Water and Law - 905008
The Zoning Game: Variances and Shoreland Development
Zoning ordinances were never meant to address the individual characteristics of specific parcels of land. Rather, shoreland zoning ordinance standards are designed to apply broadly as they separate commercial from residential properties, protect water quality and habitat with specified lot size, setback and frontage requirements, and generally impose restrictions calculated to bring order to a community. Variances represent an exception to this rule; they offer parcel-specific relief and bring flexibility to the implementation of an otherwise rigid zoning code. On appeal of the property owner, the county board of adjustment may grant a variance from shoreland zoning regulations when certain specific conditions have been found to exist. This article looks at variance standards in view of recent case law, revisits the objectives of shoreland zoning, and discusses the public’s opportunity for involvement during the variance decision process.
What is a Variance?
In order to proceed with new development, construction, reconstruction, structural alteration or the moving of buildings, a property owner must apply to the county zoning administrator for a permit; a project that does not meet the standards of the shoreland zoning ordinance must be denied approval. Wisconsin’s zoning enabling laws authorize the county board of adjustment and the board of appeals (in the case of incorporated areas) to relax the terms of an ordinance when relief is justified given the character of the property, specifically when certain criteria established by statute and case law have been met. This limited "adjustment" of the zoning standards in order to accommodate the needs of a particular property owner is known as a zoning "variance."
Variances are typically requested in order to gain relief from the dimensional standards of a shoreland zoning ordinance. For example, an applicant proposing to build a structure within 50 feet of the ordinary high water mark in violation of the 75 foot setback standard would require a variance. The variance effectively permits, through exemptions to lot size, frontage and area requirements, what is otherwise prohibited under the zoning code.
Statutory Criteria for Granting a Variance
Before the county board of adjustment may grant a variance, the property owner has the burden of showing that all of the following conditions have been met:
The applicant must present evidence of "unnecessary hardship" in order to qualify for a variance. Unnecessary hardship has been established only when "no reasonable use" can be made of the property (Kenosha County v. Board of Adjustment (1998)). Case law has made clear that unnecessary hardship is not established when the property owner is unable to maximize the economic value of his or her property. Nor does the loss of a spectacular view or personal inconvenience rise to the level of an unnecessary hardship. Hardships cannot be self-imposed. A property owner who builds a structure in violation of the zoning code and subsequently requests a variance to remedy the situation does not qualify for a variance.
The hardship must be the result of a unique condition on the applicant’s property. If the condition is shared by other properties in the area, the condition is not unique. Property owners who collectively experience a particular shoreland development issue, steep slopes for example, should seek an amendment to the zoning ordinance, not individual variances. This criterion ensures that the objectives and standards of a zoning ordinance are not gradually whittled away through the grant of piecemeal exceptions to the zoning code.
The variance may not be granted if it will be contrary to the public interest or undermine the purpose of the zoning ordinance. Once it has been shown that the property owner will have no reasonable use of the property, the zoning standards will only be relaxed to the extent necessary to provide reasonable use without harming the public interest.
State v. Kenosha County Board of Adjustment (1998)
In this Wisconsin Supreme Court case, a property owner unsuccessfully applied to the county zoning administrator for a permit to build a deck that would have reduced the mandatory 75 foot setback to 64 feet. On appeal from the decision of the zoning office, the county board of adjustment granted the variance based on the following reasoning:
The Wisconsin Supreme Court rejected the board’s analysis for several reasons. First, the court underlined the fact that a board of adjustment may not consider homes that are closer to the water than applicant’s home and grant a variance on the basis of "neighborhood character." That the board considered the potential loss to economic value was also misplaced; the court stressed that this factor is immaterial to the variance analysis. The court also pointed out that no evidence was presented which suggested that the steep slopes posed a safety issue or that the applicant had been unable to make use of the property as a result of this condition. Finally, in order to find an "unnecessary hardship" an applicant must have no reasonable use of the property. In this case, the applicant had made use of the house as a residence for sixty years without the need for a variance.
The Wisconsin Supreme Court also suggested that the purpose of the ordinance is as important as the burden on the property owner when a determination to grant a variance is being made. The court stated: "the purpose of the zoning regulations, including uniformity, should not be lost in the determination of whether to grant a variance."
The County Board of Adjustment and the Hearing
At the hearing before the county board of adjustment, the applicant requesting the variance presents evidence in support of the measure. Although testimony is recorded, the hearing is generally conducted informally and members of the public with an interest in the outcome have an opportunity to participate.
Those in favor of a variance request should offer statements or evidence that suggest an unnecessary hardship exists and that the conditions discussed above have been satisfied. Those against a particular variance application should present evidence that would lead to the opposite conclusion (i.e. that the hardship still allows for reasonable use, is self-imposed, shared by other properties, or a matter of lost economic value). The fundamental purpose of shoreland zoning should also be considered. The Navigable Waters Protection Law, � 281.31 Wis. Stats., was enacted in the interests of protecting aquatic life and diverse habitat, preventing water pollution and preserving natural beauty. Consideration of the degree to which these statutory objectives may be compromised is equally important to the board’s analysis.
The board of adjustment is a quasi-judicial body vested with the responsibility to review variance requests relative to specific standards established by statute and case law. The applicant as well as other property owners may appeal the board’s decision to the circuit court for judicial review. The record will be reviewed principally for the purpose of determining whether the board applied the proper standards to the facts, the facts supported the decision, and the resulting decision was reasonable.
Conclusion
The variance represents a means of introducing some flexibility into the zoning process. The property owner in need of relief from the terms of a zoning ordinance may obtain a variance provided specific statutory criteria have been met. The "unnecessary hardship" standard requires that the property owner show that no reasonable use can be made of the property without the variance. Case law has made clear that personal inconvenience, hardships shared by the community, and issues of economic value do not justify the granting of a variance. The charge of the county board of adjustment within this context is thus relatively simple. The ultimate legislative objective is to ensure that variances are granted when the unique character of the property warrants relief and the purpose of the ordinance in question remains uncompromised.
Last Revised: Nov. 5, 1999
For more information on this topic: tdudiak@uwsp.edu
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