On March 19, 2004, the Wisconsin Supreme Court, in Ziervogel v. Washington County Bd. of Adjust (Case No. 02-1618), unanimously rejected the "no reasonable use" standard for measuring unnecessary hardship in "area" zoning variance cases. In doing so, the Supreme Court reversed the State v. Kenosha County Bd. of Adjustment case and restored the more flexible "unnecessarily burdensome" standard that had been previously applied to area variances for over 70 years.

Background

Since 1927, Wisconsin and most other states have recognized two types of variances and different standards for each type of variance.

• A "use variance" allows communities to permit a use other than that prescribed by the zoning ordinance, for example, a factory in a residential neighborhood. Because a use variance can change the character of a neighborhood and is in direct contrast to the spirit of a zoning ordinance, courts have consistently required applicants to demonstrate that they have "no reasonable use" of their property without a variance (a high standard).

• An "area variance" allows communities to modify site development requirements such as lot size, yard, setback and frontage restrictions such as an addition to a structure that encroaches into a setback area. Because these variances are relatively minor and do not have a significant impact on the character of a neighborhood, courts have required applicants to show that the ordinance is "unnecessarily burdensome" (a lower standard).

In 1998, the Wisconsin Supreme Court, in State v. Kenosha County Board of Adjustment, eliminated the two different standards. Instead, the Court decided that the "no reasonable use" standard should apply to both types of variances. To meet this standard, landowners must show that they have "no reasonable use" of their property without a variance. Since the Kenosha County case, a variance has been virtually impossible to legally obtain in Wisconsin.

Ziervogel v. Washington County Bd. of Adjustment 

In Ziervogel, the property owners owned a 1600 square-foot lakefront home with a legal nonconforming setback of 26 feet from the ordinary high water mark (OHWM) of the lake. The owners wanted to convert the home from a summer cottage to a year-around home and wanted to construct a 10-foot vertical addition to the home to accommodate additional bedrooms, baths, and an office. When the owners purchased the home in 1996, the addition would have been permissible under Washington County’s shoreland zoning ordinance. However, the County amended its shoreland zoning ordinance in 2001 to prohibit any expansion of any portion of an existing structure within 50 feet of the OHWM of the lake. The owners applied for a variance and the county denied the request because the owners failed to show that they would have "no reasonable use" of their property without the variance.

The Circuit Court and Court of Appeals upheld Washington County’s denial of the variance under the "no reasonable use" standard established by the Kenosha County case.

In reversing the decision by the lower courts, the Supreme Court in Ziervogel declared that the "perpetuation of a single, highly-restrictive ‘no reasonable use of the property’ standard for all variances [is] unworkable and unfair." The Court went on to state that "[a]pplying the ‘no reasonable use’ standard to area variances is inconsistent with the purpose of area zoning, fails to recognized the lesser effect of area variances on the public interest, and very nearly extinguishes the statutory discretion of local boards of adjustment."

For area variances, the Court concluded the appropriate standard for determining "unnecessary hardship" is "whether

the compliance with the 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.’"

Of equal significance, the Court declared that local units of government, although empowered by home-rule authority, are prohibited from applying the "no reasonable use", or equally restrictive standards, to area variances. "A local ordinance defining ‘unnecessary hardship’ as ‘no reasonable use’ . . .virtually eliminates the statutory discretion of the board of adjustment . . . and is therefore unenforceable as applied to area variances." Because the Washington County zoning ordinance incorporated the "no reasonable use" definition of unnecessary hardship, the Court invalidated that section of the ordinance.

Benefit to Property Owners

This case is important to property owners because it restores the flexible "unnecessarily burdensome standard" for area variances which will make it easier to obtain permits necessary to renovate and expand their existing homes. Furthermore, providing local governments with flexibility in granting area variances will help preserve property values and encourage reinvestment in existing neighborhoods.

While area variances may continue to be difficult to obtain, the Ziervogel case will at least make them possible once again.