59.692 Annotation
The state, in administering the Fair Housing Act, may not order a zoning board to issue a variance based on characteristics unique to the landowner rather than the land. County of Sawyer Zoning Board v. DWD,
231 Wis. 2d 534,
605 N.W.2d 627 (Ct. App. 1999),
99-0707.
59.692 Annotation
In evaluating whether to grant an area variance to a zoning ordinance, a board of adjustment should focus on the purpose of the zoning law at issue in determining whether an unnecessary hardship exists for the property owner seeking the variance. The facts of the case should be analyzed in light of that purpose, and boards of adjustment must be afforded flexibility so that they may appropriately exercise their discretion. State v. Waushara County Board of Adjustment,
2004 WI 56,
271 Wis. 2d 547,
679 N.W.2d 514,
02-2400.
59.692 Annotation
The term “floor area" in sub. (1v) (b) unambiguously encompasses only the surface portion of a deck's floorboards and, therefore, does not include portions of the deck's support system that extend beyond the floorboards. If a portion of a structure is outside the setback area, that part is not in the setback area and it is not the portion “extending into" that area for purposes of calculating the 200 square foot restriction in sub. (1v) (b). Propp v. Sauk County Board of Adjustment,
2010 WI App 25,
323 Wis. 2d 495,
779 N.W.2d 705,
09-0209.
59.692 Annotation
Appellants appropriately relied on the county's zoning map to identify the ordinary high water mark of a nearby lake and determine that the sign's proposed location was outside the county's 1,000 foot zone of shoreland authority. It was reasonable for the appellant to rely on the map rather than conduct on-site measurements. Oneida County v. Collins Outdoor Advertising, Inc.,
2011 WI App 60,
333 Wis. 2d 216,
798 N.W.2d 724,
10-0084.
59.692 Annotation
By enactment of this section and s. 281.31, the legislature intended that towns would not have authority to regulate shorelands except where such regulation fell within the language of sub. (2) (b) [now sub. (2) (b), (bg), and (bm)]. That statutory scheme does not distinguish between towns with village powers and those without. Hegwood v. Town of Eagle Zoning Board of Appeals,
2013 WI App 118,
351 Wis. 2d 196,
839 N.W.2d 111,
12-2058.
59.692 Annotation
Although they often work together, zoning and subdivision regulations provide separate and distinct means of regulating the development of land. There are areas of overlap between the two powers, but there are also key differences. Subdivision control is concerned with the initial division of undeveloped land, while zoning more specifically regulates the further use of this land. State ex rel. Anderson v. Town of Newbold,
2021 WI 6,
395 Wis. 2d 351,
954 N.W.2d 323,
18-0547.
59.692 Annotation
In this case, the town's ordinance set minimum lot frontage requirements for each lake within its borders. Pursuant to the
Zwiefelhofer,
2012 WI 7, factors, the town's ordinance was not a zoning ordinance. It did not concern land use, and it did not separate compatible and incompatible land uses, which is a key purpose of a zoning ordinance. Because it was not a zoning ordinance, the restrictions on town enactment of zoning ordinances set by this section did not apply, and the ordinance was a permissible exercise of the town's subdivision authority pursuant to s. 236.45. State ex rel. Anderson v. Town of Newbold,
2021 WI 6,
395 Wis. 2d 351,
954 N.W.2d 323,
18-0547.
59.692 Annotation
County floodplain zoning ordinances may be adopted under s. 59.971 [now this section] and do not require the approval of town boards in order to become effective within the unincorporated areas of the county. 62 Atty. Gen. 264.
59.692 Annotation
Counties may zone lands located within 300 feet of an artificial ditch that is navigable in fact. 63 Atty. Gen. 57.
59.692 Annotation
County shoreland zoning of unincorporated areas adopted under s. 59.971 [now this section] is not superseded by municipal extraterritorial zoning under s. 62.23 (7a). Discussing ss. 59.971, 62.23 (7) and (7a), and 144.26 [now s. 281.31]. Municipal extraterritorial zoning within shorelands is effective insofar as it is consistent with, or more restrictive than, the county shoreland zoning regulations. 63 Atty. Gen. 69.
59.692 Annotation
A county may not enact a shoreland zoning ordinance without a provision regulating nonconforming uses that have been discontinued for 12 months or longer. A county may enact an ordinance without the 50 percent provision under s. 59.69 (10) (a) [now s. 59.69 (10) (am)], in which case common law controls.
OAG 2-97.
59.692 Annotation
A county is not prohibited from imposing elements of its general zoning ordinance in the shorelands in a town even if the town has not adopted the county's general zoning ordinance under s. 59.69 (5) (c), so long as those elements are consistent with this section.
OAG 1-19.
59.692 Annotation
The Necessity of Zoning Variance or Amendments Notice to the Wisconsin Department of Natural Resources Under the Shoreland Zoning and Navigable Waters Protection Acts. Whipple. 57 MLR 25 (1973).
59.692 Annotation
Wisconsin's Shoreland Management Program: An Assessment with Implications for Effective Natural Resources Management and Protection. Kuczenski. 1999 WLR 273.
59.692 Annotation
On the Waterfront: New Shoreland Zoning Laws. Kent. Wis. Law. Jan. 2017.
59.693
59.693
Construction site erosion control and storm water management zoning. 59.693(1)(1)
Definition. In this section, “department" means the department of natural resources.
59.693(2)
(2)
Authority to enact ordinance. To effect the purposes of s.
281.33 and to promote the public health, safety and general welfare, a county may enact a zoning ordinance, that is applicable to all of its unincorporated area, except as provided in s.
60.627 (2) (b), for construction site erosion control at sites described in s.
281.33 (3) (a) 1. a. and
b. and for storm water management. This ordinance may be enacted separately from ordinances enacted under s.
59.69. An ordinance enacted under this subsection is subject to the strict conformity requirements under s.
281.33 (3m).
59.693(4)
(4)
Applicability of county zoning provisions; town approval. 59.693(4)(a)(a) Except as otherwise specified in this section, s.
59.69 applies to any ordinance or amendment to an ordinance enacted under this section, but an ordinance or amendment to an ordinance enacted under this section does not require approval and is not subject to disapproval by any town or town board.
59.693(4)(b)
(b) Variances and appeals regarding construction site erosion control and storm water management regulations under this section are to be determined by the board of adjustment for that county. Procedures under s.
59.694 apply to these determinations.
59.693(4)(c)
(c) An ordinance enacted under this section supersedes all provisions of an ordinance enacted under s.
59.69 that relate to construction site erosion control or storm water management regulation.
59.693(6)
(6)
Applicability of comprehensive zoning plan or general zoning ordinance. Ordinances that are enacted under this section shall accord and be consistent with any comprehensive zoning plan or general zoning ordinance applicable to the enacting counties, so far as practicable.
59.693(7)
(7)
Applicability of local subdivision regulation. All powers granted to a county under s.
236.45 may be exercised by the county with respect to construction site erosion control at sites described in s.
281.33 (3) (a) 1. a. and
b. or with respect to storm water management regulation, if the county has or provides a county planning agency as defined in s.
236.02 (3).
59.693(8)
(8)
Applicability to local governments and agencies. An ordinance that is enacted under this section is applicable to activities conducted by a unit of local government and an agency of that unit of government. An ordinance that is enacted under this section is not applicable to activities conducted by an agency, as defined under s.
227.01 (1) but also including the office of district attorney, which is subject to the state plan promulgated or a memorandum of understanding entered into under s.
281.33 (2).
59.693(9)(a)(a) Except as provided in par.
(c), s.
66.0301 applies to this section, but for the purposes of this section an agreement under s.
66.0301 shall be effected by ordinance.
59.693(9)(b)
(b) If a county is served by a regional planning commission under s.
66.0309 and if the commission consents, the county may empower the commission by ordinance to administer an ordinance that is enacted under this section throughout the county, whether or not the area otherwise served by the commission includes all of that county.
59.693(9)(c)
(c) If the board of commissioners of the Dane County Lakes and Watershed Commission consents, Dane County may empower the commission by ordinance to administer an ordinance that is enacted under this section whether or not the area otherwise served by the commission includes all of Dane County. Section
66.0301 does not apply to this paragraph.
59.693(10)
(10)
Validity upon annexation. An ordinance that is enacted under this section by a county that is in effect in an area immediately before the area is annexed by a city or village continues in effect in the area after annexation unless the city or village enacts, maintains and enforces a city or village ordinance which complies with minimum standards established by the department and which is at least as restrictive as the county ordinance enacted under this section. If, after providing notice and conducting a hearing on the matter, the department determines that an ordinance that is enacted by a city or village which is applicable to the annexed area does not meet these standards or is not as restrictive as the county ordinance, the department shall issue an order declaring the city or village ordinance void and reinstating the applicability of the county ordinance to the annexed area.
59.693(11)(a)(a) In this subsection, “facility" means any property or equipment of a public utility, as defined in s.
196.01 (5), or a cooperative association organized under ch.
185 for the purpose of producing or furnishing heat, light, or power to its members only, that is used for the transmission, delivery, or furnishing of natural gas, heat, light, or power.
59.693(11)(b)
(b) The construction and maintenance of a facility is considered to satisfy the requirements of this section and any county ordinance enacted under this section if any of the following applies:
59.693(11)(b)1.
1. The department has issued all required permits or approvals authorizing the construction or maintenance under ch.
30,
31,
281, or
283.
59.693(11)(b)2.
2. No department permit or approval under subd.
1. is required for the construction or maintenance and the construction or maintenance is conducted in a manner that employs best management practices to infiltrate or otherwise control storm water runoff from the facility.
59.694
59.694
County zoning, adjustment board. 59.694(1)(1)
Appointment, power. The county board may provide for the appointment of a board of adjustment, and in the regulations and restrictions adopted under s.
59.69 may provide that the board of adjustment may, in appropriate cases and subject to appropriate conditions and safeguards, make special exceptions to the terms of the ordinance in harmony with its general purpose and intent and in accordance with general or specific rules therein contained. Nothing in this subsection precludes the granting of special exceptions by the county zoning agency designated under s.
59.69 (2) (a) or the county board in accordance with regulations and restrictions adopted under s.
59.69 which were in effect on July 7, 1973, or adopted after that date.
59.694(2)(a)(a) In counties with a population of less than 750,000, the board of adjustment shall consist of not more than 5 members as determined by resolution of the county board. The chairperson of the county board shall appoint the members with the approval of the county board for terms of 3 years beginning July 1. The incumbent members shall continue to serve until their terms expire. The county board resolution increasing the size of the board of adjustment shall indicate how many members shall be appointed for 1, 2 and 3 years prior to July 1 of the year in which the change takes effect in making the first appointments. If the county board, by resolution, determines to reduce the membership of the board of adjustment below 5 but not less than 3, one of the positions for which the term expires as determined by lot shall not be filled each year until the requisite number of positions has been reached.
59.694(2)(am)
(am) The chairperson of the county board to which par.
(a) applies shall appoint, for staggered 3-year terms, 2 alternate members of the board of adjustment, who are subject to the approval of the county board. Annually, the chairperson of the county board shall designate one of the alternate members as the first alternate and the other as 2nd alternate. The first alternate shall act, with full power, only when a member of the board of adjustment refuses to vote because of a conflict of interest or when a member is absent. The 2nd alternate shall act only when the first alternate refuses to vote because of a conflict of interest or is absent, or if more than one member of the board of adjustment refuses to vote because of a conflict of interest or is absent.
59.694(2)(b)
(b) In counties with a population of 750,000 or more, the board of adjustment shall consist of 3 members who are residents of the county, elected by the county board for terms of 1, 2 and 3 years, respectively, and until their successors are elected and qualify.
59.694(2)(bm)
(bm) The chairperson of the county board to which par.
(b) applies shall appoint, for staggered 3-year terms, 2 alternate members of the board of adjustment, who are subject to the approval of the county board. Annually, the chairperson of the county board shall designate one of the alternate members as the first alternate and the other as 2nd alternate. The first alternate shall act, with full power, only when a member of the board of adjustment refuses to vote because of a conflict of interest or when a member is absent. The 2nd alternate shall act only when the first alternate refuses to vote because of a conflict of interest or is absent, or if more than one member of the board of adjustment refuses to vote because of a conflict of interest or is absent.
59.694(2)(c)
(c) The members of the board of adjustment, including alternate members, shall all reside within the county and outside of the limits of incorporated cities and villages; provided, however, that no 2 members shall reside in the same town. The board of adjustment shall choose its own chairperson. Office room shall be provided by the county board, and the actual and necessary expenses incurred by the board of adjustment in the performance of its duties shall be paid and allowed as in cases of other claims against the county. The county board may likewise compensate the members of the board of adjustment, including alternate members, and the assistants as may be authorized by the county board. Vacancies shall be filled for the unexpired term of any member whose term becomes vacant.
59.694(3)
(3)
Rules, meetings, minutes. The county board shall adopt rules for the conduct of the business of the board of adjustment, in accordance with the provisions of any ordinance enacted under s.
59.69. The board of adjustment may adopt further rules as necessary to carry into effect the regulations of the county board. Meetings of the board of adjustment shall be held at the call of the chairperson and at such other times as the board of adjustment may determine. The chairperson, or in his or her absence the acting chairperson, may administer oaths and compel the attendance of witnesses. All meetings of the board of adjustment shall be open to the public. The board of adjustment shall keep minutes of its proceedings, showing the vote of each member upon each question, or, if absent or failing to vote, indicating such fact, and shall keep records of its examinations and other official actions, all of which shall be immediately filed in the office of the board of adjustment and shall be a public record.
59.694(3m)
(3m)
Quorum requirements. If a quorum is present, the board of adjustment may take action under this section by a majority vote of the members present.
59.694(4)
(4)
Appeals to board. Appeals to the board of adjustment may be taken by any person aggrieved or by any officer, department, board or bureau of the municipality affected by any decision of the building inspector or other administrative officer. Such appeal shall be taken within a reasonable time, as provided by the rules of the board of adjustment, by filing with the officer from whom the appeal is taken and with the board of adjustment a notice of appeal specifying the grounds thereof. The officer from whom the appeal is taken shall forthwith transmit to the board of adjustment all the papers constituting the record upon which the action appealed from was taken.
59.694(5)
(5)
Stays. An appeal shall stay all proceedings in furtherance of the action appealed from, unless the officer from whom the appeal is taken shall certify to the board of adjustment after the notice of appeal shall have been filed with that officer that by reason of facts stated in the certificate a stay would cause imminent peril to life or property. In such case proceedings shall not be stayed otherwise than by a restraining order, which may be granted upon application to the board of adjustment or by petition to a court of record, with notice to the officer from whom the appeal is taken.
59.694(6)
(6)
Hearing appeals. The board of adjustment shall fix a reasonable time for the hearing of the appeal and publish a class 2 notice thereof under ch.
985, as well as give due notice to the parties in interest, and decide the same within a reasonable time. Upon the hearing, a party may appear in person or by agent or attorney. In an action involving a historic property, as defined in s.
44.31 (3), the board of adjustment shall consider any suggested alternatives or recommended decision submitted by the landmarks commission or the planning and zoning committee or commission.
59.694(7)
(7)
Powers of board. The board of adjustment shall have all of the following powers:
59.694(7)(a)
(a) To hear and decide appeals where it is alleged there is error in an order, requirement, decision or determination made by an administrative official in the enforcement of s.
59.69 or of any ordinance enacted pursuant thereto.
59.694(7)(b)
(b) To hear and decide special exceptions to the terms of the ordinance upon which the board is required to pass under such ordinance.
59.694(7)(c)1.a.
a. “Area variance” means a modification to a dimensional, physical, or locational requirement such as the setback, frontage, height, bulk, or density restriction for a structure that is granted by the board of adjustment under this subsection.
59.694(7)(c)1.b.
b. “Use variance” means an authorization by the board of adjustment under this subsection for the use of land for a purpose that is otherwise not allowed or is prohibited by the applicable zoning ordinance.
59.694(7)(c)2.
2. 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.
59.694(7)(c)3.
3. A property owner bears the burden of proving “unnecessary hardship," as that term is used in this paragraph, for an area variance, by demonstrating that strict compliance with a zoning ordinance would unreasonably prevent the property owner from using the property owner's property for a permitted purpose or would render conformity with the zoning ordinance unnecessarily burdensome or, for a use variance, by demonstrating that strict compliance with the zoning ordinance would leave the property owner with no reasonable use of the property in the absence of a variance. In all circumstances, a property owner bears the burden of proving that the unnecessary hardship is based on conditions unique to the property, rather than considerations personal to the property owner, and that the unnecessary hardship was not created by the property owner.
59.694(7)(c)4.
4. A county board may enact an ordinance specifying an expiration date for a variance granted under this paragraph if that date relates to a specific date by which the action authorized by the variance must be commenced or completed. If no such ordinance is in effect at the time a variance is granted, or if the board of adjustment does not specify an expiration date for the variance, a variance granted under this paragraph does not expire unless, at the time it is granted, the board of adjustment specifies in the variance a specific date by which the action authorized by the variance must be commenced or completed. An ordinance enacted after April 5, 2012, may not specify an expiration date for a variance that was granted before April 5, 2012.
59.694(7)(c)5.
5. A variance granted under this paragraph runs with the land.
59.694(7)(d)
(d) To grant special exceptions and variances for renewable energy resource systems. If the board denies an application for a special exception or variance for such a system, the board shall provide a written statement of its reasons for denying the application. In this paragraph, “renewable energy resource system" means a solar energy system, a waste conversion energy system, a wind energy system or any other energy system which relies on a renewable energy resource.
59.694(8)
(8)
Order on appeal. In exercising the powers under this section, the board of adjustment may, in conformity with the provisions of this section, reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination appealed from, and may make the order, requirement, decision or determination as ought to be made, and to that end shall have all the powers of the officer from whom the appeal is taken.
59.694(9)
(9)
Majority rule. A majority vote of the board of adjustment shall be necessary to reverse any order, requirement, decision or determination of any such administrative official, or to decide in favor of the applicant on any matter upon which it is required to pass under any such ordinance, or to effect any variation in such ordinance.
59.694(10)
(10)
Certiorari. A person aggrieved by any decision of the board of adjustment, or a taxpayer, or any officer, department, board or bureau of the municipality, may, within 30 days after the filing of the decision in the office of the board, commence an action seeking the remedy available by certiorari. The court shall not stay the decision appealed from, but may, with notice to the board, grant a restraining order. The board of adjustment shall not be required to return the original papers acted upon by it, but it shall be sufficient to return certified or sworn copies thereof. If necessary for the proper disposition of the matter, the court may take evidence, or appoint a referee to take evidence and report findings of fact and conclusions of law as it directs, which shall constitute a part of the proceedings upon which the determination of the court shall be made. The court may reverse or affirm, wholly or partly, or may modify, the decision brought up for review.
59.694(14)
(14)
Costs. Costs shall not be allowed against the board of adjustment unless it shall appear to the court that it acted with gross negligence, or in bad faith, or with malice in making the decision appealed from. All issues in any proceeding under this section shall have preference over all other civil actions and proceedings.
59.694 Note
Judicial Council Note, 1981: Subsections (11), (12) and (13) have been repealed as unnecessary because in large part they merely describe the remedy of certiorari, which is now available in an ordinary action. See s. 781.01, stats., and the note thereto. Those provisions of the repealed subsections which permit departure from ordinary certiorari procedures, such as augmentation of the record by the court, have been placed in sub. (10). No substantive change in the scope or standard of review is intended. [Bill 613-A]
59.694 Annotation
There is no significant difference between “unnecessary hardship" under s. 59.99 (7) (c) [now sub. (7) (c)] and “practical difficulties." Discussing grounds for variances. Snyder v. Waukesha County Zoning Board,
74 Wis. 2d 468,
247 N.W.2d 98 (1976).
59.694 Annotation
An aggrieved person has the right to appeal to the board of adjustment from a zoning committee's decision to grant conditional use permits. League of Women Voters v. Outagamie County,
113 Wis. 2d 313,
334 N.W.2d 887 (1983).
59.694 Annotation
Aggrieved residents had the right to appeal even though they did not appear at committee hearings. Commencement of construction, not publication of hearing notices, constituted notice to residents that a permit had been issued. Discussing the standard of review. State ex rel. Brookside v. Jefferson County Board of Adjustment,
131 Wis. 2d 101,
388 N.W.2d 593 (1986).
59.694 Annotation
Filing of a petition for a writ of certiorari, without more, did not satisfy the requirement under s. 59.99 (10) [now sub. (10)] that an action be commenced within 30 days. Schwochert v. Marquette County Board,
132 Wis. 2d 196,
389 N.W.2d 841 (Ct. App. 1986).
59.694 Annotation
A trial court must exercise discretion when taking additional evidence pursuant to s. 59.99 (10) [now sub. (10)]. If evidence taken is substantially similar to that which the board received, review is confined to a certiorari standard. Klinger v. Oneida County,
149 Wis. 2d 838,
440 N.W.2d 348 (1989).
59.694 Annotation
Under
Brookside,
131 Wis. 2d 101 (1986), the appeal time begins to run at the time notice is given, if the zoning ordinance has a notice provision, and if there is no notice provision, when the aggrieved parties find out about the decision. State ex rel. DNR v. Walworth County Board of Adjustment,
170 Wis. 2d 406,
489 N.W.2d 631 (Ct. App. 1992).
59.694 Annotation
The 30-day limitation period for commencing a certiorari action under s. 59.99 (10) [now sub. (10)] applies to the time allowed for filing an action that is commenced by a complaint and applies to the time allowed for service when commenced by writ. State ex rel. DNR v. Walworth County Board of Adjustment,
170 Wis. 2d 406,
489 N.W.2d 631 (Ct. App. 1992).
59.694 Annotation
General, rather than explicit, standards regarding the granting of special exceptions may be adopted and applied by a governing body. The applicant has the burden of formulating conditions showing that the proposed use meets the standards. Upon approval, additional conditions may be imposed by the governing body. Kraemer & Sons v. Sauk County Adjustment Board,
183 Wis. 2d 1,
515 N.W.2d 256 (1994).
59.694 Annotation
The 30-day period to appeal a decision under s. 59.99 (10) [now sub. (10)] runs from the entry of the original decision in a matter and is not extended by filing a motion to reconsider unless the motion raises a new issue. Bettendorf v. St. Croix County Board of Adjustment,
188 Wis. 2d 311,
525 N.W.2d 89 (Ct. App. 1994).
59.694 Annotation
A variance may be granted if application of the zoning ordinance results in unnecessary hardship and the condition is unique to the parcel. Concerns over the most profitable use of a parcel are not proper grounds for granting variances. State v. Winnebago County,
196 Wis. 2d 836,
540 N.W.2d 6 (Ct. App. 1995),
94-3199.
59.694 Annotation
The legal standard of unnecessary hardship requires that the property owner demonstrate that without a variance there is no reasonable use for the property. When the property owner has a reasonable use for the property, the statute takes precedence and the variance should be denied. State v. Kenosha County Board of Adjustment,
218 Wis. 2d 396,
577 N.W.2d 813 (1998),
96-1235. See also State v. Outagamie,
2001 WI 78,
244 Wis. 2d 613,
628 N.W.2d 376,
98-1046.
59.694 Annotation
Failure to join an indispensable party in a certiorari action under sub. (10) is not jurisdictional. Filing the certiorari action tolls the 30-day period of limitations. Failure to name the party within the 30-day statutory period does not require dismissal. County of Rusk v. Rusk County Board of Adjustment,
221 Wis. 2d 526,
585 N.W.2d 706 (Ct. App. 1998),
98-0298.
59.694 Annotation
The burden is on the applicant for a variance to demonstrate through evidence that without the variance he or she is prevented from enjoying any reasonable use of the property. State ex rel. Spinner v. Kenosha County Board of Adjustment,
223 Wis. 2d 99,
588 N.W.2d 662 (Ct. App. 1998),
97-2094.
59.694 Annotation
The notice of claim provisions of s. 893.80 do not apply to certiorari actions under sub. (10). Kapischke v. County of Walworth,
226 Wis. 2d 320,
595 N.W.2d 42 (Ct. App. 1999),
98-0796.
59.694 Annotation
Review of a certiorari action is limited to determining: 1) whether the board kept within its jurisdiction; 2) whether the board proceeded on a correct theory of law; 3) whether the board's action was arbitrary, oppressive, or unreasonable; and 4) whether the evidence was such that the board might reasonably make its order. Kapischke v. County of Walworth,
226 Wis. 2d 320,
595 N.W.2d 42 (Ct. App. 1999),
98-0796.
59.694 Annotation
The state, in administering the Fair Housing Act, may not order a zoning board to issue a variance based on characteristics unique to the landowner rather than the land. County of Sawyer Zoning Board v. DWD,
231 Wis. 2d 534,
605 N.W.2d 627 (Ct. App. 1999),
99-0707.
59.694 Annotation
A variance authorizes a landowner to establish or maintain a use prohibited by zoning regulations. A special exception allows the landowner to put the property to a use expressly permitted but that conflicts with some requirement of the ordinance. The grant of a special exception does not require the showing of hardship required for a variance. Fabyan v. Waukesha County Board of Adjustment,
2001 WI App 162,
246 Wis. 2d 851,
632 N.W.2d 116,
00-3103.
59.694 Annotation
The public policy of promoting confidence in impartial tribunals may justify expansion of the certiorari record when evidence outside of the record demonstrates procedural unfairness. However, before a circuit court may authorize expansion, the party alleging bias must make a prima facie showing of wrongdoing. Sills v. Walworth County Land Management Committee,
2002 WI App 111,
254 Wis. 2d 538,
648 N.W.2d 878,
01-0901.
59.694 Annotation
An ordinance requirement that no special use permit will be granted unless it is “necessary for the public convenience" meant that the petitioner had to present sufficient evidence that the proposed use was essential to the community as a whole. Hearst-Argyle Stations v. Board of Zoning Appeals,
2003 WI App 48,
260 Wis. 2d 494,
659 N.W.2d 424,
02-0596.
59.694 Annotation
Area variance applicants need not meet the no reasonable use of the property standard that is applicable to use variance applications. The standard for unnecessary hardship required in area variance cases is 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 those restrictions unnecessarily burdensome. Ziervogel v. Washington County Board of Adjustment,
2004 WI 23,
269 Wis. 2d 549,
676 N.W.2d 401,
02-1618.
59.694 Annotation
In evaluating whether to grant an area variance to a zoning ordinance, a board of adjustment should focus on the purpose of the zoning law at issue in determining whether an unnecessary hardship exists for the property owner seeking the variance. The facts of the case should be analyzed in light of that purpose, and boards of adjustment must be afforded flexibility so that they may appropriately exercise their discretion. State v. Waushara County Board of Adjustment,
2004 WI 56,
271 Wis. 2d 547,
679 N.W.2d 514,
02-2400.
59.694 Annotation
When reviewing a decision to grant or deny a conditional use permit, a county board of adjustment has the authority to conduct a de novo review of the record and substitute its judgment for the county zoning committee's judgment. Moreover, under the applicable state statute, a board has authority to take new evidence. Osterhues v. Board of Adjustment for Washburn County,
2005 WI 92,
282 Wis. 2d 228,
698 N.W.2d 701,
03-2194.
