Legal Memorandum: Obtaining Zoning Variances in WI

Issue: Is the ‘no reasonable use’ standard for obtaining a zoning variance still valid under Wisconsin law?

  Under Wisconsin zoning law, a "variance" allows a particular property owner to use the property in a manner prohibited by an applicable ordinance when "a hardship" would result from strict compliance with the ordinance.  State ex rel. Skelly Oil Co. v. Common Council, 58 Wis. 2d 695, 207 N.W.2d 585, 587 (1973).  Local boards of adjustment are authorized to grant, upon application and evidence in support, a variance to the shoreland setback requirement when "a literal enforcement of the provisions of the ordinance will result in unnecessary hardship," and in order to do substantial justice and observe the spirit of the ordinance.  Wis. Stat. § 59.694(7)(c) (2000).

The question of what constitutes an unnecessary hardship under the variance provision has been the focus of a long history of judicial interpretation in Wisconsin and in other jurisdictions. See, e.g., 83 Am. Jur. 2d Zoning and Planning ” 853–875 (1992) (discussing the unnecessary hardship doctrine applicable in variance cases).  In a recent case, in 1998, the appellate courts again addressed the issue of the proper legal standard for a Wisconsin court to apply when determining unnecessary hardship in a petition for a variance.  State v. Kenosha County Bd. of Adjustment, 218 Wis. 2d 396, 577 N.W.2d 815-16. (1998).  The Court held that the owner petitioning for a variance must prove "that without the variance, he or she has no reasonable use of the property," reiterating the decision that unnecessary hardship is synonymous with practical […]