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County counsel outlines strict and area variance standards under Wisconsin law
Summary
Dunn County counsel reviewed state case law and local ordinance criteria for use and area variances, advising the committee that use variances are highly restricted while area variances may be granted when unique property conditions create undue hardship.
Dunn County counsel told the Planning, Resource and Development Committee on Jan. 15 that Wisconsin law treats use variances and area variances very differently and urged the committee to apply distinct standards when deciding requests.
Counsel said a use variance is narrowly applied and requires showing that strict compliance with zoning leaves the property with no reasonable use permitted by the ordinance; he described that standard as “very restrictive” and said, in his reading of state court decisions, such approvals should be rare. By contrast, an area variance addresses dimensional or site-configuration issues and can be granted when strict compliance would unreasonably prevent the owner from using the property for a permitted use, provided the hardship is unique to the property and not self-created.
He reviewed guidance from a Wisconsin Supreme Court decision cited during the presentation and noted that local boards should weigh the ordinance’s stated purposes — for example protecting agricultural land and public health and safety — when reviewing variance requests. He also noted that the property owner carries the burden of proof to justify a variance request under the court precedent and statute discussed.
Committee members asked for clarification about common examples. Counsel said building an accessory dwelling unit that violates a setback or dimensional rule would typically be an area variance, while opening a farming operation in a residential district would be a use variance. He also told the committee that the county ordinance’s language could be clarified; he plans to propose a narrow revision to the ordinance to distinguish the two variance standards more clearly.
Committee members said the clarification would help their deliberations and emphasized the importance of stating reasons in written decisions so the committee’s exercise of discretion is documented. Counsel recommended considering the ordinance purposes (chapter 16.03) and the Wisconsin standards when evaluating individual requests.
