Agenda - Planning Commission - 01/04/2000

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Page 2 -- December 24, 1999 g.g. Variance -- Are variances required for personal disabilities? WISCONSIN (11/23/99) -- Klint owned a cabin abutting Grindstone Creek as it flowed into Lac Courte Oreilles in Sawyer County. He and his family used the cabin on summer weekends. Klint suffered from Marian's Syndrome. He had congestive heart failure, pulmonary hypertension, and restrictive lung dis- ease, which necessitated the use of a room air concentrator or oxygen. A 50- foot-long hose connected him to his oxygen supply at the cottage. Klint hired a contractor to build an addition to the cabin. The addition per- mitted Klint a greater view of the water and the sandbar area where his child- ren played. Its linear design permitted him to keep his air hose out of the traffic pattern and move about without the hose getting tangled. The addition was placed on the lake side of the cabin, and a triangular portion of it infringed upon the 40-foot average setback from the high-water mark of the creek mandated by Sawyer County's shoreland zoning ordinance. After construction was complete, the county zoning administrator issued Klint two citations, one for building without a permit and the other for violating the minimum setback. Klint applied to the board for an after-the-fact variance. The board rejected the variance request on the grounds that it would be for the convenience of the owner and would not be due to special conditions unique to the property. The board ordered I<'lint to remove eig'.~ feet from his addition. Klint filed a disability complaint under the Wisconsin Fair Housing Act, alleging the board discriminated against him. He claimed the board refused to permit him to make reasonable modifications to the cottage or make a reason- able accommodation under the zoning ordinance for his cottage. The matter was brought before an administrative law judge, who concluded the county violated the Fair Housing Act by refusing to grant a variance. The board took the matter to the trial court, which reversed the judge's order. The Department of Workforce Development then appealed the trial court's decision. The dep'artment asserted that Klint's disability would be a special condi- tion resulting in an unnecessary hardship if the variance was not granted. DECISION: Affirmed. The board's failure to grant the variance was not discriminatory. Practical difficulties or unnecessary hardship did not include conditions personal to the owner of the land. Only conditions especially affecting the lot in question could be considered. When the property owner would have a rea- sonable use of his or her property without the variance, the variance request should be denied. There was no dispute Klint had feasible uses of the property absence a variance. Additionally, the ordinance prohibited all property owners from violating the setback requirements, regardless of disability. Citation: County of Sawyer Zoning Board v. State of Wisconsin-Department of Workforce DevelOpment, Court of Appeals of Wisconsin, District Three, No. 99-0707 (1999).