(dissenting). I dissent because the evidence in the record does not sustain the board's decision. The majority has gone beyond the record. Due to technical problems, no stenographic transcript of the hearing before the board was available to the trial court. Accordingly, the parties stipulated that "the written record on file herein, as supplemented by this stipulation of the parties, is a sufficient and appropriate basis upon which the Court may review the decision of the Sauk County Board of Adjustment." The majority states: "For the purposes of this appeal, the stipulation is irrelevant." Majority opinion at 338.1 disagree. No rule of appellate review allows us to ignore a stipulation of the parties, *343especially when the stipulation is for the purpose of reconstructing missing parts of the record.1
We are required to accept the following as facts:
2. That, due to on-site conditions, a privy or holding tank constitute the only types of private sewage systems available to serve [the Arndorfers'] dwelling on the subject premises under applicable regulations.
3. That, insofar as [the Arndorfers'] dwelling on the subject premises is served by running water, a privy is not allowed under applicable regulations.
The decision of the board states: "First, it must be noted that evidence was presented to the Board which raises the possibility that, with further examination, you may be able to locate a more conventional, alternative system of sewage disposal on your property."
This finding is not supported by the record. The stipulation specifically provides that a privy or holding tank constitutes the only type of private sewage system available to service the Arndorfers' dwelling. Therefore, there is no evidence to support the first basis for the board's decision.
Second, the board found that holding tanks are not unique or unusual in the area of the Arndorfers' property. The board's decision states that the representative of the planning and zoning office supported the conclusion that it is likely that numerous properties or building sites in this area will not be suitable for residential development unless holding tanks are available for new con*344struction. The decision states that a variance is not appropriate for relieving a common situation.
The stipulation does not contain the testimony or summary of the testimony of the representative of the planning and zoning office. Therefore the decision of the board cannot be sustained on the basis of such testimony. Further, the stipulation specifically states that the Arndorfers' problem is "due to on-site conditions." No reference is made to the soil conditions of surrounding property; nor is there anything elsewhere in the record upon which the board could base its finding that the on-site conditions on the Arndorfer property are not unique to the site. Therefore, the board's decision in this respect is not supported by evidence. The trial court correctly kept to the record. The majority has not.2
*345Finally, the board based its decision upon what it saw as the county board's policy to delegate to the town boards, by the formation of sanitary districts, whether to permit the use of holding tanks. The board stated: "The County Board has left it up to local town boards, who have control over whether or not sanitary districts shall be formed, to determine whether or not holding tanks shall be available for new construction in their local jurisdictions." This finding is contrary to the facts. Holding tanks are permitted through the variance procedure. Section 25.08(3)(g)(2), ch. 25, Sauk County Private Sewage System Ordinance (Am. 1981), provides that holding tanks " [s]hall be prohibited for use to serve new construction except in areas where a sanitary district has been formed. Where unnecessary hardship would otherwise result, persons aggrieved by this prohibition may appeal for a variance . . (Emphasis added.) If it was county law that holding tanks are not permitted to serve new construction except where a sanitary district has been formed, the last sentence of sec. 25.08(3)(g)(2) would be surplusage.
In Schalow v. Waupaca County, 139 Wis. 2d 284, 288, 407 N.W.2d 316, 318 (Ct. App. 1987), we held that a board of adjustment cannot deny a variance simply because the variance constitutes a departure from the ordinance. We said: "The very purpose of the variance procedure is to obtain relief from ordinance requirements which cannot be complied with." Id. The board's decision prohibits the use of variances to obtain relief from the holding tank requirement. As applied, the opportunity for an affected property owner to obtain a variance from the ordinance is illusory.
If, in fact, the Sauk County Board chooses to outlaw holding tanks except where a sanitary district has been created, it should be the county board which makes thip *346regulation, not the board of adjustment. The board's use of the variance procedure to legislate usurps the powers of the county board.
For these reasons, I would affirm the judgment of the circuit court.
The stipulation, although made after the hearing, must be accepted as the parties' summary of the evidence presented to the board. Neither party claims that the stipulation is evidence taken by the court under sec. 59.99(10), Stats.
The majority opinion states: "The Arndorfers do not dispute that holding tanks are a common necessity in the area." Majority opinion at 341 (emphasis added). This is not an accurate statement of the Arndorfers' position. The Arndorfers state that holding tanks "abound in the Sauk County area." This is hardly a concession that holding tanks are a common "necessity" in the area. The Arndorfers argue that "the cause of all of [their] problems is the inability of the soil on their property to sustain any form of septic system except a holding tank, i.e., the problem is unique to the land." Other properties may be served by mound systems, in-ground pressure systems, or in-fill systems. There is no evidence as to the soil conditions of other properties having holding tanks. The board did not find that the soil conditions of the Arndorfers' land were not unique, only that "holding tanks are not unique or unusual in the area."
The Arndorfers have adamantly insisted that the stipulation constitutes the facts of the case and presents "a significant retreat" from the board's position. We cannot rewrite the board's stipulation and we cannot rely on statements of fact in its decision which are not supported by the record.