Zoning Variances - Appleton

Zoning Variances

Variances may be of two kinds: area variances and use variances. The latter are rare and raise
various problems (see “use variances” below). An area variance is a relaxation of a dimensional
standard in the zoning ordinance (e.g., setbacks, lot area, height) that may be granted by a zoning
board of adjustment/appeals if procedural and strict substantive legal requirements are met.
These requirements are specified in state statutes and in the local ordinance (usually in ordinance
sections dealing with board of adjustment/appeals duties or administration). Few areas of land
use law are as extensively litigated as the granting of variances. Published court cases provide
guidance for board members and are cited in the endnotes.

Burden of Proof
To qualify for a variance, an applicant must demonstrate that all of the requirements outlined
below (a three-part test) are met. The zoning department can assist an applicant in meeting this
burden by providing clear application materials including detailed explanations of the process
and standards for approval. See the application form and notice appended.

Unnecessary Hardship (Test 1)
The most difficult test for an applicant to meet is demonstrating unnecessary hardship.
Unnecessary hardship is present where, in the absence of a variance, no reasonable use can be
made of the property. The case law has established the following.

• Whole parcel must be considered. If a parcel as a while (but not necessarily each
portion of the parcel) provides some reasonable use for its owner, then the
unnecessary hardship test is not met and a variance cannot be granted.

• No self-created hardship. A property owner may not claim hardship because of
conditions which are self-imposed. Examples including claiming hardship for a
substandard lot when the owner has sold off portions that would have prevented the
hardship, building during the pendency of an appeal, making improvements in
violation of the ordinance, and ignorance of the ordinance.

• Financial hardship not deciding. Economic loss or financial hardship does not justify
a variance. The test in not whether the variance would maximize the economic value
of the property.

• Accessory structures not eligible. Decks and other accessory structures not essential
to the reasonable use of property are not eligible for variances.

• Minimum variance to authorize specific construction. The board may grant only the
minimum variance that preserves reasonable use of a parcel for its owner. A variance
grants only the specific relief requested (described in the plans and application for the
project) as modified by any conditions imposed by the zoning board. For example, if
an applicant shows hardship unless a setback relaxation is allowed, the board grants
the minimum (not necessarily the requested) amount of variance to allow reasonable

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use. A variance does not establish a reduced dimensional standard for other
subsequent construction on the lot.

• Variance to meet code. An area variance has been upheld so that a building can come
into compliance with a building code (safety) requirement.

Unnecessary Hardship Due to Unique Property Limitations (Test 2)
The applicant must show that the unnecessary hardship is due to unique limitations of the
property; i.e., compliance with the ordinance is prevented by physical features limiting use of the
property (steep slopes, wetlands, etc.) that are not generally shared by other properties.

• Circumstances of an applicant not deciding. The circumstances of an applicant
(growing family, need for a larger garage, etc.) are not a factor in deciding variances.

• Amendments for common limitations. Property limitations which prevent ordinance
compliance that are common to a number of properties should be addressed by
amendment of the ordinance). For example, the issue of appropriate setbacks and
conditions on development for undeveloped lots that are not deep enough to
accommodate new building setback requirements in an existing subdivision should be
handled legislatively rather than by piecemeal variances.

Public Interests (Test 3)
A variance may not be granted which is contrary to public interests.

• Purpose of ordinance. The statutes further provide that, in addition to not harming the
public interest, the grant of the variance must observe the spirit of the ordinance,
secure public safety and welfare, and do substantial justice. The zoning board should
review the purpose statement of the ordinance and consider relevant ordinance (and
statutory) provisions in order to determine public interests. For example, the court
has stressed the public importance of shorelands to the public in recent variance
cases. In considering variances at hearings where just the applicant and neighbors
may appear, it is necessary for the zoning board to consider the broader interests
involved (e.g., preserving shorelands, preventing damage and health problems in
floodplains, and protecting general community interests).

• Conditions on development. The board may impose conditions on development
(mitigatory measures) to eliminate or reduce adverse impacts of a project. The
conditions must address only project impacts and must be reasonable in their scope.
Examples include buffer requirements for fencing and screening and limitations on
lighting.

Other Considerations
• Nearby violations. Nearby encroachments into a setback, even if similar to the
requested variance, do not provide grounds for granting a variance.

• Objections from neighbors. A lack of objections from neighbors does not provide a
basis for granting a variance.

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Multiple Variances
• Single projects. In some cases a single project may require more than one variance to
provide reasonable use of a property. The 3-step test should be applied to each
variance request in determining whether relief can be granted by the zoning board.

• Sequential variances. In other cases a variance may have been granted to allow
development of a property. The owner later requests an additional variance. In such
cases the later request should generally be denied. In granting the original variance,
the zoning board was required to determine that a variance was essential to provide
reasonable use of the property. Therefore the later request generally would not meet
the unnecessary hardship test.

Variance Transfers with Property
Because a property rather than its owner may qualify for a variance (unique property limitations
test), a variance transfers with the property to subsequent owners.

Use Variances
Statutory language does not specifically prohibit use variances and the courts note that they are
even harder to justify than area variances because they may change the character of the
neighborhood. There are a number of practical reasons why they are not advisable:

• Unnecessary hardship must be established in order to qualify for a variance. This
means that, absent the requested change in use, no reasonable use or no feasible use
can be made of the property. This seems like a highly unlikely circumstance.

• Many applications for use variances are administrative appeals. Often the zoning
board is asked to determine whether a proposed use is included within the meaning of
a particular permitted or conditional use or whether it is sufficiently distinct as to
exclude it from the ordinance language. Such a decision is not a use variance but an
appeal of the administrator’s interpretation of ordinance text.

• Alternative methods for changing use requirements avoid piecemeal decisions that
may lead to conflict between adjacent incompatible uses or may undermine land use
plan and ordinance objectives.

Zoning map amendments can change zoning district boundaries so as to allow
uses provided in other zoning districts.

Zoning text amendments can add, delete, or amend permitted or conditional uses
and applicable restrictions in each zoning district.

Use variances are specifically prohibited in shoreland and floodplain districts.

Appeals
The zoning board’s variance decision may be appealed to circuit court by an aggrieved person, or
a taxpayer, officer, or body of the affected municipality within 30 days of filing of the decision

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in the office of the board. Zoning board rules or the local ordinance should clarify when a
decision is considered to be filed so that beginning of the appeal period is certain.
Prepared by the Land Use Education Center of the College of Natural Resources at the
University of Wisconsin – Steven Point

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Judicial Appeal of Zoning Board Decisions

Appeal of a Zoning Board Decision
An aggrieved person, or a taxpayer, officer, or body of the affected municipality may appeal a
zoning board decision to court within 30 days after the filing of the board’s decision in the
board’s office. The 30-day period to appeal a zoning board decision runs from the date of filing
of the original decision in a matter and is not extended by filing a motion to reconsider unless the
motion raises a new issue. When a zoning board decision is appealed, the court will require the
zoning board to file certified or sworn copies of its proceedings in the matter with the court. The
effect of the decision appealed is not stayed (i.e. construction may go forward) unless the court
finds cause to issue a stay.

Court Actions
The court may wholly or partly affirm or reverse, or may modify the decision appealed. The
court’s review is limited to:
1. Subject matter jurisdiction

Did the board decide a matter that it is empowered by statute or ordinance to act on?
2. Proper procedures

Did the board follow proper procedures (e.g. notice, hearing, record of decision, open
meeting law)?
3. Proper standards
Did the board apply proper standards in making the decision (e.g. 3-step test for a
variance)?
4. Reasonable basis
Could a reasonable person have reached this conclusion based on the evidence in the
record?

Court review of the evidence is highly deferential to the zoning board. Even if the court would
not have made the same decision, it will uphold the board’s decision if supported by any
reasonable view of the evidence. However, the zoning board decision must be based on the law
and evidence in the record, not on a hidden reason or its attitude toward the applicant or the
proposal. The court, if overturning a decision, will typically remand the case to the board for
further proceedings consistent with the court’s opinion.

Enforcement of Zoning Board Decisions
The courts. The local government unit may enforce zoning code compliance and zoning board
decisions by seeking forfeitures and/or court injunctions. In addition, harmed neighbors may go
to court to seek damages and/or zoning compliance. A recent county shoreland zoning setback
case shows that courts should generally grant a requested injunction once a violation has been
established but that they retain discretion and in rare cases may refuse a request for an injunction
or may issue a limited injunction to protect public interests. The court cautioned that its decision
does not endorse what would in effect be the purchase of a variance where an owner violates the
ordinance and is required merely to pay a forfeiture, rather than correct the violation.
Local enforcement discretion. Local officials have the discretion to prioritize and allocate their
resources in enforcement actions. Likewise, local government attorneys, as prosecutors for
zoning code violations, retain prosecutorial discretion to determine whether evidence in a case

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will support successful prosecution. Zoning staff and appointed or retained attorneys are
accountable to the local government officers and bodies that oversee their activities, retain their
services, and make budget decisions.
Prepared by the Land Use Education Center of the College of Natural Resources at the
University of Wisconsin – Stevens Point

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Zoning Variance – Notice & Application

An area variance is a relaxation of a dimensional standard in a zoning ordinance (e.g., setbacks,
lot area, height, etc.). A use variance is a relaxation of standards on use of property and is
seldom granted because it may change the character of a neighborhood; a zoning amendment
should be considered instead. Variances are decided by the zoning board of adjustment/appeals.
The zoning board is a quasi-judicial body because it functions almost like a court. The board’s
job is not to compromise ordinance provisions for a property owner’s convenience but to apply
strict legal criteria provided in state laws and the local ordinance to a specific fact situation.
Variances are meant to be an infrequent remedy where an ordinance imposes a unique and
substantial burden.

Process
At the time of application, you will be asked to:

1. complete and application form and submit a $____ fee;
2. provide detailed plans describing your lot and project (location, dimensions, and

materials);
3. provide a written statement of verifiable facts showing that your project meets the legal

criteria for a variance (Three-Step Test below); and
4. stake out lot corners or lines, the proposed building footprint and all other features of

your property related to your request so that the zoning board may inspect the site.

Following these steps, the county/city/village/town will give public notice of the location, time,
and subject matter of the required public hearing before the zoning board. Your neighbors and
any affected state agency will also be notified. The burden will be on you as property owner to
provide information upon which the board may base its decision. At the hearing, any party may
appear in person or may be represented by an agent or attorney. If any of the requirements are
not met or if you or your agent do not appear at the public hearing, the board may deny your
request for a variance and cause your fee to be forfeited.

Three-Step Test
To qualify for a variance, you must meet the following three requirements:

1. Unnecessary Hardship
Strict application of an ordinance requirement will result in unnecessary hardship. Wisconsin
case law describes hardship as being present where, in the absence of a variance, no reasonable
use can be made of the property. If a parcel as a while (but not necessarily each portion of the
parcel) provides some reasonable use for its owner, then the test is not met and a variance cannot
be granted. An applicant may not claim hardship because of conditions which are self-created
(for example, splitting a lot to create two substandard lots and then claiming a hardship). Courts
have also determined that loss of profit or financial hardship do not satisfy this test. Decks and
similar minor accessory structures not essential to the reasonable use of the property are not
eligible for variances.

2. Hardship Due to Unique Physical Limitations of the Property

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The hardship must be due to unique physical limitations of the property; i.e. compliance with the
ordinance is prevented by limitations of the property (steep slopes, wetlands, etc.) that are not
generally shared by other properties. The circumstances of an applicant (growing family, need
for a larger garage, etc.) are not a factor in deciding variances. Nearby ordinance violations,
prior variances, or lack of objections from neighbors do not provide a basis for granting a
variance. Property limitations that prevent ordinance compliance and are common to a number
of properties should be addressed by amendment of the ordinance.

3. Public Interest
A variance may not be granted which results in harm to public interests. Instead, the variance
must further the purposes of the ordinance and do justice. In applying this test, the board must
consider impacts of the proposal and the cumulative impacts of similar projects on the interests
of the community (not just the applicant, neighbors, or clientele). These interests are listed as
objectives in the purpose statement of the ordinance and relevant statutes. For example, the
purpose of a county shoreland zoning ordinance includes prevention and control of water
pollution; protection of spawning grounds, fish, and aquatic life; control of building sites,
placement of structures and land uses, and preservation of shore cover and natural beauty.

If Your Property Qualifies for a Variance
• Minimum variance. The board may grant only the minimum variance that provides a
reasonable use.
• Conditions on development. The board may impose conditions (e.g., on project
design, construction activities, operation of a facility) as mitigating measures to
assure that public interests and neighboring properties are protected.
• Appeals. A variance decision may be appealed to circuit court by an aggrieved
person, or a taxpayer, officer of body of the municipality, within 30 days of filing of
the decision in the office of the board. For this reason you may choose to delay
construction on your project until after the appeal period has expired in order to
minimize the risk that the court may overturn the board decision and void your
variance.
• Transfer of rights. Because a property rather than its owner may qualify for a
variance, a variance transfers with the property to subsequent owners.

Judicial Review
Following are general review standards that courts have used to decide appeals of board of
adjustment/appeals decisions. You might consider these points to determine whether any
decision of interest to you is likely to be reversed on appeal.

3 Subject matter jurisdiction. Did the board decide a matter that is empowered by
statute of ordinance to act on?

3 Proper procedures. Did the board follow proper procedures (notice, hearing, record
of decision, open meeting law)?

3 Proper standards. Did the board apply proper standards in making the decision
(three-step test for a variance)?

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3 Reasonable basis. Could a reasonable person have reached this conclusion based on
the evidence in the records?

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