Legal Memorandum: Standard of Proof for a Variance in WI

Issue: What is the standard of proof to obtain a variance before a Wisconsin zoning board of adjustment?

An application of a new doctrine to determine whether a property owner will suffer unnecessary hardship if he or she does not obtain a variance from literal compliance with a local ordinance may be necessary.  Wis. Stat. § 809.62(1)(c)(1).  See  Univest Corp. v. General Split Corp., 148 Wis. 2d 29, 435 N.W.2d 234, 237 (1989).  The applicable statute provides that "[t]he supreme court may grant the petition upon such conditions as it considers appropriate."  Wis. Stat. § 809.62(6) (Supp. 2000).  The Wisconsin Supreme Court has stated that the statute governing petitions for review gives it "a broad grant of discretionary power . . . with respect to petitions for review that are granted [including] issues addressed in earlier decisions of the court of appeals in the same case, notwithstanding that review of the earlier decision was not sought."  Univest Corp., 435 N.W.2d at 237 (observing that this principle is "consistent with the goals of judicial economy and the avoidance of unnecessary and multiple proceedings").  Furthermore, the court is authorized "to review any substantial and compelling issue which the case presents, regardless of whether a prior decision established the law of the case."  Id. at 238.  Thus, a party aggrieved by the decision of the court of appeals may petition the Supreme Court for review of the adverse decision.  State v. Castillo, 213 Wis. 2d 488, 570 N.W.2d 44, 45-46 (1997).

Interpretation of an ordinance is a question of law.  Browndale Int’l Ltd. v. Board of Adjustment for County of […]