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COURT OF APPEALS DECISION DATED AND RELEASED October
26, 1995 |
NOTICE |
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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. 95-0476
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
DEAN
P. LAING
AND
TAMARA L. LAING,
Petitioners-Appellants,
v.
ADAMS
COUNTY PLANNING AND ZONING
DEPARTMENT
AND ADAMS COUNTY
BOARD
OF ADJUSTMENT,
Respondents-Respondents.
APPEAL
from orders of the circuit court for Adams County: EDWARD F. ZAPPEN,
Jr., Judge. Affirmed.
Before
Eich, C.J., Dykman and Vergeront, JJ.
DYKMAN,
J. Dean P. and Tamara L. Laing appeal
from orders dismissing their certiorari action against the Adams County
Planning and Zoning Department and the Adams County Board of Adjustment. The Laings commenced this action against the
County after it rejected their application for a zoning variance for their
lakefront gazebo and patio. The Laings
argue that: (1) the gazebo and
patio are not structures and therefore do not violate the Shoreland Protection
Zoning Ordinance; (2) they have been denied their right to equal
protection because the County is selectively enforcing its ordinance against
them; and (3) the County's decision to deny the variance was arbitrary,
oppressive, unreasonable, and was a denial of their right to equal protection. We disagree and, therefore, affirm.
BACKGROUND
The
Laings have owned a summer home on Lake Sherwood in Adams County for about six
years. In 1992, they decided to build a
gazebo and patio by the lake so that Dean's two brothers, one of whom uses a
wheelchair and the other, crutches, could have access to the lake and be
protected from the sun.[1] According to the Laings, before they began
construction, they contacted the Town of Rome and were told that no shoreland
protection ordinances existed which might affect their plans as the previous
ones were being revised.
The
Laings began work on the gazebo and deck in the summer of 1993. The project cost the Laings about
$10,000. A gazebo was built within
twelve feet of the high water mark and the patio was constructed to the water's
edge. The patio is 460 square
feet.
On
June 29, 1993, the County sent an Order for Correction, informing the Laings
that the gazebo and patio violated the Adams County Shoreland Protection
Ordinance and therefore must be removed within thirty days. By letter dated July 27, the Laings appealed
the Order for Correction and sought a variance from the County. On August 18, the County held a hearing on
the matter and denied the Laings' request.
The
following month, the Laings commenced this certiorari action. The trial court concluded that the gazebo
and patio were structures which violated the ordinance, that the ordinance was
not being selectively enforced, and that the County's refusal to grant the
variance was not arbitrary, oppressive or unreasonable, and did not deny them
equal protection of the law. The Laings
appeal.
SHORELAND
ORDINANCE
The
first issue is whether the ordinance prohibits the Laings from maintaining the
gazebo and patio at their present site.
Section 3.21 of the Adams County Shoreland Protection Ordinance
provides, "All buildings and structures, except stairways, walkways,
piers, and patios which may require a lesser setback, shall be set back at
least seventy-five (75) feet from the ordinary highwater mark of navigable
waters." The ordinance defines
"structure" as "[a]nything constructed or erected, the use of
which requires a more or less permanent location on or in the
ground." Section 3.23 provides
that patios shall be set back thirty-five feet and shall not exceed 200 square
feet.
Whether
the gazebo and patio are "structures" requires us to interpret the
ordinance and apply it to undisputed facts.
County of Adams v. Romeo, 191 Wis.2d 379, 383, 528 N.W.2d
418, 420 (1995). These are questions of
law, which we review de novo. Id. The canons of statutory construction apply
to interpretations of ordinances. Hambleton
v. Friedmann, 117 Wis.2d 460, 462, 344 N.W.2d 212, 213 (Ct. App.
1984). If an ordinance is unambiguous,
we apply its plain meaning.
In
Webster's Third New International
Dictionary 2267 (1976), structure is defined as "something constructed
or built ... something made up of more or less interdependent elements or
parts : something having a definite or fixed pattern of
organization." This definition
indicates to us that the word structure is not ambiguous but includes any
object which is constructed or built.
The gazebo and patio fall within this definition. To hold otherwise would be contrary to the
plain meaning of the word.
But
the Laings contend that because their gazebo and patio are not cemented to the
ground, they are not permanent structures which violate § 3.21 of the
ordinance. The Laings' position is
enhanced by a Winter 1993 Lake Arrowhead newsletter indicating that § 3.21
prohibits only permanent structures which are maintained in cement below the
ground, but not structures containing cement but located above or on the
ground. According to the Laings, the
definition of "structure" contained in the ordinance is ambiguous and
must be resolved in favor of the property owner. We disagree.
The
ordinance provides that a prohibited structure includes those which require a
more or less permanent location on or in the ground. The use of the phrase "more or less" before the word
"permanent" indicates that the "structure" at issue need
not be anchored in concrete.[2] The ordinance also prohibits those
"structures" which cannot be moved without considerable effort. The gazebo and patio appear to be attached
to the ground or lake bed in such a way that they cannot be removed without
being taken apart. For the purposes of
the ordinance, we conclude that the gazebo and patio are more or less permanent
structures and must be removed.
SELECTIVE ENFORCEMENT
The second issue is
whether the County is selectively enforcing the ordinance against the
Laings. According to the Laings, there
are at least twenty-one other patios and/or gazebos within seventy-five feet of
Lake Sherwood alone, and despite having knowledge of these violations, the
County has never, during the twenty-four years that the ordinance has been in
existence, ordered any of those residents to remove their structures.[3]
The
Equal Protection Clause is violated "if an ordinance is administered `with
an evil eye and an unequal hand, so as practically to make unjust and illegal
discriminations between persons in similar circumstances, material to their
rights.'" Village of
Menomonee Falls v. Michelson, 104 Wis.2d 137, 145, 311 N.W.2d 658, 662
(Ct. App. 1981) (quoting Yick Wo v. Hopkins, 118 U.S. 356, 373-74
(1886)). But the fact that the County
has enforced an ordinance in one instance and not in others does not alone establish
a violation of the Equal Protection Clause.
Id. The plaintiff
must demonstrate that the County has engaged in "intentional, systematic
and arbitrary discrimination." Id. Therefore, even if the plaintiff can show
that the County enforced the ordinance in only one instance and not in others,
that evidence is insufficient to establish an equal protection violation. State ex rel. Cities Serv. Oil Co. v.
Board of Appeals, 21 Wis.2d 516, 544, 124 N.W.2d 809, 823 (1963). See also Town of Richmond v.
Murdock, 70 Wis.2d 642, 647, 235 N.W.2d 497, 500 (1975). We will not presume a discriminatory
purpose. Cities Serv., 21
Wis.2d at 544, 124 N.W.2d at 823.
In
the instant case, while the Laings have shown unequal enforcement, they have
not shown intentional, systematic and arbitrary discrimination. The Laings have presented photographs
showing the existence of gazebos and patios on other lakefront property owners'
land which appear to be within seventy-five or thirty-five feet of the high
water mark. But they have failed to
show that the enforcement of the ordinance against them is the product of
intentional, systematic and arbitrary discrimination.[4] Indeed, the Lake Arrowhead newsletter notes
that, "Due to a number of ordinance violations recorded within the
tri-lakes area, the county has initiated an enforcement program regarding these
violations and will be conducting a physical inspection of our three lakes
...." The County is therefore
aware of the problem and appears to have decided to address it. In Menomonee Falls, we said:
[E]ven if the enforcement of a particular law is selective,
it does not necessarily follow that it is unconstitutionally
discriminatory. Selective enforcement
may be justified when the meaning or constitutionality of the law is in doubt
and a test case is needed to clarify the law or to establish its validity. Selective enforcement may also be justified
when a striking example or a few examples are sought in order to deter other
violators, as part of a bona fide rational pattern of general enforcement, in
the expectation that general compliance will follow and that further
prosecutions will be unnecessary. It is
only when the selective enforcement is designed to discriminate against the
persons prosecuted, without any intention to follow it up by general
enforcement against others, that a constitutional violation may be found.
Menomonee Falls, 104 Wis.2d at 145-46, 311 N.W.2d at 662-63 (quoted
source omitted).
It
may be that the Laings are the first and perhaps the only homeowners to date
against whom the County has enforced the ordinance. Perhaps further prosecutions await the decision in this
case. It also appears that the County
has embarked upon a program of enforcement.
The Laings have failed to demonstrate that other lakefront landowners
will not, in the future, be ordered to remove their offending structures. And, we do not know to what extent the
County has prevented or will prevent others from building structures near or on
the lake. Absent evidence of intent to
discriminate, we cannot conclude that the County deprived the Laings of equal
protection of the law.
REFUSAL TO GRANT A VARIANCE
The final issue is
whether the County's refusal to grant a variance was arbitrary, oppressive,
unreasonable, and a denial of equal protection. The Laings contend that because the County failed to give reasons
for its refusal, its decision is arbitrary and must be reversed. They also argue that because three other
Adams County residents requested a variance from the same ordinance and only
the Laings' request was denied, the refusal was unlawfully discriminatory and a
violation of equal protection. We
disagree.
Our
review of a certiorari action is limited to determining: (1) whether the County kept within its
jurisdiction; (2) whether it proceeded on a correct theory of 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 order or determination in
question. Smart v. Dane County
Bd. of Adjustments, 177 Wis.2d 445, 452, 501 N.W.2d 782, 784
(1993). Since we are hesitant to
interfere with administrative determinations, we presume that the County's
decision is correct and valid. Snyder
v. Waukesha County Zoning Bd. of Adjustment, 74 Wis.2d 468, 476, 247
N.W.2d 98, 103 (1976). Thus, the
County's findings will not be disturbed if any reasonable view of the evidence
sustains them. Id.
Parties
seeking a variance from an ordinance must prove that they will suffer
unnecessary hardship if the variance is not granted. Arndorfer v. Sauk County Bd. of Adjustment, 162
Wis.2d 246, 253, 469 N.W.2d 831, 833 (1991).
Three conditions must be present.
First, a hardship must be present.
Id. Second, the
hardship must be unique to the property and not a condition personal to the
landowner. Snyder, 74
Wis.2d at 479, 247 N.W.2d at 104.
Third, the variance cannot be contrary to the public interest. Arndorfer, 162 Wis.2d at 256,
469 N.W.2d at 835. Unnecessary hardship
can be best described as a situation in which no feasible use can be made of
the land unless the variance is granted.
Snyder, 74 Wis.2d at 474, 247 N.W.2d at 102.
The
County denied the Laings' variance request for the following reasons:
It was the consensus of the Committee members that a
hardship as a result of the land doesn't appear to be present to allow approval
of this after the fact variance request because there are other areas where the
gazebo and patio could have been constructed that would have been in compliance
with the ordinance, and Section 3.23(5) of the Adams County Shoreland
Protection Ordinance prohibits canopies and roofs on deck structures.
While
the record before the County reveals that the Laings demonstrated that their
brothers needed the gazebo and patio to enjoy the lake, there is no evidence
demonstrating that there was anything unique about the property itself which
would require them to build a gazebo and patio near the lake. Since an unnecessary hardship does not
include conditions personal to the landowners, the availability of shading
provided by the gazebo is not sufficient to support a variance. Thus, the Laings failed to meet their burden
of proving a hardship and the County's decision was not arbitrary, oppressive
or unreasonable.
The
Laings also argue that because three other requests for variances were granted
in which the landowner wanted to build a structure near the lake to make it
accessible to a disabled person, but the Laings' request was not, the Laings
were denied equal protection. But
again, the Laings have not shown any evidence of intentional, systematic and
arbitrary discrimination or that they were similarly situated to those
landowners. Indeed, the record contains
evidence showing that the County has denied other requests for variances. The County need not explain why it denied
the Laings' request but granted others when its decision is based upon reasons
supported by the record. The fact that
the Laings' request was denied, without more, does not prove an equal
protection claim.
By
the Court.—Orders affirmed.
Not
recommended for publication in the official reports.
[1] Part of the project involved the construction
of a concrete seawall for which the Laings received Wisconsin Department of
Revenue permits.