Jerry T. Synkelma v. Vilas 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.
June 25, 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. 2023AP455 Cir. Ct. No. 2021CV52

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN EX REL. JERRY T. SYNKELMA,

PETITIONER-APPELLANT,

V.

VILAS COUNTY BOARD OF ADJUSTMENT,

RESPONDENT-RESPONDENT.

APPEAL from an order of the circuit court for Vilas County:
DANIEL L. OVERBEY, Judge. Affirmed.

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).

¶1 PER CURIAM. Jerry T. Synkelma appeals from an order of the
circuit court denying his request for certiorari relief from a Vilas County Board of
No. 2023AP455

Adjustment (the Board) decision. The Board denied Synkelma’s after-the-fact
request for an area variance for a patio and retaining walls he built on his property
within thirty-five feet of the Ordinary High Water Mark (OHWM) of the
Manitowish River, in violation of the Vilas County Shoreland Zoning Ordinance
(the Ordinance). Because we conclude the Board did not err by denying the
variance, we affirm the circuit court’s order upholding the Board’s decision.

BACKGROUND

¶2 Synkelma owns real property along the Manitowish River in
Manitowish Waters, Wisconsin. The property features a steep slope from the
residence down to the river. Within this area, Synkelma removed five trees to
establish “an access and viewing corridor,” see WIS. STAT. § 59.692(1f)(b)
(2021-22);1 VILAS COUNTY, WIS., SHORELAND ZONING ORDINANCE § 8.3.E.
(Feb. 1, 2017),2 and because he “believed the trees he removed posed a danger to
his house and property.”

¶3 Synkelma installed the patio and the retaining walls3 after the trees
were cut down. According to Synkelma, “[t]he stumps and root systems on three
1
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.
2
All references to the Ordinance in this decision are to the February 1, 2017 amendment.

“Access and Viewing Corridor” is defined as “[a] strip of vegetated land that allows safe
pedestrian access to the shore through the vegetative buffer zone.” ORDINANCE § 3.2.1. The
“vegetative buffer zone” is the “[l]and extending from the [OHWM] to 35 feet inland.”
ORDINANCE § 8.3.C.1. The “Ordinary High Water Mark (OHWM)” is “[t]he point on the bank
or shore up to which the presence and action of surface water is so continuous as to leave a
distinctive mark such as by erosion, destruction, or prevention of terrestrial vegetation,
predominance of aquatic vegetation, or other easily recognized characteristic.” ORDINANCE
§ 3.2.34.
3
From time to time, we will refer to the patio and the retaining walls as “the project.”

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of the trees near the shoreline were left intact,” but “[t]he stumps of the two
remaining trees, which were in the area where [the] patio now sits, were
removed.” The area of the patio closest to the river is supported by a large rock
retaining wall, and the area closest to the residence features a four-foot block
retaining wall. It is undisputed that Synkelma did not apply for any permits for the
project prior to construction. It is also undisputed that at least a portion of the
project is located within thirty-five feet of the OHWM of the Manitowish River.

¶4 On August 28, 2020, the Vilas County Deputy Zoning
Administrator, James Janet, issued a violation notice to Synkelma. As relevant
here, Synkelma was notified that: he failed to obtain the proper permits; his
project was within the seventy-five-foot setback from the OHWM required for all
new nonexempt structures; he failed to preserve natural shrubbery, trees, and
undergrowth and improperly clear cut trees; and he was responsible for “land
disturbance activities within 300 [feet] of the OHWM” without shoreland
alteration permits. Synkelma was ordered to “abate the violations and bring the
property into compliance with the requirements of the Ordinance” by, among other
things, applying for an after-the-fact shoreland alteration permit and erosion
control plan and removing the “patio/sitting area, the retaining walls and the rock
and boulders placed closer than 75 [feet] to the OHWM.”

¶5 Synkelma applied for after-the-fact zoning and shoreland alteration
permits on October 13, 2020, and his application was denied by a letter from Janet
on October 16, 2020. According to Janet’s letter, Synkelma’s application was
denied because, under the Ordinance, “[r]etaining walls are not exempt structures
and cannot be authorized within 75 feet of the OHWM”; “[n]o land disturbance is
allowed within 35 [feet] of the OHWM except as specifically authorized by
Wisconsin Statutes”; “[t]he Zoning Administrator or designee shall grant special

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zoning permission for the construction and/or placement of a structure located
35 [feet] or greater from the OHWM,” which did not occur here; and the
“Wisconsin Statutes require[] preservation or restoration of a vegetated buffer
zone that covers at least 70% of the half of the shoreland setback area that is
nearest to the water.” Janet’s letter advised Synkelma that he had thirty days to
appeal his decision to the Board.

¶6 On November 9, 2020, Synkelma filed an application with the
Board, seeking an area variance to allow his retaining walls and patio to remain in
place. On April 30, 2021, the Board held a public, evidentiary hearing and
conducted a site visit to Synkelma’s property.

¶7 At the hearing, Janet testified about why Synkelma was denied the
after-the-fact permits.4 He explained that the main issue was that Synkelma’s
patio and part of the retaining walls were within thirty-five feet of the OHWM.
Additionally, Janet testified that “part of … my denial [was], even if [Synkelma]
was 35 feet back with his patio, I still couldn’t grant that [permit] because he
doesn’t have enough natural vegetation in the setback area, the first 35 feet.” Janet
further noted that land disturbance is not authorized within thirty-five feet of the
OHWM. At the end of the hearing’s public portion, Janet made it clear that if the
Board did not grant Synkelma’s variance application, Synkelma would be required
to remove the retaining walls and patio.

¶8 Next, the Board read into the record a letter from the Wisconsin
Department of Natural Resources (DNR). The DNR’s letter contained

Janet also explained that he was originally called to Synkelma’s property due to
4

complaints regarding tree cutting.

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“comments” on Synkelma’s variance application by outlining “the statutory
requirements for the granting of the variance for each variance request” and
explaining that “[t]he standards help to ensure protection of the public interest,
including the preservation of water quality and fish and wildlife habitat along
lakes and rivers.” According to the DNR, “[i]n this case, the land disturbance, the
retaining walls, and the patio have already been built without consultation with
county zoning or permits, so this is a self-created hardship.”

¶9 The Board then read other documents into the record. The first was
an email from Synkelma’s next-door neighbors, calling the patio “an improvement
to this property [that] does not cause any harm to our property or its value” and
stating that “we have no concern with the Board approving a variance.” The
second was a comment letter from Synkelma’s “landscape architect” who
designed the project. According to the landscape architect,

My understanding is the patio/sitting area was a result of
a need to prevent any further erosion problems resulting
from the necessary removal of several large dead and
severely leaning trees within the 75-foot setback zone. The
leaning trees were leaning toward the house, presenting a
danger, not only to the building, but also to the potential of
creating an erosion problem if the trees uprooted during a
high wind weather event from the west to the northwest.

While protecting the environment by … preventing
potential shoreline erosion, it became apparent an
opportunity to provide a sitting area could be included in a
terracing opportunity to include a small patio area for
elderly visitors, who have difficulty accessing the river by
the long run of stairs to the dock.

The landscape architect also emphasized that the patio and retaining walls “can
hardly be viewed from the river by boaters or the cabin users across the river from
the property” based on the property’s steep slope; thus, “the patio has little or no
[e]ffect on the existing characteristic landscape of the river corridor.”

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No. 2023AP455

¶10 The third and final document was an email from another neighbor
who strongly opposed Synkelma’s variance request. The neighbor rebuked
Synkelma for having a “complete disregard” for the requirement to have “permits,
approvals, et cetera completed before work starts.” The neighbor also accused
Synkelma of “clearcut[ting] over 200 trees … both on the shoreline and his lot.”
He also expressed appreciation for the Board’s “efforts in keeping control of our
shoreline on the Manitowish Waters chain of lakes” and worried that if the Board
approved Synkelma’s variance application, “the next guy with a pocket full of
cash will say, just do it and pay the fine, no big deal.”

¶11 Synkelma’s counsel then made a statement, addressing the factors
that the Board was to consider in determining whether to grant the variance and
expressed his understanding of the Ordinance and the Wisconsin Statutes as it
pertained to this case. According to Synkelma’s counsel, the project was “built
with erosion control in mind.” Synkelma also testified briefly, explaining that he
was planning to plant additional natural vegetation on the steep slope down to the
river, “but prior to this, nothing was growing there. It’s nothing but pine needles.
Nothing will grow.”

¶12 Finally, four community members testified in opposition to the
variance request. The basis for their objections was the tree cutting and the
after-the-fact variance request, addressing in particular the public interest and the
cumulative impact of similar projects.

¶13 The Board then went into closed session to discuss the variance
request. The Board determined that any hardship suffered by Synkelma was
self-imposed as a result of removing the trees and disturbing the land. As to the
property’s unique physical limitations, the Board determined that the property was

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No. 2023AP455

not unique because the properties on either side of Synkelma’s property along the
entire shoreline had the same steep slope down to the river. Finally, the Board
addressed the harm to the public interest and concluded that removing trees and
planting grass had harmed the public interest by taking away the area’s “[s]cenic
beauty” and had “definitely impacted water quality.” The Board voted
unanimously to deny Synkelma’s variance request.

¶14 Synkelma filed a petition for certiorari review of the Board’s
decision. The circuit court ordered briefing and held a nonevidentiary hearing on
the petition. After hearing the parties’ arguments, the court concluded that the
Board proceeded under the correct theory of law, that Synkelma’s right to disturb
the land to establish an access and viewing corridor did not include the right to
construct retaining walls or a patio in the viewing corridor, and that the Board’s
decision to deny Synkelma’s area variance was not “arbitrary and capricious” and
was supported by the evidence. The court entered an order denying Synkelma’s
request to overturn the Board’s decision. Synkelma appeals.5

DISCUSSION

¶15 Pursuant to WIS. STAT. § 59.694(7)(c), local boards of adjustment
have discretion to grant variances “where … a literal enforcement of the
provisions of the ordinance will result in unnecessary hardship.”

5
We note that the Board has failed to comply with our Rules of Appellate Procedure.
Throughout its brief, the Board’s references to facts in the record cite only to its appendix. A
party must include appropriate references to the record in its briefing. WIS. STAT.
RULE 809.19(1)(d)-(e). The appendix is not the record. United Rentals, Inc. v. City of Madison,
2007 WI App 131, ¶1 n.2, 302 Wis. 2d 245, 733 N.W.2d 322. As a high-volume appellate court,
we expect briefing by an attorney to follow the basic Rules of Appellate Procedure. We caution
the Board’s counsel that future violations of the Rules of Appellate Procedure may result in
sanctions. See WIS. STAT. RULE 809.83(2).

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No. 2023AP455

Sec. 59.694(7)(c)2.; see also State ex rel. Ziervogel v. Washington Cnty. Bd. of
Adjustment, 2004 WI 23, ¶¶18-19, 269 Wis. 2d 549, 676 N.W.2d 401. According
to our supreme court, the standard for unnecessary hardship is “whether
compliance with the strict letter of the restrictions governing area, setbacks,
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, ¶24 (quoting
Snyder v. Waukesha Cnty. Zoning Bd. of Adjustment, 74 Wis. 2d 468, 474-75,
247 N.W.2d 98 (1976)); see also § 59.694(7)(c)3.; ORDINANCE § 3.2.50. The
board’s inquiry should focus on “the circumstances of each individual case” to
ascertain “whether a hardship unique to the property has been demonstrated and
whether the relief requested is consistent with the public interest such that the
variance should be granted, or whether a variance would subvert the purpose of
the zoning restriction to such an extent that it must be denied.” Ziervogel, 269
Wis. 2d 549, ¶¶33-34. The hardship cannot be self-created. Id., ¶20. “The
burden of proving unnecessary hardship [is] on the property owner.” Id., ¶¶7, 33.

¶16 Certiorari review of a county board of adjustment’s decision to grant
or deny a zoning variance application 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.

Id., ¶14. As a general rule, in certiorari proceedings we review the board’s
decision, not the circuit court’s decision. See AllEnergy Corp. v. Trempealeau
Cnty. Env’t & Land Use Comm., 2017 WI 52, ¶9, 375 Wis. 2d 329, 895 N.W.2d
368. “A court on certiorari review must accord a presumption of correctness and

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validity to a board of adjustment’s decision.” Ziervogel, 269 Wis. 2d 549, ¶13.
“Thus, the findings of the board may not be disturbed if any reasonable view of
the evidence sustains them.” Snyder, 74 Wis. 2d at 476.

¶17 The issue in this case also involves the interpretation of an
ordinance, which is a question of law we review de novo. Schwegel v. Milwaukee
County, 2015 WI 12, ¶18, 360 Wis. 2d 654, 859 N.W.2d 78. In interpreting
municipal ordinances, we apply the same principles we use for statutory
interpretation. Stoker v. Milwaukee County, 2014 WI 130, ¶17, 359 Wis. 2d 347,
857 N.W.2d 102. “[S]tatutory interpretation ‘begins with the language of the
statute.’” State ex rel. Kalal v. Circuit Ct. for Dane Cnty., 2004 WI 58, ¶45, 271
Wis. 2d 633, 681 N.W.2d 110 (citation omitted). “Statutory language is given its
common, ordinary, and accepted meaning,” and we interpret the language “in the
context in which it is used; not in isolation but as part of a whole; in relation to the
language of surrounding or closely-related statutes; and reasonably, to avoid
absurd or unreasonable results.” Id., ¶¶45-46.

¶18 Here, Synkelma challenges the Board’s decision under three prongs
of the certiorari analysis. He asserts that we should reverse on the grounds that the
Board’s decision “infringes upon [Synkelma’s] right to establish and maintain an
access and viewing corridor[] and was based on errors of law”; was arbitrary,
oppressive, and unreasonable and represented its will and not its judgment; and
was not supported by the evidence. He does not argue that the Board did not keep
within its jurisdiction. We address and reject each of Synkelma’s challenges
below.

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I. The Board’s Decision Was Based on a Correct Theory of Law

¶19 Synkelma first argues that the Board proceeded under “the erroneous
assumption that a property owner’s right to establish an access and viewing
corridor does not permit the disturbance of land within 35 feet of the OHWM.”
According to Synkelma, “[n]either the Wisconsin [S]tatutes nor the Vilas County
Zoning Ordinance prohibits removal of stumps in the creation of an access and
viewing corridor,” and “[r]emoving trees and stumps on steep shoreline slopes can
cause erosion.” Thus, he asserts,

[i]f retaining walls are not allowed as part of the creation of
an access and viewing corridor on steep slopes, property
owners like Synkelma who are affected by this unique
physical limitation are effectively denied their statutory
right to create and maintain an access and viewing corridor
within the vegetative buffer zone.

¶20 The Board disagreed with Synkelma’s basic premise that he had the
authority under the Ordinance to select cut6 trees and remove the tree stumps
within thirty-five feet of the OHWM. Preliminarily, the Board does not dispute,
and we agree, that Synkelma had the right to select cut trees within thirty-five feet
of the OHWM to create an access and viewing corridor. See ORDINANCE
§ 8.3.C.2. (providing that “removal of trees, shrubs or undergrowth is permitted
within the vegetative buffer zone” for “[c]reation of a shoreline recreational area,
(viewing corridor)”); ORDINANCE § 3.2.46. (defining “Shoreline Recreational

6
ORDINANCE § 3.2.41. defines “Select Cutting” as

[t]imber harvest which leaves a minimum of 60 square feet of
basal area per acre in trees five inches’ diameter at breast height
(DBH) and larger, evenly distributed. Trees smaller than 5” in
diameter shall be preserved to maintain underbrush growth and
to protect the quality of the shoreland buffer area.

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Area”); WIS. ADMIN. CODE § NR 115.05(1)(c)2.b. (Jan. 2017)7 (“The county may
allow removal of trees and shrubs in the vegetative buffer zone to create access
and viewing corridors ….”).

¶21 Synkelma has not, however, identified any language in the
Ordinance—or elsewhere in our statutes or administrative code—that specifically
allows him to also remove the tree stumps to create an access and viewing
corridor. See Roberts v. Manitowoc Cnty. Bd. of Adjustment, 2006 WI App 169,
¶16, 295 Wis. 2d 522, 721 N.W.2d 499 (“It is not the Board’s duty to convince us
that its interpretation of its own ordinance is correct, but rather it is [Synkelma’s]
duty to convince us that the Board’s interpretation is incorrect.”). Synkelma has
not convinced us that the Board’s interpretation of the Ordinance is incorrect;
therefore, we do not agree that the Board’s decision was based on an error of law.

¶22 On appeal, the Board identifies several provisions which it claims
either prohibit or do not provide for the removal of tree stumps in the creation of
an access and viewing corridor. For example, § 9.1.B. of the Ordinance
states: “No land disturbance is allowed within 35 feet of the OHWM except as
specifically authorized by Wisconsin Statutes.” ORDINANCE § 9.1.B. Land
disturbance activities are defined as

[c]onstruction, grading, filling, excavating or any other
activities which result in the temporary or permanent
removal of vegetative cover, increased potential for soil
erosion, increased stormwater runoff volumes or velocities,
or increased total area of impervious surfaces; or activities
which include but are not limited to construction on steep
slopes, development of private boat landings or access
roads to the water body, development of paths to the
shoreline requiring disturbance of the land.

7
All references to WIS. ADMIN. CODE ch. NR 115 are to the January 2017 register.

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No. 2023AP455

ORDINANCE § 3.2.28.8 Thus, the Board states that the Ordinance prohibits
disturbing the land to excavate tree stumps within thirty-five feet of the OHWM.

¶23 Further, § 8.3.E. of the Ordinance, addressing creating the viewing
corridor, specifically references “[s]elect cutting of trees and shrubbery” as the
means by which an access and viewing corridor can be created, but the Ordinance
does not mention tree stump removal. ORDINANCE § 8.3.E. (emphasis added); see
also ORDINANCE § 3.2.46. (defining the “Shoreline Recreational Area” as “[a]n
area paralleling the shoreline where trees, shrubbery, or undergrowth have been
selectively cut to provide an access and viewing corridor and to provide for
recreation” (emphasis added)); ORDINANCE § 3.2.41. (defining “Select Cutting”).

¶24 Synkelma, however, responds that “[s]tumps are part of trees, which
may be removed to create an access and viewing corridor,” and he faults the Board
for assuming that “‘excavating’ encompasses stump removal.” Although
excavating is not defined in the Ordinance, the ordinary definition of “excavate” is
“to dig out and remove.” Excavate, MERRIAM-WEBSTER DICTIONARY,
https://www.merriam-webster.com/dictionary/excavate (last visited June 21,

8
See also WIS. ADMIN. CODE § NR 115.05(1)(d) (“Filling, grading, lagooning, dredging,
ditching and excavating may be permitted only in accordance with the provisions of [WIS.
ADMIN. CODE §] NR 115.04, the requirements of [WIS. STAT.] ch. 30 … and other state and
federal laws where applicable, and only if done in a manner designed to minimize erosion,
sedimentation and impairment of fish and wildlife habitat and natural scenic beauty.”);
§ NR 115.04(3) (outlining permitted uses in shoreland-wetland zoning districts, none of which
allow stump removal or excavation for the purpose described in this case).

In his reply brief, Synkelma faults the Board for relying in part on WIS. ADMIN. CODE
§ NR 115.05(1)(d) because it “is unrelated to trees, vegetation, or access and viewing corridors,
which are treated in a separate subsection, … § NR 115.05(1)(c)2.b. titled Vegetation.”
However, he does not address the provisions of the Ordinance that also prohibit land disturbance
activities within thirty-five feet of the OHWM, except to argue that those provisions do not
expressly mention stump removal.

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No. 2023AP455

2024). That definition would certainly encompass digging out and removing tree
stumps from the ground. Thus, the Ordinance’s plain language supports the
Board’s interpretation that select cutting of trees within thirty-five feet of the
OHWM is allowed to create an access and viewing corridor, but the Ordinance
does not allow Synkelma to disturb the land by digging out and removing tree
stumps within that same area. The Board’s interpretation is further supported by
Janet’s testimony at the hearing, where he stated: “[W]e don’t allow tree root
stump removal closer than 35 [feet] because there’s no land disturbance. You can
grind the stumps flush with the surface, but the root structure has to stay in.”
Accordingly, the Board did not err by concluding that Synkelma was free to cut
trees to create an access and viewing corridor, but he was not free to excavate the
shoreland and remove the tree stumps.

¶25 The Board also correctly determined that Synkelma’s retaining walls
and patio cannot legally exist within thirty-five feet of the OHWM. Synkelma has
not identified any Ordinance or statutory provision allowing a patio and retaining
walls to be built within the vegetative buffer zone. Again, the vegetative buffer
zone is “[l]and extending from the [OHWM] to 35 feet inland,” ORDINANCE
§ 8.3.C.1., and is “an area of undisturbed or restored vegetation,”
ORDINANCE § 12.4.C.1.a.; see also WIS. STAT. § 59.692(1v) (providing that, as
pertinent here, “[a] county shall grant special zoning permission for the
construction or placement of a structure on property in a shoreland setback area if”
“[t]he part of the structure that is nearest to the water is located at least 35 feet
landward from the [OHWM]” and “[t]he total floor area of all of the structures in
the shoreland setback area of the property will not exceed 200 square feet”);
ORDINANCE 12.3.C.1.a. (stating that “[p]roposed new structures and/or any portion
of proposed new structures located in the shoreland setback area shall be

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No. 2023AP455

located … 35 feet or greater from the [OHWM]”); WIS. ADMIN. CODE
§ NR 115.04(3) (addressing the permitted uses in shoreland zoning districts but
failing to mention the use at issue in this case). Thus, by definition, the access and
viewing corridor within thirty-five feet of the OHWM cannot contain Synkelma’s
patio and retaining walls, and the Board’s conclusion was not based on an error of
law.

¶26 Next, Synkelma argues that the Board improperly relied on
Article VII of the Ordinance in its decision, which he argues is “legally incorrect”
because “Article VII does not apply here” and the “applicable provisions are
contained in Articles V and XII.” In its decision, the Board quoted § 7.1.B.2.b.x.
of the Ordinance, which states: “Retaining walls are not exempt structures and
cannot be authorized within 75 feet of the OHWM.”9 Synkelma observes that
Article VII governs “Regulation of Boathouses, Fences, Stairways, Access Paths
and Roads.” He claims that Article V—governing setbacks—applies and that
under §§ 5.1.C.1. and 12.2 of the Ordinance, “retaining walls are plainly structures
for which the Zoning Administrator or designee ‘shall grant’ special zoning

9
Synkelma notes that Janet also made this error in his October 16, 2020 letter denying
Synkelma’s after-the-fact permit application.

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No. 2023AP455

permission if the retaining wall is located 35 feet or greater from the OHWM and
the other requirements of [§] 12.3 of the … Ordinance are met.”10

¶27 Synkelma asserts that “[t]his means if [his] retaining walls and patio
were at least 35 feet from the OHWM and otherwise complied with the
requirements of [WIS. STAT.] § 59.692(1v) and § 12.3 of the … Ordinance, [the
Board] would have no choice but to allow them.” He then claims that “the
[Board] assumed [that] Synkelma’s retaining wall structures were nowhere close
to compliance,” but “[i]n reality, the retaining walls in question were
approximately five to ten feet out of compliance.” “If the Board had proceeded
under the correct setback in this case,” argues Synkelma, “it may have decided
that any violation was de minimis because the structures in question (patio and
retaining walls) are only slightly out of compliance and are within the access and
viewing corridor, where land may be disturbed.”

¶28 We disagree that the Board proceeded on an incorrect theory of law
when it referenced § 7.1.B.2.b.x. of the Ordinance. As the Board argues on
appeal, while “a retaining wall could technically be eligible for a special permit as

10
See ORDINANCE § 5.1.C.1. (exempting “structures such as porches, gazebos, etc.
which meet the requirements of Article XII of this Ordinance” from § 5.1.B.’s requirement of “[a]
seventy-five (75) foot setback from the OHWM … for all new structures”); ORDINANCE § 3.2.48
(defining “[s]tructure” as “[a] principal structure or any accessory structure including a garage
shed, boathouse, sidewalk, stairway, walkway, patio, deck, retaining wall, and a porch or a fire
pit” (emphasis added)); ORDINANCE § 12.1.A. (providing “special zoning permission for
accessory structures in the shoreland setback area pursuant to,” as relevant here, WIS. STAT.
§ 59.692(1v)); ORDINANCE § 12.2.B. (“The Zoning Administrator or designee shall grant special
zoning permission for the construction and/or placement of a structure located 35 feet or greater
from the OHWM of any navigable waters if the requirements listed in 12.3 below are met.”);
ORDINANCE § 12.3. (consistent with § 59.692(1v), enumerating several requirements related to
special zoning permission); § 59.692(1n)(d)2. (providing that “[a] county shoreland zoning
ordinance may not prohibit the construction … within the 75-foot setback requirement” of
structures “that satisf[y] the requirements in sub. (1v)”).

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a Proposed New Accessory Structure” under §§ 5.1.C.1. and 12.3. of the
Ordinance, Synkelma “does not address the fact that the first requirement of
[§ 12.3.C.1.a.] is that the proposed structure shall be located 35 feet or greater
from the OHWM.” Here, as noted above, it is undisputed that the patio and at
least a portion of the retaining walls are within thirty-five feet of the OHWM.
Accordingly, the § 5.1.C.1. exemption Synkelma relies on is not applicable here.

¶29 Further, there is no evidence in the record that the Board’s decision
hinged on the extent of Synkelma’s noncompliance with the Ordinance, such that
whether it found the violation “de minimis” or not would have had any bearing on
its conclusion. The Board did not err by determining, based on the location of
Synkelma’s patio and retaining walls, that the project’s placement was not
authorized under the Ordinance.

II. The Board’s Decision Was Not Arbitrary, Oppressive, or Unreasonable

¶30 Next, Synkelma argues that the Board’s denial of his variance
request was arbitrary, oppressive, and unreasonable and represented its will and
not its judgment. “[A board’s] decision is not arbitrary and capricious and
represents its judgment if it represents a proper exercise of discretion.” Von Arx
v. Schwarz, 185 Wis. 2d 645, 656, 517 N.W.2d 540 (Ct. App. 1994) “A proper
exercise of discretion contemplates a reasoning process based on the facts of
record ‘and a conclusion based on a logical rationale founded upon proper legal
standards.’” Id. (citation omitted).

¶31 Synkelma makes two arguments. First, as noted above, the Board
determined that Synkelma’s hardship was self-imposed due to his removal of the
trees and disturbance of the land within thirty-five feet of the OHWM.
See Ziervogel, 269 Wis. 2d 549, ¶20. Synkelma claims that decision was

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arbitrary, oppressive, and unreasonable because he presented ample evidence to
the Board “that the slope of his property and related erosion concerns presented an
unnecessary hardship or ‘practical difficulty’ that would render conformity with
the strict letter of the setback restrictions unnecessarily burdensome.”
“Specifically,” he claims, “the steep slope of the [p]roperty within the vegetative
buffer zone prevents the creation and management of an access and viewing
corridor without retaining walls to prevent erosion and maintain slope stability.”

¶32 Again, as explained above, Synkelma’s basic premise—that he was
free to select cut trees and remove tree stumps in the vegetative buffer zone to
create an access and viewing corridor—is flawed. Synkelma concedes that the
Board “may only contend that [Synkelma’s] hardship was self-inflicted and
insufficient if it denies that Synkelma has the right to disturb land to establish an
access and viewing corridor for the purpose of recreation within 35 feet of the
OHWM.” We previously concluded that the Board properly determined that
Synkelma did not have the right to disturb the land within thirty-five feet of the
OHWM; thus, the Board appropriately determined that Synkelma’s disturbance of
the land to remove the tree stumps caused the self-inflicted hardship.

¶33 Second, Synkelma argues that it was also arbitrary, oppressive, and
unreasonable for the Board to conclude that there were no unique physical
limitations inherent in Synkelma’s property “on the sole basis that the neighboring
properties had steep slopes as well.” The Board explained that Synkelma “[m]ust
show that compliance with the terms of the ordinance is prevented by unique
physical limitations of the property (steep slopes, wetlands etc.) which are not
generally shared by other properties.” It then determined that Synkelma’s
“hardship is not due to physical limitations of the property because[, based on] the

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No. 2023AP455

site visit, neighboring parcels share the same physical characteristics of this parcel,
including the steep wooded slope to the river.”

¶34 Synkelma claims that this interpretation “is far too restrictive”: “Just
because the [Board] identified three properties in a row with steep slopes does not
mean this condition cannot be unique or that it is generally shared by other
properties.” Instead, he argues, “[i]t means at most that the neighboring properties
also have a unique limitation of steep slopes down to the river for which they may
be eligible for a variance.”

¶35 Synkelma’s argument is contrary to the law. For example, in
Snyder, the appellant was denied an after-the-fact variance for a porch that
encroached on the allowable side-yard offset requirement. Snyder, 74 Wis. 2d at
470. On appeal, the appellant argued that he suffered “hardship or practical
difficulty because his lot is substandard in size.” Id. at 477. Our supreme court
disagreed, concluding that “the offset requirement placed upon appellant’s lot is
not unique or peculiar to his property, for it applies equally to all lots of similar
size”; thus, “[b]ecause the restriction does not especially affect appellant’s lot, it
may not constitute hardship or difficulties which justify a variance.” Id. The
court went on to explain:

Practical difficulties or unnecessary hardship do not
include conditions personal to the owner of the land, but
rather to the conditions especially affecting the lot in
question. “[I]t is not the uniqueness of the right of the
owner, but uniqueness of the land causing the plight, which
is the criterion.”

Id. at 479 (alteration in original; citation omitted).

¶36 The Board did not err by observing neighboring properties and
determining that Synkelma’s property did not contain unique physical limitations.

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No. 2023AP455

The Board appropriately conducted a site visit to observe the land in that area and
concluded, based on that visit, that Synkelma’s property was not unique because
neighboring properties also shared a shoreland slope.11 Further, like the size of the
appellant’s property in Snyder, all the properties in the area containing a steep
slope down to the river are treated the same under the Ordinance. Synkelma’s
answering claim that his neighbors would then also share in his alleged hardship
under the Ordinance is based on his previously addressed, erroneous
understanding of the Ordinance and, thus, is without merit.

¶37 Synkelma also argues that the Board’s decision “conflicts with its
own explanation of the test” because the “test uses ‘steep slopes’ as an example of
a unique physical limitation which is not generally shared by other properties.”
Synkelma misreads the Board’s explanation. Based on the Board’s language,
Synkelma was required to prove that “compliance with the terms of the ordinance
is prevented by” (1) the “unique physical limitations of the property” and (2) that
those physical limitations “are not generally shared by other properties.” The
Board listed “steep slopes” as an example of “unique physical limitations of the
property,” not as an example of a “unique physical limitation[] of the property …
which [is] not generally shared by other properties.” This reading is clear based
on the placement of “steep slopes” in the sentence after the phrase “unique
physical limitations of the property” rather than at the end of the sentence. The
Board’s decision was not arbitrary, oppressive, or unreasonable.

11
If Synkelma meant to argue that his shoreline slope is somehow different from his
neighbors, he has both failed to provide evidence in support of that proposition and failed to
develop that argument on appeal. See State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633
(Ct. App. 1992) (we need not address undeveloped arguments).

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No. 2023AP455

III. The Board’s Decision Is Supported by the Evidence

¶38 Finally, Synkelma argues that the Board’s “determination that
granting the variance would harm the public interest was based on nothing more
than rank speculation and conjecture that Synkelma’s removal of trees is certain to
poison the groundwater, harm the fish habitat, and destroy the natural scenic
beauty of the area.” According to Synkelma, “there is no evidence in the record
by which the [Board] could reasonably arrive at this determination.”

¶39 On certiorari, “[w]e must uphold the [Board’s] decision so long as it
is supported by substantial evidence, even if there is also substantial evidence to
support the opposite conclusion.” See Sills v. Walworth Cnty. Land Mgmt.
Comm., 2002 WI App 111, ¶11, 254 Wis. 2d 538, 648 N.W.2d 878. “Substantial
evidence means credible, relevant and probative evidence upon which reasonable
persons could rely to reach a decision.” Id. “The weight to be accorded the facts
is for the board to determine rather than the courts.” Delta Biological Res., Inc. v.
Board of Zoning Appeals, 160 Wis. 2d 905, 915, 467 N.W.2d 164 (Ct. App.
1991).

¶40 We disagree with Synkelma’s claim that the Board’s finding of harm
to the public interest was based on “rank speculation and conjecture.” In its
decision denying Synkelma’s variance, the Board explained, “The variance will be
contrary to the public interest as expressed by the objectives of the [O]rdinance
because: there is great potential for water quality problems and harm to fish
habitat.” The Board’s findings were based on the DNR’s letter, read into the
record during the hearing, stating that “[t]he construction of structures and land
disturbances within the shoreland setback area and the vegetative buffer zone are
likely to have an adverse cumulative effect on the waterway and water quality due

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No. 2023AP455

to these public interests.” The DNR’s letter further explained that “Wisconsin’s
navigable waterways are held in trust for all people to enjoy. The shoreland
setback is important to protect the water quality, natural scenic beauty and the fish
and wildlife habitat of Wisconsin’s waterways.” Thus, the Board’s conclusion
that granting the variance would be contrary to the public interest was based on
evidence in the record from the DNR that excavating the tree stumps and
constructing retaining walls and a patio within thirty-five feet of the OHWM—an
area meant to be a vegetative buffer zone—would have an adverse impact on
water quality.

¶41 Synkelma’s arguments to the contrary are, again, based entirely on
his erroneous position that he had the right to remove the tree stumps from the
access and viewing corridor and his claim that once the tree stumps were removed,
he needed to install the retaining walls to “prevent[] erosion and redirect[]
drainage.” Overall, Synkelma fails to identify any credible evidence that
reasonably calls the Board’s decision into question. He simply disagrees with the
Board’s exercise of discretion and the weight it accorded the evidence. While
Synkelma wishes the Board had given his asserted evidence more weight, we will
not reverse on that basis.

By the Court.—Order affirmed.

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

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