Judging Ziervogel: The Twisted Path of Recent Zoning Variance Decisions in Wisconsin

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Publication Date


Publication Information

Alan R. Madry, Judging Ziervogel: The Twisted Path of Recent Zoning Variance Decisions in Wisconsin, 91 Marq. L. Rev. 485 (2007)

Source Publication

91 Marquette Law Review 485 (2007)


Variances from local zoning ordinances are traditionally understood to be extraordinary remedies for parcels that are unique within their zones and because of the unique circumstances the parcel cannot be used for any reasonable purposes. The uniqueness requirement assures that more widespread problems are addressed by the legislature rather than the zoning boards of adjustment that grant variances. Empirical studies have found that zoning boards of adjustment routinely ignore the statutory conditions for granting variances and grant them instead based on their own assessment of the appropriateness of the variance. Nonetheless, until recently, the Wisconsin Supreme Court applied the statutory law strictly to overturn rogue decisions by local boards. Recently, however, led by an activist conservative majority, the Wisconsin Supreme Court reinterpreted its past decisions more consistent with the practices of the boards. It interpreted the standard as embodying a substantive due process standard rather than a takings standard with the result that boards are now empowered to balance the desires of the property owner against the policies adopted by the local legislative body. The decisions not only reflect a poor interpretive methodology, they also distort the roles of appointed boards and local legislatures.