COURT OF APPEALS

DECISION

DATED AND FILED

July 8, 2021

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 

and RULE 809.62. 

Appeal No. 2020AP478 Cir. Ct. No. 2019CV1095

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT IV

KATHLEEN S. COX,

 PLAINTIFF-APPELLANT,

 V.

CITY OF MADISON ZONING BOARD OF APPEALS,

 DEFENDANT-RESPONDENT.

APPEAL from an order of the circuit court for Dane County: 

RHONDA L. LANFORD, Judge. Affirmed. 

Before Blanchard, Kloppenburg, and Nashold, JJ.

Per curiam opinions may not be cited in any court of this state as precedent 

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2020AP478

2

¶1 PER CURIAM. Kathleen Cox appeals a circuit court order 

affirming, on certiorari review, the decision of the City of Madison Zoning Board 

of Appeals (the Board) denying her request for an area variance from a lakefront 

setback requirement. We conclude that the Board made an adequate record of its 

decision, based that decision on sufficient evidence, and did not act contrary to

law. Accordingly, we affirm.

BACKGROUND

¶2 The following facts are undisputed. Cox bought a residential 

property in the city of Madison with a plan to demolish the existing house and 

build a new one. The property is on the shore of Lake Mendota and includes a 

“wet boathouse”: a boathouse built over excavated shoreline with lake water 

underneath, into which a boat can directly navigate. Before starting work on the 

house, Cox rebuilt the boathouse.

¶3 Under a Madison ordinance, a “lakefront yard setback” requirement

establishes the minimum distance a house must be from the ordinary high water 

mark of the lake; for Cox’s property, the setback is 123.8 feet. See MADISON,

WIS., CODE OF ORDINANCES § 28.138(4)(a) (2021).1 When designing her new 

house, Cox believed that she should measure the setback from the property’s 

natural shoreline. After she completed her design plans, Cox learned that a 

Wisconsin Department of Natural Resources (DNR) regulation required her to 

measure the setback from the indented shoreline created by the wet boathouse 

excavation. This represented a change of 14.6 feet, meaning that the planned 

 

1

 All references to the Madison ordinance are to the 2021 version.
No. 2020AP478

3

house would now have to be 14.6 feet further inland than if the setback were 

measured from the natural shoreline. Accordingly, Cox applied to the Board for a 

lakefront setback variance of 14.6 feet. 

¶4 The city zoning administrator submitted a report to the Board

recommending approval of the variance request, “subject to further testimony and 

new information provided during the public hearing.” The Board held a public 

hearing and considered testimony and evidence from the zoning administrator, 

Cox, her engineer, her architect, and her neighbors (the majority of whom were in 

opposition). The Board voted unanimously to deny the variance. 

¶5 Cox filed a petition for certiorari review with the circuit court. The 

court affirmed the Board’s denial of the variance request, and Cox appeals. 

DISCUSSION

Principles of Law and Standard of Review

¶6 Variances operate as zoning ordinance “escape valve[s],” affording 

property owners “a means of obtaining relief from the strict enforcement of zoning 

restrictions where individual injustices may occasionally occur.” State ex rel. 

Ziervogel v. Washington Cnty. Bd. of Adjustment, 2004 WI 23, ¶17, 269 Wis. 2d

549, 676 N.W.2d 401. The legislature has delegated to local zoning boards 

substantial discretion to grant variances in particular cases “where the literal 

application of zoning regulations would result in unnecessary hardship not 

justified by the underlying purposes of the ordinance in question.” Id., ¶19;
No. 2020AP478

4

WIS. STAT. § 62.23(7)(e)7.b. (2019-20)2; MADISON, WIS., CODE OF ORDINANCES

§ 28.184(5)(a)4.

3

Importantly, an unnecessary hardship “cannot be self-created”; 

it “must be based on conditions unique to the property rather than considerations 

personal to the property owner.” Ziervogel, 269 Wis. 2d 549, ¶20; 

§ 62.23(7)(e)7.d.; MADISON ORD. § 28.184(5)(a)1., 5. 

¶7 In the context of an area (as opposed to a use) variance,4an 

“unnecessary hardship” exists when “‘compliance with the strict letter of the 

restrictions governing area, set backs, frontage, height, bulk or density would 

unreasonably prevent the owner from using the property for a permitted purpose or 

would render conformity with such restrictions unnecessarily burdensome.’” 

Ziervogel, 269 Wis. 2d 549, ¶33 (quoting Snyder v. Waukesha Cnty. Zoning Bd. 

of Adjustment, 74 Wis. 2d 468, 475, 247 N.W.2d 98 (1976)); WIS. STAT.

§ 62.23(7)(e)7.a., d.; MADISON, WIS., CODE OF ORDINANCES § 28.184(5)(a)4. 

Whether this “standard is met in individual cases depends upon a consideration of 

the purpose of the zoning restriction in question, its effect on the property, and the 

effect of a [proposed] variance on the neighborhood and larger public interest.” 

Ziervogel, 269 Wis. 2d 549, ¶33. The property owner bears the burden of 

establishing unnecessary hardship. Id.; § 62.23(7)(e)7.d.

 

2

 All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise 

noted.

3

 In this section, we cite to provisions of WIS. STAT. § 62.23 and the Madison ordinance 

that encompass the same principles relating to the granting of zoning variances as those

articulated in the case law quoted above. The Madison ordinance is quoted, in pertinent part, at

paragraph 13 of this opinion. 

4

 A use variance allows the owner to use the property for an otherwise prohibited use, 

whereas an area variance provides an exception from physical requirements like setbacks and 

height limits. State ex rel. Ziervogel v. Washington Cnty. Bd. of Adjustment, 2004 WI 23, ¶21, 

269 Wis. 2d 549, 676 N.W.2d 401.
No. 2020AP478

5

¶8 A party aggrieved by a decision of a zoning board may seek 

certiorari review. WIS. STAT. § 62.23(7)(e)10. On appeal, we review the board’s 

decision, not the circuit court’s. Oneida Seven Generations Corp. v. City of 

Green Bay, 2015 WI 50, ¶42, 362 Wis. 2d 290, 865 N.W.2d 162. Our review is 

limited to: (1) whether the board kept within its jurisdiction; (2) whether it 

proceeded on a correct theory of law; (3) whether its action was arbitrary, 

oppressive, or unreasonable and represented its will and not its judgment; and 

(4) whether the board might reasonably make the order or determination in 

question based on the evidence. Lamar Cent. Outdoor v. Board of Zoning 

Appeals of Milw., 2005 WI 117, ¶16, 284 Wis. 2d 1,700 N.W.2d 87; Snyder, 74 

Wis. 2d at 475. We independently determine questions of law and jurisdiction, but 

in all other respects our review is deferential. Ziervogel, 269 Wis. 2d 549, ¶¶13-

14; see also Snyder, 74 Wis. 2d at 475-76 (“‘Whether a variance shall be 

authorized in a particular case is to be determined by the Board in the exercise of 

its discretion.’” (quoted source omitted)). We “may not substitute [our] discretion 

for that of the board,” and we “accord a presumption of correctness and validity” 

to its decision. Ziervogel, 269 Wis. 2d 549, ¶¶13-14.

The Board Did Not Err in Denying Cox’s Variance Request

¶9 We first address and reject Cox’s argument that the Board did not 

create a sufficient record of its decision. We then discuss why substantial 

evidence supports the Board’s decision and why the Board did not make errors of 

law in reaching that decision.

The Board made a sufficient record of its decision

¶10 Cox argues that the Board erred in not sufficiently articulating the 

grounds for denying her variance request, thereby precluding meaningful certiorari 
No. 2020AP478

6

review. The rule is that, although board decisions need not be written, a board’s 

reasoning must be evident from the certiorari record and must consist of more than 

“conclusory statements that the application does or does not satisfy the statutory 

criteria.” Lamar Cent. Outdoor, 284 Wis. 2d 1, ¶¶31-32. Unless a board 

“express[es], on the record, its reasoning why an application does or does not meet 

the statutory criteria....[,] [i]t is impossible for [courts] to meaningfully review a 

board’s decision, and the value of certiorari review becomes worthless.” Id., ¶32.

A board’s failure to provide reasons for its decision “amounts to a violation of the 

third prong of certiorari review.” Id., ¶26 

¶11 We have reviewed the transcript of the Board proceedings, and we 

discern no basis for Cox’s assertion that the Board’s decision was cursory or 

insufficiently articulated. As we discuss below, the Board was required to analyze 

six factors under the Madison ordinance. It addressed and made findings on each 

in turn, determining that Cox met some standards and not others. Because the 

Board determined that Cox did not meet all standards for granting the variance, it

denied her request. The record is sufficiently detailed to enable us to analyze that 

decision.

Substantial evidence supports the Board’s decision

¶12 We construe Cox to argue that the evidence did not support the 

Board’s conclusion that she failed to meet all of the approval standards under the 

Madison ordinance for granting an area variance. We review the sufficiency of

the evidence under the “substantial evidence” test, meaning that we will affirm 

when there was “credible, relevant, and probative evidence” before the board

“upon which reasonable persons could rely to reach [that] decision”—even when
No. 2020AP478

7

the evidence could also support a contrary determination. Sills v. Walworth Cnty. 

Land Mgmt. Comm., 2002 WI App 111, ¶11, 254 Wis. 2d 538, 648 N.W.2d 878. 

¶13 The Madison variance ordinance states, in pertinent part: 

The Zoning Board of Appeals shall not grant a 

variance unless it finds that the following conditions are 

present:

1. There are conditions unique to the property of 

the applicant that do not apply generally to 

other properties in the district.

2. The variance is not contrary to the spirit, 

purpose, and intent of the regulations in the 

zoning district and is not contrary to the public 

interest.

....

[3.] For an area variance, compliance with the strict 

letter of the ordinance would unreasonably 

prevent use of the property for a permitted 

purpose or would render compliance with the 

ordinance unnecessarily burdensome.

[4.] The alleged difficulty or hardship is created by 

the terms of the ordinance rather than by a 

person who has a present interest in the 

property.

[5.] The proposed variance shall not create 

substantial detriment to adjacent property.

[6.] The proposed variance shall be compatible 

with the character of the immediate 

neighborhood.

MADISON, WIS., CODE OF ORDINANCES § 28.184(5)(a).

5

 

5

 Cox does not dispute that the six pertinent approval standards comply with the legal 

standards for granting a zoning variance articulated in the case law discussed above. See 

MADISON, WIS., CODE OF ORDINANCES § 28.184(5)(a); see generally Ziervogel, 269 Wis. 2d 

549, ¶¶17-34.

(continued)
No. 2020AP478

8

¶14 Under this ordinance, Cox had to meet all six standards before the

Board could grant the variance. Therefore, we will focus on whether substantial 

evidence supports the Board’s conclusions on those standards it determined she 

did not meet: standards (3) and (4).6 In this discussion we refer generally to “the 

setback requirement”; this term encompasses the lakefront yard setback 

requirement under the Madison ordinance together with the DNR requirement that

Cox’s setback be measured from the excavated shoreline of her wet boathouse.

¶15 As quoted above, standard (3) concerns whether compliance with the 

setback requirement “would unreasonably prevent use of the property” or be 

“unnecessarily burdensome.” See MADISON, WIS., CODE OF ORDINANCES

§ 28.184(5)(a)4. As we have explained, the evidence before the Board showed 

that Cox, only after settling on a design for her new house, learned that she had 

measured the lakefront yard setback from the wrong point under applicable DNR 

standards: the natural shoreline rather than the excavated shoreline created by the 

wet boathouse. This prompted Cox to seek a variance. In the Board’s view, this 

series of events reflected a failure by Cox to give any real “consideration [as to 

how] to build a code-compliant structure.” One Board member pointed out, “[W]e

 

For ease of reading, and in keeping with the Board’s discussion, we have renumbered 

some of these standards so that we may refer to them as standards (1) through (6).

6

 The parties dispute whether Cox meets other standards of the Madison ordinance 

§ 28.184(5)(a). For example, Cox argues that she meets standard (2)—that her “variance is not 

contrary to the spirit, purpose, and intent of the regulations ... [or] the public interest”—because 

her house will be in line with her neighbors’ houses and will not block any views. Similarly, Cox 

implies that she meets standards (5) and (6) because the location of her house will not negatively 

affect adjacent properties or the character of the neighborhood. For its part, the Board concedes 

that standards (5) and (6) are likely met but questions whether Cox meets standard (2). We need 

not decide these points because we conclude that the Board did not err in determining that Cox 

did not meet standards (3) and (4), and she had to meet all six. See Barrows v. American Fam.

Ins. Co., 2014 WI App 11, ¶9, 352 Wis. 2d 436, 842 N.W.2d 508 (2013) (“An appellate court 

need not address every issue raised by the parties when one issue is dispositive.”).
No. 2020AP478

9

didn’t hear anything from the applicant in how [she] tried to minimize the impact 

... into the setback.” Another member acknowledged that “redesigning is not fun, 

especially when you really have a house that you like, and you spent a lot of time 

designing it,” but expressed the view that those considerations alone did not create 

an unnecessary burden. 

¶16 There is substantial evidence to support the Board’s conclusion that 

Cox did not meet her burden on this third standard. Cox testified that by the time 

she realized her error, “a lot of time, effort, and money” had gone into the current 

design. Moreover, she explained, if any change were made, “I’m not going to be 

able to get the kind of house that I want there” (as designed, one of the two decks

would have protruded into the setback area). But neither Cox, nor her engineer, 

nor her architect explained why it would have been overly burdensome to revise 

the plans and build a house or deck slightly different than the one Cox desired.

Without additional evidence as to how the setback requirement otherwise affected 

Cox or her use of the property, the Board had a sufficient evidentiary basis to 

conclude, as one Board member stated, that Cox was not “unnecessarily 

burden[ed]” merely because she was “not ... able to build everything that [she] 

want[s] within the setback.” 

¶17 Relatedly, the Board found that Cox did not meet standard (4) 

because it was her acts and omissions—and not “the terms of” the setback 

requirement—that had created “[t]he alleged difficulty or hardship.” See 

MADISON, WIS., CODE OF ORDINANCES § 28.184(5)(a)5. The Board did not view 

“the late surfacing of information” as itself creating a hardship, because it was 

Cox’s burden to know and follow the law. One member contrasted Cox’s 

situation with a hardship truly caused by an ordinance:
No. 2020AP478

10

[L]et’s say they were at this stage in the project, and the 

day before construction, the council amends the code on 

them. Then it is precisely the ordinance causing the 

hardship. The only thing I could think of is it was a 

property on ... State Street ... many years earlier, they had 

built a code-compliant elevator shaft for a future addition. 

The code had ... changed on them. The safety regs and 

how big an elevator [could be] changed on them, and 

therefore, they had to build into the variance. That was a 

situation where it was a change in the code .... [A]nd so 

they had done everything to be compliant, but for a legal 

change, and to me, that’s the distinction. 

¶18 Substantial evidence supports this conclusion as well. There was no 

dispute before the Board that Cox appreciated the error in her setback calculation 

only after she had designed, as Cox put it, “the kind of house that I want there.” 

The setback requirement as measured by the DNR standard never changed—it 

always required Cox to calculate her setback from the same location. Thus, the 

Board had a sufficient basis to conclude that Cox herself created the “alleged

difficulty or hardship”—the fact that the setback requirement prohibited her 

design.7

The Board applied the correct legal standards 

¶19 Cox argues that the Board made three errors of law. First, she 

contends that the Board “applied a higher burden on the approval standards (3) 

and (4) ... than is required by law because Cox plans to demolish and rebuild her 

 

7

 Cox suggests that the DNR regulation requiring the setback to be measured from the 

excavated shoreline created for the wet boathouse is unfair, because it prohibits her from building 

as close to the natural shoreline as her neighbors without wet boathouses may build. But this 

argument, regardless of its merit, has no bearing on whether Cox created her own hardship. And 

although Cox occasionally implies otherwise, the “hardship” she faces is not simply that she must 

measure the setback from the excavated shoreline. This is not a hardship, but merely a 

circumstance dictated by the terms of the regulation itself. See Ziervogel, 269 Wis. 2d 549, ¶17 

(variances operate to relieve uniquely circumstanced property owners from the effect of generally 

applicable regulations). 
No. 2020AP478

11

home.” Thus, she argues, her “variance request was doomed from the start.” In 

Cox’s view, the Board determined that it would not apply the usual standards (or 

would apply them more rigorously) because she was replacing the house (also 

referred to as a “clean slate”). 

¶20 We find no support in the record for this position. In considering 

whether compliance was unnecessarily burdensome and whether Cox created her 

own hardship, Board members noted that it is particularly difficult for “cleanslate” variance requests to win Board approval. But these were not incorrect 

statements of law. Rather, members were simply acknowledging that “complete 

rebuilds [are] really starting with a blank slate,” so “there aren’t the same 

considerations [such as] needing to preserve a foundation, a wall, [or] most of the 

residence.” These comments reflect the reality that “clean-slate” builders likely 

have greater flexibility to design a code-compliant structure, rather than seek a 

variance, so they face a “particular[] ... challenge” before the Board. These 

comments do not, as Cox argues, indicate that the Board ignored the Madison 

ordinance or created its own rules for granting area variances.

¶21 Second, Cox argues that the Board based its decision on the planned 

size of the house (over ten thousand square feet) and not on its proposed location, 

thereby usurping the role of the city Plan Commission, the only proper forum for 

consideration of the house’s size. But Cox again reaches this conclusion by 

selectively quoting Board member comments, while ignoring the larger context. It 

is true that, in discussing standard (5) (“[t]he proposed variance shall not create 

substantial detriment to adjacent property”), one Board member noted public 

opposition to the project’s size and appearance, and another called this input 

“valuable.” But these comments do not seem to have been determinative even of 

that standard: although somewhat unclear from the transcript, the majority of 
No. 2020AP478

12

Board members appeared to believe that any “detriment” to other properties was 

not “substantial.”

¶22 Moreover, the transcript, considered as a whole, shows that the 

Board did not directly consider the proposed size of the house in determining if 

Cox met standards (3) and (4). The possible exception is that in discussing 

standard (3)—whether compliance with the setback requirement would be 

“unnecessarily burdensome”—one Board member mentioned the size and 

complexity of the project: 

[W]e’ve had [this] discussion [with other applicants] on small 

portions of the kitchen addition or others ... as opposed to what 

we have here, which are multiple decks of fair size, outdoor 

kitchen, two different sun porches on the second level. Is it 

unreasonable that you can’t do all that? It think it’s part of the 

standard that we have to apply. And I would struggle to find that 

not being able to build everything that they want within the 

setback is, it’s unreasonable to say you can’t do that. 

This comment does not indicate to us that the member rejected the project solely 

because of its size. Rather, the member expressed the view that applicants do not 

meet standard (3) solely because they are unable to build the exact houses they 

would like. In any case, to the extent the size of the house partially informed any 

members’ decision-making, this was permissible. As we stated in Driehaus v. 

Walworth County, 2009 WI App 63, ¶17, 317 Wis. 2d 734, 767 N.W.2d 343, “an 

area variance cannot be decided in a vacuum.” Thus, a board may consider 

extraneous factors so long as these do not “overwhelm[] all other considerations in 

the analysis.” Id., ¶¶17-18 (quoting Ziervogel, 269 Wis. 2d 549, ¶28). Here, it is 

evident that the Board primarily, if not exclusively, focused on the circumstances

discussed above: that Cox had not shown that compliance would be overly 

burdensome and that Cox had created her own hardship. 
No. 2020AP478

13

¶23 Finally, Cox argues that the Board improperly rejected, or did not 

sufficiently consider, the zoning administrator’s report, which as we have noted 

recommended approval “subject to further testimony and new information 

provided during the public hearing.” Cox admits that the Board was not “bound to 

adopt” the tentative opinion of the administrator, but she calls the report “critical 

evidence” that, in her view, was not contradicted by any “new information.” We 

disagree both with Cox’s premise—that the Board needed to articulate some 

“reasonable basis to disregard” the report’s conditional approval—and her 

characterization of the Board proceedings. The “new information” presented at 

the hearing was additional evidence on standards (3) and (4)—specifically, that 

Cox failed to show that compliance with the ordinance was unnecessarily 

burdensome, and that any hardship was “self-created” and based on 

“considerations personal to the property owner.” See Ziervogel, 269 Wis. 2d 549, 

¶20. The Board reasonably considered this additional evidence in its own 

independent analysis of the zoning standards.

¶24 In sum, the Board’s decision was sufficiently detailed for purposes 

of certiorari review, was based on substantial evidence, and contained no errors of 

law. See Lamar Cent. Outdoor, 284 Wis. 2d 1, ¶16; Sills, 254 Wis. 2d 538, ¶11. 

Cox failed to rebut the “presumption of correctness and validity” attaching to the 

Board’s determination that she did not satisfy standards (3) and (4) of the Madison 

variance ordinance. See Ziervogel, 269 Wis. 2d 549, ¶14. Thus, we do not have a 

basis to reverse the Board’s exercise of its discretion in denying Cox’s variance 

application. We therefore affirm.
No. 2020AP478

14

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT. RULE

809.23(1)(b)5.