Variance Standards

State law sets three standards for granting a zoning variance. Applicants must provide evidence to the local board that their situation meets the standards. All three standards must be met in order for a variance to be granted.

·         Unnecessary hardship

·         Unique property feature

·         Not contrary to public interest

1.      Unnecessary Hardship

Application of the zoning ordinance to the site must cause unnecessary hardship. When does unnecessary hardship occur?

•    Denied All Reasonable Use of Property

The Wisconsin Supreme Court has ruled that unnecessary hardship only exists when the zoning ordinance denies all reasonable use of a property. Zoning board members must judge what is a reasonable use for a particular parcel is. They must consider whether the parcel as a whole provides reasonable use to the owner, not just whether a portion of the property can be used as the applicant wants. Generally, a variance is not warranted if the physical character of the property would allow a landowner to develop or build in compliance with a zoning ordinance.

For example, all reasonable use of a parcel is not denied if a board rejects a variance for a deck to be placed on a site within the shoreland setback. A home without a lakeside deck still offers reasonable use of property.

•   No Self‑Imposed Hardships

The State Supreme Court also ruled that a hardship may not be self imposed. An example of a  self‑imposed hardship would be someone who builds at a setback and later requests a variance for an addition within the setback area. Such a variance should be denied because the applicant created the hardship by building at the setback and restricting future building or expansion options.

•   Loss of Profit Not Hardship

Loss of profit is not in itself an unnecessary hardship, nor is additional expense incurred to comply with zoning ordinances. For instance, limiting the number of units which can be built on a parcel, may reduce potential profits but is not an unnecessary hardship.

•   Due to Regulations

The hardship cannot be one that would have existed in the absence of the zoning ordinance. Some properties may not be buildable because of the physical nature of the property. For instance, if an entire parcel consists of land with a steep slope, or is entirely covered with wetlands, the property would not be suitable for development whether or not there was an ordinance regulating such development. In such extreme cases, the only reasonable use may be for open space uses.

  2.   Unique Property Limitations

Unique physical characteristics of the property must prevent the applicant from developing in compliance with the zoning ordinance.

·         Physical Features Wetlands, soil type, bedrock and steep slopes are some characteristics which may limit use of a property.

·         Property Limitations ‑ Not Applicant's Circumstances The property must qualify for the variance, not the situation of the applicant.

·         Violations/Previous Variances not Grounds for Variance Existing violations on other properties, or improper variances previously granted, are not grounds for a variance. Applications must be evaluated individually based on the variance standards.

·         Amend Zoning Ordinance Variances should not be granted for property features affecting many parcels in the same way. The proper remedy in such a situation is to amend the zoning ordinance.

3.    Public Interest Protected

Granting of a variance must not harm the public interest.

•   Look to Ordinance Objectives

Board members should look to the objectives statement in their local ordinance to determine what constitutes public interest. Local ordinance objectives generally mirror objectives set forth in state statutes. For example, shoreland zoning protects the public interest in water quality, fish and wildlife resources, shore cover and natural beauty.

•   Not Just Lack of Opposition

The fact that there is no objection to a variance from neighbors or area residents does not necessarily mean a variance would not harm the public interest. A local zoning board must consider the public at large and not just nearby property owners.

•   Minimum Relief

Landowners who do qualify for a variance are to be granted only the minimum relief necessary for them to have reasonable use of their property. Boards also have the authority to impose conditions on a variance to protect the public interest. Examples of conditions for variances to shoreland standards include such as erosion control measures or vegetative screening.

Applicants must prove their situation meets all three of these standards. However, municipalities can assist landowners and expedite the process by providing application forms that help landowners determine if they will qualify for a variance. Similarly, zoning officials and zoning board members can ask applicants questions to help determine if the standards are met or if there is an alternative that would not require a variance.