COURT OF APPEALS DECISION DATED AND FILED March 16, 2011 A.
John Voelker Acting Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal No. |
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STATE OF |
IN COURT OF APPEALS |
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DISTRICT II |
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State of
Plaintiff-Appellant, v. City of
Defendant-Respondent. |
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APPEAL
from an order of the circuit court for
Before
Neubauer, P.J.,
¶1 PER CURIAM. The State of
¶2 This case involves variances from area zoning. “Area zoning … regulates density, setbacks,
frontage, height, and other dimensional attributes, in order to promote
uniformity of development, lot size, and building configuration and size.” State
ex rel. Ziervogel v.
¶3 In a May 21, 2008 decision, the board granted the area variances to Pipito.[1] The variances permitted Pipito to enclose two stoops and one stairwell, replace retaining walls, and add 300 square feet to the nonlakeside entrance to the restaurant. By the time the board granted the area variances, Pipito had already remodeled and completed the improvements to the formerly dilapidated structure on the property.
¶4 We review the board’s decision as follows:
(1) whether the 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.
¶5 In area variance cases, the unnecessary hardship standard
applies to variance requests. Ziervogel,
269
“‘[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 conformity with such restrictions unnecessarily
burdensome.’” Snyder [v.
Ziervogel, 269
¶6 On appeal, the State argues that Pipito failed to prove
unnecessary hardship. Essentially, the
State asks us to reweigh the evidence considered by the board. This we cannot do. The board determines the weight of the
evidence. Roberts v.
¶7 After considering the standard set out in Ziervogel, excerpted above, the board concluded that Pipito proved unnecessary hardship. The board concluded that with regard to each requested variance, Pipito established that the absence of the variance would unreasonably prevent use of the property for a permitted purpose or would render conformity with the restriction unnecessarily burdensome. The board determined that the variances for the stoops, stairwell, and addition were de minimis and required only a minimal footprint expansion, the variances minimized the detrimental effects to the lakeshore area because the variances were largely located within the remodeled structure and would not further encroach on the shoreline, the variances were necessary for safety and code requirements, and the variances enhanced visitor safety. The variances also improved the building’s aesthetics and the appearance of the entire community and neighborhood.
¶8 With regard to replacing the retaining walls, the board
determined that Pipito met the applicable burden and the work was mandated by
approvals given by the Department of Naturual Resources and the City of
¶9 The State next argues that any unnecessary hardship was self-inflicted. The board concluded that the hardship was not self-created and was unique to the property. The board found that the property had unique physical limitations due to its irregular shape and steep boundaries.
¶10 The State next argues that Pipito could have constructed a new
restaurant building or moved the existing structure to the northern portion of
the parcel, across the highway from the southern, lakeside portion on which the
restaurant sits. We disagree. First, Pipito did not seek to relocate the restaurant;
it sought area variances relating to the existing structure. Second, the board rejected the State’s idea. The board specifically found that moving “the
structure to another location [on the Pipito property] would require
substantial excavation, grading and filling of the parcel, and would likely
result in substantial harm to
¶11 The State contends that the board did not consider the public’s interest in protecting navigable waters. We disagree. The board noted that the variances were de minimis in effect and that the State’s proposed solution, locating the restaurant on the northern portion of the property, would be detrimental to the lake. In addition, the board required Pipito to take a number of steps to ameliorate any adverse impact of the variances, including a shoreland buffer zone and effective retaining walls. The board properly considered the pubic interest.
¶12 Finally, the State contends that the board prejudged the variance request in favor of Pipito. The board made the variance decision on the merits, without regard to the fact that Pipito made the changes to the property before he obtained the variances. The hardships the board considered related to the physical characteristics of the property and its environment, not to the fact that Pipito proceeded without the necessary variances and could suffer harm if the variances were denied. The board acted appropriately under our standard of review.
¶13 We conclude that the board applied the proper legal standard and acted reasonably given the evidence. Its decision was based on the evidence and there was no bias in favor of Pipito.[2] We affirm the circuit court’s order affirming the board’s decision.
By the Court.—Order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] Because
we review the May 21, 2008 decision granting area variances, we do not address
any of the State’s arguments premised upon the standards for use
variances. “The law treats use and area
variances differently ….” State
ex rel. Ziervogel v.
[2] Any
issue we did not expressly consider is deemed rejected. “An
appellate court is not a performing bear, required to dance to each and every
tune played on an appeal.” State
v. Waste Mgmt. of