BOA Variances

Variance Standards:

State law sets three standards for granting a zoning variance. Applicants must provide evidence to the local board that their situation meets the standards. All three standards must be met in order for a variance to be granted.

•  Unnecessary hardship
•  unique property feature
•  Not contrary to public interest

Unnecessary Hardship

Application of zoning ordinance to the site must cause unnecessary hardship. When does unnecessary hardship occur?

•  Denied All Reasonable Use of Property - The Wisconsin Supreme Court has ruled that unnecessary hardship only exists when the zoning ordinance denies all reasonable use of a property. Zoning board members must judge what is a reasonable use for a particular parcel. They must consider whether the parcel as a whole provides reasonable use to the owner, not just whether a portion of the property can be used as the applicant wants. For example, all reasonable use of a parcel is not denied if a board rejects a variance for a deck to be placed on a site within the shoreland setback. A home without a lakeside deck still offers reasonable use of property.
•  No Self Imposed Hardships - The State Supreme Court also ruled that a hardship may not be self imposed. An example of a self-imposed hardship would be someone who builds at a setback and later requests a variance for an addition within the setback area. Such a variance should be denied because the applicant created the hardship by building at the setback and restricting future building or expansion options.
•  Loss of Profit NOT Hardship - Loss of profit is not in itself an unnecessary hardship, nor is additional expense incurred to comply with zoning ordinances. For instance, limiting the number of units which can be built on a parcel, may reduce potential profits but is not an unnecessary hardship.
•  Due to Regulations - The hardship cannot be one that would have existed in the absence of the zoning ordinance. Some properties may not be buildable because of the physical nature of the property. For instance, if an entire parcel consists of land with a steep slope, or is entirely covered with wetlands, the property would not be suitable for development whether or not there was an ordinance regulating such development. In such extreme cases, the only reasonable use may be for open space uses.

Unique Property Limitations

Unique physical characteristics of the property must prevent the applicant from developing in compliance with the zoning ordinance.

• Physical Features - Wetlands, soils type, bedrock and steep slopes are some characteristics which may limit use of a property.
• Property Limitations - Not Applicant's Circumstances - The property must qualify for the variance, not the situation of the applicant.
• Violations/Previous Variances not Grounds for Variance - Existing violations on other properties, or improper variances previously granted, are not grounds for a variance. Applications must be evaluated individually based on the variance standards.
• Amend Zoning Ordinance - Variances should not be granted for property features affecting many parcels in the same way. The proper remedy in such a situation is to amend the zoning ordinance.

Public Interest Protected

Granting of a variance must not harm the public interest.

• * Look to Ordinance Objectives - Board members should look to the objectives statement in their local ordinance to determine what constitutes public interest. Local ordinance objectives generally mirror objectives set forth in state statutes. For example, shoreland zoning protects the public interest in water quality, fish and wildlife resources, shore cover and natural beauty.
• * Not Just Lack of Opposition - The fact that there is not objection to a variance from neighbors or area residents does not necessarily mean a variance would not harm the public interest. A local zoning board must consider the public at large and not just nearby property owners.
• * Minimum Relief - Landowners who do qualify for a variance are to be granted only the minimum relief necessary for them to have reasonable use of their property. Boards also have the authority to impose conditions on a variance to protect the public interest. Examples of conditions for variances to shoreland standards including such as erosion control measures or vegetative screening.

Applicants must prove their situation meets all three of these standards. However, municipalities can assist landowners and expedite the process by providing application forms that help landowners determine if they will qualify for a variance. Similarly, zoning officials and board members can ask applicants questions to help determine if the standards are met or if there is an alternative that would not require a variance.

Variance Application Policy and Requirements

Applicants must submit the following information before they will be put on the agenda to have their appeal heard by the Sauk County Board of Adjustment.

• Notice of Appeal – Variance. This application shall be completely filled out with as much detailedinformation as you can give. It shall be signed and dated, acknowledging that all informationsubmitted is accurate. A $500.00 fee is required and checks should be made payable to the SaukCounty Board of Adjustment.
• A letter of explanation. This letter shall include why you feel you request meets the variance standards which are:
  • Proof of unnecessary hardship. Please note that a hardship can not be self-imposed or a loss of profit. Hardship qualifications are with the property only and not with the property owner.

    Note: The standard to prove unnecessary hardship for an area variance is that the ordinance requirements are “unnecessarily burdensome”. See Snyder v. Waukesha County Zoning Board, 74 Wis. 2d, 468 475 247 N.W.2d 98 (1976) and Ziervogel v Washington Co. Board of Adjustment. The standard for a use variance is “no reasonable use” of property. See State v. Kenosha County Board of Adjustment, 212 Wis. 2d, 310 569 N.W.2d 54 (Ct. App. 1997).

  • Unique property limitations. Unique physical characteristics of the property must prevent the applicant from developing their property in compliance with the ordinance.
  • Public interest protected. You must address how your variance request would not harm the public interest. This does not only apply to adjacent neighbors, but the public at large as well. This also includes the public interest in water quality, fish and wildlife resources, shore cover and natural beauty when dealing with shoreland/wetland areas.
     
• Acknowledgement Form from your local Town Board. Before you will be placed on the agenda to have your appeal heard, you must speak to your town board chair and/or clerk. After speaking to them about your request, please have them sign and date this form and fill in the date when they will be able to discuss your appeal with the full board. This form can be turned in prior to meeting with the full town board. It is merely an acknowledgement that they have been advised of your request.
• Extra copies. Anything you submit to have made into an Exhibit with your appeal must be 8½x11 to 11x17 in size. Any color copies of any size and/or any materials larger than 11x17 must have 7 copies numbered in consecutive order submitted with your application.