Richard W. Ziervogel v. Washington County Board of Adjustment

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2004 WI 23 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 02-1618 State of Wisconsin ex rel. Richard W. Ziervogel and Maureen A. McGinnity, Plaintiffs-Appellants-Petitioners, v. Washington County Board of Adjustment, Defendant-Respondent, State of Wisconsin, Intervenor-Respondent. REVIEW OF A DECISION OF THE COURT OF APPEALS 2003 WI App 82 Reported at: 263 Wis. 2d 321, 661 N.W.2d 884 (Ct. App. 2003-Published) OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: December 4, 2003 SOURCE OF APPEAL: COURT: COUNTY: JUDGE: Circuit Washington David C. Resheske JUSTICES: CONCURRED: DISSENTED: NOT PARTICIPATING: March 19, 2004 ABRAHAMSON, C.J. and BRADLEY, J., did not participate. ATTORNEYS: For the plaintiffs-appellants-petitioners there were briefs by Maureen A. McGinnity and Foley & Lardner, Milwaukee, and oral argument by Maureen A. McGinnity. For the defendant-respondent there was a brief by Kimberly A. Nass, corporation counsel, Christine E. Ohlis, assistant corporation counsel, and oral argument by Christine E. Ohlis. For the intervenor-respondent the cause was argued by P. Philip Peterson, assistant attorney general, with whom on the brief was Peggy A. Lautenschlager, attorney general. An amicus curiae brief was filed by John A. Kassner and Murphy Desmond, S.C., Madison, on behalf of the Wisconsin Builders Association, and oral argument by John A. Kassner. An amicus curiae brief was filed by Daniel M. Olson, Madison, on behalf of the League of Wisconsin Municipalities. An amicus curiae brief was filed by Thomas D. Larson and Debra P. Conrad, Madison, on behalf of the Wisconsin Realtors Association. An amicus curiae brief was filed by William P. O Connor, Tracy K. Kuczenski, Mary Beth Peranteau and Wheeler, VanSickle & Anderson, S.C., Madison, on behalf of Wisconsin Association of Lakes, and oral argument by William P. O Connor. 2 2004 WI 23 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 02-1618 (L.C. No. 01 CV 838) STATE OF WISCONSIN : IN SUPREME COURT State of Wisconsin ex rel. Richard W. Ziervogel and Maureen A. McGinnity, Plaintiffs-AppellantsPetitioners, FILED v. MAR 19, 2004 Washington County Board of Adjustment, Cornelia G. Clark Clerk of Supreme Court Defendant-Respondent, State of Wisconsin, Intervenor-Respondent. REVIEW of a decision of the Court of Appeals. Reversed and remanded for further proceedings consistent with this opinion. ¶1 DIANE S. SYKES, J. reconsider the legal adjustment measure We are called upon in this case to standard "unnecessary by which hardship" zoning when boards of determining whether to grant area zoning variances. ¶2 The legislature has by statute vested local boards of adjustment with broad discretionary power to authorize variances where the strict enforcement of zoning regulations results in No. unnecessary hardship to individual property 02-1618 owners. "Unnecessary hardship," however, is not defined in the statute. It has fallen to courts to give meaning to the term. ¶3 The present need to revisit the meaning of "unnecessary hardship" is precipitated by our decisions in State v. Kenosha County Bd. of Adjustment, 218 Wis. 2d 396, 577 N.W.2d 813 (1998), and State v. Outagamie County Bd. of Adjustment, 2001 WI 78, 244 Wis. 2d 613, 628 N.W.2d 376. Kenosha County merged the previously distinct legal standards for unnecessary hardship in use and area variance cases that had existed since Snyder v. Waukesha County Zoning Bd. of Adjustment, 74 Wis. 2d 468, 247 N.W.2d 98 (1976), establishing a single, "no reasonable use of the property" standard for unnecessary hardship in all variance applications. reasonable We use" reconsidered standard in Kenosha Outagamie County's County, unitary but "no split on whether it should be overruled (three justices), maintained but not applied to defeat the area variance in the case (two justices in concurrence), or maintained and applied to defeat the variance (two justices in dissent). Outagamie County, 244 Wis. 2d 613, ¶5. ¶4 We now conclude that the distinctions in purpose and effect of use and area zoning make the perpetuation of a single, highly-restrictive "no reasonable use of the property" standard for all variances unworkable and unfair. Use zoning regulates fundamentally how in property may be used, order to promote uniformity of land use within neighborhoods or regions. Area zoning regulates lot area, density, height, frontage, setbacks, 2 No. 02-1618 and so forth, in order to promote uniformity of development, lot, and building size. ¶5 Restricting property the availability owners who would have "no of variances reasonable to use" those of their property without a variance may be justifiable in use variance cases, given the purpose of use zoning and the effect of use variances on neighborhood character. substantial But applying the same strict "no reasonable use" standard to area variance applications is unjustifiable. The "no reasonable use" standard is largely disconnected from the purpose of area zoning, fails to consider the lesser effect of area variances on neighborhood character, and discretion of operates local to virtually boards of eliminate adjustment to the do statutory justice in differences in individual cases. ¶6 A forthright recognition of these purpose and effect of use and area zoning and variances requires perceptibly different standards for the evaluation of use and area variance applications. Henceforward, area variance applicants need not meet the "no reasonable use of the property" standard that is applicable to use variance applications. ¶7 We now reaffirm the Snyder standard for unnecessary hardship in area variance cases: "[w]hen considering an area variance, the question of whether unnecessary hardship . . . exists is best explained as '[w]hether compliance with the strict letter of the restrictions governing area, set backs, frontage, height, bulk or density would unreasonably prevent the owner from using the property for a permitted purpose or would 3 No. render conformity burdensome.'" with such restrictions 02-1618 unnecessarily Snyder, 74 Wis. 2d at 475 (quoting 2 Rathkopf, The Law of Zoning & Planning § 45-28 (3d ed. 1972)). Whether this upon standard consideration question, its is of met in the individual purpose effect on the of cases the depends zoning property, and a restriction the effect in of a variance on the neighborhood and the larger public interest. The long-standing requirements that the hardship be unique to the property and not self-created are maintained. Wis. 2d at 476, 479. Snyder, 74 The burden of proving unnecessary hardship remains on the property owner. ¶8 area The variance applicants in this case were denied an variance from a shoreland zoning setback restriction because they failed to meet Kenosha County's restrictive "no reasonable use of the property" test. The denial was upheld on certiorari review and appeal. Because we now hold that Kenosha County's standard "no reasonable use" does not govern area variance applications, we reverse. I. ¶9 Richard FACTS AND PROCEDURAL HISTORY Ziervogel and Maureen McGinnity ("petitioners") own a 1.4 acre parcel of property on Big Cedar Lake in the Town of West Bend in Washington County. The property has 200 feet of lake frontage and a 1600-square-foot house with a legal nonconforming setback of 26 feet from the ordinary high water mark of the lake. A public roadway bisects the lot along the side of the house opposite the lake, and the 4 No. remainder of the lot on the other side of roadway 02-1618 is in a floodplain. ¶10 The petitioners purchased the property in 1996 and have used it as a summer home. house year-round, and would They now wish to live in the like to construct a ten-foot vertical addition to the structure consisting of two bedroombathroom suites and an office. have been permissible ordinance. ordinance However, to under in prohibit In 1996, such an addition would the 2001 any applicable Washington expansion of shoreland County any zoning amended portion its of an existing structure within 50 feet of the ordinary high-water mark of the lake. Washington Cty., Wis., Code § 23.13(3)(d). Accordingly, the petitioners need a variance to go ahead with their plans. ¶11 The Washington County Board of Adjustment considered the petitioners' variance application at a public hearing on October 22, 2001. project in detail. The petitioners appeared and described their A letter from the Wisconsin Department of Natural Resources (DNR) objecting to the variance was read into the record. Department of A representative Planning opposed the variance. and Parks of the was Washington also heard; County he, too, At the conclusion of the hearing, the Board denied the variance because the petitioners failed to show that they would have no reasonable use of their property without the variance. ¶12 The Washington petitioners County Circuit sought Court. 5 review The via certiorari Honorable David in C. No. 02-1618 Resheske affirmed, concluding that under the "no reasonable use" standard of Kenosha County, the Board's denial of the variance must be upheld. ground. The court of appeals affirmed on the same State ex rel. Ziervogel v. Washington County Bd. of Adjustment, 2003 WI App 82, 263 Wis. 2d 321, 661 N.W.2d 884. We reverse. II. STANDARD OF REVIEW ¶13 A person aggrieved by the issuance or denial of a zoning variance may commence an action in circuit court seeking the remedy available by certiorari, as the petitioners did here. See Wis. Stat. § 59.694(10). A court on certiorari review must accord a presumption of correctness and validity to a board of adjustment's decision. Snyder, 74 Wis. 2d at 476. A reviewing court may not substitute its discretion for that of the board, the entity decisions. ¶14 to which the legislature has committed these Id. When no certiorari review additional is limited evidence to: (1) is taken, whether the statutory 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 board might reasonably make the order or determination in question based on the evidence. Sauk County Bd. N.W.2d 831 (1991). of Adjustment, 162 Arndorfer v. Wis. 2d 246, 253, 469 The second of these elements of certiorari review is implicated here: at issue is the appropriate legal standard for the determination 6 of statutory "unnecessary No. hardship." This independently. is a question of law that 02-1618 we review Outagamie County, 244 Wis. 2d 613, ¶22. III. ANALYSIS ¶15 Counties shorelands by are statutorily required to zone their Wis. Stat. § 59.692(1m)(1999-2000).1 ordinance. Washington County adopted a revised Shoreland/Wetland/Floodplain ordinance that became effective June 1, 2001. Washington Cty., Wis., Code ch. 23. ¶16 The zoning enabling statutes also empower county boards of adjustment to authorize variances from the terms of zoning ordinances in harmony with intent. Wis. Stat. § 59.694(1). established a their board enabling statute. ¶17 of general purpose County Washington adjustment pursuant to and has the variance Washington County., Wis., Code § 23.15(e). Variance procedure in zoning law serves several essential purposes: to prevent otherwise inflexible zoning codes from precipitating regulatory takings; to provide a procedure by which the public interest in zoning compliance can be balanced against the private interests of property owners in individual cases; and, most broadly, to allow a means of obtaining relief from the strict individual enforcement injustices County, 244 designed to might Wis. 2d 613, afford a of zoning occasionally ¶¶44-47. protective 1 restrictions occur. Zoning device Outagamie variances against where "are individual All references to the Wisconsin Statutes are to the 19992000 version unless otherwise indicated. 7 No. hardships, to provide relief against and unnecessary 02-1618 unjust invasions of the right to private property, and to provide a flexibility of procedure constitutional rights." Corporations 25.160, necessary § citations omitted). 8 at to Eugene 590-91 the protection McQuillin, (Rev. ed. 2000) of Municipal (internal Thus, [i]t has been said that to preserve the validity of the zoning ordinance in its application to the community in general, the variance provision of the enabling act functions as an "escape valve," so that when regulations that apply to all are unnecessarily burdensome to a few because of certain unique circumstances a means of relief from the mandates of the ordinance is provided. 3 E.C. Yokley, Zoning Law & Practice § 20-1 (2002 revision), at 20-2. ¶18 Consistent with these principles, Wis. Stat. § 59.694(7) vests county boards of adjustment with the following authority to grant zoning variances: To authorize upon appeal in specific cases variances from the terms of the ordinance that will not be contrary to the public interest, where, owing to special conditions, a literal enforcement of the provisions of the ordinance will result in unnecessary hardship, and so that the spirit of the ordinance shall be observed and substantial justice done. Wis. Stat. § 59.694(7)(c). ¶19 local The boards legislature of has adjustment by this enactment substantial delegated discretion to to grant variances where the literal application of zoning regulations would result in unnecessary hardship not justified underlying purposes of the ordinance in question. 8 by the The statute, No. however, does not define "unnecessary hardship," prerequisite to the issuance of a variance. 02-1618 which is a It has been left to courts to give content to the term. ¶20 The following judicial rules of unnecessary hardship are well-established: The hardship must be based on conditions unique to the property rather than considerations personal to the property owner. Snyder, 74 Wis. 2d at 479; see also 3 Kenneth H. Young, Anderson's American Law of Zoning §§ 20.3520.40 (4th ed. 1996); 3 Edward H. Ziegler, Jr., Rathkopf's Law of Zoning and Planning § 58:18 (2003). self-created. The hardship cannot be Snyder, 74 Wis. 2d at 476; see also Outagamie County, 244 Wis. 2d 613, ¶24; 3 Ziegler, supra § 58:21; 3 Young, supra § 20.44-47. The board of adjustment is to evaluate the hardship in light of the purpose of the zoning restriction at issue. Snyder, 74 Wis. 2d at 473; see also Outagamie County, 244 Wis. 2d 613, ¶24; Id., ¶74, (Crooks, J., concurring). variance cannot be contrary to the public interest. A Arndorfer, 162 Wis. 2d at 256; see also Outagamie County, 244 Wis. 2d 613, ¶24. The property owner bears the burden of proving unnecessary hardship. Arndorfer, 162 Wis. 2d at 253; see also Outagamie County, 244 Wis. 2d 613, ¶50. While these general principles help guide the board's discretion, they do not establish the meaning of the term "unnecessary hardship" or provide a legal standard for determining whether it has been proved. ¶21 of the because By definition, all variances depart from the purpose zoning they ordinance permit and implicate something 9 that the is public otherwise interest, strictly No. prohibited. 02-1618 But they do so to varying degrees and levels of acceptability, depending on the type of variance requested and the nature of the zoning restriction in question. As such, courts have long recognized a distinction between use variances, which permit a landowner prohibited use, from physical such height limits. County, 244 and to area put property variances, requirements as which to an provide setbacks, otherwise exceptions lot area, and Snyder, 74 Wis. 2d at 474-75; see also Outagamie Wis. 2d 613, ¶¶34-36. The distinction has been described in this way: A use variance is one that permits a use other than that prescribed by the zoning ordinance in a particular district. An area variance has no relationship to a change of use. It is primarily a grant to erect, alter, or use a structure for a permitted use in a manner other than that prescribed by the restrictions of a zoning ordinance. 3 Yokley, supra § 20-3, at 20-8-9; see also 3 Ziegler, supra, 58.4. ¶22 The law treats use and area variances differently because use and area zoning serve distinct purposes and affect property rights in distinct ways; also, use and area variances affect public and private interests differently. In the most general sense, the purpose of all zoning is to control land use and development in order to promote welfare, morals, and aesthetics. public here, carries the safety, Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 394-95 (1926). issue health, additional Shoreland zoning, at general purposes of protecting the public's interest in navigable waters, including 10 No. promoting safe pollution, and beauty. and healthful protecting water fish and Wis. Stat. § 281.31(1). conditions, aquatic 02-1618 controlling life and natural Within these general purposes, use zoning regulates fundamentally how property may be used, in order to promote regions. uniformity of use within neighborhoods and Area zoning, on the other hand, regulates density, setbacks, frontage, height, and other dimensional attributes, in order to promote uniformity of development, lot size, and building configuration and size. ¶23 Use and area variances thus threaten the integrity of zoning ordinances in qualitatively different ways, and generally to a different extent. potential to bring Use variances by their nature have the about great changes in neighborhood character, but area variances usually do not have this effect. Synder, 74 Wis. 2d at Wis. 2d 613, ¶¶36-38. of relief (normally 473; see also Outagamie County, 244 While area variances provide an increment small) from a physical dimensional restriction such as building height, setback, and so forth, use variances permit wholesale deviation from the way in which land in the zone is used. Accordingly, the measure of unnecessary hardship area for use and variances is different; "in most states, the courts will approve an area variance upon a lesser showing by variance."2 the applicant than is required to 3 Young, supra, § 20:48, at 580. 2 sustain a use Until Kenosha In some states, these differences are formalized in the variance statute itself. "[S]tatutes governing use and area variances fall into three categories: (1) those which allow use and nonuse (area) variances and which allow nonuse (area) 11 No. 02-1618 County, Wisconsin followed this general rule, pursuant to this court's decision in Snyder. ¶24 Snyder linked the definition of "unnecessary hardship" in use variance cases to the goal of preventing zoning from rendering property useless, holding that "unnecessary hardship" in use variance cases is established only when, in the absence of a variance, no reasonable or feasible use can be made of the property. Snyder, 74 Wis. 2d at 474. difference in variances, purpose Snyder and effect established a of However, because of the area different zoning and definition area of "unnecessary hardship" for area variance cases: When considering an area variance, the question of whether unnecessary hardship or practical difficulty exists is best explained as "whether compliance with the strict letter of the restrictions governing area, set backs, frontage, height, bulk or density would unreasonably prevent the owner from using the property for a permitted purpose or would render conformity with such restrictions unnecessarily burdensome." Id. at 474-75.3 variances to be granted upon a showing of practical difficulty; (2) those which allow use and nonuse (area) variances and require a showing of unnecessary hardship for both; and (3) those which do not allow use variances and require unnecessary hardship for the granting of nonuse (area) variances. . . . [Wisconsin's] statute falls into the second category, allowing both use and area variances upon a showing of 'unnecessary hardship.'" State v. Outagamie County Bd. of Adjustment, 2001 WI 78, ¶35, 244 Wis. 2d 613, 635, 628 N.W.2d 376; see also 3 Edward H. Ziegler, Jr., Rathkopf's The Law of Zoning and Planning § 58.4 (2003). 3 The term "practical difficulties" does not appear in our statute, which authorizes both use and area variances on a showing of "unnecessary hardship." Wis. Stat. § 59.694(7)(c). Snyder concluded that there was no real difference between the 12 No. 02-1618 ¶25 Snyder's less-stringent and more flexible definition of unnecessary hardship for area variances allows variance procedure to function as more than just a protection against unconstitutional takings of private property. It allows variance procedure to function as the regulatory "escape valve" it was meant to be: "The purpose of variances in the broadest sense is the rendering of justice in unique and individual cases of practical difficulties or unnecessary hardships arising from literal application of zoning ordinances." 8 Quillin, supra § 25.172, at 648. ¶26 furthers Snyder's the dual purpose approach of use to and use area and area zoning, variances allows for individualized balancing of public and private interests, and is consistent with the approach of most courts around the country: The prime justification for requiring less of an applicant for an area variance than is required in the case of a use variance is that the former does not affect the use of the land. An area variance is thought not to threaten adjacent land with the establishment of an incompatible use, or to hazard the maintenance of a use which will change the essential character of a neighborhood. Such a variance has some capacity to impose an adverse effect on adjacent land, and standards must be imposed to insure the protection of neighboring property, but in the case of area variances, it is assumed by most courts that adequate protection of the neighborhood can be effected without the imposition of the stringent limitations which have been developed in the use variance cases. phrases "unnecessary hardship" and "practical difficulties" in the secondary authorities, but held that unnecessary hardship in use and area variance cases must be governed by distinct standards because use and area variances produce different effects. Snyder v. Waukesha County Zoning Bd. of Adjustment, 74 Wis. 2d 468, 474-75, 247 N.W.2d 98 (1976). 13 No. 02-1618 3 Young, supra § 20.48, at 581 (internal citations omitted). Snyder remained in place for more than two decades, until Kenosha County was decided in 1998. ¶27 area Kenosha County blurred the distinction between use and variances, property" cases. test by from adopting use the "no variance reasonable analysis for use area Kenosha County, 218 Wis. 2d at 398, 413-14. of the variance This has had the effect of severely curtailing the discretion vested by the legislature in boards of adjustment. See Outagamie County, 244 Wis. 2d 613, ¶32; State ex rel. Spinner v. Kenosha County Bd. of Adjustment, 223 Wis. 2d 99, 110, 588 N.W.2d 662 (Ct. App. 1998)(Nettesheim, J., concurring). displacing Snyder sub silentio. It also had the effect of By operation of the now-uniform "no reasonable use" standard, local zoning boards cannot even begin to evaluate the individual circumstances of an area variance application when the property in question is capable of any reasonable use without the variance; a property owner with a "reasonable use" is disqualified from the start. ¶28 area Application of the "no reasonable use" standard to variances overwhelms all other considerations in the analysis, rendering irrelevant any inquiry into the uniqueness of the property, the purpose of the ordinance, and the effect of a variance on the public interest. As Justice Crooks has noted: Consideration of a variance request as it relates to the purpose of the zoning ordinance, along with review of the specific restriction at issue, must necessarily take into account the differences resulting from the granting of an area or use variance. Indeed, "because area variances do not involve great changes in the 14 No. 02-1618 character of neighborhoods as do use variances," the purpose of the zoning ordinance may not be so likely undermined by an area variance as it might be by a use variance. Outagamie County, 244 Wis. 2d 613, ¶74 (Crooks, J., concurring)(quoting Snyder, 74 Wis. 2d at 473.) ¶29 For the statutory discretionary authority to be meaningful, boards of adjustment must have the opportunity to distinguish between hardships that are unnecessary in light of unique conditions ordinance, because and they of the hardships are property that do and not inconsequential or the purpose warrant not of relief, unique or the either because a variance would unduly undermine the purpose of the ordinance or the public interest. Boards of adjustment must "have some very real granting flexibility concurring). in variances." Id. (Crooks, J., Under the "no reasonable use" standard, however, boards of adjustment are effectively prohibited from considering the graduated nature of intrusions upon the strict letter of area restrictions. leaves boards of The "no reasonable use" standard, therefore, adjustment with almost no flexibility and empties the concept of "discretion" of any real meaning. ¶30 standard Kenosha County's adoption of the "no reasonable use" for area variances generally precludes any property owner currently using his property from ever getting a variance, regardless of the merits of the application or the type, size, and nature prevent[s] of the private variance property requested. owners from This making "unreasonably even highly beneficial, completely legal improvements to their property," if 15 No. doing so requires a nonconformity. variance Id., ¶¶42, 47. to legalize even the 02-1618 slightest Almost all variance applicants certainly all applicants who are putting their property to some use at the time of application will flunk the "no reasonable use" test, divesting the board of any real discretion.4 Universal application of the "no reasonable use" definition of unnecessary hardship to all variances has drained the variance statute of its meaning and effect.5 4 The court of appeals identified some of these anomalies almost immediately after the decision in State v. Kenosha County Bd. of Adjustment, 218 Wis. 2d 396, 577 N.W.2d 813 (1998), see State ex rel. Spinner v. Kenosha County Bd. of Adjustment, 223 Wis. 2d 99, 110, 588 N.W.2d 662 (Ct. App. 1998)(Nettesheim, J., concurring)("[t]he real effect of the [Kenosha County] decision is to significantly curtail a board of adjustment's discretion in such matters"), but has considered itself bound by the new "no reasonable use" standard for area variances. See, State ex rel. Ziervogel v. Washington County Bd. of Adjustment, 2003 WI App 82, ¶¶21-25, 263 Wis. 2d 321, 661 N.W.2d 884. See also, for illustrative purposes only, the following unpublished, nonprecedential opinions: State v. Waushara County Bd. of Adjustment, No. 02-2400, unpublished order (WI App May 7, 2003); Voss v. Waushara County Bd. of Adjustment, 2003 WI App 111, 264 Wis. 2d 893, 664 N.W.2d 126 (unpublished table decision); State v. Outagamie County Bd. of Adjustment, 222 Wis. 2d 220, 587 N.W.2d 215 (Ct. App. 1998) (unpublished table decision). 5 "Unnecessary hardship" in zoning variance cases "is neither the same nor as demanding as a takings analysis." 3 E.C. Yokley, Zoning Law and Practice § 20-6, at 20-25 (2002 revision)(emphasis in original). The United States Supreme Court has held that a categorical regulatory taking occurs when a zoning regulation deprives property of all economically beneficial or productive use. Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992). The "no reasonable use" test arguably accomplishes the bare constitutional minimum of preventing regulatory takings. But requiring all variance applicants to show "no reasonable use" of the property without a variance frustrates rather than furthers the broader purposes of variance procedure. 16 No. ¶31 adoption 02-1618 In Outagamie County we reconsidered Kenosha County's of the unnecessary "no hardship reasonable in area use" standard variance for cases, but measuring divided on whether it should be overruled (three justices), maintained but not applied to defeat the variance in the case (two justices in concurrence), or maintained and applied to defeat the variance (two justices in dissent). Id., ¶5. We now conclude that Kenosha County's "no reasonable use of the property" standard for unnecessary hardship no longer applies in area variance cases, and the Snyder definition of unnecessary hardship in area variance cases is reaffirmed. ¶32 Applying the "no reasonable use" standard to area variances is inconsistent with the purpose of area zoning, fails to recognize the lesser effect of area variances on the public interest, and very nearly extinguishes the statutory discretion of local boards of adjustment. Continuing to condition area variances upon a showing of "no reasonable use of the property" makes variance procedure unworkable and unfairly forecloses almost all property owners from the opportunity to demonstrate hardship. ¶33 We unnecessary therefore hardship reinstate for area Snyder's variance formulation cases: of "'[w]hether compliance with the strict letter of the restrictions governing area, set backs, frontage, height, bulk or density would unreasonably prevent the owner from using the property for a permitted purpose or would render restrictions unnecessarily burdensome.'" 17 conformity with such Snyder, 74 Wis. 2d at No. 02-1618 475 (quoting 2 Rathkopf, The Law of Zoning and Planning § 45-28 (3d ed. 1972)). are always ordinance Snyder also emphasized that variance requests evaluated and the in light public of the interests purpose at of stake. the Id. zoning at 473. Accordingly, whether the Snyder standard is met in individual cases depends upon a consideration of the purpose of the zoning restriction in question, its effect on the property, and the effect of a interest. variance on the neighborhood and larger public The established requirements that the hardship be unique to the property and not self-created are maintained, and the burden of proving unnecessary hardship remains on the Id. at 476-79; see also Outagamie County, 244 property owner. Wis. 2d 613, ¶¶24, 50. ¶34 some It is axiomatic that all zoning restrictions impose burdensome effect on property and all variances contrary to the purpose of the ordinance to some degree. run The inquiry should focus on how they do so, and to what extent, in light of the circumstances of each individual case. The board must determine whether a hardship unique to the property has been demonstrated and whether the relief requested is consistent with the public interest such that the variance should be granted, or whether a variance would subvert the purpose of the zoning restriction to such an extent that it must be denied. ¶35 We note in this case that the Washington County zoning ordinance incorporates Kenosha County's "no reasonable use of the which property" we definition have now of statutory determined 18 is no unnecessary longer hardship, applicable. No. Washington Cty., Wis., Code § 23.18(78). A local 02-1618 ordinance defining "unnecessary hardship" as "no reasonable use" has the same effect as a judicial opinion adopting the same definition, that is, it virtually eliminates the statutory discretion of the board of adjustment. ¶36 The zoning enabling statute authorizes the availability of variances upon a showing of unnecessary hardship, and explicitly commits to boards of adjustment the discretion to make variance decisions. Wis. Stat. § 59.694(7)(c). The "no reasonable use" definition in the Washington County ordinance, to the extent it is applicable to area variance requests, conflicts with the statutory grant of authority and operates to eliminate what the statute allows. ¶37 Counties have statutory home rule authority pursuant to Wis. Stat. § 59.03, but may not exercise that authority in a way that concern conflicts that with legislative uniformly affect all enactments of counties. statewide Wis. Stat. § 59.03(1); Mommsen v. Schueller, 228 Wis. 2d 627, 635-36, 599 N.W.2d 21 (Ct. App. 1999). rule of limitation on This is consistent with the general the constitutionally-based authority of other local units of government. home rule See Wis. Const. art. XI, § 3(1); De Rosso Landfill Company, Inc. v. City of Oak Creek, 200 Wis. 2d Savings & Loan Association Commission, 120 Wis. 642, 2d 657, 391, 547 v. N.W.2d Madison 395-97, 355 770 (1996); Equal N.W.2d Anchor Opportunities 234 (1984). While local units of government may adopt "ordinances which, while addressed to local issues, concomitantly regulate matters 19 No. 02-1618 of statewide concern," this authority is limited to ordinances that complement rather than conflict with the state legislation. DeRosso, 200 Wis. 2d at 651-52. ¶38 Accordingly, local home rule regulations in areas where the legislature has adopted uniformly applicable statutes on matters of statewide concern are subjected to the following analysis power for of logically validity: 1) has municipalities to conflict with the act; 2) legislature the state does the withdrawn local legislation; 3) the ordinance does the ordinance defeat the purpose of the state legislation; or 4) does the ordinance legislation? go against the spirit the state DeRosso, 200 Wis. 2d at 651-52 (citing Anchor, 120 Wis. 2d at 397); Mommsen, 228 Wis. 2d at 636-37. these of tests [is] met, the municipal If "any one of ordinance is void." DeRosso, 200 Wis. 2d at 652. ¶39 For the reasons we have noted, the Washington County ordinance adopting definition for the "no unnecessary reasonable hardship in use of area the property" variance cases logically conflicts with the statutory grant of discretion to local boards § 59.694(7)(c). of adjustment pursuant to Wis. Stat. It also operates to defeat the purpose of the statute, for the reasons we have discussed, and contradicts the spirit of the statutory grant of discretion to local boards of adjustment. ¶40 In Outagamie County we invalidated a DNR rule that prohibited a certain type of variance because it conflicted with the statutory grant of authority 20 to boards of adjustment. No. Outagamie County, 244 Wis. 2d 613, ¶¶59-60. that two county ordinance provisions one 02-1618 We also concluded which purported to permit certain variances and another that appeared to prohibit them were ¶66. irreconcilable and therefore unenforceable. We reach a similar conclusion here. reasonable use" requirement for Id., The ordinance's "no unnecessary hardship in area variance cases, which mirrors Kenosha County's "no reasonable use" standard for area variances, conflicts with the statute and is therefore unenforceable as applied to area variances. ¶41 The petitioners' variance application was denied, and the denial upheld on certiorari review and appeal, for the sole reason that Kenosha County's strict "no reasonable use of the property" standard for determining unnecessary hardship had not been met. standard We have now concluded that the "no reasonable use" is no longer reaffirmed area the Snyder variance cases: applicable in area definition of unnecessary whether compliance variance and hardship with cases for area zoning restrictions "would unreasonably prevent the owner from using the property for a permitted purpose or would render conformity with such restrictions unnecessarily burdensome." Snyder, 74 Wis. 2d at 475. ¶42 Whether this standard is met in this case will depend upon the board of adjustment's consideration of the purpose of the zoning restriction in question (including the important public purposes of shoreland zoning generally), the effect of the restriction on the property, and the effect of a variance on the neighborhood and the larger public interest. 21 In addition, No. 02-1618 the petitioners must demonstrate that the hardship is based upon conditions unique to the property and is not self-created. Accordingly, we reverse and remand for proceedings consistent with this opinion. By reversed the and Court. The decision the cause of remanded the for Court of further Appeals is proceedings consistent with this opinion. ¶43 SHIRLEY S. ABRAHAMSON, C.J., and ANN WALSH BRADLEY, J., did not participate. 22 No. 1 02-1618

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