¶ 119. CHIEF JUSTICE (dissenting). The lead opinion suggests that this case is about destroying a basement to save a house.1 Dramatic, but a mischaracterization of the stakes in this case.
¶ 120. This case is not about the future of the Warnings' basement or house. This case is about *679whether the Warnings' home will have a sun porch. Giving truth to the adage that hard facts make bad law, this case is really about whether to undermine the authority of the Department of Natural Resources (DNR) to regulate floodplains and whether to ignore the principles of stare decisis — all to allow a homeowner to build a sun porch. This case makes bad law. I therefore dissent.
I — I
¶ 121. At the outset, it is important to state what this case is all about. The Warnings are not being asked to destroy their basement. Neither the County nor the State has ever taken action to address the basement violation.2 This case is about a sun porch for the Warnings, but the legal principles governing this case have a significant impact on the rest of the people of the State.
¶ 122. The lead opinion suggests that the law should not bar homeowners like the Warnings, whose home is a "non-conforming structure" in the eyes of the law (albeit through no fault of their own), from adding a sun porch to their homes.3
¶ 123. The owners' inability to add a sun porch follows, however, directly from state law — state law that restricts development in floodplain zones. Construction on floodplains is regulated by state statute, DNR rules, county, city, and village ordinances, and *680federal statutes and regulations.4 Indeed, the regulation of floodplains is, even to experienced practitioners in Wisconsin water law, a confusing amalgamation of federal, state, and local laws — laws not always internally consistent or consistent with each other.
¶ 124. Nevertheless, it is clear that the legislature has given the DNR, not a County Board of Adjustment, ultimate authority over floodplains. The applicable state statute is Wis. Stat. § 87.30. The legislature declared that the purpose of various statutes enacted in Chapter 614 of the Laws of 1965, including Wis. Stat. § 87.30, is "to grant necessary powers and to organize a comprehensive program under a single state agency for the enhancement of the quality management and protection of all waters of the state, ground and surface, private and public."5 The single state agency is the DNR.
¶ 125. The state floodplain zoning laws exist to protect human life and health and to minimize property damage and economic losses.6 Floodplain zoning focuses on avoiding obstructions to flood flows and exposure of property to flood damage.7 Floodplain zoning laws apply where there is a 1% chance of a flood's occurrence in any given year, which translates into a *68126% chance that a flood will occur during the life of a 30-year mortgage.8
¶ 126. The significance of the state interest in floodplain zoning is immediately apparent in the present case. The State is the plaintiff in this case, a case that involves a county variance granted to a private property owner. The State has been involved in this case since its earliest stages before the County Board of Adjustment.
¶ 127. Section 87.30 requires counties, cities, and villages to enact floodplain zoning ordinances that conform to the minimum standards adopted by the DNR. If the local ordinance does not meet the minimum DNR standards, the DNR has authority to adopt an ordinance for the local government.9 The legislature has directed the DNR to promulgate rules defining "non*682conforming building" and further prohibits the enactment of ordinances that allow certain improvements to nonconforming buildings.10 That the legislature intends the DNR to regulate residential basements in floodplains and regulate improvements of nonconforming buildings is evident in the statute that places restrictions on the DNR's powers to issue rules regarding floodproofed basements.11 No statute, however, prevents the DNR from prohibiting variances for habitable residences with floors below the regional flood elevation.
¶ 128. Given the broad grant of power to the DNR in Wis. Stat. § 87.30 and the stated purposes and policy of the adoption of § 87.30, the DNR has the authority to prohibit variances that it determines are against the public interest. The DNR rule in issue in this case, Wis. Admin. Code §NR 116.13(2) (June, 1996), provides that no variance may be granted to allow any floor below the regional flood elevation.12 This may be a wise rule; it may be an unwise one. But the wisdom of the rule is not for this court to decide. The power of the DNR to issue the rule is the issue.
*683¶ 129. I disagree with the majority that the general power of a County Board of Adjustment under Wis. Stat. § 59.694(7) to grant zoning variances trumps DNR's floodplain rules promulgated under § 87.30. The court's decision today granting a County Board of Adjustment plenary power to allow variances in floodplains regardless of DNR rules is a judicial grant of power to the counties that is inconsistent with Wis. Stat. § 87.30 and is contrary to the long-standing interpretation of § 87.30.13
¶ 130. The law is clear: A county may not enact a floodplain zoning ordinance that allows improvement of a nonconforming structure contrary to state statute, DNR rules, or federal law.14 By concluding otherwise, a majority of this court has transformed the County Board of Adjustment's statutory power to grant variances from a safety valve or escape hatch into a gaping hole in floodplain regulation that state authorities cannot plug.
¶ 131. I recognize that a town employee erred in granting the initial permit allowing this house to be built with this basement. I part company with the conclusion in Justice Crooks' concurrence that this error estopped the County Board of Adjustment from denying the Warnings the variance necessary to build their *684sun porch. Justice Crooks' concurrence's estoppel theory runs afoul of long-established case law that estoppel does not arise when a property owner relies on a building permit issued in violation of an ordinance.15 The Warnings acknowledged as much in their arguments to this court.16
II
¶ 132. Having concluded that Wis. Stat. § 87.30 and Wis. Admin. Code § NR 116.13(2) prohibit the County Board of Adjustment from granting the variance in this case, I now turn to the lead opinion's analysis of the legal standard governing variances authorized by a County Board of Adjustment. In suggesting that we overrule a unanimous decision of this court that three justices apparently no longer agree with, the lead opinion loses sight of what the applicable statutes governing variances do and do not say.
¶ 133. The lead opinion would overrule Kenosha County,17 concluding that the decision prevents Wisconsin from joining other jurisdictions that distinguish *685area and use variances, subjecting the former to a lesser standard than the latter. See lead op. at ¶ 48.
¶ 134. But this distinction between area and use variances is not visible in the Wisconsin statutes. Indeed, as the lead opinion acknowledges, the Wisconsin statutes provide no basis for distinguishing area and use variances.18 Instead, under Wisconsin law, all variances are subject to the "unnecessary hardship" standard, set forth in but not defined in the statute. See Wis. Stat. § 59.694(7)(c).
¶ 135. I do not join the lead opinion in deviating from the plain language of the statute and adopting a distinction that has been created explicitly or implicitly by several courts.19 Without more guidance as to the workability of the differences these courts have articulated, I am not convinced that these courts represent such a compelling mainstream that this court should overrule recent precedent to join them.
¶ 136. Without statutory authority, the majority concludes that the law requires that the Warnings receive a variance for their non-conforming basement. This conclusion is wrong for two reasons: (1) Wisconsin law does not allow us to read the "unnecessary hardship" standard differently depending on whether a variance is labeled as an area or use variance; and (2) even if we were to apply a lesser standard for so-called area variances, the Warnings are not necessarily asking for an area (rather than a use) variance. I address each of these points in turn.
*686¶ 137. First, there is no good Wisconsin authority for the proposition that the reference to "unnecessary hardship" in Wis. Stat. § 59.694(7)(c) should be interpreted differently depending on whether the court is considering an area or a use variance. The statutes are silent regarding the differences between area and use variances. The majority turns to the case law, relying on Snyder v. Waukesha County Zoning Board of Adjustment, 74 Wis. 2d 468, 475, 247 N.W.2d 98 (1976), as a basis for distinguishing between the area and use variances to determine the appropriate definition of "unnecessary hardship."
¶ 138. But in Kenosha County,20 we clarified that this proposed binary analysis does not flow from Snyder. Instead, Snyder requires Boards of Adjustment and reviewing courts to derive the appropriate standard for "unnecessary hardship" from the underlying purpose of the zoning regulation.21 As a result, this court held, by a unanimous vote, that we would interpret "unnecessary hardship" in Wis. Stat. § 59.694(7)(c) as requiring a showing that the property owner could make "no reasonable use" of the property, regardless of whether the property owner characterized the variance as an area or use variance. Thus in Kenosha County, when the property owner would have a reasonable use of the property without the variance, the purpose of the shoreland zoning statute took precedence and the variance request for a deck was denied.22
¶ 139. The lead opinion concludes that the principles of stare decisis are not sufficient to bind it to the *687result that follows in the present case.23 The lead opinion concludes that the imposition of a "no reasonable use" standard for all variances requiring a statutory showing of "unnecessary hardship" must be overruled because "the rule has proven to be intolerable simply in defying practical workability."24 I disagree. Many states use the "no reasonable use" standard for variances.25 The standard of "no reasonable use" is well established in Wisconsin law. Even under the lead opinion's view of Wisconsin case law, the standard has been applied and would presumably continue to be applied for use variances. If the standard is "intolerable simply in defying practical workability," how can the three justices retain it for use variances? I agree with Justice Crooks' concurrence that no compelling reason exists to overrule the Kenosha County precedent.26
¶ 140. Second, the lead opinion has not shown that the Warnings requested an area rather than a use variance for their basement. A variance is not necessarily an "area variance" simply because the relevant zoning regulations set forth dimensional limits. The *688distinction between area and use variance is not clear.27
¶ 141. The lead opinion cogently recognizes the problems that arise when a use variance is "disguised" as an area variance.28 Yet it inexplicably ignores the possibility that the variance at issue in this case is similarly disguised as an area variance. The variance in this case may be an area variance because it allows a deviation from the dimensions prescribed by the floodplain zoning regulations. Or it may be a use variance in that it allows the Warnings to use their property in a way that is incompatible with a floodplain, namely, to improve a home that has a basement deeper than permitted by the ordinance.29 Or it may be a hybrid.30
¶ 142. The difficulty in categorizing area and use variances is precisely the problem that our decision in Kenosha County helps address: namely, how to move away from artificial labels and apply a standard for all variances that will appropriately reflect the underlying purpose of the zoning laws at issue.31 The lead opinion's call for an artificial distinction between use and *689area variances, unaccompanied by any guidance as to how to apply this distinction in a principled manner, itself defies practical workability.
¶ 143. The guidance that I glean from the lead opinion is that a use variance is subject to a more restrictive standard than an area variance because use variances threaten to change the character of the neighborhood.32 This analysis follows from the principle set forth in Snyder, and confirmed in Kenosha County, that what constitutes an unnecessary hardship justifying a variance must be evaluated in light of the purpose of the zoning law.
¶ 144. But even if it correctly reflected Wisconsin law, the lead opinion's analysis begs a key question: what is the purpose of the floodplain zoning law at issue in this case, and to what standard should a variance from a floodplain zoning law be held?33
¶ 145. Elsewhere, the lead opinion tells us that the purposes of the floodplain zoning laws are "promoting public health and safety and protecting private property from flood damage."34
¶ 146. The lead opinion is thus implicitly concluding that variances from zoning laws that promote health and safety and protect private property from flood damage are subject to a less restrictive standard than zoning laws that preserve the character of a *690neighborhood. I cannot agree. Thus, even if the lead opinion mustered four votes to overrule Kenosha County, which it did not, and this court were bound by the lead opinion, I could not conclude that future homeowners in the Warnings' position are subject to anything less than the no reasonable use standard. To conclude otherwise is to fail to promote health and safety and protect private property from flood damage.
¶ 147. So where does the law governing variances stand? Three members of this court want to erect a binary standard that reflects an artificial distinction between area and use variances. Four members of the court read Kenosha County as permanently doing away with the artificial concepts of area and use variances. Kenosha County thus survives another day. To grant a variance, a County Board of Adjustment must conclude that the property owner has no reasonable use of the property, in light of the purpose of the applicable zoning regulations.
¶ 148. Even if I were to assume that the County Board of Adjustment had the authority to grant the variance at issue in this case, which it did not, I would follow the analysis of the court of appeals and conclude that the County Board of Adjustment erroneously granted the Warnings' requested variance. The Warnings did not show that without a variance that will allow them to add a sun porch to their home, they can make no reasonable use of the property.
¶ 149. For the reasons set forth, I dissent.
¶ 150. I am authorized to state that Justice ANN WALSH BRADLEY joins this opinion.
See lead op. at ¶¶ 1, 52.
This is not an enforcement action commenced against an owner for a violation. If this case were an enforcement action, consideration of the equities might be appropriate. See Forrest v. Goode, 21 Wis. 2d 655, 681-82, 579 N.W.2d 715 (1998) (considerations given to equities in an enforcement action).
See lead op. at ¶ 42.
Federal statutes discourage floodplain development that will be subject to flood damage. The federal government provides affordable flood insurance to property owners who meet federal standards.
Section 1, ch. 614, Laws of 1965 (emphasis added).
See lead op. at ¶43; Wis. Admin. Code § NR 116.01(1) (June, 1996).
See Department of Natural Resources, Bureau of Water Regulation & Zoning, Floodplain & Shoreland Management: A Guide for Local Zoning Officials 1.1 (Publication No. WZ-210-Rev88, 1988).
See Note to Wis. Admin. Code § NR 116.03(41) (June, 1996).
See Comments, § 1, ch. 437, Laws of 1977, reprinted in Wis. Stats. Ann. § 87.30, at 573 (West 2000). See also Wis. Admin. Code § NR 116.05 (June, 1996); Department of Natural Resources, Bureau of Water Regulation & Zoning, Floodplain & Shoreland Management: A Guide for Local Zoning Officials 3.34 (Publication No. WZ-210-Rev88, 1988); Paul G. Kent, Wisconsin Water Law: A Guide to Water Rights and Regulations 42 (1994).
Implementing floodplain zoning laws is necessary to ensure that the municipalities and their residents will be eligible for flood insurance through a federal insurance program and federal disaster relief. See Paxil G. Kent, Wisconsin Water Law: A Guide to Water Rights and Regulations 42 (1994).
A DNR publication cautions municipalities that failure to meet DNR standards will cause development in that area to be nonconforming, which will result in prohibitions on future expansion or modification. See Department of Natural Resources, Bureau of Water Regulation & Zoning, Floodplain & *682Shoreland Management: A Guide for Local Zoning Officials 3.34 (Publication No. WZ-210-Rev88, 1988).
See Wis. Stat. § 87.30(1d)(a)1. and (1d)(c).
Wisconsin Stat. § 87.30(lg)(a) limits the DNR's power to promulgate any rule that contains provisions for floodproofed residential basements that are more restrictive than those imposed by the Federal Emergency Management Agency. This provision is not applicable to the present case because the Warnings' basement is not "floodproofed" as that word is used in the statutes.
See Wis. Stat. § 87.30(1d)(a)1. and (1d)(c); 44 C.F.R. § 60.3(c)(2).
Chapter NR 116 of the DNR rules, including Wis. Admin. Code § NR 116.13(2), at issue in the present case, has been in effect since 1986.
See Wis. Admin. Code § NR 116.13(2) (June, 1996); Wis. Stat. § 87.30(1d)(c); 44 C.F.R. § 60.3(c)(2). A local community may adopt stricter standards than the DNR promulgates. See Department of Natural Resources, Bureau of Water Regulation & Zoning, Floodplain & Shoreland Management: A Guide for Local Zoning Officials 3.50 (Publication No. WZ-210-Rev88, 1988).
See Willow Creek v. Town of Selby, 2000 WI 56, ¶¶ 49, 55-56, 235 Wis. 2d 409, 611 N.W.2d 693 (erroneous acts or representations of municipal officers do not afford a basis to estop a municipality from enforcing zoning ordinances); Snyder v. Waukesha County Zoning Bd., 74 Wis. 2d 468, 476-77, 247 N.W.2d 98 (1976) (no estoppel may arise against a municipality for the unauthorized acts of its officers; a building permit cannot confer the right to violate an ordinance).
See Brief and Appendix of the Intervening Defendant-Respondents-Petitioners David and Barbara Warning (dated May 4,1999) at 31.
See lead op. at ¶ 34.
One commentator states that "[a] few courts have avowedly applied a less stringent standard to area variances and have articulated the difference between variances which affect area and those that affect use." See Kenneth H. Young, 3 Anderson's Law of Zoning § 20.52, at 595 (4th ed. 1996).
State v. Kenosha County Bd. of Adjustment, 212 Wis. 2d 310, 569 N.W.2d 54 (Ct. App. 1997).
Snyder, 74 Wis. 2d at 473.
Kenosha County, 218 Wis. 2d at 421.
See lead op. at ¶¶ 30-49. Two of today's three votes to overrule our unanimous decision in Kenosha County come from justices who were not yet on the court when we decided that case.
See lead op. at ¶¶ 30-31 (quoting Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 854—55 (1992)).
See Kenosha County, 218 Wis. 2d at 414 n.11.
See Justice Crooks' concurring op. at ¶¶ 71, 80.
See Kenneth H. Young, 3 Anderson's Law of Zoning § 20.06 at 425 (4th ed. 1996) (describing use and area variances and concluding that "[c]lassification is not always clear").
See also lead op. at ¶ 40 (discussing State v. Winnebago County, 196 Wis. 2d 836, 540 N.W.2d 6 (Ct. App. 1995) (a case of a use variance masquerading as an area variance)).
See lead op. at ¶ 41.
See Kenneth H. Young, 3 Anderson's Law of Zoning § 20.06 at 425 (4th ed. 1996) (noting that a variance to allow extension of a nonconforming use has been treated as a use variance).
See Kenneth H. Young, 3 Anderson's Law of Zoning § 20.48 at 579 (discussing cases that have treated a variance as both an area and use variance).
See Kenosha County, 218 Wis. 2d at 412, n.10.
See lead op. at ¶ 40 (quoting with approval the court of appeals decision in Kenosha County, 212 Wis. 2d 310, 319-20, 569 N.W.2d 54 (Ct. App. 1997)).
See lead op. at ¶ 36. Indeed, as Justice Crooks' concurring opinion points out, Kenosha County has preserved the principle in Snyder that the existence of an "unnecessary hardship" requires consideration of the purpose of the zoning law. See Justice Crooks' concurring op. at ¶ 76.
See lead op. at ¶ 43.