Kathleen S. Cox v. City of Madison Zoning Board of Appeals

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
July 8, 2021
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2020AP478 Cir. Ct. No. 2019CV1095

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

KATHLEEN S. COX,

PLAINTIFF-APPELLANT,

V.

CITY OF MADISON ZONING BOARD OF APPEALS,

DEFENDANT-RESPONDENT.

APPEAL from an order of the circuit court for Dane County:
RHONDA L. LANFORD, Judge. Affirmed.

Before Blanchard, Kloppenburg, and Nashold, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2020AP478

¶1 PER CURIAM. Kathleen Cox appeals a circuit court order
affirming, on certiorari review, the decision of the City of Madison Zoning Board
of Appeals (the Board) denying her request for an area variance from a lakefront
setback requirement. We conclude that the Board made an adequate record of its
decision, based that decision on sufficient evidence, and did not act contrary to
law. Accordingly, we affirm.

BACKGROUND

¶2 The following facts are undisputed. Cox bought a residential
property in the city of Madison with a plan to demolish the existing house and
build a new one. The property is on the shore of Lake Mendota and includes a
“wet boathouse”: a boathouse built over excavated shoreline with lake water
underneath, into which a boat can directly navigate. Before starting work on the
house, Cox rebuilt the boathouse.

¶3 Under a Madison ordinance, a “lakefront yard setback” requirement
establishes the minimum distance a house must be from the ordinary high water
mark of the lake; for Cox’s property, the setback is 123.8 feet. See MADISON,
WIS., CODE OF ORDINANCES § 28.138(4)(a) (2021).1 When designing her new
house, Cox believed that she should measure the setback from the property’s
natural shoreline. After she completed her design plans, Cox learned that a
Wisconsin Department of Natural Resources (DNR) regulation required her to
measure the setback from the indented shoreline created by the wet boathouse
excavation. This represented a change of 14.6 feet, meaning that the planned

1
All references to the Madison ordinance are to the 2021 version.

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house would now have to be 14.6 feet further inland than if the setback were
measured from the natural shoreline. Accordingly, Cox applied to the Board for a
lakefront setback variance of 14.6 feet.

¶4 The city zoning administrator submitted a report to the Board
recommending approval of the variance request, “subject to further testimony and
new information provided during the public hearing.” The Board held a public
hearing and considered testimony and evidence from the zoning administrator,
Cox, her engineer, her architect, and her neighbors (the majority of whom were in
opposition). The Board voted unanimously to deny the variance.

¶5 Cox filed a petition for certiorari review with the circuit court. The
court affirmed the Board’s denial of the variance request, and Cox appeals.

DISCUSSION

Principles of Law and Standard of Review

¶6 Variances operate as zoning ordinance “escape valve[s],” affording
property owners “a means of obtaining relief from the strict enforcement of zoning
restrictions where individual injustices may occasionally occur.” State ex rel.
Ziervogel v. Washington Cnty. Bd. of Adjustment, 2004 WI 23, ¶17, 269 Wis. 2d
549, 676 N.W.2d 401. The legislature has delegated to local zoning boards
substantial discretion to grant variances in particular cases “where the literal
application of zoning regulations would result in unnecessary hardship not
justified by the underlying purposes of the ordinance in question.” Id., ¶19;

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WIS. STAT. § 62.23(7)(e)7.b. (2019-20)2; MADISON, WIS., CODE OF ORDINANCES
§ 28.184(5)(a)4.3 Importantly, an unnecessary hardship “cannot be self-created”;
it “must be based on conditions unique to the property rather than considerations
personal to the property owner.” Ziervogel, 269 Wis. 2d 549, ¶20;
§ 62.23(7)(e)7.d.; MADISON ORD. § 28.184(5)(a)1., 5.

¶7 In the context of an area (as opposed to a use) variance,4 an
“unnecessary hardship” exists when “‘compliance with the strict letter of the
restrictions governing area, set backs, frontage, height, bulk or density would
unreasonably prevent the owner from using the property for a permitted purpose or
would render conformity with such restrictions unnecessarily burdensome.’”
Ziervogel, 269 Wis. 2d 549, ¶33 (quoting Snyder v. Waukesha Cnty. Zoning Bd.
of Adjustment, 74 Wis. 2d 468, 475, 247 N.W.2d 98 (1976)); WIS. STAT.
§ 62.23(7)(e)7.a., d.; MADISON, WIS., CODE OF ORDINANCES § 28.184(5)(a)4.
Whether this “standard is met in individual cases depends upon a consideration of
the purpose of the zoning restriction in question, its effect on the property, and the
effect of a [proposed] variance on the neighborhood and larger public interest.”
Ziervogel, 269 Wis. 2d 549, ¶33. The property owner bears the burden of
establishing unnecessary hardship. Id.; § 62.23(7)(e)7.d.

2
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.
3
In this section, we cite to provisions of WIS. STAT. § 62.23 and the Madison ordinance
that encompass the same principles relating to the granting of zoning variances as those
articulated in the case law quoted above. The Madison ordinance is quoted, in pertinent part, at
paragraph 13 of this opinion.
4
A use variance allows the owner to use the property for an otherwise prohibited use,
whereas an area variance provides an exception from physical requirements like setbacks and
height limits. State ex rel. Ziervogel v. Washington Cnty. Bd. of Adjustment, 2004 WI 23, ¶21,
269 Wis. 2d 549, 676 N.W.2d 401.

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¶8 A party aggrieved by a decision of a zoning board may seek
certiorari review. WIS. STAT. § 62.23(7)(e)10. On appeal, we review the board’s
decision, not the circuit court’s. Oneida Seven Generations Corp. v. City of
Green Bay, 2015 WI 50, ¶42, 362 Wis. 2d 290, 865 N.W.2d 162. Our review is
limited to: (1) whether the board kept within its jurisdiction; (2) whether it
proceeded on a correct theory of law; (3) whether its action was arbitrary,
oppressive, or unreasonable and represented its will and not its judgment; and
(4) whether the board might reasonably make the order or determination in
question based on the evidence. Lamar Cent. Outdoor v. Board of Zoning
Appeals of Milw., 2005 WI 117, ¶16, 284 Wis. 2d 1,700 N.W.2d 87; Snyder, 74
Wis. 2d at 475. We independently determine questions of law and jurisdiction, but
in all other respects our review is deferential. Ziervogel, 269 Wis. 2d 549, ¶¶13-
14; see also Snyder, 74 Wis. 2d at 475-76 (“‘Whether a variance shall be
authorized in a particular case is to be determined by the Board in the exercise of
its discretion.’” (quoted source omitted)). We “may not substitute [our] discretion
for that of the board,” and we “accord a presumption of correctness and validity”
to its decision. Ziervogel, 269 Wis. 2d 549, ¶¶13-14.

The Board Did Not Err in Denying Cox’s Variance Request

¶9 We first address and reject Cox’s argument that the Board did not
create a sufficient record of its decision. We then discuss why substantial
evidence supports the Board’s decision and why the Board did not make errors of
law in reaching that decision.

The Board made a sufficient record of its decision

¶10 Cox argues that the Board erred in not sufficiently articulating the
grounds for denying her variance request, thereby precluding meaningful certiorari

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review. The rule is that, although board decisions need not be written, a board’s
reasoning must be evident from the certiorari record and must consist of more than
“conclusory statements that the application does or does not satisfy the statutory
criteria.” Lamar Cent. Outdoor, 284 Wis. 2d 1, ¶¶31-32. Unless a board
“express[es], on the record, its reasoning why an application does or does not meet
the statutory criteria….[,] [i]t is impossible for [courts] to meaningfully review a
board’s decision, and the value of certiorari review becomes worthless.” Id., ¶32.
A board’s failure to provide reasons for its decision “amounts to a violation of the
third prong of certiorari review.” Id., ¶26

¶11 We have reviewed the transcript of the Board proceedings, and we
discern no basis for Cox’s assertion that the Board’s decision was cursory or
insufficiently articulated. As we discuss below, the Board was required to analyze
six factors under the Madison ordinance. It addressed and made findings on each
in turn, determining that Cox met some standards and not others. Because the
Board determined that Cox did not meet all standards for granting the variance, it
denied her request. The record is sufficiently detailed to enable us to analyze that
decision.

Substantial evidence supports the Board’s decision

¶12 We construe Cox to argue that the evidence did not support the
Board’s conclusion that she failed to meet all of the approval standards under the
Madison ordinance for granting an area variance. We review the sufficiency of
the evidence under the “substantial evidence” test, meaning that we will affirm
when there was “credible, relevant, and probative evidence” before the board
“upon which reasonable persons could rely to reach [that] decision”—even when

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the evidence could also support a contrary determination. Sills v. Walworth Cnty.
Land Mgmt. Comm., 2002 WI App 111, ¶11, 254 Wis. 2d 538, 648 N.W.2d 878.

¶13 The Madison variance ordinance states, in pertinent part:

The Zoning Board of Appeals shall not grant a
variance unless it finds that the following conditions are
present:

1. There are conditions unique to the property of
the applicant that do not apply generally to
other properties in the district.

2. The variance is not contrary to the spirit,
purpose, and intent of the regulations in the
zoning district and is not contrary to the public
interest.

….

[3.] For an area variance, compliance with the strict
letter of the ordinance would unreasonably
prevent use of the property for a permitted
purpose or would render compliance with the
ordinance unnecessarily burdensome.

[4.] The alleged difficulty or hardship is created by
the terms of the ordinance rather than by a
person who has a present interest in the
property.

[5.] The proposed variance shall not create
substantial detriment to adjacent property.

[6.] The proposed variance shall be compatible
with the character of the immediate
neighborhood.

MADISON, WIS., CODE OF ORDINANCES § 28.184(5)(a).5

5
Cox does not dispute that the six pertinent approval standards comply with the legal
standards for granting a zoning variance articulated in the case law discussed above. See
MADISON, WIS., CODE OF ORDINANCES § 28.184(5)(a); see generally Ziervogel, 269 Wis. 2d
549, ¶¶17-34.
(continued)

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¶14 Under this ordinance, Cox had to meet all six standards before the
Board could grant the variance. Therefore, we will focus on whether substantial
evidence supports the Board’s conclusions on those standards it determined she
did not meet: standards (3) and (4).6 In this discussion we refer generally to “the
setback requirement”; this term encompasses the lakefront yard setback
requirement under the Madison ordinance together with the DNR requirement that
Cox’s setback be measured from the excavated shoreline of her wet boathouse.

¶15 As quoted above, standard (3) concerns whether compliance with the
setback requirement “would unreasonably prevent use of the property” or be
“unnecessarily burdensome.” See MADISON, WIS., CODE OF ORDINANCES
§ 28.184(5)(a)4. As we have explained, the evidence before the Board showed
that Cox, only after settling on a design for her new house, learned that she had
measured the lakefront yard setback from the wrong point under applicable DNR
standards: the natural shoreline rather than the excavated shoreline created by the
wet boathouse. This prompted Cox to seek a variance. In the Board’s view, this
series of events reflected a failure by Cox to give any real “consideration [as to
how] to build a code-compliant structure.” One Board member pointed out, “[W]e

For ease of reading, and in keeping with the Board’s discussion, we have renumbered
some of these standards so that we may refer to them as standards (1) through (6).
6
The parties dispute whether Cox meets other standards of the Madison ordinance
§ 28.184(5)(a). For example, Cox argues that she meets standard (2)—that her “variance is not
contrary to the spirit, purpose, and intent of the regulations ... [or] the public interest”—because
her house will be in line with her neighbors’ houses and will not block any views. Similarly, Cox
implies that she meets standards (5) and (6) because the location of her house will not negatively
affect adjacent properties or the character of the neighborhood. For its part, the Board concedes
that standards (5) and (6) are likely met but questions whether Cox meets standard (2). We need
not decide these points because we conclude that the Board did not err in determining that Cox
did not meet standards (3) and (4), and she had to meet all six. See Barrows v. American Fam.
Ins. Co., 2014 WI App 11, ¶9, 352 Wis. 2d 436, 842 N.W.2d 508 (2013) (“An appellate court
need not address every issue raised by the parties when one issue is dispositive.”).

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didn’t hear anything from the applicant in how [she] tried to minimize the impact
… into the setback.” Another member acknowledged that “redesigning is not fun,
especially when you really have a house that you like, and you spent a lot of time
designing it,” but expressed the view that those considerations alone did not create
an unnecessary burden.

¶16 There is substantial evidence to support the Board’s conclusion that
Cox did not meet her burden on this third standard. Cox testified that by the time
she realized her error, “a lot of time, effort, and money” had gone into the current
design. Moreover, she explained, if any change were made, “I’m not going to be
able to get the kind of house that I want there” (as designed, one of the two decks
would have protruded into the setback area). But neither Cox, nor her engineer,
nor her architect explained why it would have been overly burdensome to revise
the plans and build a house or deck slightly different than the one Cox desired.
Without additional evidence as to how the setback requirement otherwise affected
Cox or her use of the property, the Board had a sufficient evidentiary basis to
conclude, as one Board member stated, that Cox was not “unnecessarily
burden[ed]” merely because she was “not … able to build everything that [she]
want[s] within the setback.”

¶17 Relatedly, the Board found that Cox did not meet standard (4)
because it was her acts and omissions—and not “the terms of” the setback
requirement—that had created “[t]he alleged difficulty or hardship.” See
MADISON, WIS., CODE OF ORDINANCES § 28.184(5)(a)5. The Board did not view
“the late surfacing of information” as itself creating a hardship, because it was
Cox’s burden to know and follow the law. One member contrasted Cox’s
situation with a hardship truly caused by an ordinance:

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[L]et’s say they were at this stage in the project, and the
day before construction, the council amends the code on
them. Then it is precisely the ordinance causing the
hardship. The only thing I could think of is it was a
property on … State Street … many years earlier, they had
built a code-compliant elevator shaft for a future addition.
The code had … changed on them. The safety regs and
how big an elevator [could be] changed on them, and
therefore, they had to build into the variance. That was a
situation where it was a change in the code …. [A]nd so
they had done everything to be compliant, but for a legal
change, and to me, that’s the distinction.

¶18 Substantial evidence supports this conclusion as well. There was no
dispute before the Board that Cox appreciated the error in her setback calculation
only after she had designed, as Cox put it, “the kind of house that I want there.”
The setback requirement as measured by the DNR standard never changed—it
always required Cox to calculate her setback from the same location. Thus, the
Board had a sufficient basis to conclude that Cox herself created the “alleged
difficulty or hardship”—the fact that the setback requirement prohibited her
design.7

The Board applied the correct legal standards

¶19 Cox argues that the Board made three errors of law. First, she
contends that the Board “applied a higher burden on the approval standards (3)
and (4) … than is required by law because Cox plans to demolish and rebuild her

7
Cox suggests that the DNR regulation requiring the setback to be measured from the
excavated shoreline created for the wet boathouse is unfair, because it prohibits her from building
as close to the natural shoreline as her neighbors without wet boathouses may build. But this
argument, regardless of its merit, has no bearing on whether Cox created her own hardship. And
although Cox occasionally implies otherwise, the “hardship” she faces is not simply that she must
measure the setback from the excavated shoreline. This is not a hardship, but merely a
circumstance dictated by the terms of the regulation itself. See Ziervogel, 269 Wis. 2d 549, ¶17
(variances operate to relieve uniquely circumstanced property owners from the effect of generally
applicable regulations).

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home.” Thus, she argues, her “variance request was doomed from the start.” In
Cox’s view, the Board determined that it would not apply the usual standards (or
would apply them more rigorously) because she was replacing the house (also
referred to as a “clean slate”).

¶20 We find no support in the record for this position. In considering
whether compliance was unnecessarily burdensome and whether Cox created her
own hardship, Board members noted that it is particularly difficult for “clean-
slate” variance requests to win Board approval. But these were not incorrect
statements of law. Rather, members were simply acknowledging that “complete
rebuilds [are] really starting with a blank slate,” so “there aren’t the same
considerations [such as] needing to preserve a foundation, a wall, [or] most of the
residence.” These comments reflect the reality that “clean-slate” builders likely
have greater flexibility to design a code-compliant structure, rather than seek a
variance, so they face a “particular[] … challenge” before the Board. These
comments do not, as Cox argues, indicate that the Board ignored the Madison
ordinance or created its own rules for granting area variances.

¶21 Second, Cox argues that the Board based its decision on the planned
size of the house (over ten thousand square feet) and not on its proposed location,
thereby usurping the role of the city Plan Commission, the only proper forum for
consideration of the house’s size. But Cox again reaches this conclusion by
selectively quoting Board member comments, while ignoring the larger context. It
is true that, in discussing standard (5) (“[t]he proposed variance shall not create
substantial detriment to adjacent property”), one Board member noted public
opposition to the project’s size and appearance, and another called this input
“valuable.” But these comments do not seem to have been determinative even of
that standard: although somewhat unclear from the transcript, the majority of

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Board members appeared to believe that any “detriment” to other properties was
not “substantial.”

¶22 Moreover, the transcript, considered as a whole, shows that the
Board did not directly consider the proposed size of the house in determining if
Cox met standards (3) and (4). The possible exception is that in discussing
standard (3)—whether compliance with the setback requirement would be
“unnecessarily burdensome”—one Board member mentioned the size and
complexity of the project:

[W]e’ve had [this] discussion [with other applicants] on small
portions of the kitchen addition or others … as opposed to what
we have here, which are multiple decks of fair size, outdoor
kitchen, two different sun porches on the second level. Is it
unreasonable that you can’t do all that? It think it’s part of the
standard that we have to apply. And I would struggle to find that
not being able to build everything that they want within the
setback is, it’s unreasonable to say you can’t do that.

This comment does not indicate to us that the member rejected the project solely
because of its size. Rather, the member expressed the view that applicants do not
meet standard (3) solely because they are unable to build the exact houses they
would like. In any case, to the extent the size of the house partially informed any
members’ decision-making, this was permissible. As we stated in Driehaus v.
Walworth County, 2009 WI App 63, ¶17, 317 Wis. 2d 734, 767 N.W.2d 343, “an
area variance cannot be decided in a vacuum.” Thus, a board may consider
extraneous factors so long as these do not “overwhelm[] all other considerations in
the analysis.” Id., ¶¶17-18 (quoting Ziervogel, 269 Wis. 2d 549, ¶28). Here, it is
evident that the Board primarily, if not exclusively, focused on the circumstances
discussed above: that Cox had not shown that compliance would be overly
burdensome and that Cox had created her own hardship.

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¶23 Finally, Cox argues that the Board improperly rejected, or did not
sufficiently consider, the zoning administrator’s report, which as we have noted
recommended approval “subject to further testimony and new information
provided during the public hearing.” Cox admits that the Board was not “bound to
adopt” the tentative opinion of the administrator, but she calls the report “critical
evidence” that, in her view, was not contradicted by any “new information.” We
disagree both with Cox’s premise—that the Board needed to articulate some
“reasonable basis to disregard” the report’s conditional approval—and her
characterization of the Board proceedings. The “new information” presented at
the hearing was additional evidence on standards (3) and (4)—specifically, that
Cox failed to show that compliance with the ordinance was unnecessarily
burdensome, and that any hardship was “self-created” and based on
“considerations personal to the property owner.” See Ziervogel, 269 Wis. 2d 549,
¶20. The Board reasonably considered this additional evidence in its own
independent analysis of the zoning standards.

¶24 In sum, the Board’s decision was sufficiently detailed for purposes
of certiorari review, was based on substantial evidence, and contained no errors of
law. See Lamar Cent. Outdoor, 284 Wis. 2d 1, ¶16; Sills, 254 Wis. 2d 538, ¶11.
Cox failed to rebut the “presumption of correctness and validity” attaching to the
Board’s determination that she did not satisfy standards (3) and (4) of the Madison
variance ordinance. See Ziervogel, 269 Wis. 2d 549, ¶14. Thus, we do not have a
basis to reverse the Board’s exercise of its discretion in denying Cox’s variance
application. We therefore affirm.

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By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5.

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