Court hears arguments on zoning ordinance

A writ of certiorari relating to a complaint against the Shawano County Board of Adjustment hit court Jan. 24.
The writ comes after Shawano resident Carney Garcia had reported violations to Shawano County regarding a shared property lot on Washington Lake last July. According to Garcia, two homeowners built a four-foot deck into the shared lot without pulling permits and used 2-foot setbacks, as opposed to 25-foot setbacks. From there, Garcia asked that her situation be put onto the Planning, Developing and Zoning meeting in December 2021 for review.
A portion of the group of homeowners who share the lot with Garcia contracted COVID-19 and had to postpone attendance to the December meeting. She claimed that her situation was discussed in both January and February meetings, without contacting Garcia or other homeowners in the shared lot. According to Garcia, her situation was talked about under the “Discuss Any Operational Issues Within the Department As Needed” agenda item. She said this was too vague.
During a Board of Adjustment meeting April 14, 2022, Garcia said that the board passed an after-the-fact variance on a 3-2 vote for the owners who built into the shared lot, leading Garcia and the rest of the homeowners to file the writ of certiorari. A writ of certiorari is a request for a higher-up board to review the judgement of a case.
That court hearing began Jan. 24 as attorney Josiah Stein appeared representing Garcia, while attorney Andrew Smith represented the Shawano County Board of Adjustment.
“I have read the three briefs and it is my understanding that the record has been certified and given to the petitioners,” said Shawano-Menominee County Circuit Court Judge William Kussel Jr.
In regards to the meeting that the after-the-fact variance was given at, Kussel reported that there is not a transcript of the meeting, but audio is available. According to Stein, in the audio recording of the meeting, someone from the board states that it does not need to provide a reason for the action.
“I believe that the quality of the recording is good to the point where you could hear what was said, but the difficulty of course is that there is no knowledge of who is saying what,” said Stein.
From the brief that he was provided, Kussel read a direct quote from the audio recording.
“In your reply brief, you have a quote that says, ‘if we are all of a sudden are going to start obeying the rules as rules, then instead of giving people a variance, you just had them this and tell them no, you can’t do anything different,’” said Kussel.
Stein explained that the board of adjustment cannot simply grant or deny an application with conclusory statements. He said that the decisions from the board must contain reasons for the action taking place.
“This wasn’t done,” said Stein. “If we look at the written record, there is nothing that is helpful for this court to make any determination as to why the board did what they did. The meeting minutes don’t provide anything of assistance. It is clear that the board is exercising its will and not its judgement. They merely dismissed the issue as being trivial.”
He also claimed that none of what the board discussed references anything regarding the zoning ordinances, having an unnecessary hardship or having unique property limitations.
“This is completely devoid of any reasoning,” said Stein. “There is no basis that the board provided for its decision.”
In response, Smith agreed that the record is not perfect and that the audio tiptoes the line of being sufficient. He added that the quote from the meeting that Kussel shared is evidence of the board’s thoughts on the situation.
“I think that is evidence of where the board was coming from,” said Smith. “Whether that is sufficient in the court’s view is why we are here. Is it sufficient in my book? I think that it is a reason that recognizes the development in that general area of the lake out there.”
Kussel confirmed with Smith that the quote that he shared was the board’s reasoning for granting the variance, based upon the record that the court currently has. Kussel also asked Smith if he believes that the homeowner was in a hardship, leading them to getting the after-the-fact variance.
“In a universe of cases, a party appeared in good faith in front of the board and said that they were misguided or provided bad advice by a surveyor and discovered after the fact that they need a variance — I think there is a good argument for saying yes, we will give you this after-the-fact variance,” said Smith.
Smith summed up his argument saying that procedurally, the board acted correctly.
“I think they held a hearing, created a record — the record isn’t perfect, but it never is in any county — so procedurally, it is sufficient,” said Smith. “I think that the record is sufficient, not great, but sufficient.”
Stein requested that court reverse the decision of granting an after-the-fact variance and judge it null and void. Kussel scheduled an oral ruling for March 7 at 9:45 a.m.

lreimer@newmedia-wi.com