Wisconsin Court of Appeals Distinguishes Area and Use Variances in Context of a Conditional Use

May 24, 2010

In a recent unpublished decision, Rule v. Iowa County Board of Adjustment, the Wisconsin Court of Appeals [1] was presented with the issue whether a specific application for a variance from a conditional use requirement was an “area variance” or a “use variance.” The distinction was critical because the County’s zoning ordinance prohibited all use variances. The Court, in finding a use variance, considered several factors. Those factors may be of interest in future disputes as to the proper classification of a variance.

The distinction between area and use variances was explained by the Court:

A use variance is one that permits a use other than that prescribed by the zoning ordinance in a particular district. An area variance has no relationship to a change of use. It is primarily a grant to erect, alter, or use a structure for a permitted use in a manner other than that prescribed by the restrictions of a zoning ordinance. Area variances usually modify such features as setbacks, frontage requirements, height, or lot size…

Use zoning regulates fundamentally how property may be used, in order to promote uniformity of use within neighborhoods and regions. Area zoning, on the other hand, regulates density, setbacks, frontage, height, and other dimensional attributes, in order to promote uniformity of development, lot size, and building configuration and size.

In this case, Rule owned a parcel in the A-1, Exclusive Agriculture, zoning district. He wished to operate a quarry on the parcel, expanding his pre-existing quarry from an adjacent parcel. To operate a quarry, Rule required a rezoning to AB-1, and then a conditional use permit. Quarries were a conditional, as opposed to permitted, use in AB-1.

Rule’s first step was to apply for a variance from the conditional use standards in AB-1 affecting quarries. The key provision stated: “active mining shall not take place within five hundred (500) feet of any residential district or any structure used for dwelling purposes.” Rule sought to reduce the 500 foot standard to 200 feet. Rule contended that this change was an area variance, affecting a set back dimension from a use, as opposed to a use not otherwise addressed under the zoning ordinance. Quarrying was an acknowledged conditional use in AB-1.

The Board of Adjustment and ultimately the Court of Appeals disagreed, both concluding that the proposal sought a use variance. The Court gave due weight deference to the Board of Adjustment, meaning the Board’s decision could not be overturned if the Board’s construction of the ordinance was reasonable and there is not a more reasonable interpretation.

Three factors persuaded the Court that the proposal sought a use variance. First, the application did not seek a variance from the standard lot dimension and building setback chart at the conclusion of each section of the zoning district regulations. This suggests that a variance from a dimensional standard in a zoning ordinance will not be considered an area variance unless the dimensional standard is district wide.

Second, because Rule sought to modify a conditional use, as opposed to a permitted use, he was not necessarily entitled to the conditional use permit. The Court implies that any spatial modification to a conditional use standard must change the use and require a use variance.

Third, the specific regulation was deemed not to regulate the placement of structures, but rather, to prohibit an activity (mining) within a designated area. This raises the question whether any proposed land use, which extends onto land that otherwise is undevelopable due to a setback, is actually a use variance.

The Rule decision is not published and has limited precedential value in Wisconsin. Nevertheless, the Court’s analysis is instructive for future variance applicants and municipalities when faced with a similar application for a variance from a conditional use standard.

[1] 2009 APP 1646 (March 18, 2010).

For more information about "Wisconsin Court of Appeals Distinguishes Area and Use Variances in Context of a Conditional Use," contact Mitch R. Olson at molson@axley.com or 608.283.6724.