Laura Sutton v. Barron County Board of Adjustment

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.
May 21, 2024
A party may file with the Supreme Court a
Samuel A. Christensen 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. 2023AP786 Cir. Ct. No. 2022CV218

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN EX REL. LAURA SUTTON AND RYAN SUTTON,

PETITIONERS-RESPONDENTS,

V.

BARRON COUNTY BOARD OF ADJUSTMENT,

RESPONDENT-APPELLANT.

APPEAL from an order of the circuit court for Barron County:
JAMES M. PETERSON, Judge. Affirmed in part; reversed in part and cause
remanded with directions.

Before Stark, P.J., Hruz and Gill, 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. 2023AP786

¶1 PER CURIAM. The Barron County Board of Adjustment appeals a
circuit court order that reversed its decision denying Laura and Ryan Sutton’s
request for an area variance. On certiorari review, the court concluded that the
Board had failed to apply the proper legal standard and that the Board’s denial of
the Suttons’ request was arbitrary. The court therefore reversed the Board’s
decision and ordered that “the variance request is now granted[.]”

¶2 We agree with the circuit court that the Board failed to apply the
proper legal standard and that its denial of the Suttons’ variance request was
arbitrary. We therefore affirm the court’s decision in part. We conclude,
however, that the court erred by ordering the variance request granted. The court
should have instead remanded the matter to the Board to apply the correct legal
standard and to provide an adequate explanation for its decision. We therefore
reverse the court’s order in part and remand with directions for the court to remand
this matter to the Board for additional proceedings consistent with this opinion.

BACKGROUND

¶3 The Suttons own a 1.1-acre property located on Highway 48 in
Barron County, Wisconsin, which they purchased in 2009. The property includes
a home, which was built in the early 1900s, and a detached garage or shed, which
was built in the 1970s.1 The western edge of the Suttons’ property borders
Highway 48, while the eastern edge of their property has frontage on Rice Lake.

1
The Suttons refer to the 1970s structure as a shed. Some documents in the record,
however, refer to the structure as a garage. At the hearing before the Board, Ryan Sutton
explained that the Suttons had previously parked vehicles in the 1970s structure, but they are no
longer able to do so because of problems with the structure’s concrete slab. The Suttons contend
that, at present, they use the structure for storage only. Throughout the remainder of this opinion,
we refer to this structure as “the detached shed.”

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No. 2023AP786

¶4 The Barron County Land Use Ordinance (“the Ordinance”)
designates Highway 48 as a Class B highway. BARRON CNTY., WIS.,
ORDINANCES § 17.13(3)(b)2. (May 2023),
https://www.co.barron.wi.us/misc%20docs/land%20use%20ordinance.pdf. The
Ordinance requires a setback of seventy-five feet from the right-of-way of a
Class B highway or 108 feet from the highway’s centerline, whichever is greater.
Id., § 17.13(3)(b)2.a. The Suttons’ property is currently in compliance with the
Ordinance, as their residence is located seventy-six feet from Highway 48’s
right-of-way and the detached shed is located farther from the right-of-way.
Because the Suttons’ property is located on Rice Lake, it is also subject to
shoreline setback requirements. It is undisputed that the property is currently in
compliance with the applicable shoreline setback.

¶5 The Suttons would like to construct an “attached garage addition to
[the] west end of [their] existing home” with “[second] story living space above.”
To assist the reader, we include a diagram showing the location of the proposed
addition. On the diagram, the existing residence and detached shed are colored
green, and the proposed addition is colored pink.

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No. 2023AP786

¶6 The Suttons’ proposed addition would be forty-two feet from the
right-of-way of Highway 48 and, accordingly, would not be compliant with the
Ordinance. Consequently, on June 20, 2022, the Suttons submitted an application
to the Barron County Zoning Office, seeking a variance from the Ordinance’s
seventy-five-foot setback requirement.2 The application asserted that the proposed
addition is necessary because the Suttons are not able to park vehicles in the
detached shed and they have “[s]ecurity [c]oncerns” about parking their vehicles
outside “due to the proximity to surrounding businesses.”

2
The record shows that on June 13, 2022, the Town of Rice Lake reviewed the Suttons’
request for a variance and adopted a resolution “recommending approval of said variance.”

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¶7 The Suttons’ application further asserted that an unnecessary
hardship would exist absent a variance because there are “no other feasible or
compliant locations to build on the property.” In support of this assertion, the
Suttons alleged that four “[p]hysical [l]imitations” of their property prevent them
from building an addition in other locations. First, the Suttons noted that any
addition must comply with shoreline setback requirements. Second, the Suttons
alleged that “[t]he primary drainage corridor” on their property “lies between the
house and the [detached shed]” and that “[i]ssues with the drainage corridor
previously resulted in water in the basement of the residence[.]” Third, the
Suttons asserted that their existing well, which is located inside their residence, is
“nearing the end of its lifecycle” and that a new well “must be in compliance with
setbacks and additional restrictions relating to the proximity of the existing septic
field.” Fourth, the Suttons contended that “[a]ll other compliant [building sites
would] cut off all access to the back two-thirds … of the property, including lawn
mower and emergency vehicles.”

¶8 Finally, the Suttons’ application addressed the public interest and
stated that the purpose of the Ordinance’s setback requirement is “to allow for
future expansion and to ensure public safety.” The Suttons asserted that granting
their variance request would not interfere with this purpose because the Wisconsin
Department of Transportation has confirmed that there are “no current plans for
future expansion” of Highway 48 within one-half mile of the Suttons’ property.
The Suttons also argued that their proposed addition would leave room for
emergency vehicles and utility workers to access Highway 48 and would not
“create an obstruction for traffic.”

¶9 The variance application form required the Suttons to describe any
“alternatives to [their] proposal” that complied with the Ordinance and to explain

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No. 2023AP786

why they had rejected those compliant alternatives. In response, the Suttons
acknowledged that a compliant alternative to their proposed plan would be to
“[c]onstruct an attached garage onto the [s]outh side of the house”—that is, in the
area between the house and the detached shed. The Suttons asserted that they had
rejected this alternative because “the primary drainage corridor located between
the existing house and the [detached shed] would be cut off” and because they
“would not be able to access the back two-thirds … of the property, due to space
limitations between the existing house and the [detached shed].”

¶10 The five-member Board held a hearing on the Suttons’ variance
application on July 25, 2022. No members of the public appeared at the hearing to
object to the Suttons’ application.3 During the hearing, the Board took testimony
from the Suttons and also considered statements made by Marshall Black, a
representative from the Barron County Zoning Office. In particular, Black
presented a “Staff Report” from the zoning office, which was also provided to the
Board in writing.

¶11 The Staff Report noted that “[w]hen applying for a variance, the
applicant must meet the three criteria for approval; Unique Physical Limitations of
the property, Unnecessary Hardship and Public Interest.” The Staff Report
explained that unique physical limitations of a property are “conditions of the
property that prevent compliance with the setback standards … such as steep
slopes and lot size.” The Staff Report concluded that the Suttons’ “existing
dwelling and accessory structure are not ‘physical limitations of the property,’ but

3
The Board received correspondence stating that the Wisconsin Department of Natural
Resources had “no comments” regarding the Suttons’ application.

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No. 2023AP786

rather self-imposed conditions of previous owners.” The Staff Report also
concluded that there was “no physical limitation associated with [the Suttons’
property] being a lake lot” because “[t]he depth of this property, from [the]
highway right-of-way to the lakeshore, is approximately 390 feet” and “the
existing dwelling [is] located approximately 275 feet from the [ordinary high
water mark]” of the lake. The Staff Report further opined that although setback
requirements “may limit the location of a new well to the west side of the
dwelling,” “the future location of a new well is not a unique physical limitation of
the property.”

¶12 The Staff Report next stated that unnecessary hardship exists “when
compliance would unreasonably prevent the owner from using the property for a
permitted purpose or would render conformity with such restraints unnecessar[il]y
burdensome.” The Staff Report noted that while the Suttons “have indicated that
there are no other feasible or compliant locations to build on the property,” “an
alternative has been submitted that would meet all setbacks and be in compliance
with the ordinance.”

¶13 Finally, addressing the public interest, the Staff Report stated:

Public interest relates to the effects a variance may have on
this property and Barron County as a whole. This variance
request is a proposed addition onto an existing dwelling
that is in compliance with all setback standards. With the
property lacking unique physical limitations, and the
applicants having provided an alternative location that
would maintain compliance, granting of this variance
would not meet the intent of the ordinance.

¶14 During the hearing before the Board, Ryan Sutton testified that
building an addition on the south side of the existing residence would block the
property’s primary drainage corridor, which currently runs between the house and

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No. 2023AP786

the detached shed. In response, Black—the zoning office representative—opined
that if an addition were constructed in that location, various steps could be taken to
mitigate any drainage issues.

¶15 While Black was speaking to the Board, a Board member noted that
the house to the north of the Suttons’ property appeared to be in compliance with
the Ordinance’s setback requirement, and she asked Black whether the residence
to the south was also in compliance. Black responded that the house to the south
was “a lot further back.” The same Board member then stated, “So then this
would be sort of a new precedence or whatever, a new—I mean, their request
would be sticking out to the west further than what the other houses that are
existing are.” Black responded, “Yes. It appears like at least, you know, with the
exception of obviously this to the north, but going off to the west, that portion of
Highway 48, the neighboring properties are in compliance[.]” Laura Sutton
testified, however, that many nearby properties on Highway 48 are not in
compliance. She asserted, “[W]hat we’re requesting isn’t anything different than
what others on down the street are also … doing.”

¶16 Following the close of testimony, members of the Board discussed
the Suttons’ application on the record. One Board member immediately moved to
deny the variance “because of the fact that there’s an alternative site plan.”
Another Board member then commented that he had been “searching for a way to
try to figure out how to actually approve this.” He noted that many of the
properties near the Suttons’ home are not in compliance with the Ordinance’s
setback requirement. Nevertheless, he concluded the Suttons had not shown why
the Board should grant a variance because there was “an alternate option.”

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No. 2023AP786

¶17 The same Board member who had questioned Black about the
neighboring properties commented that she was “hung up on … the harm to the
public.” She also acknowledged the Suttons’ concerns about the alternative
location for the addition being “right through that drainage path.” However, she
credited Black’s opinion that the property’s drainage could be “reconfigured,” and
she therefore concluded that the Suttons had failed to show a “hardship.”

¶18 The Board subsequently voted four to one to deny the Suttons’
request for a variance. In its written decision, the Board stated that the request

does not meet all three of the following tests:

A. Unnecessary hardship is not present since strict
application of the terms of the Barron County Land Use
Ordinance would not unreasonably prevent the owner
from using the property for a permitted purpose or
render conformity with such restrictions unnecessarily
burdensome because there is adequate location for a
conforming dwelling addition that allows for reasonable
use of the property.

B. The hardship is not due to physical limitations of the
property but rather the circumstances of the applicant.

C. The variance would be contrary to the public interest
and would not observe the purpose of the Ordinance
and do justice.

¶19 The Suttons then filed the instant lawsuit, seeking certiorari review
of the Board’s decision denying their variance request. Following briefing by the
parties, the circuit court reversed the Board’s decision. The court concluded that
the Board had failed to apply the correct legal standard and that its decision to
deny the variance was arbitrary.

¶20 During its oral ruling, the circuit court explained that our supreme
court set forth the legal standard for the issuance of an area variance in State ex

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No. 2023AP786

rel. Ziervogel v. Washington County Board of Adjustment, 2004 WI 23, 269
Wis. 2d 549, 676 N.W.2d 401, and State v. Waushara County Board of
Adjustment, 2004 WI 56, 271 Wis. 2d 547, 679 N.W.2d 514. The court stated that
these cases require a board of adjustment to, among other things, “focus on the
purpose of the ordinance in question when deciding whether to grant the variance”
and balance “individual rights” against “the public interest in land-use
regulations.” The court then explained:

[W]hen you look at whether this Board applied the correct
legal theory, in reviewing the record, the transcript, their
decision, I found absolutely nothing about the Board
focusing on the purpose of the ordinance and balancing the
public interest against the private interest of the Suttons.
And, I mean, it’s just devoid.

I mean, I think there was maybe one of the
members … [who] said something about, well, the reason
is that it would stick out a ways—I think referring to the
building. That was about it.

The court later reiterated, “I didn’t hear anything about how this would harm the
public interest whatsoever other than the one comment, oh, well, this would stick
out.”

¶21 The circuit court also stated that the Board’s written decision

says … just in a conclusionary fashion … [that] the
variance would be contrary to the public interest and would
not observe the purpose of the ordinance and do justice.
And—but there’s nothing—there was not a single thing, a
discussion or the decision or the arguments or discussion
by the Members of the Board as to why this would be
contrary to the public interest, other than just, you know,
it’s a variance. And maybe they [are] predisposed that they
didn’t want to grant variances. It seems to me that in a
sense, just saying that without going through the analysis is
an epitome of an arbitrary decision.

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No. 2023AP786

¶22 The circuit court therefore reversed the Board’s decision and ordered
that the Suttons’ variance request “is now granted as originally applied for on
July 25, 2022.” The court subsequently stayed its decision pending the resolution
of this appeal.

DISCUSSION

¶23 “A person aggrieved by the issuance or denial of a zoning variance
may commence an action in circuit court seeking the remedy available by
certiorari[.]” Ziervogel, 269 Wis. 2d 549, ¶13. On appeal, we review the Board’s
decision, not the circuit court’s. See Oneida Seven Generations Corp. v. City of
Green Bay, 2015 WI 50, ¶42, 362 Wis. 2d 290, 865 N.W.2d 162. In doing so, we
must accord a presumption of correctness and validity to the Board’s decision, and
we may not substitute our discretion for that of the Board. See Ziervogel, 269
Wis. 2d 549, ¶13. Our review is limited to: (1) whether the Board kept within its
jurisdiction; (2) whether the Board proceeded on a correct theory of law;
(3) whether the Board’s 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.
See id., ¶14.

¶24 Here, the circuit court reversed the Board’s decision on the grounds
that the Board had proceeded on an incorrect theory of law and that its decision
was arbitrary. Whether the Board applied an incorrect theory of law or made an
arbitrary decision are questions of law that we review independently. See
Driehaus v. Walworth County, 2009 WI App 63, ¶13, 317 Wis. 2d 734, 767
N.W.2d 343.

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No. 2023AP786

¶25 A county board of adjustment has the power to grant a variance “that
will not be contrary to the public interest, where, owing to special conditions, a
literal enforcement of the provisions of the ordinance will result in unnecessary
hardship, and so that the spirit of the ordinance shall be observed and substantial
justice done.” WIS. STAT. § 59.694(7)(c)2. (2021-22).4 In Ziervogel, our supreme
court “reaffirm[ed]” that the standard for unnecessary hardship set forth in Snyder
v. Waukesha County Zoning Board of Adjustment, 74 Wis. 2d 468, 247 N.W.2d
98 (1976), applies when a property owner requests an area variance—as the
Suttons did in this case—as opposed to a use variance.5 See Ziervogel, 269
Wis. 2d 549, ¶7. Under the Snyder standard, to determine whether an unnecessary
hardship exists, the question is “[w]hether 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, ¶7 (alteration in original; quoting Snyder, 74 Wis. 2d
at 475); see also § 59.694(7)(c)3.

¶26 The burden of proving unnecessary hardship rests with the property
owner. Ziervogel, 269 Wis. 2d 549, ¶20. The hardship must be based on
conditions unique to the property rather than considerations personal to the
property owner, and it may not be self-created. Id. In addition, “variance requests

4
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.
5
An area variance is “a modification to a dimensional, physical, or locational
requirement such as the setback, frontage, height, bulk, or density restriction for a structure[.]”
WIS. STAT. § 59.694(7)(c)1.a. A use variance is “an authorization by the board of
adjustment … for the use of land for a purpose that is otherwise not allowed or is prohibited by
the applicable zoning ordinance.” Sec. 59.694(7)(c)1.b.

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No. 2023AP786

are always evaluated in light of the purpose of the zoning ordinance and the public
interests at stake.” Id., ¶33. Accordingly, determining whether a property owner
has met the standard for unnecessary hardship “depends upon a consideration of
the purpose of the zoning restriction in question, its effect on the property, and the
effect of a variance on the neighborhood and larger public interest.” Id.

¶27 As discussed above, in this case, the circuit court concluded that the
Board had proceeded on an incorrect theory of law when analyzing the Suttons’
variance request because there was “nothing” in the record showing that the Board
had “focus[ed] on the purpose of the ordinance and balanc[ed] the public interest
against the private interest of the Suttons.” The court noted that during the hearing
before the Board, there was no discussion “about how this would harm the public
interest whatsoever other than the one comment, oh, well, this would stick out.”
The court also observed that while the Board’s written decision stated that “the
variance would be contrary to the public interest and would not observe the
purpose of the ordinance,” the Board had provided no explanation in support of
that conclusion.

¶28 On appeal, the Board argues that it was the circuit court that failed to
apply the correct legal standard. According to the Board, there is no requirement
that a board of adjustment “engage in a balancing of public interests against
private interests” when deciding whether to grant an area variance. Instead, the
Board asserts that it is required “to consider the facts of the individual case in light
of the purpose of the ordinance to determine whether unnecessary hardship
exists,” and “[o]nce the issue of unnecessary hardship has been determined, the
board is then authorized by [WIS. STAT. §] 59.694(7)(c)2[.] to grant a variance
from the terms of the ordinance that will not be contrary to the public interest.”
Stated differently, the Board argues that consideration of the public interest does

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No. 2023AP786

not come into play until after it has determined that a property owner has
demonstrated unnecessary hardship.

¶29 The Board’s argument in this regard is contrary to our supreme
court’s decision in Ziervogel. There, the court expressly stated that “whether the
Snyder [unnecessary hardship] 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 variance on the neighborhood and larger public
interest.” Ziervogel, 269 Wis. 2d 549, ¶33 (emphasis added). The meaning of this
statement is plain: in determining whether a property owner has established
unnecessary hardship, one of the factors that a board must consider is “the effect
of a variance on the neighborhood and larger public interest.”6 See id.

¶30 We further agree with the circuit court that neither the Board’s oral
discussion of the Suttons’ variance request nor the Board’s written decision shows
that the Board considered the purpose of the Ordinance’s setback requirement or
the effect that granting a variance would have on the larger public interest. During
its oral discussion of the variance application, the Board focused almost
exclusively on the existence of an alternative location for the Suttons’ proposed

6
In its reply brief, the Board attempts to advance an alternative interpretation of the
above-quoted sentence from Ziervogel v. Washington County Board of Adjustment, 2004 WI
23, 269 Wis. 2d 549, 676 N.W.2d 401. Specifically, the Board argues that we should
“break[] … down” this sentence and interpret the first two list items—i.e., “a consideration of the
purpose of the zoning restriction in question” and “its effect on the property”—as applying to a
determination of whether unnecessary hardship exists, and we should interpret the third list
item—i.e., “the effect of a variance on the neighborhood and larger public interest”—as applying
only after a board has determined that an unnecessary hardship is present. See id., ¶33. The
sentence’s structure does not support this interpretation. The sentence lists three factors that a
determination of unnecessary hardship “depends upon.” See id. There is nothing to suggest that
the third factor should be treated differently from the first two factors, simply because the third
factor is listed last.

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No. 2023AP786

addition.7 Although one Board member noted that the addition “would be sticking
out to the west further than” the neighboring homes and later stated that she was
“hung up on … the harm to the public,” neither she nor any other Board member
expressly addressed the Ordinance’s purpose or explained how granting a variance
would affect the public interest.

¶31 In its written decision, the Board merely stated that granting the
variance “would be contrary to the public interest and would not observe the
purpose of the Ordinance and do justice.” However, the Board did not provide
any explanation for those conclusory statements, and under the circumstances,
they do not show that the Board actually considered the public interest and the
Ordinance’s purpose when making its decision.

¶32 In an attempt to remedy these deficiencies, the Board directs us to
the Staff Report. Because the Staff Report was made part of the record, the Board
asserts that it necessarily “took into consideration the portion of the Staff Report
regarding [the] Public Interest” when making its decision. The Board makes a
similar argument regarding the purpose of the Ordinance, asserting that because
the Ordinance’s statement of purpose was included as part of the record, the Board
must have considered the Ordinance’s purpose. These arguments are unavailing.
The fact that evidence relevant to a particular issue is present in the record does

7
On appeal, the Board suggests that its decision should be affirmed because it correctly
determined that there is a compliant alternative location for the Suttons’ proposed addition. We
take no position on the appropriateness of the Board’s determination regarding the existence of a
compliant alternative location. For purposes of our resolution of this appeal, it is sufficient for us
to conclude that the Board applied an incorrect theory of law and that its decision was arbitrary,
both of which conclusions justified the circuit court’s reversal of the Board’s decision. On
remand, the Board must focus on the purpose of the Ordinance and balance the public interest
against the private interest of the Suttons.

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No. 2023AP786

not show that the Board actually considered that evidence or issue before reaching
its decision.

¶33 The Board also asserts that based on the evidence presented, it was
“clear … that the property presented no unique limitations that were not
self-created and that [the Suttons] themselves had submitted an alternative location
which did not require a variance to fully comply with all setback requirements
under the ordinance[.]” The Board contends that, under these circumstances, “it
was clear that the granting of a variance would be contrary to the public interest
and would not observe the purpose of the ordinance.” These assertions do not
change the fact that neither the Board’s oral discussion nor its written decision
shows that the Board actually considered the public interest or the Ordinance’s
purpose when making its decision. In other words, even if the Board found that
the limitations on the Sutton’s use of the property were self-created and an
alterative location was viable, the Board failed to weigh those property limitations
and the Sutton’s issues with the alternative location against the effect of the
variance on the neighborhood and the public interest in maintaining the highway
setback.

¶34 For similar reasons, we also agree with the circuit court that the
Board’s decision to deny the variance request was arbitrary. A decision is
arbitrary “if it is unreasonable or without a rational basis.” Snyder, 74 Wis. 2d at
476. A board’s decision must contain the reasons for the action taken, and it may
not simply parrot the language of the applicable statute. Lamar Cent. Outdoor,
Inc. v. Board of Zoning Appeals of City of Milwaukee, 2005 WI 117, ¶28,
284 Wis. 2d 1, 700 N.W.2d 87.

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¶35 Again, when determining whether the Suttons had proved
unnecessary hardship, the Board was required to consider “the effect of a variance
on the neighborhood and larger public interest.” See Ziervogel, 269 Wis. 2d 549,
¶33. As the circuit court correctly noted, although the Board’s written decision
stated that the requested variance would be contrary to the public interest, there
was nothing in “the decision or the arguments or discussion by the Members of the
Board as to why [the variance] would be contrary to the public interest[.]” We
agree with the court that simply stating that the variance would be contrary to the
public interest, without providing any analysis in support of that conclusion, was
“an epitome of an arbitrary decision.”

¶36 We therefore affirm the circuit court’s decision in part, to the extent
the court concluded that the Board’s decision should be reversed. We conclude,
however, that the court erred by ordering that “the variance request is now
granted[.]” After determining that the Board had proceeded on an incorrect theory
of law and that its decision was arbitrary, the court should have remanded the
matter back to the Board to apply the correct legal standard and to provide an
adequate explanation for its decision.8 See, e.g., Lamar Cent. Outdoor, Inc., 284
Wis. 2d 1, ¶4 (remanding a case to a board of zoning appeals to apply the correct
legal standard and adequately explain the reasons for its decision). We therefore
reverse the court’s decision in part and remand with directions for the court to

8
Notably, the Board argued in its brief-in-chief that after the circuit court concluded that
the Board had proceeded on an incorrect theory of law, the court “should have remanded the
matter back to the Board” for it to apply the correct legal standard. The Suttons failed to respond
to this argument in their response brief, and we therefore deem the point conceded. See
Charolais Breeding Ranches, Ltd. v. FPC Sec. Corp., 90 Wis. 2d 97, 109, 279 N.W.2d 493
(Ct. App. 1979).

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No. 2023AP786

remand this matter to the Board for further proceedings consistent with this
opinion.

¶37 No costs to either party.

By the Court.—Order affirmed in part, reversed in part, and cause
remanded with directions.

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

18