Kussel orders after-the-fact variance null and void

Shawano-Menominee County Circuit Court Judge William Kussel Jr. ruled March 6 that the Shawano County Board of Adjustment’s decision to grant an after-the-fact variance for a deck addition null and void.

The ruling comes after Shawano resident Carney Garcia had reported violations to Shawano County regarding a shared property lot on Washington Lake in July 2021. Garcia reported that two homeowners had built an extension on a deck four feet into the shared lot without pulling permits and using 2-foot setbacks, instead of 25-foot setbacks.

During a Board of Adjustment meeting in April 2022, the board voted 3-2 to grant an after-the-fact variance to the homeowners. Garcia then filed a writ of certiorari for the Shawano-Menominee County Circuit Court to review the ruling.

During Kussel’s oral ruling, he opened the meeting introducing attorney Josiah Stein, who was representing Garcia, and attorney Andrew Smith representing the Shawano County Board of Adjustment.

“This matter involves the after-the-fact variance request regarding the expansion of the deck with compliments to the Shawano County zoning ordinance, which the board, by a 3-2 decision, granted the request,” said Kussel.

Kussel said that Garcia is one of the neighbors who was impacted by the variance and said the the actions of the board of adjustment were deficient to grant the variance. When reviewing the information, Kussel said that the board of adjustment is to detail why they made a decision, something that Stein argued that the board did not do during the oral arguments court hearing on Jan. 24.

“In this case, the only real detail to why the board acted as they did stated as follows, ‘If we are going to all of sudden start obeying the rules as rules, then instead of giving people a variance, you hand them this and tell them it is no — you can’t do anything different,” said Kussel, reading from the April Shawano County Board of Adjustment meeting. “I say to the people that say you have done this, just remember do onto others as you would have them do onto you. That doors swings both ways, and we have cut a lot of slack on lake variances. We try to let people make the most out of their properties.

“I think our job here is flexibility — we are just talking about four feet,” said Kussel, continuing to read the quote.

Even though the board of adjustment passed an after-the-fact variance based on “neighborly kindness,” allowing the homeowner to maximize their property, Kussel said that does not fall in line with the standard set by Shawano County.

“That ordinance defines what is a necessary hardship or property limitations for protection of public interest,” said Kussel. “The board failed to consider the standards required by the ordinance or at least failed to detail their decision regarding those standards. The reason stated by the board shows that either inadvertently or intentionally failed to call the standards for variance review criteria. Therefore, evidence is that the board’s decision was based upon their will, not their judgement.”

Kussel went on to say the court agrees with the Shawano County Board of Adjustment on its decision to have a meeting to discuss the variance, but he said that wasn’t enough.

“That’s not enough since they failed to follow procedures as to properly applying the law and detailing the basis for their decision,” said Kussel.

Kussel judicated the board’s decision to grant the after-the-fact variance and ordered that the property return to the condition prior to the construction of the 4-foot addition to the deck. He said that the homeowner has 90 days from Kussel’s ruling to make the change, and that they are in charge of deconstructing the deck.

lreimer@newmedia-wi.com