Murr v. St. Croix County Board of Adjustment
796 N.W.2d 837
Wis. Ct. App.2011Background
- Murr appeals a circuit court decision affirming in part and reversing in part a Board of Adjustment ruling denying eight variances/special permits related to two contiguous substandard riverfront lots.
- The Board and State cross-appeal, challenging the circuit court’s treatment of the issues and standard of review.
- The Lower St. Croix Riverway Overlay District ordinance, mirroring NR 118.08(4), governs whether abutting substandard lots may be developed when owned in common.
- Murr contends the ordinance does not apply to lots not under common ownership on the effective date; the Board argues the ordinance applies to all abutting lots existing on that date.
- The circuit court partly granted and partly denied relief, including reversing the denial to allow sale/development of the two lots as separate building sites; the Board cross-appeals, urging proper certiorari review and preservation of Board denials.
- The court ultimately holds (a) the ordinance applies to all abutting lots existing on the date, regardless of subsequent ownership, and (b) the circuit court applied an incorrect standard of review by substituting its judgment for the Board’s.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does NR 118.08(4) apply to merge adjacent substandard lots regardless of ownership date? | Murr: no merge rule if not common ownership on effective date | Board: ordinance applies to all abutting lots existing on date | Yes; ordinance applies regardless of ownership date |
| Was the circuit court's review of the Board's decision governed by the correct certiorari standard? | Murr: circuit court did not properly defer to Board’s judgment | Board: ordinary certiorari standard should apply | No; circuit court erred by substituting its judgment; ordinary certiorari standards apply (Board’s denial to be reviewed) |
| Were Murr’s floodproofing/relocation options sufficient to deny variances as unnecessary hardship? | Murr: variances/permits needed for floodproofing in new location | Board: personal convenience not hardship; alternatives existed | Yes; relocation/floodproofing options show no unnecessary hardship; Board's denial supported |
| Did the Board have ample evidence to deny the variances and special exceptions? | Record inadequate for denial | Record supports denial; alternatives existed | Yes; Board’s determinations supported by the record |
Key Cases Cited
- Klinger v. Oneida Cnty., 149 Wis. 2d 838 (Wis. 1989) (certiorari review framework for boards of adjustments)
- Snyder v. Waukesha Cnty. Zoning Bd., 74 Wis. 2d 468 (Wis. 1976) (unnecessary hardship required for variances)
- Miswald v. Waukesha Cnty. Bd. of Adjust., 202 Wis. 2d 401 (Wis. Ct. App. 1996) (presumption of correctness to board decisions in certiorari)
- Block v. Waupaca Cnty. Bd. of Zoning Adjust., 2007 WI App 199, 305 Wis. 2d 325 (Wis. Ct. App. 2007) (considerations when court views property do not alter standard of review)