LAMAR CENTRAL OUTDOOR, INC., d/b/a Lamar Advertising of Milwaukee, Plaintiff-Appellant, v. BOARD OF ZONING APPEALS OF the City of MILWAUKEE, Defendant-Respondent-Petitioner.
No. 2001AP3105
Supreme Court of Wisconsin
Decided July 12, 2005
2005 WI 117 | 700 N.W.2d 87
Oral argument December 6, 2004.
An amicus curiae brief was filed by Catherine A. La Fleur and Halling & Cayo, S.C., Milwaukee, on behalf of the Outdoor Advertising Association of Wisconsin.
An amicus curiae brief was filed by Claire Silverman, Madison, on behalf of the League of Wisconsin Municipalities.
¶ 1. DAVID T. PROSSER, J. This is a review of an unpublished decision of the court of appeals, Lamar Central Outdoor, Inc. v. Board of Zoning Appeals, No. 2001AP3105, unpublished order (Wis. Ct. App. June 17, 2003). In a summary disposition, the court of appeals held that the Board of Zoning Appeals of the City of Milwaukee (the Board) failed to reasonably exercise its discretion when it denied Lamar Central Outdoor, Inc.‘s (Lamar‘s) application for a dimensional area variance to raise the height of a billboard. The Board sought review in this court, and we now affirm because the Board did not proceed on the correct theory of law and because it failed to adequately express the reasoning on which it based its decision.
¶ 2. The Board considered Lamar‘s application on March 22, 2001. Since then, this court has issued three major decisions1 relating to the law of zoning variances. In light of the revised standards we announced in those
¶ 3. We also conclude that the record does not show that the Board reasonably exercised its discretion. We are sympathetic to the Board‘s concern, echoed in the amicus brief of the League of Wisconsin Municipalities, that many board members are not lawyers and cannot be expected to produce a finely tuned piece of legal reasoning in each case. Nevertheless, this Board like other boards must provide enough reasoning to allow a court to meaningfully review its decision. This reasoning need not be embodied in a written decision as long as it is reflected in a transcript of the proceedings.
¶ 4. Therefore, we remand the cause to the circuit court for entry of an order directing the Board to reconsider and, if necessary, rehear and decide this matter in conformance with the new standards governing area variances. On remand, the Board must apply the appropriate legal standards and adequately express the reasons for its decision on the record.
I. FACTS
¶ 5. Lamar leases property adjacent to Interstate Highway 43 (I-43) in Milwaukee for the purpose of maintaining an “outdoor advertising structure.”2 The structure is currently 34 feet high and is intended to be visible to northbound and southbound traffic on I-43. At some point in the past, the Wisconsin Department of Transportation (WDOT) planted trees between the structure and I-43 to serve as a noise barrier. The trees have since grown tall enough to partially obstruct the structure as viewed from I-43.
¶ 7. The Board‘s hearing on Lamar‘s application took place on March 22, 2001. At the hearing, the Board gave representatives from several City of Milwaukee (City) departments the opportunity to comment on Lamar‘s application. The DCD had the first opportunity to comment, and its representative stated:
[W]e do oppose the variance request to raise this above the 40 foot height limit. We do not see that spirit and intent have been made. It just adds, you know, the
ordinance is designed to keep the signs at a—a height. We do not see any exceptional circumstances here that merit that.
¶ 8. The Department of Neighborhood Services and Department of Public Works also had the opportunity to comment, but did not. The Secretary of the Board noted that the local alderman had no opposition to the application.5
¶ 9. Lamar‘s representatives attempted to convince the Board to grant the variance. First, they presented the Board with several photographs of the property, showing the structure both before and after it became obscured by the trees. Next, Lamar presented the Board with several maps of the area surrounding the sign. One of the maps showed nearby locations at which the Board had approved variances for signs up to 100 feet high.
¶ 10. After Lamar‘s presentation, the Board discussed the application. As the Board‘s discussion is critical to our holding, we reproduce substantial portions of its debate:
BOARD MEMBER WINKLER: My comment to the board is that I think this is a perfect case that illustrates a hardship. This has been a convincing presentation to me. I think the original intent or the idea of ... a hardship was to relieve a landowner from ... the diminished use of the property because of the configuration of the property. Now, here we have a little variance on that. It‘s ... the location of the property that‘s become isolated. It‘s not the shape of the property itself, although I think the way in which to read ... the variance requirement ... of a hardship as it currently
applies to this property. We are faced with a very strong case of a hardship. That would be my comment. CHAIRMAN ZETLEY: Further comments, questions?
BOARD MEMBER SZYMANSKI: I guess I‘m not really in agreement with you on that one, Scotty. The applicant is citing some existing signage that we should use as a precedent to allow this advertising to be increased in height[ ]. Existing signage, I would hope, would further be diminished. Again, I‘m not a sign aficionado. I would agree with ... Mr. Richardson‘s comments that the spirit and intent has not been ... met. And I think the hardship also has not been met, because it is intended to wind up generating some additional revenue for this facility ... I‘m ... not of the—on the same side of the coin as you are, Scotty.
...
BOARD MEMBER WINKLER: I just think with the nature of the signs ... Signs always have two purposes. One to generate revenue, and one to make itself known, make itself visible. I don‘t know what else you can do with a sign. And so if you can‘t go to surrounding signs as examples and then, also, illustrate as they have historically, how the property has become isolated and tree covered through no fault of their own. It‘s not self-imposed. And economics are always going to be ... an element of the presentation for a hardship in sign cases.
CHAIRMAN ZETLEY: But then, if that‘s the case, then it can‘t be met according to the standard.
BOARD MEMBER WINKLER: Well, I—
CHAIRMAN ZETLEY: You‘re arguing that, and that‘s—If they can‘t have revenue on the sign, that‘s a revenue issue. That‘s not—That doesn‘t meet the height—hardship criteria. Specifically, in the ... criteria it says it can‘t be based solely on economic criteria.
BOARD MEMBER WINKLER: Well, then it‘s not. Then in ... my opinion it is not based solely on economic criteria. It‘s based upon visibility criteria. And the visibility because of the isolation of the property and the way the highways have all been set up to criss-cross and—and basically hem this place in, that, together with the—the DOT construction or the planting of trees convinces me we‘ve got a hardship.
...
BOARD MEMBER WINKLER: I‘m voting in favor. I‘m going to make a motion having found that all the criteria have been met for a variance and special use, based upon a technical review conducted by the departments, the testimony received today by the board, this exhibit, which I think will—I would offer to be Exhibit 1, marked and received, that was given to us by the applicant, and the testimony received today by the board, I move to grant this variance to run with the land.
¶ 11. The Board then voted on the application. The controlling statute requires a supermajority vote to grant such variances,6 so that four of the five Board members had to vote “yes” in order to grant the variance. One Board member (Szymanski) voted no; three voted yes. Chairman Zetley waited until the others had voted, then spoke:
I will vote against the variance for the increased height restriction. I believe that the criteria for hardship has not been met. I believe the exceptional circumstances
have not been met. I believe that this is an economic issue. I agree with Henry, and I believe that the—there [are] other purposes for this land. It hasn‘t been shown that there isn‘t another purpose for this land. I also believe that there is—It hasn‘t been shown, preservation and property rights, and third, it‘s—it‘s back to the same argument, but it‘s a third objection by the Chair in that just making the signs bigger and bigger isn‘t something that this Chair is in favor of, but that‘s just my third position on it. It‘s based that the criteria haven‘t been met.
¶ 12. Chairman Zetley‘s “no” vote denied Lamar the supermajority it needed, so that the Board denied Lamar‘s appeal for the area variance. Five days later, the Board issued its written decision, in which the Board concluded that Lamar‘s application was “not consistent with” the Milwaukee Code of Ordinances. The Board then recited the provisions of the ordinance. Accordingly, “[o]n the basis of the Findings, Conclusions, and the record herein,” the Board denied the variance.
¶ 13. Lamar exercised its statutory right to certiorari review in the circuit court.7 On September 19, 2001, the court affirmed the Board‘s decision because “It was reasonable for the board to conclude a height variance for a billboard was an economic issue. The fact that the board might have reached a different conclusion does not make the conclusion it did reach either arbitrary or capricious.”
¶ 14. Lamar appealed, and the court of appeals summarily reversed. Lamar, unpublished order at 1. The court concluded that the Board‘s “perfunctory recitation” of the criteria in the Milwaukee Code did not constitute a reasonable exercise of discretion. Id. at 1–2.
II. GENERAL PRINCIPLES AND STANDARD OF REVIEW
¶ 15. The legislature has granted the zoning power to cities8 and other local governments, but has conditioned that power with certain safeguards. Among these safeguards for cities is a board of zoning appeals, which must be created by any city exercising the zoning power.
¶ 16. This case is before us on certiorari review, and we therefore accord a presumption of “correctness and validity” to the Board‘s decision. State ex rel. Ziervogel v. Washington County Bd. of Adjustment, 2004 WI 23, ¶ 13, 269 Wis. 2d 549, 676 N.W.2d 401. Our
III. CORRECT THEORY OF LAW
¶ 17. The Board took up this matter in March 2001. At the time, the controlling law was our decision in State v. Kenosha County Board of Adjustment, 218 Wis. 2d 396, 577 N.W.2d 813 (1998). In Kenosha County, the court held that the proper standard for evaluating a request for an area variance9 was whether the landowner would be left with “no reasonable use of the property without a variance.” Id. at 413. In other words, if the landowner had a “feasible use” without the variance, the application should be denied. Id.
¶ 18. An examination of the transcript shows that at least one of the Board members attempted to apply the Kenosha County “no reasonable use” test. Chairman Craig Zetley, explaining his decision to cast the vote ultimately responsible for denying Lamar‘s application,
¶ 19. Lamar filed its certiorari brief with the circuit court on June 12, 2001. On June 29, 2001, this court reached a divided decision in State v. Outagamie County Board of Adjustment, 2001 WI 78, 244 Wis. 2d 613, 628 N.W.2d 376. In Outagamie County, the court split over whether the “no reasonable use” standard should be “overruled (three justices), maintained but not applied to defeat the area variance in [that] case (two justices in concurrence) or maintained and applied to defeat the variance (two justices in dissent).” Ziervogel, 269 Wis. 2d 549, ¶ 3 (citing Outagamie County, 244 Wis. 2d 613, ¶ 5). In its brief to the circuit court, filed July 12, 2001, the Board cited the newly released Outagamie County decision.
¶ 20. While this case wended its way through the appellate process, this court decided two more cases directly relevant to the Board‘s decision. In Ziervogel, released March 19, 2004, a more united court determined that the “no reasonable use” test was “unworkable and unfair” when used to evaluate applications for area variances. Ziervogel, 269 Wis. 2d 549, ¶¶ 4–5. The court revitalized a standard first announced in Snyder v. Waukesha County Zoning Board of Adjustment, 74 Wis. 2d 468, 247 N.W.2d 98 (1976). Under the Snyder standard,
when considering an area variance, the question of whether unnecessary hardship ... exists is best explained as whether compliance with the strict letter of the restrictions governing area, set backs, frontage, height, bulk or density would unreasonably prevent the
owner from using the property for a permitted purpose or would render conformity with such restrictions unnecessarily burdensome.
Ziervogel, 269 Wis. 2d 549, ¶ 7 (quoting Snyder, 74 Wis. 2d at 475) (internal citations omitted).
¶ 21. The court added that in making its determination, a board must consider the purpose of the zoning restriction, its effect on the property, and the effect a variance would have on the neighborhood and the larger public interest. Id., ¶ 7. We remanded the Ziervogel case because “whether [the Snyder] standard is met in this case will depend upon the board of adjustment‘s consideration of the [newly announced test].” Id., ¶ 42.
¶ 22. Two months later, we released State v. Waushara County Board of Adjustment, 2004 WI 56, 271 Wis. 2d 547, 679 N.W.2d 514. In Waushara County, we reiterated the abrogation of the “no reasonable use” test for evaluating area variances. The party seeking a variance in that case asserted that the Wisconsin law on variances was “in a state of confusion” due to the interplay among Snyder, Kenosha County, and Outagamie County. Id., ¶¶ 16–18. The court candidly acknowledged: “It is evident that there is some confusion over how to interpret and apply our decisions in Snyder, Kenosha County, and Outagamie County.” Id., ¶ 23. We stated in Waushara County that our purpose was to “give boards of adjustment and Wisconsin courts sufficient guidance as to how to resolve these types of cases in the future.” Id. The court admitted that “it appears that the no reasonable use standard has been applied, since [Kenosha County], in a very restrictive manner.” Id., ¶ 32. In light of the new standards it announced, the court remanded the case for renewed consideration of the facts. Id., ¶ 35.
¶ 24. The Board‘s failure to proceed on the correct theory of law independently justifies a remand. However, counsel for the Board at oral argument emphasized that such a decision would not answer the critical question before the court involving whether the Board must deliver an “explicitly reasoned written decision,” nor would it provide guidance to other boards of zoning appeal around the state. We agree that clarification of the court of appeals’ decision is required, and accordingly, we proceed to discuss the adequacy of the Board‘s reasoning.
IV. ADEQUACY OF THE BOARD‘S REASONING
¶ 25. Certainly, a court‘s review of a zoning board‘s decision is deferential; the court “must accord a presumption of correctness and validity to a board of
¶ 26. For certiorari review to be meaningful, however, a board must give the reviewing court something to review. State v. Trudeau, 139 Wis. 2d 91, 110, 408 N.W.2d 337 (1987); see also 3 Yokley Zoning Law and Practice § 18-9 at 18-62 (MacGregor rev. 2002) (hereinafter Yokley, Zoning Law and Practice) (“The record made before a board of adjustment is essential to an enlightened determination of its action by a governing body or by a court on review“); 3 Rathkopf The Law of Zoning and Planning § 62:47 at 62-133 (4th ed. (Ziegler rev.) 1975, supp. 2004) (“[T]he most common reason for a remand is that the findings of fact upon which the determination should be based are either entirely absent or are so inadequate that the determination cannot adequately be reviewed.“). “The majority view is now that boards are generally required to make findings of fact and state reasons for their decisions.” Yokley, Zoning Law and Practice § 20-16 at 20-68. In this case, the court of appeals characterized the Board‘s order as exhibiting an “absence of discretion.” Lamar, unpublished order at 2. This amounts to a violation of the third prong of certiorari review.
¶ 27. The controlling statute is pithy, providing only that “The grounds of every such determination shall be stated.”
¶ 28. Such an approach is consistent with historical interpretations of
The decision of the board ... must contain ... reasons for the action taken ... . It is not sufficient for the board to give its reasons in the words of the statute such as, “The variance is granted because owing to special conditions, a literal enforcement of the provisions of the ordinance will result in practical difficulty or unnecessary hardship.” The exact nature of the hardship or difficulty found by the board should be stated.
Id. at 10 (citing
¶ 30. The Board, and the League of Wisconsin Municipalities as amicus, argue that we proceed down a slippery slope if we affirm the court of appeals’ conclusion that the Board‘s discussion was inadequate. They argue that under the court of appeals’ decision, boards of zoning appeals must produce an “explicitly reasoned written decision.” They note that we here consider the decision of the Board of Zoning Appeals for the City of Milwaukee, Wisconsin‘s largest community. In smaller communities, they observe, the boards may have less experience with governing legal standards, may not produce written opinions at all, and frequently have members who are neither attorneys nor are counseled by attorneys and cannot be expected to produce the type of finely-tuned legal reasoning expected from a court.
¶ 31. We understand and are sympathetic to the League‘s concerns. We realize that most board members are not attorneys and recognize that many boards in this state operate without issuing written opinions. We do not expect boards of zoning appeal to produce judicial opinions. We agree, in fact, that a written decision is not required as long as a board‘s reasoning is clear from the transcript of its proceedings.14
¶ 32. Nonetheless, this court cannot and should not relax its standards of reasoning to the point where the standards are nonexistent. A board may not simply grant or deny an application with conclusory statements that the application does or does not satisfy the statutory criteria. Accord League of Wisconsin Municipalities, Zoning Boards of Appeal at 10. Rather, we expect a board to express, on the record, its reasoning why an application does or does not meet the statutory criteria. Without such statement of reasoning, it is impossible for the circuit court to meaningfully review a board‘s decision, and the value of certiorari review becomes worthless. See Trudeau, 139 Wis. 2d at 110.
¶ 33. Finally, we address the Board‘s argument that it is “particularly troublesome and impractical” for a board to issue an “explicitly reasoned decision” because under the statute, the decision may effectively be controlled by a minority of the board. We disagree. Even
¶ 34. In its written order, the Board simply stated that Lamar‘s application did not meet the ordinance criteria, then recited the criteria. The court of appeals correctly perceived the problem with this approach. The Board may not rest on a declaration that an application does not meet certain ordinance criteria; the Board must explain why the application does not meet the criteria. In this case, the Board‘s written order did not do so.
¶ 35. That, however, is not the end of the inquiry because, as noted above, a written determination is not always necessary. We also review the transcript of the proceedings before the Board.15
¶ 36. Member Szymanski disagreed with Member Winkler‘s assessment that “We are faced with a very strong case of hardship.” He also disagreed that nonconforming existing signage could be cited as precedent. He said he “hoped” existing signage “would be further diminished” because “I‘m not a sign aficionado.” He added that “the spirit and intent [of the ordinance] has not been met ... [and] the hardship also has not been met, because it is intended to wind up generating some additional revenue for this facility....”
¶ 38. Chairman Zetley‘s comments were also insufficient to justify a finding that the Board reasonably exercised its discretion. Chairman Zetley stated that he had three reasons for voting to deny the application. First, he believed “the exceptional circumstances have not been met. I believe that this is an economic issue.” As we have noted, that reasoning is insufficient because it is circular. It merely restated the grounds laid out in the ordinance. Second, Zetley stated “there [are] other purposes for this land. It hasn‘t been shown that there isn‘t another purpose for this land.” As we have described, this is a restatement of the now-abrogated “no reasonable use” test. Chairman Zetley‘s second reason is invalid. Third, Zetley stated, “making the signs bigger and bigger isn‘t something that this Chair is in favor of.” Again, a member‘s personal feelings about signs are irrelevant to the Board‘s determination of whether the statutory criteria have been met.
¶ 39. We conclude that the Board did not satisfactorily express its reasons for denying Lamar‘s applica-
V. CONCLUSION
¶ 40. We remand this cause to the circuit court with instructions to remand it to the Board. On remand, the Board should reconsider and, if necessary, rehear and decide this matter in conformance with the new legal standards governing area variances. The Board must also adequately express its reasons for approving or denying Lamar‘s application under the appropriate legal standards. This reasoning need not be embodied in a written decision as long as it is reflected in a transcript of the proceedings. We express no opinion on whether Lamar‘s application should be granted under Ziervogel and Waushara County. The Board is the body best suited to make such factual determinations, and we remand this cause to allow it to do so.
By the Court.—The decision of the court of appeals is affirmed.
¶ 41. SHIRLEY S. ABRAHAMSON, C.J. (concurring). The majority opinion is careful to explain that “[a] board may not simply grant or deny an application with conclusory statements that the application does or does not satisfy the statutory criteria.” Majority op., ¶ 32. I agree with the rule advanced by the majority opinion.
¶ 43. A written opinion that adequately expresses reasoning in which the requisite number of board members joins is, without question, the reasoning of the Board. When there is no adequate written opinion and the court looks at the transcript of the proceedings, majority op., ¶ 3, the court no longer looks at the rationale of the board as an entity but rather looks at the rationales of individuals who comprise the board.
¶ 44. The majority opinion has left uncertain whether each member‘s reasoning must be analyzed when there is no written opinion of the board.
¶ 45. Here, only one of the three proponents of the variance, Board Member Winkler, expressed any reasoning prior to casting his vote. A second proponent, Board Member Cameron, asked, “What was the alderman‘s [position] on this?” Board Member Jackson seconded Board Member Winkler‘s motion to grant the variance, without more.
¶ 46. The majority opinion has left uncertain the procedure each member of a board must follow to ensure that the Board as a whole has provided adequate reasoning for granting or denying an application when the Board does not offer a written opinion.
¶ 47. For the foregoing reasons, I write separately.
Notes
At oral argument, the Board‘s counsel repeatedly asserted that under the court of appeals’ decision, boards are required to provide an “explicitly reasoned written decision.” Closer review of the court of appeals’ opinion reveals that it never used the word “written.” Opposing counsel also conceded that the Board‘s decision need not be reduced to writing. Neither does the controlling statute impose such a requirement; it provides only that “The grounds of [the Board‘s] determination shall be stated.” Finally, we are unable to locate any Wisconsin case law requiring a written decision. As neither party asks us to impose such a requirement on the Board, we decline to do so.