Legal Memorandum: Zoning Variances and Unnecessary Hardship

Issue: What is an ‘unnecessary hardship,’ for purposes of obtaining a zoning variance under Wisconsin law?

Area of Law: Real Estate Law
Keywords: Zoning variance; Unnecessary hardship
Jurisdiction: Wisconsin
Cited Cases: 218 Wis. 2d 396; 469 N.W.2d 831; 162 Wis. 2d 246
Cited Statutes: None
Date: 02/01/2001

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., A s "83 Am. Jur. 2d Zoning and Planning §§ 853—875 (1992" c 3 l "83 Am. Jur. 2d Zoning and Planning ” 853C875 (1992)"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 court 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, A s "State v. Kenosha County Bd. of Adjustment, 218 Wis. " c 2577 N.W.2d at 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 difficulty.  A s "State v. Kenosha County Bd. of Adjustment, 218 Wis. " c 2Id. at 820.  In Kenosha County, an element of unnecessary hardship also included "uniqueness," which the Court held was synonymous with "’special conditions or exceptional circumstances on the land’ in question," id. (quoting the Kenosha County ordinance), as well as an "’exceptional, extraordinary or unusual’" lot condition, id.

In another decision on this issue, the court reviewed the county board’s […]

Subscribe to Litigation Pathfinder

To get the full-text of this Legal Memorandum ... and more!

(Month-to-month and annual subscriptions available)