion based on the evidence before
it, and did not arbitrarily follow the town board recommendation.
¶15 Chicilo
also argues the Board’s decision was arbitrary and capricious because the Board
“had already determined that Chicilo should be penalized for proceeding without
a permit.” The record does not support
this claim. Chicilo was allowed a full
opportunity to present all evidence he had that supported his position. The statements by Board members Chicilo
relies on simply express doubts about the strength of his evidence or
disagreement with his arguments. The
Board members’ discussion of whether Chicilo should be charged with notice of
the setback ordinance, for example, simply reflects their opinions on whether
to grant the variance, not bias or prejudice against Chicilo.
¶16 Finally, Chicilo argues the circuit court should have allowed him to conduct discovery as part of the certiorari review. In a certiorari proceeding, the circuit court has discretion to allow discovery if it is “necessary for the proper disposition of the matter….” Wis. Stat. § 59.694(10). Chicilo argues discovery might have established the extent to which the Board considered matters outside the record, and might have shown the Board acted arbitrarily and capriciously. Chicilo appears to be referring to the Board’s consideration of the town board recommendation. However, as explained above, the town board recommendation played a minor role in the hearing, and the Board decided the case based on the evidence before it and did not blindly follow the town board’s recommendation. Under those circumstances, the circuit court properly exercised its discretion when it concluded discovery was not necessary because it would “not change the ultimate conclusion and may only confuse the issue with undue effort and expense.”
By the Court.—Judgment affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] Chicilo’s complaint also included a second claim not relevant here.
[2] Because we are reviewing the Board’s decision, we need not reach Chicilo’s argument that the circuit court should have held oral arguments before deciding the case.
[3] A
use variance allows the landowner a use of the land not permitted in the zoning
district. An area variance allows the
landowner relief from restrictions on the manner of a permitted use. State
ex rel. Ziervogel v.
[4] The photos in the record are poor quality, and the record does not conclusively indicate what all of the photos depict. In his brief, Chicilo asserts that some of the photos show other cabins on the lake, not his cabin.