## Facts

- Richard W. Ziervogel and Maureen A. McGinnity owned a 1.4-acre lakefront parcel in Washington County, Wisconsin, with a single-family home located about 26 feet from the lake’s ordinary high-water mark.
- The home was lawful but nonconforming as to the shoreland setback.
- A 2001 amendment to the county shoreland-zoning ordinance prohibited any expansion of structures within 50 feet of the ordinary high-water mark, including expansions of lawful nonconforming structures.
- The owners sought an area variance to build a 10-foot addition on the lake side of the home, within the 50-foot setback area.
- The Washington County Board of Adjustment denied the variance because the owners failed to show “unnecessary hardship” under a “no reasonable use of the property” standard, noting the property already had a usable single-family residence.

## Issues

1. Whether “unnecessary hardship” for an area variance requires proof that the property has “no reasonable use” without the variance, or instead a less restrictive standard.
2. Whether the Board’s denial rested on an error of law by applying the “no reasonable use” standard to an area-variance request.

## Decision

- The Wisconsin Supreme Court reversed the court of appeals and remanded to the Board for reconsideration under the correct legal standard.
- The court held that area variances and use variances are subject to different “unnecessary hardship” standards.
- The court rejected the unitary “no reasonable use” test for area variances and directed application of a more flexible, property-focused inquiry.
- The court did not grant the variance; it required the Board to reexercise its discretion under the proper standard.

## Legal Principles

- For area variances, “unnecessary hardship” is not limited to situations where the property lacks any reasonable use.
- The area-variance inquiry is whether strict compliance would unreasonably prevent use of the property for a permitted purpose or make compliance unnecessarily burdensome given the ordinance’s purposes and the property’s unique features.
- Area-variance hardship must be based on conditions unique to the property, not personal circumstances.
- The hardship must not be self-created.
- The variance must not be contrary to the public interest or the purpose and spirit of the zoning restriction.
- A board’s decision is not a valid exercise of discretion if it rests on an erroneous view of the law.

## Conclusion

The court clarified that area variances require a flexible “unnecessary hardship” analysis tied to property-related conditions and the purposes of dimensional regulation, and it remanded because the Board wrongly demanded proof of “no reasonable use” before granting relief.


Ziervogel v. Wash. Cnty. Bd. of Adjustment, 676 N.W.2d 401 (Wis. 2004)