The sole issue presented on these appeals is whether the board of adjustment properly exercised its administrative discretion in denying appellant’s applications for variance.
Appellant seeks a variance from the ordinance enacted pursuant tо sec. 59.971, Stats. Under sec. 59.99(7) (c), Stats., the county board of adjustment is empowered
“[t]o authorize upon appeal in specific cases such variance from the terms of the ordinance as will not be contrary to the public interest, where, owing to special conditions, a literal enforcement of the provisions of the ordinance will result in unnecessary hardship, and so thatthe spirit of the ordinance shall be observed and substantial justice done.” (emphasis added).
Sec. 17.03 (1) (c), WCSFP Ord., provides:
“The Board of Adjustment shall have the following powers as defined by statute:
“(c) To authorize upon appeal in specific cases such variance from the terms of this Ordinance as will not be contrary to the public interest, where owing to special conditions a literal enforcement of the provisions of this Ordinance will result in 'practical difficulty or wmeces-sary hardship, so that the spirit of this Ordinance shall be observed, public safety and welfare sеcured, and substantial justice done.” (emphasis added).
Thus, although the element of practical difficulty is not included under the statute, it does appear in the ordinance.
Appellant relies upon the factor of practical difficulty and makes citation to the Waukesha County Zoning Ordinance and sec. 62.23(7) (e)7, Stats., enactments which include practical difficulty as a ground for variance from the zoning ordinance. However, the Waukesha County Zoning Ordinance, enacted pursuant to sec. 59.97, Stats., is inapplicable here for this case relates to the Waukesha County Shoreland and Floodland Protection Ordinance. Sec. 62.23(7) (e) 7, Stats., is also inapplicable because that section relates to the powers of the boards of appeals for cities.
Thus, because sec. 59.99 (7) (c), Stats., does not include the element of practical difficulty while the ordinance does, a question arises as to the relevance of appellant’s arguments relating to claimed practical difficulty. However, although the terms “unnecessary hardship” and “practical difficulty” are insusceptible to precise definition and аre often stated disjunctively in zoning enactments, the authorities generally recognize that there is no practical difference between them. Rathkopf states:
“The overlapping of the concepts of practical difficulty and undue hardship in so many factual situations and thе lack of real reason for treating the two situations differently, has caused courts to treat the two terms as if they were synonymous. ...” 2 Eathkopf, The Law of Zoning and Planning 45-20 (3d ed. 1972).
See also
5 Williams,
American Planmmg Law,
sec. 145.06, at 122 (1975);
Brown v. Beuc,
The problems involving the definition of these terms arise particularly from the fact that the conditions upon which a landowner typically bases a claim for a use variance are more easily spoken of as imposing an unnecessary hardship, while the conditions prompting application for an area variance are more easily termed practical difficulties. Therefore, the fact that area variances are considerably easier to obtain than use variances creates the impression that a minimal showing of difficulty will establish the element of practical difficulty and entitle the landowner to a variance. However, area variances are not more easily obtained because practical difficulties are something much less severe than unnecessary hardship, but because area variances do not involve great changes in the character of neighborhoods as do use variances. This relates to what hardships or рractical difficulties may be considered unnecessary or unreasonable in light of the purpose of the zoning law.
The danger of discerning a significant difference between the terms unnecessary hardship and practical difficulties is that while the hardship required for a variance is quаlified by the word “unnecessary,” the difficulties only need be “practical.” The term practical difficulties encompasses virtually any problem, and thus
Therefore, we think that there should be no significant practical distinction drawn between the terms unnecessary hardship and practical difficulties, and where it appears, the phrase “practical difficulty or unnecessary hardship” should be construed as a whole, for where peculiar and exceptional practical difficulties, which justify a variance, exist, unnecessary hardship will also exist.
165 Augusta Street, supra
at 263,
This conclusion permits the court to consider appellant’s claims of practical difficulty despite the fact that sec. 59.99 (7) (c), Stats., empowering the board of adjustment to authorize variances, refers only to unnecessary hardshiр.
In
State ex rel. Markdale Corp. v. Board of Appeals,
“A note entitled ‘Zoning Variances,’ 74 Harvard Law Review (1961), 1396, 1401, suggest the following definition of ‘unnecessary hardship’ as used in zoning statutes and ordinances with respect to the power of appeals boards to grant variances:
“ ‘Since the main purpose of allowing variances is to prevent land from being rendered useless, “unnecessary hardship” can best be defined as a situation where in the absence of a variance no feasible use can be made of the land.’ ”27 Wis.2d at 163 ,133 N.W.2d at 799 .
When considering an area variance, the question of whether unnecessary hardship or practical difficulty
Appellant claims that strict enforcement of the ordinance will result in unnecessary hardship or practical difficulty for the reasons that (1) the porch, as already substantially completed, would have to be removed; (2) the lot is substandard in size; (3) the porch could not be attached to other sides of the home; (4) appellant needs the porch to enjoy lake living for his family including six children; and (5) the porch would add to the value of the house.
The board of adjustment concluded that no hardship existed which was not self-created and that a variance would increase the nonconformity of an already nonconforming structure.
This case is before the court on certiorari, and thus, review is limited to: (1) whether the board kept within its jurisdiction; (2) whether it proceeded оn correct theory of law; (3) whether its action was arbitrary, oppressive, or unreasonable and represented its will and not its judgment; and (4) whether the evidence was such that it might reasonably make the order or determination in question.
State ex rel. De Luca v. Common Council,
In
State ex rel. Schleck v. Zoning Board of Appeals,
“Whether a variance shall be authorized in a pаrticular case is to be determined by the board in the exercise of itsdiscretion. When it acts within the powers conferred upon it and its action is not arbitrary or capricious there is no violation of the property owner’s constitutional rights.”
The decision of the board will be arbitrary or capricious if it is unreasonable or without a rational basis.
Weaver v. Wisconsin Personnel Board,
In reviewing the decisions of the adjustment board in this case it must be kept in mind that the court is hesitant to interfere with administrative determinations,
Transport Oil Inc. v. Cummings,
Thus, the findings of the board may not be disturbed if any reasonable view of the evidence sustains them.
State ex rel. Morehouse v. Hunt,
Any hardship or practical difficulty claimed by appellant relating to the removal of the substantiаlly completed porch is self-created, and as such cannot qualify as a basis for a grant of a variance. State ex rel. Markdale Corp. v. Board of Appeals, supra.
Appellant argues that the hardship caused by the existence of the porch is not self-created because he relied upon assurances of the building inspector. To allow this contention would constitute estoppel of the municipality from enforcing its zoning ordinance. The rule of law in this state is clear that no such estoppel may
The appellant’s claim that he suffers hardship or practical difficulty becausе his lot is substandard in size ignores the proportionate method of reduction of the offset requirement for substandard lots provided for by the ordinance. Although substandard size is often spoken of as grounds for a variance, 2 Rathkopf, The Law of Zoning and Planning, 45-19 (3d ed. 1972), appellant’s lot is not substandard in relation to the restriсtion placed upon it. The ordinance makes a special compromise of its restriction to take into account the size of appellant’s lot. Thus, the offset requirement placed upon appellant’s lot is not unique or peculiar to his property, for it applies equally to all lots of similar size. Because the restriction does not especially affect appellant’s lot, it may not constitute hardship or difficulties which justify a variance. Anderson, American Law of Zoning, sec. 14.55, at 32 (1968); 8 McQuillin, Municipal Corporations, sec. 25.167, at 543-45 (3d ed. 1965).
Therefore, it is not an unreasonable conclusion that the relative feasibilities of the alternative locations for the рorch are not due primarily to a peculiar or unique circumstance of appellant’s lot, but to the convenience of the particular location. While it may be true, as asserted, that if the porch may not be located where it is, then it is not feasible to have a porch at all on this property, the question would then become whether it is unnecessary hardship or practical difficulty that appellant needs a porch.
Appellant claims he needs this porch to enjoy lake living, to accommodate his expanded family, and to inсrease the value of his land. Outside of New York, where a minimal showing of practical difficulties will justify an area variance, the authorities indicate that a showing of natural growth of a family and personal inconvenience do not constitute practical difficulties or unnecessary hardship which justify a variance.
Side-yard offset restrictions, such as in this case, are intended to provide unoccupied space for several purposes, including to afford room for lawn and trees, to promote rest and recreation, to enhance the appearаnce of the neighborhood, and to provide access to light and air. These are legitimate and reasonable purposes.
As to the policy of the law in this state, the case of Jelinski v. Eggers, supra, is persuasive. In that case Eggers, after an oral assurance from the chairman of the local zoning board of appeals, constructеd a garage on his lakeshore lot which encroached upon the five-foot side-yard requirement by three feet. The board of appeals subsequently denied Eggers’ petition for a variance to allow the encroachment. Jelinski, Eggers’ neighbor, commenced an actiоn under sec. 62.23 (8), Stats., for a mandatory injunction ordering the removal of the garage. This court, although not directly considering the merits of the denial of the variance, upheld that denial by affirming the trial court’s decision ordering the garage be removed.
We conclude the evidence еstablishes that the appellant’s claimed practical difficulty or hardship relied upon for granting the variance is either self-created or no more than personal inconvenience. Therefore, the board’s decision to refuse a variance was not unreasonable or without a rational basis.
By the Court. — Judgments affirmed.