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98-1046 State v. Outagamie County Board of Adjustment

“[W]e conclude that Wis. Admin. Code NR 116.13(2) conflicts with Wis. Stat. sec. 87.30(1g) and is therefore invalid to the extent that it prohibits all variances for residential floors below regional flood elevation. Finally, we conclude that the Board’s action complied with the procedures in the Outagamie County Shoreland-Floodplain-Wetland Zoning Ordinance. The variance in this case is fully consistent with the spirit of the Ordinance, public safety and welfare, and substantial justice.”


CONCURRING OPINION: Crooks, J. “I concur with the lead opinion and mandate, but reach the conclusion to reverse the court of appeals and affirm the issuance of a variance by a different route. I write separately because I see no reason to overrule State v. Kenosha County Bd. of Adjustment, 218 Wis. 2d 396, 577 N.W.2d 813 (1998). Stare decisis is a cornerstone of the judicial process, and, absent a compelling reason to overrule precedent, this court should abide by that precedent.”

CONCURRING OPINION: Prosser, J. “I join the lead opinion in this case for several reasons. First, the law on zoning variances must be reexamined and clarified. Second, the State’s reliance on Wis. Admin. Code NR 116.13(2) in these circumstances is disturbing. Third, the result of an affirmance would be unjust.

DISSENTING OPINION: Abrahamson, J. “The lead opinion suggests that this case is about destroying a basement to save a house. Dramatic, but a mischaracterization of the stakes in this case.

“This case is not about the future of the Warnings’ basement or house. This case is about whether the Warnings’ home will have a sun porch. Giving truth to the adage that hard facts make bad law, this case is really about whether to undermine the authority of the Department of Natural Resources (DNR) to regulate floodplains and whether to ignore the principles of stare decisis-all to allow a homeowner to build a sun porch. This case makes bad law. I therefore dissent.”

98-1046 State v. Outagamie County Board of Adjustment

Review of a Decision of the Court of Appeals, Sykes, J.


Richard J. Carlson, Appleton; Jeffrey M. Gabrysiak, Madison; John A. Kassner, Madison

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