COURT OF APPEALS DECISION DATED AND FILED February 13, 2013 Diane M. Fremgen 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 No. |
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STATE OF |
IN COURT OF APPEALS |
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DISTRICT II |
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State of Plaintiff-Appellant, v. Defendant-Respondent. |
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APPEAL
from an order of the circuit court for
Before Neubauer, P.J., Reilly and Gundrum, JJ.
¶1 PER CURIAM. The Manitowoc County Board of
Adjustment granted Rebecca Rach a variance from the shoreline setback
requirement to construct a patio. The
State of
¶2 In 2010, Rach built a house on
¶3 After Board members conducted an on-site inspection of Rach’s property, the Board held a hearing on her request. She and her husband appeared in person and presented a landscaping plan showing that the patio would be constructed with materials and plantings to aid in filtration and catch any runoff. The Town indicated via letter that its board and planning commission both approved Rach’s variance request. The Wisconsin Department of Natural Resources, by a letter from a shoreland zoning specialist, opposed the application, citing the lack of unnecessary hardship, the absence of unique property features, and the negative effects the patio and widened walkway encroachment would have on the lake.
¶4 Rach’s husband testified that they had come before the Board prior to building their house; that they could not have built their house further back because the land behind their house came up for sale only after they built; that the road behind their house was built wide enough to accommodate fire trucks, which before could not get to all of the cottages; and that, with the remainder of that parcel being wetland, there is “absolutely no room back there” to build a patio. A Board member commented, “I don’t think [the DNR shoreland zoning specialist] realized that…. He wasn’t there [at the property].”
¶5 The Board concluded that Rach faced an unnecessary hardship because the swamp area behind the house is not suitable for a patio; the landscaping, the substrate and the spacing between the pavers would handle runoff; and the variance would not be contrary to the public interest because the landscaping would screen the patio from the lake, beautify the shoreline and create a buffer to prevent runoff. The Board modified the variance request by reducing the width of the walkway from forty-eight to forty-two inches and the length of the patio from forty feet to twenty feet, thus cutting the setback intrusion to twenty-nine feet. The Board voted to approve the variance as modified. The State filed a complaint in the circuit court for certiorari review under Wis. Stat. § 59.694(10).[1] The court affirmed the Board’s variance decision. The State appeals.
¶6 On certiorari review, we review the Board’s decision, not the
circuit court’s. Roberts v.
¶7 On certiorari we apply the substantial evidence test to
determine whether the evidence is sufficient. Clark v. Waupaca Cnty. Bd. of Adjustment,
186
¶8 When a landowner requests an area variance, the Board must
decide whether denying the variance would impose an unnecessary hardship on the
landowner not justified by the ordinance’s underlying purpose.
¶9 Because the State argues that Rach failed to produce
sufficient evidence of “unnecessary hardship,” the State must overcome the
presumption of correctness accorded to the Board’s decision. See
Arndorfer
v. Sauk Cnty. Bd. of Adjustment, 162 Wis. 2d 246, 253, 469 N.W.2d 831
(1991). The State contends that any
hardship Rach faces is self-created and personal to her because she built the
house just a year before applying for the variance, choosing its size and where
to situate it on the lot. The State also
contends that a patio is not essential in the first place and if Rach wants one
she can build it, instead of a garage, at the back of the house. Even if Rach could construct the patio on the
swampy land away from the lake, substantial evidence exists to support the
outcome the Board reached, making it irrelevant that substantial evidence might
exist to support the opposite outcome. Roberts,
295
¶10 The State argues that the aerial photograph Rach produced to show the unique swampiness of her property relative to her neighbors is too blurry to establish anything. The photo also does not discredit the claim, however, especially considering the Board members’ on-site viewing. We do not evaluate evidence anew or reweigh the evidence the Board found credible.
¶11 The Board must evaluate the hardship in light of the purpose of the zoning restriction at issue, and a variance cannot be contrary to the public interest. Ziervogel, 269 Wis. 2d 549, ¶20. The basic purpose of a shoreland zoning ordinance “is to protect navigable waters and the public rights therein from the degradation and deterioration which results from uncontrolled use and development of shorelands.” Just v. Marinette Cnty., 56 Wis. 2d 7, 10, 201 N.W.2d 761 (1972). The Board considered the purpose of the ordinance. After viewing the site itself, taking testimony and receiving input from the Town and the DNR, it modified the scope of the requested variance by imposing conditions designed to protect the shoreland setback zone. It specifically found that, as modified, the construction would not be contrary to the public interest.
¶12 The Board acted within the authority entrusted to it by the legislature. See Wis. Stat. § 59.694(7)(c). We conclude that the Board’s decision is supported by sufficient evidence and that the State has not overcome its presumptive correctness.
By the Court.—Order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.