setback requirement in Wisconsin

2026However, as our supreme court has stated, “the right of a landowner ‘to prevent irreparable injury to his property when the injury threatened is special and different from that of the general public.’” Jelinski v. Eggers, 34 Wis. 2d 85, 91 , 148 N.W.2d 750 (1967) (citation omitted) (allowing an adjacent property to sue when the defendant built their garage in violation of the setback requirement of the zoning ordinance).

2026However, as our supreme court has stated, “the right of a landowner ‘to prevent irreparable injury to his property when the injury threatened is special and different from that of the general public.’” Jelinski v. Eggers, 34 Wis. 2d 85, 91 , 148 N.W.2d 750 (1967) (citation omitted) (allowing an adjacent property to sue when the defendant built their garage in violation of the setback requirement of the zoning ordinance).

2024The meaning of this statement is plain: in determining whether a property owner has established unnecessary hardship, one of the factors that a board must consider is “the effect of a variance on the neighborhood and larger public interest.”6 See id. ¶30 We further agree with the circuit court that neither the Board’s oral discussion of the Suttons’ variance request nor the Board’s written decision shows that the Board considered the purpose of the Ordinance’s setback requirement or the effect that granting a variance would have on the larger public interest.

2024During its oral discussion of the variance application, the Board focused almost exclusively on the existence of an alternative location for the Suttons’ proposed 6 In its reply brief, the Board attempts to advance an alternative interpretation of the above-quoted sentence from Ziervogel v. Washington County Board of Adjustment, 2004 WI 23 , 269 Wis. 2d 549 , 676 N.W.2d 401 .

2022Goode, 215 Wis. 2d at 220-22 .

2003Id. at 656 .

1998Moreover, the court reasoned that the board was too accommodating and apparently willing to approve "any of a number of reasonable uses, so long as it does not cause harm to the public." Id. at 421 , 577 N.W.2d at 825 . [4] In the present case, there was no evidence presented that a different design of the house could not incorporate the setback requirement.