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Real estate transactions are complicated enough without the increased confusion caused by the uncertain status of a zoning variance. To ensure that local governments, property owners and REALTORS^® have greater certainty about when a zoning variance expires, the WRA is seeking to clarify the law regarding the expiration of local zoning variances.

Background

Variances are important land-use tools used by municipalities to grant relief to property owners on a case-by-case basis when current local zoning regulations placed unreasonable restrictions on the ability of such property owners to use and enjoy their property. For example, if a property owner wants to construct a deck or add an additional bathroom on the back of his or her house, and the current rear-yard setback requirement prohibits such an improvement, the municipality will often grant a variance and allow the deck or bathroom to be constructed if the impact on neighboring residents and the community is negligible. This practice allows property owners, whose lifestyles require more modern conveniences, to update their older homes rather than being forced to move to newer homes.

Currently, Wisconsin law is unclear as to whether variances automatically expire after a certain period of time. Wisconsin courts have not addressed if and when variances expire in cases where a municipality has not expressly identified such a date either by ordinance or at the time of granting a variance. However, other states follow the rule that a zoning variance does not expire as long as the circumstances warranting the variance have not changed. The underlying rationale for allowing variances to exist without expiration is that the purpose of a variance is to allow a property owner to make reasonable use of his or her property and, thus, a variance should not expire unless the circumstances affecting the property have changed so that the property can be used in the desired without the variance.

Proposed Solution

To clarify the law in Wisconsin, the WRA is working with legislators to introduce legislation that would indicate that variances from local zoning ordinances run with the land and do not expire unless expressly stated by the local municipality on or before the date the variance was granted. Specifically, the legislation would state that a variance from a local zoning ordinance does not expire unless (a) the municipality granting the variances has expressly established an expiration date for variances by ordinance, or (b) the local board of appeals/adjustment that granted the variance establishes an expiration date at the time the variance was granted.

Why This Is Important to REALTORS^®

While disputes over the validity of variances are not widespread, they do happen and often during the middle of transaction. Several REALTORS^® have been involved recently in transactions where disputes between the property owner and local government occurred over the validity of zoning variances. The disputes were eventually worked out, but not before significant delays and legal expenses were incurred by the property owner. Moreover, REALTORS^® need to be careful when marketing property that is subject to a zoning variance to make sure that the variance has not expired.

For more information on this proposed legislation, please contact Tom Larson at tlarson@wra.org or at (608) 240-8254.

Tom Larson is Chief Lobbyist and Director of Legal and Public Affairs for the WRA.