This article summarizes two recent Wisconsin Supreme Court decisions regarding zoning variances, State ex rel. Ziervogel v. Washington County Board of Adjustment, 2004 WI 23 (filed March 19, 2004) and State v. Waushara County Board of Adjustment, 2004 WI 56 (filed May 18, 2004) and focuses on:

1. Distinguishing between area variances and use variances.
2. Redefining the meaning of �unnecessary hardship� for area variances.
3. Reviewing the three tests for deciding variance requests in light of the new Supreme Court decisions.

Before these cases were decided by the Wisconsin Supreme Court, it was doubtful that zoning boards of adjustment in Wisconsin had the authority to grant use variances. See State ex rel. Markdale v. Board of Appeals, 27 Wis. 2d 154 (1965). Now, the Supreme Court has determined that boards of adjustment do have the authority to issue use variances, though they can be problematic for reasons described in a note at the end of this article.

However, it may not always be easy to determine if an applicant is seeking an area variance or a use variance. It is arguable that a large deviation from a dimensional standard, or multiple deviations from several dimensional standards on the same lot, may constitute a use variance instead of an area variance. For example, allowing significantly reduced setbacks could have the same effect as changing the zoning from one residential zoning district that requires significant setbacks and open space to a second residential zoning district that has minimal setbacks and open space.

Based on the majority opinions in the Waushara County and Ziervogel cases, it appears that, in order to draw the line between area variances and use variances, boards of adjustment should consider the degree of the deviation from each dimensional standard for which a variance is sought, to determine if the requested variance would �permit wholesale deviation from the way in which land in the [specific] zone is used.� Ziervogel, � 23. A proactive county seeking to consistently differentiate between area variances and use variances could adopt an ordinance provision similar to the following:

To qualify for either an area or a use variance, the applicant must still demonstrate that their property meets each of the following three requirements:

In the Ziervogel and Waushara decisions, the Supreme Court redefines �unnecessary hardship� when applied to area variances as:

In addition, the Court�s majority opinions in Ziervogel and Waushara County clearly state that a board of adjustment should focus on the purposes of the zoning law at issue. �Unnecessarily burdensome� may be interpreted in different ways depending on the purpose of the zoning law from which a variance is being sought. For example, the purpose of dimensional zoning requirements vary widely from a neighborhood scale purpose of promoting uniformity of development to a much farther-reaching purpose of protecting water quality, fish and wildlife habitat and natural scenic beauty for all navigable waters in Wisconsin. As a result of the increased focus on the purpose of the zoning restriction, zoning staff and boards of adjustment have a greater responsibility to explain and clarify the purposes behind dimensional zoning requirements.

So what does �unnecessarily burdensome� mean in practice? The Ziervogel and Waushara County decisions both discussed variance requests to expand nonconforming structures that did not meet the shoreland setback, yet neither decided whether the variance should be granted under the �unnecessarily burdensome� standard. However, the 1976 Snyder decision that also used the term �unnecessarily burdensome� does provide guidance. In Snyder, a porch had been built that did not comply with the sideyard setback of a shoreland lot. The question was whether a variance should be granted for the porch because living without it would be �unnecessarily burdensome.� The board of adjustment denied the variance and the Wisconsin Supreme Court affirmed its decision stating that the �difficulty or hardship relied upon for granting the variance� for the porch was either �self-created or no more than personal inconvenience.� Snyder v. Waukesha County Zoning Board of Adjustment, 74 Wis. 2d at 479 (1976).

While the �unnecessary hardship� standard for area variances has changed, the other variance standards have remained the same. To qualify for a variance, the applicant must demonstrate that their property meets each of the following three requirements.

This flow chart summarizes the standards for area variances and use variances. Application forms and decision forms for zoning variances are available on the Center for Land Use Education�s website at www.uwsp.edu/cnr/landcenter/zoningboards.html

(UW-Extension does not necessarily endorse the viewpoints expressed in the articles below)

From Wisconsin Law Journal�s website:
www.wislawjournal.com/archive/2004/0324/variance-0324.html  and www.wislawjournal.com/archive/2004/0324/variance-analysis-0324.html

From the Wisconsin Department of Natural Resources:
http://dnr.wi.gov/org/water/wm/dsfm/shore/archive/decisions.htm 

From the League of Wisconsin Municipalities:
www.lwm-info.org/legal/2004/05may/comment.html

From the Wisconsin Chapter of the American Planning Association:
www.wisconsinplanners.org/law/March2004SpecialAlert.htm

From Boardman Law Firm:
www.boardmanlawfirm.com/muni_newsletter/muniMay04.pdf

From Michael, Best and Friedrich:
www.mbf-law.com/pubs/client/LR_alert_3_04.pdf

From Godfrey & Kahn Attorneys at Law:
www.gklaw.com/publication.cfm?publication_id=269

From Wisconsin Law Journal�s website:
www.wislawjournal.com/archive/2004/0526/02-2400.html

From the Wisconsin Department of Natural Resources:
http://dnr.wi.gov/org/water/wm/dsfm/shore/archive/decisions.htm 

From the Wisconsin Realtors� Association:
www.wra.org/pdf/government/landuse/Waushara_Cty_Case.pdf

From Boardman Law Firm:
www.boardmanlawfirm.com/muni_newsletter/muniJun04.pdf

This article was reviewed for form and content by: Rebecca Roberts from the Center for Land Use Education; Linda Meyer from the Wisconsin Department of Natural Resources; Philip Peterson from the Wisconsin Department of Justice; and Daniel Olson from the Wisconsin League of Municipalities. Any errors, mistakes and omissions remain the responsibility of the author.