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COURT OF APPEALS
DECISION                                                           NOTICE
DATED AND FILED
This  opinion  is  subject  to  further  editing.  If
published, the official version will appear in the
bound volume of the Official Reports.
January 31, 2001
                                                                                             A  party  may  file  with  the  Supreme  Court  a
                                                                                             petition  to  review  an  adverse  decision  by  the
                                                                   Cornelia G. Clark
                                                                                             Court of Appeals.   See WIS. STAT. § 808.10 and
                                                                   Clerk, Court of Appeals
                                                                                             RULE 809.62.
                                                                   of Wisconsin
No.                                                                00-0864
STATE OF WISCONSIN                                                 IN COURT OF APPEALS
                                                                   DISTRICT II
WILBERT ERICKSON,
PETITIONER-RESPONDENT,
V.
GREEN LAKE COUNTY BOARD OF ADJUSTMENT,
RESPONDENT-APPELLANT,
STATE OF WISCONSIN,
INTERVENING-APPELLANT.
APPEAL from an order of the circuit court for Green Lake County:
WILLIAM M. McMONIGAL, Judge.   Reversed.
Before Nettesheim, Anderson and Snyder, JJ.




No. 00-0864
¶1                                                                                        PER CURIAM.      The Green Lake County Board of Adjustment (the
board) has appealed from a circuit court order issued in a certiorari review.   The
circuit court reversed a decision by the board denying a variance to the respondent,
Wilbert Erickson.   Pursuant to an order issued by this court on May 17, 2000, the
State of Wisconsin was permitted to intervene in this appeal.   Like the board, the
State seeks reversal of the circuit court’s decision.
¶2                                                                                        Erickson sought the variance to permit him to maintain a retaining
wall he had constructed on his property, which abuts Green Lake.   A variance was
required because the wall was located within seventy-five feet of the ordinary
high-water  mark  of  Green  Lake,  in  violation  of  GREEN  LAKE  COUNTY
SHORELAND PROTECTION ORDINANCE, No. 303-85 § 5.1 (1999)1 and WIS. ADMIN.
CODE § NR 115.05(3)(b)1.   We reverse the circuit court’s order.
¶3                                                                                        Our review of the circuit court’s decision is de novo.   See State ex
rel. Spinner v. Kenosha County Bd. of Adjustment, 223 Wis. 2d 99, 103, 588
N.W.2d 662 (Ct. App. 1998).   We are limited to determining:                              (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 evidence was such
that  it  could  reasonably  make  the  decision  in  question.    Id.    We  accord  a
presumption of correctness and validity to the decision of the board and will not
disturb the board’s findings if any reasonable view of the evidence sustains them.
See id. at 104.
1  All  references  to  GREEN  LAKE  COUNTY  SHORELAND  PROTECTION  ORDINANCE,
No. 303-85, are to the 1999 version.
2




No. 00-0864
¶4                                                                                        The board is authorized to grant a variance to the shoreland setback
requirements, provided it gives proper consideration to the purposes underlying
the  state  shoreland  zoning  regulations.    See  id.;  WIS.  STAT.                     § 59.694(7)(c)
(1997-98).2   Before it may grant a variance, the board must also determine that
literal enforcement of the provisions of the shoreland setback ordinance would
result in unnecessary hardship to the property owner seeking the variance due to
special conditions unique to his or her property, and that such a variance is not
contrary  to  the  public  interest.                                                      See  GREEN  LAKE  COUNTY  SHORELAND
PROTECTION ORDINANCE, No. 303-85 § 10.5.
¶5                                                                                        The  party seeking a  variance  has the  burden of  proving that an
unnecessary hardship will result if the variance is not granted.   See Spinner, 223
Wis. 2d at 104.   The hardship must be unique to the property and may not be self-
created or merely a matter of personal convenience.   See id.                             “[W]hen the record
before the Board demonstrates that the property owner would have a reasonable
use of his or her property without the variance, the purpose of the statute takes
precedence and the variance request should be denied.”   State v. Kenosha County
Bd. of Adjustment, 218 Wis. 2d 396, 414, 577 N.W.2d 813 (1998).                           “Only when
the applicant has demonstrated that he or she will have no reasonable use of the
property, in the absence of a variance, is an unnecessary hardship present.”   Id. at
421.
¶6                                                                                        The  board  rejected  Erickson’s  request  for  a  variance  after
determining that he had proven neither uniqueness nor an unnecessary hardship.
The  record  supports  the  board’s  decision.     It  indicates  that  after  Erickson
2  All references to the Wisconsin Statutes are to the 1997-98 version.
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No. 00-0864
constructed a home on his property, a neighbor complained about water runoff.
Erickson testified that he then constructed the concrete retaining wall to contain
storm water in a retention area, and to prevent it from running onto his neighbors’
property.   The wall ranges from one to two feet high, and essentially encloses the
shoreland side of the property.   It intrudes into the seventy-five foot setback area,
and at its closest point is approximately thirty-five to forty feet from Green Lake.
Erickson indicated that he intends to construct a dry well within the area enclosed
by the retaining wall to drain the collected storm water.
¶7                                                                                         Erickson  presented  testimony  by  James  Smith,  a  civil  and
environmental  engineer,  indicating  that  Erickson’s  property  represented  a
topographical high point in relation to the surrounding lots.   Smith testified that a
drainage system was necessary to prevent storm water from draining unreasonably
from Erickson’s property onto the neighboring lots.   He testified that the retaining
wall ended at the top of a steep bluff which dropped down to the lake and would
reduce erosion of the bluff and runoff into the lake.   He testified that intrusion into
the setback area was necessary to provide an adequate retention area.   He testified
that he considered the retaining wall to be the minimum intrusion necessary to
achieve the goals of the water drainage system.   When asked if there were other
methods available, he testified:
Earthen berm along there would probably take up most of
the space to try to—try to—you have to, see, raise it up to
about 3 to 1 slope, and figure come up couple feet high,
you’re talking about  12 feet along the side—you would
actually—it’s  still  not  going  to  help  the  front  erosion
problem.
.…
Rock or riprap, water can basically go right through.   It’s
not going to actually stop it and retain it.
4




No. 00-0864
¶8                                                                                                      No other testimony on the subject of alternative drainage methods
was offered.
¶9                                                                                                      Erickson contends that without the retention wall drainage system,
he will have no reasonable use of his property, and that he therefore has met his
burden of proving unnecessary hardship.   This argument fails because nothing in
the record provides a basis to conclude that absent the retaining wall, Erickson will
be unable to maintain a residence on the property or will be required to remove the
dwelling he has already built.   Because he is able to maintain a residence, he may
make reasonable use of the property.   Although denial of a variance and removal
of the retaining wall may require him to find an alternative method of dealing with
storm water runoff, including installing a more sophisticated or expensive system,
that fact alone does not deprive him of a reasonable use of the property.
¶10    In making this determination, we reject Erickson’s contention that he
presented  uncontroverted  evidence  which  established  that  the  retaining  wall
system was the only method to deal with storm water runoff, and that the retaining
wall was thus essential to permit him to maintain a residence on the property.3
Although  no  expert  testimony was  offered in  opposition  to  the  testimony by
Smith, a board may not find unnecessary hardship or uniqueness merely because
no one objects to the granting of the variance or because the objectors fail to
present evidence to refute the evidence of the applicant.   See Kenosha County Bd.,
218 Wis. 2d at 416.   Moreover, as set forth above, Smith’s discussion of possible
3  In his brief on appeal, Erickson also relies on what he refers to as the “testimony” of
his attorney at the hearing before the board.   He contends that his attorney “specifically testified
that no reasonable use of the property could be made without the drainage system and the
encumbering of the setbacks.” However, counsel was not a witness at the hearing, and his
statements were made in the context of argument and questioning of the witnesses.   They cannot
be considered as evidentiary support for a claim that no alternative drainage system existed.
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No. 00-0864
alternative methods of dealing with the storm water runoff, including the possible
use of earthen berms, was vague and confusing.   The board was not required to
accept it as credible or to find, based upon it, that no alternative methods of
dealing  with  the  storm  water  existed,  and  that  Erickson  could  reside  on  his
property only if he was permitted to maintain the retaining wall within the setback
area.
¶11    We also uphold the board’s determination that Erickson failed to
meet his burden of proving that his property is unique.   In alleging the uniqueness
of his property’s topography, Erickson contends that it sits atop a large hill, with
steep bluffs on at least two sides, causing unreasonable storm water drainage onto
neighboring properties and into the lake absent the retaining wall.   However, the
record does not establish that Erickson’s property is the only hilltop property in
the area.   When the hardship imposed on the applicant’s land is shared by nearby
land, a variance is not the appropriate relief.   See id. at 420.   Moreover, the steep
slopes and erosion concerns do not, standing alone, provide a basis to conclude
that special conditions unique to the property necessitate a variance.   See id.   As
already pointed out, Erickson was required to present evidence demonstrating that
no  other  drainage  system  could  incorporate  the  setback  requirement  on  his
property.   Because he failed to prove that the retention wall drainage system was
essential to his ability to reasonably use his lake home, a reasonable use for his
property without a variance remains a possibility, and the board properly denied
his request for a variance.4   See Spinner, 223 Wis. 2d at 107.
4  Because the board reasonably found that Erickson failed to establish unnecessary
hardship due to unique conditions of the property, it was not required to address whether granting
a variance would be contrary to the public interest.
6




No. 00-0864
¶12    In reversing the circuit court’s order, we also briefly address the
argument that the circuit court improperly enlarged the record by inspecting the
site and relying on its own observations in reversing the board’s decision.   We
agree with the argument as propounded by the State and the board.   The record
indicates that prior to making its decision in the certiorari review, the circuit court
visited the site and made observations which it ultimately incorporated as findings
in its decision.   It did so without notice to the parties and without giving them any
opportunity to participate in the on-site visit.
¶13    This procedure was improper.    Certiorari review proceedings are
generally limited to the record made before the administrative body.   See Ledger
v. Waupaca Bd. of Appeals, 146 Wis. 2d 256, 261, 430 N.W.2d 370 (Ct. App.
1988).   Although WIS. STAT. § 59.694(10) permits the taking of evidence in the
circuit court “[i]f necessary for the proper disposition of the matter,” it is clear that
the circuit court was not acting pursuant to this provision in inspecting the site.
The  taking  of  additional  evidence  contemplates  notice  to  the  parties  and
participation by the parties in the presentation of the evidence.   An unannounced,
unaccompanied, and unrecorded view of a scene by a trial court judge, even when
the judge is acting as the trier of fact at a trial, constitutes error.   See Am. Family
Mut. Ins. Co. v. Shannon, 120 Wis. 2d 560, 569, 356 N.W.2d 175 (1984).   The
circuit court was not acting as the trier of fact in this case, and, even if it had been,
it committed error by viewing the scene without the knowledge of the parties.
By the Court.—Order reversed.
                                                                                            This  opinion  will  not  be  published.     See  WIS.  STAT.  RULE
809.23(1)                                                                                   (b)5.
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