COURT OF APPEALS

DECISION

DATED AND FILED

May 21, 2024

Samuel A. Christensen

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. 2023AP786 Cir. Ct. No. 2022CV218

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT III

STATE OF WISCONSIN EX REL. LAURA SUTTON AND RYAN SUTTON,

 PETITIONERS-RESPONDENTS,

 V.

BARRON COUNTY BOARD OF ADJUSTMENT,

 RESPONDENT-APPELLANT.

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

JAMES M. PETERSON, Judge. Affirmed in part; reversed in part and cause 

remanded with directions. 

Before Stark, P.J., Hruz and Gill, 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. 2023AP786

2

¶1 PER CURIAM. The Barron County Board of Adjustment appeals a

circuit court order that reversed its decision denying Laura and Ryan Sutton’s 

request for an area variance. On certiorari review, the court concluded that the 

Board had failed to apply the proper legal standard and that the Board’s denial of 

the Suttons’ request was arbitrary. The court therefore reversed the Board’s 

decision and ordered that “the variance request is now granted[.]”

¶2 We agree with the circuit court that the Board failed to apply the 

proper legal standard and that its denial of the Suttons’ variance request was 

arbitrary. We therefore affirm the court’s decision in part. We conclude, 

however, that the court erred by ordering the variance request granted. The court 

should have instead remanded the matter to the Board to apply the correct legal 

standard and to provide an adequate explanation for its decision. We therefore 

reverse the court’s order in part and remand with directions for the court to remand 

this matter to the Board for additional proceedings consistent with this opinion.

BACKGROUND

¶3 The Suttons own a 1.1-acre property located on Highway 48 in 

Barron County, Wisconsin, which they purchased in 2009. The property includes 

a home, which was built in the early 1900s, and a detached garage or shed, which 

was built in the 1970s.1 The western edge of the Suttons’ property borders 

Highway 48, while the eastern edge of their property has frontage on Rice Lake.

 

1

 The Suttons refer to the 1970s structure as a shed. Some documents in the record, 

however, refer to the structure as a garage. At the hearing before the Board, Ryan Sutton 

explained that the Suttons had previously parked vehicles in the 1970s structure, but they are no 

longer able to do so because of problems with the structure’s concrete slab. The Suttons contend 

that, at present, they use the structure for storage only. Throughout the remainder of this opinion, 

we refer to this structure as “the detached shed.”
No. 2023AP786

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¶4 The Barron County Land Use Ordinance (“the Ordinance”) 

designates Highway 48 as a Class B highway. BARRON CNTY., WIS.,

ORDINANCES § 17.13(3)(b)2. (May 2023),

https://www.co.barron.wi.us/misc%20docs/land%20use%20ordinance.pdf. The 

Ordinance requires a setback of seventy-five feet from the right-of-way of a 

Class B highway or 108 feet from the highway’s centerline, whichever is greater. 

Id., § 17.13(3)(b)2.a. The Suttons’ property is currently in compliance with the 

Ordinance, as their residence is located seventy-six feet from Highway 48’s 

right-of-way and the detached shed is located farther from the right-of-way. 

Because the Suttons’ property is located on Rice Lake, it is also subject to 

shoreline setback requirements. It is undisputed that the property is currently in 

compliance with the applicable shoreline setback.

¶5 The Suttons would like to construct an “attached garage addition to 

[the] west end of [their] existing home” with “[second] story living space above.” 

To assist the reader, we include a diagram showing the location of the proposed 

addition. On the diagram, the existing residence and detached shed are colored 

green, and the proposed addition is colored pink.
No. 2023AP786

4

¶6 The Suttons’ proposed addition would be forty-two feet from the 

right-of-way of Highway 48 and, accordingly, would not be compliant with the 

Ordinance. Consequently, on June 20, 2022, the Suttons submitted an application 

to the Barron County Zoning Office, seeking a variance from the Ordinance’s 

seventy-five-foot setback requirement.2 The application asserted that the proposed 

addition is necessary because the Suttons are not able to park vehicles in the 

detached shed and they have “[s]ecurity [c]oncerns” about parking their vehicles 

outside “due to the proximity to surrounding businesses.”

 

2

 The record shows that on June 13, 2022, the Town of Rice Lake reviewed the Suttons’ 

request for a variance and adopted a resolution “recommending approval of said variance.”
No. 2023AP786

5

¶7 The Suttons’ application further asserted that an unnecessary 

hardship would exist absent a variance because there are “no other feasible or 

compliant locations to build on the property.” In support of this assertion, the 

Suttons alleged that four “[p]hysical [l]imitations” of their property prevent them 

from building an addition in other locations. First, the Suttons noted that any 

addition must comply with shoreline setback requirements. Second, the Suttons 

alleged that “[t]he primary drainage corridor” on their property “lies between the 

house and the [detached shed]” and that “[i]ssues with the drainage corridor 

previously resulted in water in the basement of the residence[.]” Third, the 

Suttons asserted that their existing well, which is located inside their residence, is 

“nearing the end of its lifecycle” and that a new well “must be in compliance with 

setbacks and additional restrictions relating to the proximity of the existing septic 

field.” Fourth, the Suttons contended that “[a]ll other compliant [building sites 

would] cut off all access to the back two-thirds ... of the property, including lawn 

mower and emergency vehicles.”

¶8 Finally, the Suttons’ application addressed the public interest and 

stated that the purpose of the Ordinance’s setback requirement is “to allow for 

future expansion and to ensure public safety.” The Suttons asserted that granting 

their variance request would not interfere with this purpose because the Wisconsin 

Department of Transportation has confirmed that there are “no current plans for 

future expansion” of Highway 48 within one-half mile of the Suttons’ property. 

The Suttons also argued that their proposed addition would leave room for

emergency vehicles and utility workers to access Highway 48 and would not 

“create an obstruction for traffic.”

¶9 The variance application form required the Suttons to describe any 

“alternatives to [their] proposal” that complied with the Ordinance and to explain 
No. 2023AP786

6

why they had rejected those compliant alternatives. In response, the Suttons 

acknowledged that a compliant alternative to their proposed plan would be to 

“[c]onstruct an attached garage onto the [s]outh side of the house”—that is, in the 

area between the house and the detached shed. The Suttons asserted that they had 

rejected this alternative because “the primary drainage corridor located between 

the existing house and the [detached shed] would be cut off” and because they 

“would not be able to access the back two-thirds ... of the property, due to space 

limitations between the existing house and the [detached shed].”

¶10 The five-member Board held a hearing on the Suttons’ variance 

application on July 25, 2022. No members of the public appeared at the hearing to 

object to the Suttons’ application.3 During the hearing, the Board took testimony 

from the Suttons and also considered statements made by Marshall Black, a 

representative from the Barron County Zoning Office. In particular, Black 

presented a “Staff Report” from the zoning office, which was also provided to the 

Board in writing.

¶11 The Staff Report noted that “[w]hen applying for a variance, the 

applicant must meet the three criteria for approval; Unique Physical Limitations of 

the property, Unnecessary Hardship and Public Interest.” The Staff Report 

explained that unique physical limitations of a property are “conditions of the 

property that prevent compliance with the setback standards ... such as steep 

slopes and lot size.” The Staff Report concluded that the Suttons’ “existing 

dwelling and accessory structure are not ‘physical limitations of the property,’ but 

 

3

 The Board received correspondence stating that the Wisconsin Department of Natural 

Resources had “no comments” regarding the Suttons’ application.
No. 2023AP786

7

rather self-imposed conditions of previous owners.” The Staff Report also 

concluded that there was “no physical limitation associated with [the Suttons’ 

property] being a lake lot” because “[t]he depth of this property, from [the] 

highway right-of-way to the lakeshore, is approximately 390 feet” and “the 

existing dwelling [is] located approximately 275 feet from the [ordinary high 

water mark]” of the lake. The Staff Report further opined that although setback 

requirements “may limit the location of a new well to the west side of the 

dwelling,” “the future location of a new well is not a unique physical limitation of 

the property.”

¶12 The Staff Report next stated that unnecessary hardship exists “when 

compliance would unreasonably prevent the owner from using the property for a 

permitted purpose or would render conformity with such restraints unnecessar[il]y

burdensome.” The Staff Report noted that while the Suttons “have indicated that 

there are no other feasible or compliant locations to build on the property,” “an 

alternative has been submitted that would meet all setbacks and be in compliance 

with the ordinance.”

¶13 Finally, addressing the public interest, the Staff Report stated:

Public interest relates to the effects a variance may have on 

this property and Barron County as a whole. This variance 

request is a proposed addition onto an existing dwelling 

that is in compliance with all setback standards. With the 

property lacking unique physical limitations, and the 

applicants having provided an alternative location that 

would maintain compliance, granting of this variance 

would not meet the intent of the ordinance.

¶14 During the hearing before the Board, Ryan Sutton testified that 

building an addition on the south side of the existing residence would block the 

property’s primary drainage corridor, which currently runs between the house and 
No. 2023AP786

8

the detached shed. In response, Black—the zoning office representative—opined 

that if an addition were constructed in that location, various steps could be taken to 

mitigate any drainage issues.

¶15 While Black was speaking to the Board, a Board member noted that 

the house to the north of the Suttons’ property appeared to be in compliance with 

the Ordinance’s setback requirement, and she asked Black whether the residence 

to the south was also in compliance. Black responded that the house to the south 

was “a lot further back.” The same Board member then stated, “So then this 

would be sort of a new precedence or whatever, a new—I mean, their request 

would be sticking out to the west further than what the other houses that are 

existing are.” Black responded, “Yes. It appears like at least, you know, with the 

exception of obviously this to the north, but going off to the west, that portion of 

Highway 48, the neighboring properties are in compliance[.]” Laura Sutton 

testified, however, that many nearby properties on Highway 48 are not in 

compliance. She asserted, “[W]hat we’re requesting isn’t anything different than 

what others on down the street are also ... doing.”

¶16 Following the close of testimony, members of the Board discussed 

the Suttons’ application on the record. One Board member immediately moved to 

deny the variance “because of the fact that there’s an alternative site plan.” 

Another Board member then commented that he had been “searching for a way to 

try to figure out how to actually approve this.” He noted that many of the 

properties near the Suttons’ home are not in compliance with the Ordinance’s 

setback requirement. Nevertheless, he concluded the Suttons had not shown why 

the Board should grant a variance because there was “an alternate option.”
No. 2023AP786

9

¶17 The same Board member who had questioned Black about the 

neighboring properties commented that she was “hung up on ... the harm to the 

public.” She also acknowledged the Suttons’ concerns about the alternative 

location for the addition being “right through that drainage path.” However, she 

credited Black’s opinion that the property’s drainage could be “reconfigured,” and 

she therefore concluded that the Suttons had failed to show a “hardship.”

¶18 The Board subsequently voted four to one to deny the Suttons’

request for a variance. In its written decision, the Board stated that the request

does not meet all three of the following tests:

A. Unnecessary hardship is not present since strict 

application of the terms of the Barron County Land Use 

Ordinance would not unreasonably prevent the owner 

from using the property for a permitted purpose or 

render conformity with such restrictions unnecessarily 

burdensome because there is adequate location for a 

conforming dwelling addition that allows for reasonable 

use of the property.

B. The hardship is not due to physical limitations of the 

property but rather the circumstances of the applicant.

C. The variance would be contrary to the public interest 

and would not observe the purpose of the Ordinance 

and do justice.

¶19 The Suttons then filed the instant lawsuit, seeking certiorari review 

of the Board’s decision denying their variance request. Following briefing by the 

parties, the circuit court reversed the Board’s decision. The court concluded that 

the Board had failed to apply the correct legal standard and that its decision to 

deny the variance was arbitrary. 

¶20 During its oral ruling, the circuit court explained that our supreme 

court set forth the legal standard for the issuance of an area variance in State ex 
No. 2023AP786

10

rel. Ziervogel v. Washington County Board of Adjustment, 2004 WI 23, 269 

Wis. 2d 549, 676 N.W.2d 401, and State v. Waushara County Board of 

Adjustment, 2004 WI 56, 271 Wis. 2d 547, 679 N.W.2d 514. The court stated that 

these cases require a board of adjustment to, among other things, “focus on the 

purpose of the ordinance in question when deciding whether to grant the variance” 

and balance “individual rights” against “the public interest in land-use 

regulations.” The court then explained:

[W]hen you look at whether this Board applied the correct 

legal theory, in reviewing the record, the transcript, their 

decision, I found absolutely nothing about the Board 

focusing on the purpose of the ordinance and balancing the 

public interest against the private interest of the Suttons. 

And, I mean, it’s just devoid.

I mean, I think there was maybe one of the 

members ... [who] said something about, well, the reason 

is that it would stick out a ways—I think referring to the 

building. That was about it.

The court later reiterated, “I didn’t hear anything about how this would harm the 

public interest whatsoever other than the one comment, oh, well, this would stick 

out.”

¶21 The circuit court also stated that the Board’s written decision

says ... just in a conclusionary fashion ... [that] the 

variance would be contrary to the public interest and would 

not observe the purpose of the ordinance and do justice. 

And—but there’s nothing—there was not a single thing, a 

discussion or the decision or the arguments or discussion 

by the Members of the Board as to why this would be 

contrary to the public interest, other than just, you know, 

it’s a variance. And maybe they [are] predisposed that they 

didn’t want to grant variances. It seems to me that in a 

sense, just saying that without going through the analysis is 

an epitome of an arbitrary decision.
No. 2023AP786

11

¶22 The circuit court therefore reversed the Board’s decision and ordered 

that the Suttons’ variance request “is now granted as originally applied for on 

July 25, 2022.” The court subsequently stayed its decision pending the resolution 

of this appeal.

DISCUSSION

¶23 “A person aggrieved by the issuance or denial of a zoning variance 

may commence an action in circuit court seeking the remedy available by 

certiorari[.]” Ziervogel, 269 Wis. 2d 549, ¶13. On appeal, we review the Board’s 

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

Green Bay, 2015 WI 50, ¶42, 362 Wis. 2d 290, 865 N.W.2d 162. In doing so, we 

must accord a presumption of correctness and validity to the Board’s decision, and 

we may not substitute our discretion for that of the Board. See Ziervogel, 269 

Wis. 2d 549, ¶13. Our review is limited to: (1) whether the Board kept within its 

jurisdiction; (2) whether the Board proceeded on a correct theory of law; 

(3) whether the Board’s 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. 

See id., ¶14.

¶24 Here, the circuit court reversed the Board’s decision on the grounds 

that the Board had proceeded on an incorrect theory of law and that its decision 

was arbitrary. Whether the Board applied an incorrect theory of law or made an 

arbitrary decision are questions of law that we review independently. See 

Driehaus v. Walworth County, 2009 WI App 63, ¶13, 317 Wis. 2d 734, 767 

N.W.2d 343.
No. 2023AP786

12

¶25 A county board of adjustment has the power to grant a variance “that 

will not be contrary to the public interest, where, owing to special conditions, a 

literal enforcement of the provisions of the ordinance will result in unnecessary 

hardship, and so that the spirit of the ordinance shall be observed and substantial 

justice done.” WIS. STAT. § 59.694(7)(c)2. (2021-22).4In Ziervogel, our supreme 

court “reaffirm[ed]” that the standard for unnecessary hardship set forth in Snyder 

v. Waukesha County Zoning Board of Adjustment, 74 Wis. 2d 468, 247 N.W.2d 

98 (1976), applies when a property owner requests an area variance—as the 

Suttons did in this case—as opposed to a use variance.

5 See Ziervogel, 269 

Wis. 2d 549, ¶7. Under the Snyder standard, to determine whether an unnecessary 

hardship exists, the question is “[w]hether 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, ¶7 (alteration in original; quoting Snyder, 74 Wis. 2d 

at 475); see also § 59.694(7)(c)3.

¶26 The burden of proving unnecessary hardship rests with the property 

owner. Ziervogel, 269 Wis. 2d 549, ¶20. The hardship must be based on 

conditions unique to the property rather than considerations personal to the 

property owner, and it may not be self-created. Id. In addition, “variance requests 

 

4

 All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise 

noted.

5

 An area variance is “a modification to a dimensional, physical, or locational 

requirement such as the setback, frontage, height, bulk, or density restriction for a structure[.]” 

WIS. STAT. § 59.694(7)(c)1.a. A use variance is “an authorization by the board of 

adjustment ... for the use of land for a purpose that is otherwise not allowed or is prohibited by 

the applicable zoning ordinance.” Sec. 59.694(7)(c)1.b.
No. 2023AP786

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are always evaluated in light of the purpose of the zoning ordinance and the public 

interests at stake.” Id., ¶33. Accordingly, determining whether a property owner 

has met the standard for unnecessary hardship “depends upon a consideration of 

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

effect of a variance on the neighborhood and larger public interest.” Id.

¶27 As discussed above, in this case, the circuit court concluded that the 

Board had proceeded on an incorrect theory of law when analyzing the Suttons’ 

variance request because there was “nothing” in the record showing that the Board 

had “focus[ed] on the purpose of the ordinance and balanc[ed] the public interest 

against the private interest of the Suttons.” The court noted that during the hearing 

before the Board, there was no discussion “about how this would harm the public 

interest whatsoever other than the one comment, oh, well, this would stick out.” 

The court also observed that while the Board’s written decision stated that “the 

variance would be contrary to the public interest and would not observe the 

purpose of the ordinance,” the Board had provided no explanation in support of 

that conclusion.

¶28 On appeal, the Board argues that it was the circuit court that failed to 

apply the correct legal standard. According to the Board, there is no requirement 

that a board of adjustment “engage in a balancing of public interests against 

private interests” when deciding whether to grant an area variance. Instead, the 

Board asserts that it is required “to consider the facts of the individual case in light 

of the purpose of the ordinance to determine whether unnecessary hardship 

exists,” and “[o]nce the issue of unnecessary hardship has been determined, the 

board is then authorized by [WIS. STAT. §] 59.694(7)(c)2[.] to grant a variance 

from the terms of the ordinance that will not be contrary to the public interest.” 

Stated differently, the Board argues that consideration of the public interest does 
No. 2023AP786

14

not come into play until after it has determined that a property owner has 

demonstrated unnecessary hardship.

¶29 The Board’s argument in this regard is contrary to our supreme 

court’s decision in Ziervogel. There, the court expressly stated that “whether the 

Snyder [unnecessary hardship] 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 variance on the neighborhood and larger public 

interest.” Ziervogel, 269 Wis. 2d 549, ¶33 (emphasis added). The 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. During 

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. Specifically, the Board argues that we should 

“break[] ... down” this sentence and interpret the first two list items—i.e., “a consideration of the 

purpose of the zoning restriction in question” and “its effect on the property”—as applying to a 

determination of whether unnecessary hardship exists, and we should interpret the third list 

item—i.e., “the effect of a variance on the neighborhood and larger public interest”—as applying 

only after a board has determined that an unnecessary hardship is present. See id., ¶33. The 

sentence’s structure does not support this interpretation. The sentence lists three factors that a 

determination of unnecessary hardship “depends upon.” See id. There is nothing to suggest that 

the third factor should be treated differently from the first two factors, simply because the third 

factor is listed last.
No. 2023AP786

15

addition.7 Although one Board member noted that the addition “would be sticking 

out to the west further than” the neighboring homes and later stated that she was 

“hung up on ... the harm to the public,” neither she nor any other Board member 

expressly addressed the Ordinance’s purpose or explained how granting a variance 

would affect the public interest.

¶31 In its written decision, the Board merely stated that granting the 

variance “would be contrary to the public interest and would not observe the 

purpose of the Ordinance and do justice.” However, the Board did not provide 

any explanation for those conclusory statements, and under the circumstances, 

they do not show that the Board actually considered the public interest and the 

Ordinance’s purpose when making its decision.

¶32 In an attempt to remedy these deficiencies, the Board directs us to 

the Staff Report. Because the Staff Report was made part of the record, the Board 

asserts that it necessarily “took into consideration the portion of the Staff Report 

regarding [the] Public Interest” when making its decision. The Board makes a 

similar argument regarding the purpose of the Ordinance, asserting that because 

the Ordinance’s statement of purpose was included as part of the record, the Board 

must have considered the Ordinance’s purpose. These arguments are unavailing. 

The fact that evidence relevant to a particular issue is present in the record does 

 

7

 On appeal, the Board suggests that its decision should be affirmed because it correctly 

determined that there is a compliant alternative location for the Suttons’ proposed addition. We 

take no position on the appropriateness of the Board’s determination regarding the existence of a 

compliant alternative location. For purposes of our resolution of this appeal, it is sufficient for us 

to conclude that the Board applied an incorrect theory of law and that its decision was arbitrary, 

both of which conclusions justified the circuit court’s reversal of the Board’s decision. On 

remand, the Board must focus on the purpose of the Ordinance and balance the public interest 

against the private interest of the Suttons. 
No. 2023AP786

16

not show that the Board actually considered that evidence or issue before reaching 

its decision.

¶33 The Board also asserts that based on the evidence presented, it was 

“clear ... that the property presented no unique limitations that were not 

self-created and that [the Suttons] themselves had submitted an alternative location 

which did not require a variance to fully comply with all setback requirements 

under the ordinance[.]” The Board contends that, under these circumstances, “it 

was clear that the granting of a variance would be contrary to the public interest 

and would not observe the purpose of the ordinance.” These assertions do not 

change the fact that neither the Board’s oral discussion nor its written decision 

shows that the Board actually considered the public interest or the Ordinance’s 

purpose when making its decision. In other words, even if the Board found that 

the limitations on the Sutton’s use of the property were self-created and an 

alterative location was viable, the Board failed to weigh those property limitations 

and the Sutton’s issues with the alternative location against the effect of the 

variance on the neighborhood and the public interest in maintaining the highway 

setback. 

¶34 For similar reasons, we also agree with the circuit court that the 

Board’s decision to deny the variance request was arbitrary. A decision is 

arbitrary “if it is unreasonable or without a rational basis.” Snyder, 74 Wis. 2d at 

476. A board’s decision must contain the reasons for the action taken, and it may 

not simply parrot the language of the applicable statute. Lamar Cent. Outdoor, 

Inc. v. Board of Zoning Appeals of City of Milwaukee, 2005 WI 117, ¶28, 

284 Wis. 2d 1, 700 N.W.2d 87.
No. 2023AP786

17

¶35 Again, when determining whether the Suttons had proved 

unnecessary hardship, the Board was required to consider “the effect of a variance 

on the neighborhood and larger public interest.” See Ziervogel, 269 Wis. 2d 549, 

¶33. As the circuit court correctly noted, although the Board’s written decision 

stated that the requested variance would be contrary to the public interest, there 

was nothing in “the decision or the arguments or discussion by the Members of the 

Board as to why [the variance] would be contrary to the public interest[.]” We 

agree with the court that simply stating that the variance would be contrary to the 

public interest, without providing any analysis in support of that conclusion, was

“an epitome of an arbitrary decision.”

¶36 We therefore affirm the circuit court’s decision in part, to the extent

the court concluded that the Board’s decision should be reversed. We conclude, 

however, that the court erred by ordering that “the variance request is now 

granted[.]” After determining that the Board had proceeded on an incorrect theory 

of law and that its decision was arbitrary, the court should have remanded the 

matter back to the Board to apply the correct legal standard and to provide an 

adequate explanation for its decision.8 See, e.g., Lamar Cent. Outdoor, Inc., 284 

Wis. 2d 1, ¶4 (remanding a case to a board of zoning appeals to apply the correct 

legal standard and adequately explain the reasons for its decision). We therefore 

reverse the court’s decision in part and remand with directions for the court to 

 

8

 Notably, the Board argued in its brief-in-chief that after the circuit court concluded that 

the Board had proceeded on an incorrect theory of law, the court “should have remanded the 

matter back to the Board” for it to apply the correct legal standard. The Suttons failed to respond 

to this argument in their response brief, and we therefore deem the point conceded. See

Charolais Breeding Ranches, Ltd. v. FPC Sec. Corp., 90 Wis. 2d 97, 109, 279 N.W.2d 493 

(Ct. App. 1979).
No. 2023AP786

18

remand this matter to the Board for further proceedings consistent with this 

opinion.

¶37 No costs to either party.

By the Court.—Order affirmed in part, reversed in part, and cause 

remanded with directions.

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

RULE 809.23(1)(b)5.