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Zoning Boards May Consider Zoning Official Mistake
By
Brian W. Ohm, J.D.,
Professor and Land Use Law Specialist
Accent Developers v. City of Menomonie
involved a challenge to the granting of after-the-fact area variances
for two residential duplexes in the City of Menomonie. Timber Ridge
mistakenly built part of each duplex within the front setback from the
road right-of-way. The City�s building inspector mistakenly approved the
footings for the duplexes before the concrete footings were poured. The
mistake was discovered after the duplexes were constructed. Timber Ridge
then applied for variances. The City�s Board of Zoning Appeals concluded
it would be an unreasonable hardship for Timber Ridge to demolish and
rebuild the duplexes and granted the variances. The Board also concluded
that the hardship was unique to Timber Ridge�s property and the hardship
was not solely self-created since the City�s building inspector approved
the footings. Accent Developers, an adjacent property
owner, then appealed the granting of the variances by the Board of
Zoning Appeals. The Court of Appeals, however, affirmed the Board�s
decision finding that the Board had a reasonable basis for granting the
variance. According to the Court of Appeals, a board of appeals may
consider the role a city official played in a zoning violation when
deciding whether to grant a variance. (The court of appeals also
questioned what Accent Developers hoped to accomplish by the lawsuit.
Accent was not requesting that the zoning ordinance be enforced and
Timber Ridge tear down the duplexes. Rather, Accent wanted a similar
variance for its adjacent property.) For More Information
This article was reprinted from the
Wisconsin Chapter of American Planning Association�s March 2007 Case law
Update. Additional case law and legislative
updates are available on their website:
www.wisconsinplanners.org/law/index.htm Accent Developers,
LLC v. City of Menomonie Board of Zoning Appeals and Timber Ridge Homes,
LLC, 2006AP1268 is available online:
www.wisbar.org/res/capp/2007/2006AP001268.htm
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