2009 WI App 63
court of appeals of
published opinion
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2009 WI App 63
COURT OF APPEALS DECISION DATED AND FILED April 1, 2009 David
R. Schanker Clerk of Court of Appeals |
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NOTICE |
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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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Richard H. Driehaus,
Plaintiff-Appellant, v. Adjustment,
Defendants-Respondents, Rudolph Rasin, Joy Rasin and Town of Intervening
Parties-Respondents. |
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APPEAL
from an order of the circuit court for
Before Brown, C.J.,
¶1 SNYDER, J. Richard H. Driehaus appeals from an order denying his writ of certiorari petition that a zoning variance decision of the Walworth County Board of Adjustment (the Board) be reversed. Driehaus contends that the Board applied an incorrect theory of law, exceeded its jurisdiction, and arbitrarily determined that his request for an area variance to a sideyard setback should be denied. Driehaus also argues that his right to due process was violated when a judicial rotation placed his petition for writ of certiorari before a new judge without notice to the parties. We affirm the order of the circuit court.
BACKGROUND
¶2 The historical facts of this case can be traced back nearly a
decade.[1] Driehaus owns more than seventeen acres of
property, with over six hundred feet of frontage on
¶3 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. The County issued this building permit on June 8, 1999. After the building permit was approved, the County issued a stopwork order to Driehaus on grounds that conversion of the garage to a single-family residence violated the shoreland ordinance, which allows only one principal structure to be located, erected or moved onto a lot. Driehaus appealed, but because the garage was located near the lot line and about twenty feet from a residence on the neighboring Rasin property, the town plan committee found the setback “acceptable for a garage” but “not for a residence” according to county zoning ordinances. The Board agreed with the committee, holding that no exceptional circumstances or unnecessary hardship would result from denial of the permit.
¶4 Driehaus then filed an application for a zoning permit to “rehab” the existing two-story garage with the Walworth County Department of Planning, Zoning and Sanitation, now known as the Department of Land Management (zoning committee) on August 6, 1999. The zoning committee denied this application again; Driehaus appealed and was again unsuccessful.
¶5 On April 5, 2000, Driehaus filed an application with the zoning committee for a conditional use permit (CUP) for a planned residential development.[3] Driehaus filed the application “to facilitate the intended use of the three existing habitable dwellings.... [T]he landowner ... voluntarily requests a restriction that the three lots to be created on his parcel of land must be owned by one common owner and can never be sold separate and apart from each other.”
¶6 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 sideyard 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. The committee held a hearing on the variance and voted to grant Driehaus a variance to the twenty foot lineal sideyard setback requirement.
¶7 On November 17, 2000, the Rasins filed a declaratory judgment and writ of certiorari petition challenging the zoning committee’s decision to grant the variance. After briefing, the circuit court held that no variance was necessary because the garage was an existing substandard structure as that phrase is defined under applicable zoning ordinances and the garage, therefore, did not require a variance. The circuit court, therefore, deleted the variance condition from the CUP. The circuit court entered judgment dismissing all of the Rasins’ claims.
¶8 The Rasins appealed and, in Rasin v. Walworth County,
No. 2002AP2561, unpublished slip op. (WI App June 4, 2003), we reversed and
remanded the matter to the circuit court.
We held that the zoning committee had no jurisdiction to hear Driehaus’s
application for an area variance.
¶9 On March 1, 2005, Driehaus submitted his variance request to the Board. The Rasins objected to the variance. On April 14, the Board voted to deny Driehaus’ petition for a variance from the sideyard setback requirement. Driehaus petitioned for writ of certiorari, challenging the Board’s decision. The case was assigned to the Honorable Michael S. Gibbs. After extensive briefing, the parties, including the Rasins as intervenors, participated in court-ordered mediation. On December 22, 2006, counsel for Driehaus advised the court that he was “hopeful” that the parties would have a signed settlement stipulation in front of the court within thirty days or, at the very least, an update on their progress. As it turned out, no settlement agreement emerged.
¶10 On May 31, 2007, Driehaus advised the circuit court that the
“parties attempted to settle the dispute, and went through mediation” but were
“not … able to agree on all of the language to be contained in the terms and
conditions of any proposed Settlement Stipulation”; consequently, Driehaus
moved for oral argument before the court.
The motion hearing took place on July 25, 2007, where counsel appeared
and advised the court that a final settlement was possible, pending approval
from
¶11 By letter dated January 7, 2008, and addressed to Judge Gibbs, Driehaus explained that the settlement discussions had failed and the parties had “reached an impasse.” Driehaus reminded Judge Gibbs that he had “agreed to remain the presiding judge” and asked that the matter be set for oral argument. The letter was first delivered to Judge Kennedy, who noted that it should go to Judge Gibbs as indicated in the letter. Judge Gibbs returned the case to Judge Kennedy, stating that he had agreed to retain the matter only to approve the settlement. On January 17, 2008, Judge Kennedy issued an order denying Driehaus’ writ of certiorari request that the Board’s decision be reversed.
¶12 By letter dated February 20, 2008, Driehaus objected to Judge Kennedy’s order. He argued that the parties had agreed that Judge Gibbs would retain the case after judicial rotation and that the parties had received no notice that the matter was now pending before Judge Kennedy. On February 22, 2008, the circuit court, Judge Kennedy presiding, held a hearing to consider Driehaus’ motion to vacate the January 17 order. Judge Kennedy denied the motion to vacate his order and transfer the case to Judge Gibbs; however, Judge Kennedy agreed to delay signing the order while the parties filed a motion before Judge Gibbs. On February 25, Driehaus filed a letter with Judge Gibbs, restating his position that the case was retained by Judge Gibbs and requesting oral argument. Judge Gibbs, through his clerk, advised Driehaus that he could file a motion asking Judge Kennedy to reconsider his order or take the matter up on appeal. The final order, signed by Judge Kennedy, was entered on May 2, 2008. Driehaus appeals.
DISCUSSION
¶13 Driehaus appeals from the order affirming the Board’s decision
to deny the area variance. When
reviewing an administrative agency decision, we review the agency decision
itself, not the decision of the circuit court.
Stoughton Trailers, Inc. v. LIRC, 2007 WI 105, ¶26, 303
¶14 Driehaus does not dispute that the Board properly took up the
issue of the area variance; rather, he argues that the Board applied the wrong
legal rule to the facts presented.
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. He emphasizes that, unlike a
use permit, an area variance grants relief from dimensional requirements of an
ordinance, such as size, setbacks, height or density. See
Snyder
v. Waukesha County Zoning Bd. of Adjustment, 74
¶15 Driehaus highlights the division of duties allocated between
the zoning committee and the Board. In
¶16 Driehaus contends that once the zoning committee decided to grant a conditional use permit, specifically allowing him to use the second floor of the garage as living quarters, the question of use was settled.[4] Thus, when the Board’s discussions turned to the use of the property, it improperly examined legal questions beyond its jurisdiction. The Board, argues Driehaus,
was limited to considering whether the public interest and purposes underlying the 20-foot sideyard setback requirement outweighed the hardship to Driehaus in not being able to use the garage for a purpose the Zoning Committee already determined was permitted, without moving the historic structure into full compliance with the setback.
¶17 However, as Ziervogel clearly stated, an area
variance cannot be decided in a vacuum.
The standard the Board is bound to apply is whether denial of the area
variance “would unreasonably prevent the owner from using the property for a
permitted purpose or would render conformity with [zoning requirements]
unnecessarily burdensome.” Ziervogel,
269
¶18 Driehaus takes the supreme court’s rejection of the “no
reasonable use” test for area variances and exaggerates it to prohibit any
consideration of use whatsoever for area variance determinations. He reads Ziervogel too broadly. Ziervogel did not state that use
cannot be a factor in an area variance analysis; rather, it stated that use
cannot “overwhelm[] all other considerations in the analysis, rendering
irrelevant any inquiry into the uniqueness of the property, the purpose of the
ordinance, and the effect of a variance on the public interest.” Ziervogel, 269
¶19 Next, Driehaus argues that he met his burden to show
unnecessary hardship and therefore the Board’s decision was oppressive and
arbitrary. The Board must evaluate
hardship in light of the purpose of the shoreland ordinance. See
Ziervogel,
269
¶20 The zoning committee determined that the residence above the
garage met CUP and planned residential development standards; in other words,
that the residence would not be harmful to the environment, the residence would
not adversely affect property values, and exterior design standards would be
maintained.
All residential uses including the garage with living quarters shall constitute principal uses under this Planned Residential Development (PRD). There are three separate single-family detached dwellings approved by this PRD. Use of the property must be consistent with residential use as specified by the district and general intent of the County Zoning Ordinance.
The applicant must apply for and obtain a variance … in order for the dwelling unit within the garage to be located in the 20-foot sideyard setback. The variance must be applied for and obtained within 6 months of this approval. This PRD shall not be valid until such time as a required variance is obtained.
¶21 The matter came before
the Board for a hearing on April 13, 2005.
There, Driehaus made a comprehensive presentation, emphasizing the
historical significance of the garage and why Driehaus should not be forced to
move it in order to add the second-floor residence. He summarized the relevant zoning law and
gave a history of the use of the building, which he insisted had been used as a
dwelling in the past. He exhorted the
Board to focus on area dimensions instead of use because use of the second
floor of the garage as a dwelling had already been approved as a permitted use
by the zoning committee. Others spoke in
favor of the area variance, including the Town of
¶22 Next, the Board heard from the Rasins’ attorney. He emphasized the extent of the variance requested, which would create a setback of two and one-half feet instead of the shoreland ordinance minimum of twenty feet. He further explained that any “hardship” that might exist because Driehaus renovated the second floor to be a residence prior to obtaining the area variance was self-created. He emphasized that Driehaus knew when he purchased the property that it included two residential units and that the garage was just that: “a garage/stable.” He noted that if Driehaus desired a third residential unit on his property, he had the ability to pursue a CUP for a new building that would comply with the shoreland ordinance setback requirement. Finally, he explained that none of the opponents of the variance were against the garage remaining where it was as long as it continued to be used as a garage.
¶23 Joy Rasin spoke in opposition to the variance and provided a unique historical perspective because she had been raised on the Driehaus property and now owned the neighboring lot. She stated that she had no memory of anyone using the second floor of the garage as a residence; rather, it had been used as a stable in “horse and buggy days,” for storage, and for a changing room for employees of the estate. She explained that there is a rental unit, occupied by the McClayton family, on her property near the lot line with the Driehaus property; specifically, near the garage.
¶24 Rudolph Rasin also spoke to the Board, summarizing his opposition to the area variance as follows:
[Driehaus] wants to make a residence 2.5 feet from my lot line when he has an opportunity to build a third house … anywhere he wants to on 17 acres. But no, he’s going to put it right next to me. Two and a half feet right next [to] a residence. It’s a rental residence, but it’s our family home…. He doesn’t want to build a third house, he wants to build it right where I am.
¶25 William McClayton, the renter who has lived in the residence near the Driehaus garage for over ten years, urged the Board to deny the variance and by doing so preserve “the unique historical character of my country residence by preserving the existing zoning and current setback requirements. The existing historic garage/stable/storage … should be maintained … and not unnecessarily converted and renovated into a new residence near my lot line and in such close proximity to my country residence.” McClayton explained that the garage on the Driehaus lot was “[l]ess than 20 feet from my front door,” and that the balcony Driehaus had added to the garage is “less than 20 feet from [his daughter’s] bedroom.” With an unoccupied garage, there are “no lights on at the property … no comings and goings … none of the attendant noises that you would expect from a residence, a radio, a window opening, people, dogs, children, cats.” He described the experience of living where he does by stating, “I have enjoyed the peace, privacy, and tranquility” and he feared that would end if the garage became a residence. Other neighbors wrote letters of opposition, which were read into the record.
¶26 The meeting adjourned and the Board reconvened the next day for a decision meeting. The Board voted unanimously to deny the variance.
¶27 The Ziervogel court emphasized that the purpose of the zoning law,
the effect on the property, the effect of a variance on the neighborhood, and
the larger public interest should all be considered by the Board. See
Ziervogel,
269
¶28 Driehaus’ second appellate issue relates to the internal operating procedures of the circuit court, which resulted in the transfer of this case from one judge to another. He contends that Judge Kennedy, who received the case from Judge Gibbs after normal judicial rotation, lacked competency to decide the matter and that lack of notice of the rotation deprived Driehaus of his right to due process.
¶29 Driehaus directs us to Wis. Stat. § 801.58(1) (2007-08)[5] for support. Section 801.58 states in relevant part:
(1) Any party to a civil action or proceeding may file a written request … with the clerk of courts for a substitution of a new judge for the judge assigned to the case…. If a new judge is assigned to the trial of a case, a request for substitution must be made within 10 days of receipt of notice of assignment, provided that if the notice of assignment is received less than 10 days prior to trial, the request for substitution must be made within 24 hours of receipt of the notice ….
(2) When the clerk receives a request for substitution, the clerk shall immediately contact the judge whose substitution has been requested for a determination of whether the request was made timely and in proper form. If the request is found to be timely and in proper form, the judge named in the request has no further jurisdiction and the clerk shall request the assignment of another judge under [Wis. Stat. § 751.03].
¶30 Driehaus argues that he never received actual notice that the judicial rotation had placed this matter before Judge Kennedy, and therefore he was denied his right to substitute under Wis. Stat. § 801.58. The Rasins point out that Driehaus never raised a § 801.58 argument before the circuit court. Despite writing to both judges and filing a motion to be heard before Judge Gibbs, Driehaus never raised § 801.58. Furthermore, the latest date that Driehaus can claim to have received notice that a new judge was assigned was when he received Judge Kennedy’s decision dated January 17, 2008. Driehaus first wrote to Judge Kennedy on February 20, 2008, to assert that Judge Gibbs should have kept and decided the matter. In his letter, Driehaus never raised § 801.58 nor could he because he was not “within 10 days of receipt of notice of assignment” as required by the statute. See § 801.58(1). We conclude that Driehaus waived this argument.
¶31 Driehaus makes a companion argument that his due process rights
were violated when he was denied the right to be heard at oral argument by the
judge of his choice. Due process
provides Driehaus with the right to be heard “at a meaningful time and in a
meaningful manner.”
CONCLUSION
¶32 The Board considered the petition for an area variance under the proper legal standard as stated in Ziervogel, and its decision reflects a reasoned and reasonable application of that standard to the evidence presented at the hearing. Driehaus waived his argument that his Wis. Stat. § 801.58 right to substitute the circuit court judge, and provides no legal authority for his contention that his right to be heard includes the right to oral argument. For these reasons, we affirm the order of the circuit court.
By the Court.—Order affirmed.
[1] The history is set forth in Rasin v. Walworth County, No. 2002AP2561, unpublished slip op. (WI App June 4, 2003).
[2] All
references to the shoreland ordinance are to the Walworth County,
[3] He subsequently filed an amended conditional use permit application, and it is the amended application that was ultimately considered.
[4] Driehaus
erroneously refers to his CUP as a “use variance.” A conditional use is a permitted use in a specified zoning district that may be granted
under special circumstances if the use is not harmful, offensive or otherwise
adverse to the environment. See Fabyan v. Waukesha County Bd. of Adjustment,
2001 WI App 162, ¶16, 246 Wis. 2d 851, 632 N.W.2d 116; Walworth County, Wis., Code § 74-240(3). A variance allows nonconformities that are
otherwise prohibited by
ordinance.
[5] All references to the Wisconsin Statutes are to the 2007-08 version.