PUBLISHED OPINION
Case No.: 95-1642
†Petition for
Review Filed
Complete Title
of Case:
DAVID MISWALD and
GAIL MISWALD,
Petitioners-Respondents,†
v.
WAUKESHA COUNTY
BOARD OF ADJUSTMENT,
Respondent-Appellant.
Submitted on Briefs: March 1, 1996
COURT COURT OF APPEALS OF WISCONSIN
Opinion Released: May 1, 1996
Opinion Filed: May
1, 1996
Source of APPEAL Appeal from an order
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Waukesha
(If
"Special", JUDGE: ROBERT G. MAWDSLEY
so indicate)
JUDGES: Brown, Nettesheim and Snyder, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSOn behalf of the respondent-appellant, the cause was
submitted on the briefs of William J. Domina, assistant corporation
counsel.
Respondent
ATTORNEYSOn behalf of the petitioners-respondents, the cause was
submitted on the brief of James W. Hammes, of Cramer, Multhauf &
Hammes of Waukesha.
COURT OF
APPEALS DECISION DATED AND
RELEASED May
1, 1996 |
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. 95-1642
STATE OF WISCONSIN IN
COURT OF APPEALS
DAVID
MISWALD and
GAIL
MISWALD,
Petitioners-Respondents,
v.
WAUKESHA
COUNTY
BOARD
OF ADJUSTMENT,
Respondent-Appellant.
APPEAL
from an order of the circuit court for Waukesha County: ROBERT G. MAWDSLEY, Judge. Reversed.
Before
Brown, Nettesheim and Snyder, JJ.
NETTESHEIM,
J. The issue on appeal is whether the Waukesha
County Board of Adjustment correctly calculated the allowable size of David and
Gail Miswald's proposed residence on the shores of Lake Okauchee in the Town of
Oconomowoc, Waukesha County, when considering the Miswalds' variance
request. The board based its calculation
solely on the size of the Miswalds' residential lot, to the exclusion of two
other nearby lots which the Miswalds also own.
Based on this computation, the board granted the Miswalds a variance,
but not to the extent sought by the Miswalds.
The
circuit court reversed the board's ruling and remanded the matter back to the
board. The court held that the county's
prior imposition of a deed restriction, requiring the three Miswald parcels to
be sold as a single unit, mandated the board to consider the three parcels as
one for purposes of the requested variance.
We
conclude that the board's action was within its jurisdiction and decided under
a correct theory of law. We also
conclude that the action was not arbitrary, oppressive or unreasonable and was
supported by the evidence. Accordingly,
we reverse the circuit court's order and confirm the board's decision.
Facts
The Miswalds are the owners of three
separate parcels of land located on and near Lake Okauchee in Kraenzlein's
Subdivision in the Town of Oconomowoc, Waukesha County. The first lot fronts the lake, has a total
area of 4015 square feet and is the site of the Miswalds' present one-story,
730 square foot ranch home. Forest Bay
Road runs along the back of this lot.
The
second lot is an off-lake parcel located behind the Miswalds' lakefront lot on
the other side of Forest Bay Road. This
lot is a small, vacant, fifteen- by twenty-foot parcel.
The
third lot is a noncontiguous off-lake parcel, also located on the other side of
Forest Bay Road. This lot lies
approximately two hundred feet west of the lakefront parcel, has an average
width of fifty feet, an average depth of 164.25 feet and a total area of 8212
square feet, including a road right-of-way.
The combined area of all three parcels is 12,227.5 square feet.
In
1986, the board approved the Miswalds' request for a variance to construct a
detached garage on the third lot. The
variance was necessary, in part, because the proposed garage would be located
on a lot which did not include the Miswalds' principal residential building. However, as a condition of the variance
grant, the board imposed a deed restriction requiring that the Miswald lots
could not be sold separately.[1]
This
brings us to the current matter. On
June 6, 1994, the Miswalds submitted a proposal to the board to raze their
existing ranch home and construct a twenty-eight by forty-two foot two-story
residence on the lakefront lot, with each floor approximately 1200 square feet
in area. This proposal required the
Miswalds to obtain a variance from the floor area ratio, open space, road
setback and shore setback provisions of the Waukesha County Shoreland and
Floodland Protection Ordinance. The
ordinance, inter alia, requires open space square footage of 10,000 square feet
and a floor area ratio maximum of 15% of the lot size.
The
board's staff analyzed the Miswalds' proposal and prepared a
recommendation. Based on the size of
the Miswalds' residential lakefront lot, the staff calculated that the
Miswalds' proposal produced: (1) 3098
square feet of open space, whereas the ordinance required 10,000 square feet;
and (2) a floor area ratio of 45.7%, whereas the ordinance permitted a maximum
of 15%. Alternatively, based on the
combined size of all the Miswald lots, the staff calculated that the proposal
produced: (1) open space of 10,470.5
feet, in compliance with the ordinance; and (2) a floor area ratio of 21.9%, still
in excess of the maximum permitted by the ordinance.
The
staff recommended a partial grant of the Miswalds' variance request with
various conditions. These included
restricting the proposed home to a single-story structure of thirty feet by
forty feet with an exposed basement with a finished living area. On July 7, 1994, the board, with exceptions
not relevant here, adopted the staff recommendation. Neither the staff recommendation, the board's decision nor the
parties' briefs set out the floor area ratio resulting from this approval.
The Miswalds requested a reconsideration of
the board's decision, and the matter was placed on the board's calendar for the
next meeting. Subsequently, the
Miswalds submitted a modified proposal for a twenty-eight by forty-two foot
three-story home consisting of an unfinished, exposed basement, 1176 square
feet on the first floor and 798 square feet on the second floor.
Again,
the board's staff conducted an analysis of the Miswalds' new request and issued
a further recommendation. Based only on
the size of the residential lot, the Miswalds' new proposal produced the same
open space area as their original proposal:
3098 square feet versus the 10,000 square feet required by the
ordinance. In addition, the new
proposal produced a floor area ratio of 36%, still in excess of the 15% maximum
permitted by the ordinance.
Alternatively, by combining all the lots, the open space area was 10,507
square feet, in compliance with the ordinance; however, the floor area ratio
was 18.5%, still in excess of that permitted by the ordinance.
Again,
the staff recommended a partial grant of the Miswalds' modified variance
request. The staff recommended a
one-story thirty- by forty-foot structure with an exposed basement. Unlike the
earlier recommendation, this recommendation set out the resulting open space
and floor area ratio. Limiting the
calculation to only the residential lot size, the staff's recommendation
produced 4100 square feet of open space and a floor area ratio of 22.6%.
The
board, however, approved a twenty-five by forty-foot two-story structure with
an exposed basement. On the basis of
the size of the residential lot, this produced a floor area ratio of 28.3% and
open space of 4300 square feet. On this
basis, the board partially granted the variance.
On
September 30, 1994, the Miswalds filed a certiorari appeal in the circuit court
claiming that the board erred when it refused to factor all three lots into the
computation. The circuit court agreed
with the Miswalds. The court concluded
that because the board had imposed the prior deed restriction requiring the
Miswalds' three lots to be sold as a unit, the board was required to combine
the Miswalds' three lots for the purpose of measuring the floor area ratio. The
court remanded the matter back to the board for further consideration under
this directive. The board appeals.
Discussion
When
conducting statutory certiorari judicial review, our standard of review of the
circuit court's ruling is de novo. Nielsen
v. Waukesha County Bd. of Supervisors, 178 Wis.2d 498, 511, 504 N.W.2d
621, 626 (Ct. App. 1993). We accord a
presumption of correctness and validity to the decision of the board when
reviewing a decision by statutory certiorari.
Id.
The
board first argues that the Miswalds did not file their appeal within thirty
days of the board's decision as mandated by § 59.99(10), Stats.[2] It reasons that the thirty-day time limit
under the statute commenced when the board first partially approved the
variance on July 7, 1994. The board
maintains that the issue of whether the Miswalds could combine their three lots
was resolved at that meeting. The
Miswalds respond that their appeal is timely because the matter was not
resolved with finality until the board's decision of September 14, 1994. We agree with the Miswalds that this appeal
is timely taken from the latter board decision.
We
reject the board's argument that it reached a definite and final decision at
the July hearing because the subject was raised and discussed at that
hearing. Unlike the board's September
decision, the July decision did not expressly say that the calculation was
limited to the residential lot only.
More importantly, however, the July decision clearly stated that the
board's decision was tentative and conditional. In its final sentence, the decision states:
NOTICE: The
approval of the decision contained on this sheet may be taken up at the next
scheduled Board of Adjustment Hearing.
Consequently, the language contained herein may be subject to change or
modification.
Thereafter, the board subsequently issued a notice of
public hearing to be held on August 10, 1994, to further address this
matter. It is unclear from the record
whether this action was a routine follow-up to the board's prior conditional
order or whether it was prompted by the Miswalds' request for
reconsideration. In either event, it is
clear that the board did not see its July decision as the final word on the
matter.
In
contrast, the September 14, 1994, board decision speaks directly to the
calculation issue. And, although this
decision also contains the same concluding language indicating that the matter
might be taken up at a further hearing, the record does not reveal that any
further hearings concerning this issue occurred.[3] Since the Miswalds filed their appeal on
September 30, 1994, within the thirty-day time limit under § 59.99(10), Stats., we address the appellate issue
on the merits.
The
common law certiorari standard of review applies to the circuit court's review
of a decision by a county board of adjustment under § 59.99(10), Stats., when the court either does not
take evidence or takes evidence that is substantially the same as that taken by
the board. Klinger v. Oneida
County, 149 Wis.2d 838, 843, 845, 440 N.W.2d 348, 350, 350-51
(1989). Under this standard, a circuit
court's review is limited to: (1)
whether the board 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. Id. at 843, 440
N.W.2d at 350. We consider these
factors as well. See Arndorfer
v. Sauk County Bd. of Adjustment, 162 Wis.2d 246, 254, 469 N.W.2d 831,
834 (1991).
In
addition, a reviewing court must accord a presumption of validity and
correctness to a decision by a board of adjustment. Id. at 253, 469 N.W.2d at 833. Thus, the Miswalds carry the burden of
overcoming this presumption of correctness.
See id.
The
Miswalds do not dispute the accuracy of the board's floor area ratio
calculation. Rather, they dispute the
board's decision to make that calculation solely on the basis of the size of
their residential lot and to the exclusion of their other two parcels.[4]
We
first observe that neither the circuit court's decision nor the Miswalds' brief
cites to any case law which holds that a condition imposed by a zoning board of
adjustment in a prior unrelated variance proceeding governs the present and
different variance request.
Second,
and more importantly, the 1986 deed restriction served a different purpose than
the zoning restrictions at issue in the present proceeding. The deed restriction was a condition
attached to the board's grant of a variance to the Miswalds, permitting them to
construct a garage on a separate, noncontiguous parcel which did not contain a
principal building. The board obviously
did not want to be confronted with a future situation in which the principal residential
lot, but not the garage lot, had been sold.
That would result in the garage no longer serving as an accessory
structure. Such would be illegal under
the ordinance, compelling the zoning authorities to take steps to eliminate the
violation. The deed restriction avoided
this potential state of affairs.
That
concern, however, is far different from the building size and open space
requirements which confronted the board in this case. These requirements serve the purpose of the ordinance which is to
promote the health, safety, convenience and environmental integrity of the
area. See Waukesha County, Wis., Shoreland and Floodland
Protection Ordinance § 1.02.
When
considering a variance request, the zoning authority is to make a discretionary
call on a case-by-case basis as to whether, and if so by how much, the
governing rules are to be relaxed. See
Snyder v. Waukesha County Zoning Bd. of Adjustment, 74 Wis.2d
468, 475-76, 247 N.W.2d 98, 103 (1976).
That determination should not be governed by a condition which the board
imposed in a prior unrelated proceeding in which the considerations at issue
were markedly different from those in the present proceeding. As such, the board proceeded on a correct
theory of the law and it could reasonably make the order challenged in this
case.
We
also conclude that the board's decision was not arbitrary, oppressive or
unreasonable. The circuit court
disagreed, noting that the Miswalds had made a “significant sacrifice” as a
result of the 1986 deed restriction.
True enough. However, the
court's statement overlooks that the Miswalds had also received a substantial
benefit as a result of that proceeding.
They received a variance from the provisions of the zoning code which
otherwise barred the construction of an accessory building on a separate,
noncontiguous parcel. In addition, the
court's reasoning overlooks what we have already held: the deed restriction served one purpose
while the zoning restrictions governing building size serve others.
Nor
was the board's action arbitrary, oppressive or unreasonable because the board
had, in certain prior instances, combined multiple, noncontiguous lots when
considering variance requests by other residents. Of the three examples offered by the Miswalds, two were requests
for the construction of boathouses, not a primary residence. We presume as correct and valid the board's
reasoning that the construction of a principal residence presents planning
issues that may be more compelling than those presented by proposed accessory
buildings. See Arndorfer,
162 Wis.2d at 253, 469 N.W.2d at 833.
In fact, that may explain the board's full grant of the garage variance
to the Miswalds in 1986.
The
third example offered by the Miswalds did concern a residence variance
application. In that case, the board
determined that it did not have to grant the floor area ratio variance because
it combined two lots owned by the resident.
However, we reject the Miswalds' argument that the board was bound to
follow this example for three reasons.
First,
if the Miswalds are correct, the board's authority to exercise its
discretionary powers on a case-by-case basis would be substantially
curtailed. Moreover, if the board's
action in the prior case was incorrect, the Miswalds' argument would forever
hold the board to perpetuate it. That
is not the law. A zoning authority may
correct a prior mistake. See Smart
v. Dane County Bd. of Adjustment, 177 Wis.2d 445, 455, 501 N.W.2d 782,
785 (1993).
Second,
although past practice can sometimes govern present practice, we are unable to
say that this one example represents the requisite “practical construction over
an extensive period by the officer or administrative agency charged with
[administering the law].” See State
ex rel. B'nai B'rith Found. v. Walworth County Bd. of Adjustment, 59
Wis.2d 296, 305, 208 N.W.2d 113, 118 (1973) (emphasis added; quoted source
omitted).
Third,
although we are not presented with extensive evidence relating to this example,
two distinctions are immediately apparent.
First, the additional lot which the board factored into the calculation
could not be developed because it was located in a floodplain. In this case, we are not advised as to
whether the garage lot could be developed, but it clearly is not located in a
floodplain. Second, even excluding the
additional lot from the calculation in the prior case, the applicant there at
least satisfied the open space requirement of the ordinance. In this case, the Miswalds satisfied neither
the open space nor the floor ratio requirements. These differing factors may well explain the board's differing
rulings in these cases.
Conclusion
We
hold that the board acted within its jurisdiction and proceeded under a correct
theory of law in partially granting the Miswalds' variance request. We further hold that the board's decision is
a rational exercise of considered judgment, is not arbitrary or capricious, and
is reasonably supported by the evidence.
We reverse the circuit court's ruling to the contrary and confirm the
board's decision.
By
the Court.—Order reversed.
[1] The parties'
briefs represent that the 1986 deed restriction applies to all three lots owned
by the Miswalds. We are not certain
that this is so. The actual 1986
variance proceedings are not part of the record. Instead, this event is summarized in the recommendation of the
board's staff prepared in response to the Miswalds' present variance request. This summary notes that the variance for the
garage lot was required because the lot did not have a principal building. The summary then notes the deed restriction
that “the two lots not be sold separately.”
It strikes us that this language might apply only to a sale of the
garage lot and the residential lakefront lot, but not to the small, vacant
lot. Nonetheless, because the parties
assume and represent that the deed restriction applies to all three lots, we
will decide this case on that premise.
[2] Although the
record does not demonstrate that the board raised this issue in the circuit
court and could be held to waiver, we nonetheless choose to address it. See Wirth v. Ehly, 93
Wis.2d 433, 443-44, 287 N.W.2d 140, 145-46 (1980). Section 59.99(10), Stats.,
provides: “Certiorari. Any
person or persons, jointly or severally, aggrieved by any decision of the board
of adjustment ¼ may, within 30 days
after the filing of the decision in the office of the board, commence an action
seeking the remedy available by certiorari.”