PUBLISHED OPINION
Case No.: No. 94-3199
Complete Title
of Case:
STATE OF WISCONSIN,
Plaintiff-Appellant,
v.
WINNEBAGO COUNTY,
Defendant-Respondent.
Submitted on Briefs: July 28, 1995
COURT COURT
OF APPEALS OF WISCONSIN
Opinion Released: September 13, 1995
Opinion Filed: September 13, 1995
Source of APPEAL Appeal
from a judgment
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Winnebago
(If "Special", JUDGE: William E. Crane
so indicate)
JUDGES: Anderson,
P.J., Brown and Nettesheim, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSOn
behalf of the plaintiff-appellant, the cause was submitted on the briefs of James
E. Doyle, attorney general, and Lorraine C. Stoltzfus, assistant
attorney general.
Respondent
ATTORNEYSOn
behalf of the defendant-respondent, the cause was submitted on the brief of John
A. Bodnar, corporation counsel.
COURT OF APPEALS DECISION DATED AND RELEASED September 13, 1995 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 94-3199
STATE
OF WISCONSIN IN
COURT OF APPEALS
STATE OF WISCONSIN,
Plaintiff-Appellant,
v.
WINNEBAGO COUNTY,
Defendant-Respondent.
APPEAL from a judgment
of the circuit court for Winnebago County: WILLIAM E. CRANE, Judge. Reversed and cause remanded.
Before Anderson, P.J.,
Brown and Nettesheim, JJ.
BROWN, J. The
State of Wisconsin appeals a variance granted by the Winnebago County Board of
Adjustment and then affirmed by the trial court. The State primarily contends that shoreland setback requirements
cannot result in an unnecessary hardship simply because they prevent the
landowners from securing the highest and best use of the parcel. The State alternatively claims that the
Board's decision should be overturned because it lacks a reasonable evidentiary
basis. We agree on both issues and
remand for further proceedings consistent with our decision.
Gilbert and Hazel Thiel
own a 33.7 acre parcel on the shore of Lake Poygan. The parcel is “L” shaped.
The base runs in an east-west direction along a county highway. The northern tip is adjacent to Lake Poygan,
although in 1965 the Thiels dredged a channel which flows from the lake along
the parcel's inside edge. According to
information provided by the Thiels, the base measures approximately 200 feet
between the road and the channel. The
parcel reportedly measures roughly 175 feet from the channel to its western
edge.
The Thiels dredged the
channel with designs on future residential development and therefore made
adequate allowances for the shoreland setbacks and roadway requirements[1]
in effect at that time. These
parameters, however, have increased over the years and now render the narrower,
western portion of the parcel inappropriate for development. If the current shoreland setbacks (and
roadway requirements) are enforced, only a 20-foot wide strip would remain
buildable.
They nevertheless
pursued plans to sell the land to a developer, who apparently informed the
Thiels that the parcel would be well suited for eight units.[2] Thus, in October 1993 the Thiels applied to
the Board seeking a variance for the shoreland setbacks. Caught between the greater shoreland
requirements on one side, and wider roadways on the other, the Thiels
summarized their predicament as follows:
Over 28 years ago [we] dug the channel
for future development. [We] allowed 33
ft. for a roadway. Presently the
requirements are 50 ft. wide. [We]
certainly had no idea that those rules would change.
¼.
4
parcels cannot be developed because of new rules and regulations for private
roads. This will leave 4 parcels
substandard. Too [sic] keep conformity
the remaining 4 lots on channel should have same set back. This will enhance the subdivision and create
a higher tax base.
In addition to the above
information that was provided in the Thiels' application, the Board heard testimony
from Mark Showers, who was the developer interested in the property. The Board also received letters from two
nearby landowners; one objected to the variance citing concerns that the Thiels
may have erred in their measurement of the parcel.[3] The Department of Natural Resources also
sent a letter to the Board objecting to the variance. The DNR claimed that the hardship was self-created and that the
parcel was not physically unique.
Letter from Tere Locke, Water Management Specialist, State of
Wisconsin Department of Natural Resources, to Kathy Larsen, Winnebago
County Zoning Department (Nov. 15, 1993).
The DNR was also concerned about increased run-off into Lake
Poygan. Id.
The Board deliberated
over this evidence and reached its decision.
It granted the variance to cover the four lots along the western edge,
which would be nondevelopable under the current setbacks, but refused the
Thiels' request concerning the other four.
To support the variance, the Board set out the following findings:
Exceptional Circumstances:
This channel was dredged in 1965 when shore-yard setbacks were 50 feet and the
road width could have been 33 feet.
Now, with a minimum 50-foot road and a required 75-foot shore-yard
setback, there is not sufficient area left between setbacks for home
construction.
Preservation of Property Rights:
Without a variance these lots could not be developed to their highest and best
use.
Absence
of Detriment: The planning for these lots began over thirty years
ago and steps were taken to allow channel-front homesites. The uniformity of setbacks along the channel
will provide orderly development and will create an aesthetic environment for
all affected lots.
Subsequently, the State
filed a writ of certiorari to the Winnebago County Circuit Court challenging
this decision. See
§ 59.99(10), Stats.; see
also State ex rel. DNR v. Walworth County Bd. of Adj., 170
Wis.2d 406, 412, 489 N.W.2d 631, 633 (Ct. App. 1992). The court concluded that the issue narrowed to whether the change
in setback requirements, coupled with the Thiels' earlier good faith efforts at
development, constituted an unnecessary hardship thus warranting a
variance. After reviewing the record,
the court found that the Board acted according to law and that there was
sufficient evidence to support its conclusion.
It therefore dismissed the State's petition.
The State now reasserts
its challenge. We address this question
without deference to the trial court and examine the record de novo. Clark v. Waupaca County Bd. of Adj.,
186 Wis.2d 300, 303, 519 N.W.2d 782, 784 (Ct. App. 1994). Our review is limited to four issues: (1)
whether the Board kept within its jurisdiction; (2) whether it acted according
to law; (3) whether its action was arbitrary, oppressive or unreasonable and
represented its will and not its judgment; and (4) whether the evidence was
such that it might reasonably make the determination in question. Id. at 304, 519 N.W.2d at
784. The State's arguments against the
variance focus on the second and fourth elements.
We first address the
State's claim that the Board did not follow applicable law.[4] The Board's power is derived from § 59.99(7)(c),
Stats., which permits it to grant
variances from local land use restrictions when “literal enforcement of the
provisions of the ordinance will result in unnecessary hardship.”[5] The supreme court has defined unnecessary
hardship “as a situation where in the absence of a variance no feasible use can
be made of the land.” Snyder v.
Waukesha County Zoning Bd. of Adj., 74 Wis.2d 468, 474, 247 N.W.2d 98,
102 (1976) (quoted source omitted).
Then in Arndorfer v. Sauk County Bd. of Adj., 162 Wis.2d
246, 254-56, 469 N.W.2d 831, 834-35 (1991), the court further refined this
standard to require showing the “uniqueness” of the condition affecting the
parcel and that the variance will “not be contrary to the public interest.” See § 59.99(7)(c).
The State raises a
series of arguments which reveal that the Board erred when it applied these
standards to the Thiels' application. First, the Board was mistaken in its assessment of the limitations
on the parcel's feasible use. During
the hearings, Showers explained why the variance was needed. He stated how the property “was more or less
a long-term investment for [the Thiels], and without getting a variance, the
land isn't worth anything compared to what it would be if we do get the
variance.” These statements seemed to
have persuaded the Board as it concluded:
“Without a variance these lots could not be developed to their highest
and best use.”
We thus see that the
test used by the Board was whether the variance would maximize the
economic value of the property. This is
not the proper test.[6] There must be a showing that no feasible use
can be made of the property.[7] Since there is uncontroverted evidence that
at least four units could be developed on the Thiels' land, we find it
difficult to understand how this record translates into a “no feasible use”
situation.[8] Concerns over the most profitable use of a
parcel are not proper grounds for granting variances. See State v. Ozaukee County Bd. of
Adj., 152 Wis.2d 552, 563, 449 N.W.2d 47, 51 (Ct. App. 1989)(“The
variances were thus admittedly granted for the county's economic gain. Standing alone, that is an insufficient
basis upon which to grant a variance.”).[9]
The State also argues
that the Board erred in its conclusion that the Thiels' land was sufficiently
unique. See Arndorfer,
162 Wis.2d at 255-56, 469 N.W.2d at 834.
Here, the Board reasoned that, unlike other parcels, the changing
roadway and shoreland setback requirements uniquely affected the Thiels'
property because their initial capital investment was made thirty years
ago. Indeed, during its deliberations,
the Board appeared very sympathetic towards the Thiels because their long-term,
“good faith” efforts were being stalled by changing governmental regulations.[10]
Nevertheless, the Board
erred again because it looked at the effects of the hardship rather than its
cause. It is correct that county and
statewide regulations interrupted the Thiels' development plans. However, the environmental regulations
merely place this land in a similar position to other shoreland property in
Winnebago County which also has experienced a decrease in development
capacity. If owners of shoreland want
to change the effect of the shoreland requirements upon their land, they should
petition government for a change in the law rather than individually seek
relief from the local board of adjustment.
See Arndorfer, 162 Wis.2d at 256, 469 N.W.2d at 834
(“where the hardship imposed on the applicant's land is shared by nearby land,
relief should be addressed through legislative, rather than administrative
means.”).
Finally, the State
complains that the Board failed to consider whether the variance would be
contrary to the public interest. See
id. at 256, 469 N.W.2d at 835.
The DNR approached the Board with its concerns about increased pollution
in Lake Poygan. Although the Board made
no specific findings on this issue, to support its decision the Board now
asserts that the DNR did not provide an evidentiary basis for its
recommendations. Such reasoning,
however, overlooks the significance of the state legislature's findings which
are the foundation of these shoreland ordinances. The State of Wisconsin has determined that protecting navigable
waters is in the public interest. See
§ 144.26(1), Stats. Moreover, in pursuit of this policy goal,
the legislature has empowered the DNR to develop water conservation standards,
§ 144.26(3), and to disseminate these “general recommended standards and
criteria” to local municipalities.
Section 144.26(6); see generally Wis. Adm. Code § NR
ch. 115. These rules and regulations in
no way suggest that the State must present specific factual findings to ensure
compliance with shoreland setback requirements. Rather, the burden is shifted to the landowner to present
evidence that the desired variance is not contrary to the public interest
furthered by the shoreland ordinances. See
Arndorfer, 162 Wis.2d at 256, 469 N.W.2d at 835.
We reach the second
issue raised by the State as an alternative basis for our decision. Here, it argues that the Board acted upon
the Thiels' application without a sufficient evidentiary basis. Compare id. at 256-58,
469 N.W.2d at 835.[11] The Thiels did not present any certified
surveys or plat maps showing the exact effects of the setback
requirements. The record consisted of
several hand-detailed “site plans” and a computer-generated mapping set at
1:1200 scale. Indeed, during the hearing
and deliberations some Board members expressed concern about the Thiels'
measurements. However, the Board was
sympathetic to the possibility that the Thiels would not want to sink costs
into having the property surveyed, given the risk that the variance might not
be granted.
Nonetheless, we agree
with the State and hold that the record was insufficient for the Board to make
a reasonable determination about granting the variance. Although there certainly are circumstances
in which a zoning board does not need certified, detailed surveys and plans to
reach a supportable conclusion regarding a variance, in this instance the major
issue was the effect of 75-foot setbacks (and 50-foot roadways) on a parcel
which was reportedly 175 feet in width.
Moreover, there was evidence placed before the Board that some of the
Thiels' measurements were incorrect. We
are unable to see how the Board could draw a reasonable conclusion about the
available buildable area and thus whether a variance should even be considered. It was reaching conclusions involving 10- to
20-foot measurements. This degree of
precision would suggest to a reasonable decisionmaker that the risk of error
warranted the use of certified surveys.
Finally, we acknowledge
the line of authority, cited by the Board, which cautions against judicial
interference in local zoning. E.g.,
Buhler v. Racine County, 33 Wis.2d 137, 146-47, 146 N.W.2d 403,
408 (1966). Our concern with the
Board's decision, however, does not reflect any judgment over the necessity of
the variance on the Thiels' parcel.
Rather, we reject the Board's findings because the membership failed to
comply with the duties proscribed by state law.
By the Court.—Judgment
reversed and cause remanded.
[1] The parcel has only limited frontage along the local highway. Therefore, a private road must be built to provide access to the proposed homesites located along the parcel's western portion.
[2] We use the terms unit, lot and parcel loosely since none of these sites have been officially platted or recorded. As the State characterizes them, they are lots “only in the developer's mind.” Moreover, the record is unclear as to the exact number of residential lots that could possibly fit on the Thiels' land. The State notes in its brief that there are a total of nine available lots, but variances were only sought for eight. Nonetheless, this one unit discrepancy, while illustrating the Board's lack of factfinding, does not affect the substance of our decision.
[3] The Thiels submitted a sketch, based on the developer's measurements, which indicated that the base of the parcel measured 200 feet deep from the channel to the roadway. A neighboring couple explained, however, that their survey showed this measurement to be 170 feet.
[4] Both parties included several references to the Winnebago County General Ordinances in their briefs to this court. Nonetheless, copies were not included in the record. We therefore have ordered that the record be supplemented. Moreover, the County appears to have cited a nonexistent ordinance, Winnebago County, Wis., General Ordinance § 17.29(7). We have made an appropriate correction in the text of the opinion after concluding that the substance of the cited ordinance was embodied in § 17.32(7).
[5] In its findings, the Board specifically cited to Winnebago County, Wis., General Ordinance § 17.31(4)(b), which tracks the state enabling statute. See § 59.99(7)(c), Stats. Whether the County acted in technical accordance with local law, however, is irrelevant to our analysis as we gauge its actions in light of the standards proscribed by the State.
[6] The “highest and best use” analysis does, however, have a role in other types of legal analysis. See, e.g., Clarmar Realty v. Redevelopment Auth., 129 Wis.2d 81, 91-93, 383 N.W.2d 890, 894-95 (1986) (determining just compensation for government takings); Lac LaBelle Golf Club v. Village of Lac LaBelle, 187 Wis.2d 274, 288-89, 522 N.W.2d 277, 283 (Ct. App. 1994) (valuation for assessment purposes).
[7] In DeLap v. Institute of America, Inc., 31 Wis.2d 507, 512, 143 N.W.2d 476, 478 (1966), the supreme court considered the definition of “feasible” and concluded that it meant “capable of being done.” In the context of variances, we believe this translates into a determination of whether there can be any beneficial use of the property.
[8] A review of the proceedings reveals that the Board approached the Thiels' application by dividing the whole parcel into two components: the four lots along the base and the four lots along the western edge. The Board then concluded that the four western lots were deserving of a variance because only a 20-foot wide strip of land would remain if the setbacks were enforced. However, the Board also recognized that “the Thiels are going to sell this all to this developer.” Therefore, there was no basis for the Board to analyze the parcel on a piecemeal basis since the Thiels presented the parcel as a single unit. While segmentation may be appropriate in other types of legal analysis, see Zealy v. City of Waukesha, 194 Wis.2d 702, 714-18, 534 N.W.2d 917, 922-24 (Ct. App. 1995) (whether there is a “taking” of property), here the Board should examine all 33.7 acres as a whole when it reaches a conclusion about granting a variance.
[9]
We recognize that this principle is a fundamental element of zoning
law. As one commentator has explained:
Under the various definitions of
“practical difficulty and unnecessary hardship” the situation of the property
owner seeking a variance must be unique and not common to others. However, it is well settled in an
established line of cases that the mere fact that a lot or property owner will
suffer financial hardship if not granted a variance is not sufficient, standing
alone, to authorize the variance.
3 E.C. Yokley, Zoning Law and Practice § 21-8, at 333 (4th ed. 1979).
[10] Under Winnebago County, Wis., General Ordinance § 17.32(7)(a), the Board must find “exceptional, extraordinary or unusual circumstances or conditions applying to the lot or parcel” before it may grant a variance. We find that this standard is analogous, in substance, to a finding of uniqueness. See Arndorfer v. Sauk County Bd. of Adj., 162 Wis.2d 246, 255-56, 469 N.W.2d 831, 834 (1991).
[11]
The local ordinance requires the Board to make findings before granting
a variance. It states:
Findings. No variance to the provisions of this Ordinance shall be granted
by the Board unless it finds, beyond a reasonable doubt, that all the
following facts and conditions exist and so indicates in the minutes of its
proceedings.
Winnebago County, Wis., General Ordinance Code § 17.32(7) (emphasis
added). Our review, however, is founded
upon state law which only requires the adjustment board to have a reasonable
factual basis for its findings. See
Snyder v. Waukesha County Zoning Bd. of Adj., 74 Wis.2d 468, 475,
247 N.W.2d 98, 102 (1976); cf. State v. Ozaukee County Bd. of
Adj., 152 Wis.2d 552, 557, 449 N.W.2d 47, 49 (Ct. App. 1989) (county
law required that board of adjustment be provided with convincing evidence).