Kathleen Cox purchased property on Lake Mendota with the plan to demolish and rebuild the existing house and wet boathouse. A wet boathouse is one that is built over excavated shoreline with the lake water underneath, into which a boat can directly navigate. Cox learned after rebuilding the wet boathouse and completing design plans for the home that a Wisconsin Department of Natural Resources (“DNR”) regulation required her to measure the setback from the indented shoreline created by her wet boathouse rather than the natural shoreline as she had thought. Cox’s error meant her planned house would need to be 14.6 feet further inland than if the setback were measured from the natural shoreline. Without attempting to redesign her house to comply with the correct setback, Cox applied to the City of Madison Zoning Board of Appeals for an “area” variance. The Board denied Cox’s request and the Court of Appeals affirmed that decision.
Variances operate as zoning ordinance “escape valves,” affording property owners a means of obtaining relief from the strict enforcement of zoning restrictions where individual injustices may occasionally occur. Zoning boards have substantial discretion to grant variances where the literal application of zoning regulations would result in an unnecessary hardship not justified by the underlying purpose of the zoning ordinance. An unnecessary hardship cannot be self-created; it must be based on conditions unique to the property rather than considerations personal to the property owner. In the context of an area variance (as opposed to a “use” variance), an unnecessary hardship exists when compliance with the strict letter of the restrictions governing area, setbacks, frontage, height, bulk or density would unreasonably prevent the owner from using the property for a permitted purpose or would render conformity with the restrictions unnecessarily burdensome.
On appeal, Cox argued the Board insufficiently articulated its grounds for denying her variance request. Generally, zoning board decisions do not need to be written, but the Board’s reasoning must be evident from the record. In this case, the Court of Appeals found the Board addressed and made findings on each of the factors in the applicable Madison ordinance. The Board found that compliance with the setback requirement would not unreasonably prevent use of the property or be unnecessarily burdensome, as required by the Madison ordinance and applicable law. The Board determined that Cox did not give real consideration as to how to build a code-compliant structure evidenced by the fact that Cox requested a variance only after realizing that she measured the setback from the wrong point under applicable DNR standards.
Cox also argued the Board denied her variance request due to the size of her project. The Court of Appeals held that the Board may consider extraneous factors so long as they do not overwhelm all other consideration in the analysis. The Court of Appeals found that the record shows the Board primarily, if not exclusively, focused on the factors for granting a variance in the ordinance. Based on the foregoing, the Court of Appeals affirmed the Board’s decision to not grant a variance from the lakefront yard setback requirements.
This case underscores the need to fully understand the applicable zoning requirements before designing a project. The old carpenters’ adage “measure twice, cut once” applies equally to measuring setbacks. Failing to do so, and then requesting a variance without considering alternative designs likely will result in the request being denied.