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Page 8 --March 10, 2004 <br /> <br />z.m. <br /> <br />Variance -- Board allows variance based on own mistake <br />Had awarded permits for home within setback area <br /> Citation: State v. O~ttagamie Court? t~oard of Adj~tsrment, Court of Appeals of <br /> Wisconsin, Dist. 3, No. 03-0778 (2004) <br /> WISCONSIN (01/13/04) -- Gerrit owned a 1.3-acre lot next to Apple Creek, <br /> a navigable body of water. <br /> Gerrit (~btained sanitary and building permits for a residence he intended <br /> to construct on the property. Although the applications included a hand-drawn <br /> map of the property, neither application showed Apple Creek nor the 75-foot <br />· setback required under the zoning ordinance. Gerrit ultimately built the resi- <br /> dence, a portion of which was within the 75-foot setback. <br /> The Outa~amie county Deputy Zoning Administrator told Gerrit of the <br /> setback violation and ordered him to either bring the residence into· compli- <br /> ance with the setback provision or apply for a variance. <br /> The board granted Gerrit's subsequent vmdance request, finding it would <br /> be too expensive for Gerrit to bring the residence into compliance and its con- <br /> struction in the setback area was partially the fault of tl~e board. The state sued. The court ruled in the board's favor. <br /> The state appealed, arguing the board misapplied the law. <br /> DECISIONS: Reversed. <br /> The board's action was contrary to law and not reasonably supported by <br /> the evidence. <br /> The board did not apply the "no reasonable use" standard. Instead, it <br /> granted the variance on grounds Gerrit had "made a reasonable effort to <br /> comply with the setback reqmremen · The board also concluded "a govern- <br /> ment entity had made a mistake" because the county and town failed to in- <br /> form Gerrit the home was too close to Apple Creek prior to issuing the build- <br /> ing and sanitary permits. <br /> Gerrit failed to show he would <br /> have no reasonable use of his prop- <br /> erty without the variance. Although <br /> this imposed a large burden on <br /> Gerrit, it was a fundamental ele- <br /> ment of zoning law that the cost of <br /> coming into compliance was not an <br /> unnecessary hardship justifying a <br /> variance. <br /> see also: Stare v. Kenosha Co,tnry <br /> Board of Adj~sm, ent, 577 N.W. 2d <br /> 8]3 (i998). <br /> see c~ls(_;: ?orezr Cottm3, v. ©oode, <br /> 579 N. 'v~Z2d 7]5 (1998). <br /> <br />100 <br /> <br /> <br />