State v. Kenosha County Board of Adjustment

BROWN, J.

(dissenting). Although this case raises the issue about the potential difference in area and use variances, it is more about how a zoning agency should view the property proposed for one of these variances. Because this case concerns a variance from the wetlands zoning restrictions set out in § 59.971, STATS., 1993-94,1 believe that the Board should have viewed Huntoon's land as a whole when it gauged if the shore-land setback adversely affected her. Viewing her land as a whole, she has not established that the shoreland setback is "unnecessarily burdensome," assuming that is the proper standard. Without the deck, she is still getting substantial use of her land — it supports a lakefront home. I would reverse.

At oral argument, the State began by explaining why it sought this appeal; counsel stated:

[T]he Board improperly applied the legal standard of unnecessary hardship. Instead of asking whether strict compliance with the setback requirement denies Ms. Huntoon any beneficial use of her lot as a whole, the Board asked whether it unreasonably denied her a particular use of only that portion of her lot that lies between her house and the lake.

When we inquired why we must view the property as a whole, the State further offered: "It's lake property. It's a shoreland setback restriction in question."

The State based its proposal, in part, on Zealy v. City of Waukesha, 201 Wis. 2d 365, 548 N.W.2d 528 (1996), a constructive takings case concerning the *329same wetlands zoning ordinance.1 There, the principal issue was how a person's property should be viewed, in whole or in part, when only the part has been devalued by "conservancy zoning." See id. at 369, 375-76, 548 N.W.2d at 529, 532.

When this court examined this issue, this same panel in fact, we concluded that the answer would depend on whether the landowners viewed their property as a whole or in several parts. See Zealy v. City of Waukesha, 194 Wis. 2d 701, 713, 534 N.W.2d 917, 922 (Ct. App. 1995), rev'd, 201 Wis. 2d 365, 548 N.W.2d 528 (1996). We adopted this approach out of concern that the automatic whole property approach, which the State likewise advocated in Zealy, might have too detrimental an effect on the landowner's expected return on investment. See id. at 713, 716, 534 N.W.2d at 922, 923. Quite simply, as a person's land holdings increase in size and value, it is less likely that a single land use restriction will have a significant, negative effect on total value. See id. at 717 n.7, 534 N.W.2d at 923. Indeed, the majority seems to have continuing concerns about applying a bright-line rule to enforce the wetlands ordinance as it describes the State's position *330in this case as coming "perilously close to a policy stance against all variances from the setback requirements." See majority op. at 324.

Nonetheless, the supreme court reversed us in Zealy. It rejected our "flexible approach" (its term) and accepted the State's position that the property must be viewed as a whole. See Zealy, 201 Wis. 2d at 376, 380, 548 N.W.2d at 532, 534. The supreme court acknowledged that one result of its whole property approach was that the landowner experienced a loss in market value, as measured by a decrease in his assessment. See id. at 379, 548 N.W.2d at 533-34. However, quoting Just v. Marinette County, 56 Wis. 2d 7, 23, 201 N.W.2d 761, 771 (1972), the supreme court found that this economic loss was not a significant concern in light of the fact that the higher value came at "the expense of harm to public rights." Zealy, 201 Wis. 2d at 380, 548 N.W.2d at 534. In Zealy, the supreme court further emphasized its role in enforcing this state's public policy of protecting against environmental degradation; the court wrote in conclusion: "Wisconsin has a long history of protecting its water resources, its lakes, rivers, and streams, which depend on wetlands for their proper survival." Id. at 382, 548 N.W.2d at 535.

With Zealy as precedent, I accept the State's claim that in variance cases involving wetlands regulations, the subject property must also be viewed as a whole. Accordingly, I would hold that the Board erred in analyzing Huntoon's variance application because under either a "no feasible use" or "practical difficulty" standard, when one views Huntoon's property as a whole, she has not demonstrated how the setback has enough effect on her use of the property to warrant a variance. I recognize that the shoreland setback has some negative effect on her property. She is unable to place the *331deck in the most optimal position, and indeed, it may not be worth having a deck at all. But even without the deck, she is able to get most of her intended (and otherwise permitted) use of the property — she still has a lakefront home.

The majority carefully distinguishes State v. Winnebago County, 196 Wis. 2d 836, 540 N.W.2d 6 (Ct. App. 1995), in its analysis of area and use variances and reaches a conclusion that Winnebago County does not apply here. See majority op. at 318-20. Nonetheless, I believe that Winnebago County is significant because in it we first contemplated this "whole or part" connection between variance cases and takings cases. See Winnebago County at 844 n.8, 540 N.W.2d at 9. However, because the variance applicants in Winnebago County clearly presented their "parcel as a single unit," we did not actually address the issue. See id. (citing Zealy v. City of Waukesha, 194 Wis. 2d 701, 534 N.W.2d 917 (Ct. App. 1995)).