Marc A. Silverman v. Caledonia Board of Appeals

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.
May 15, 2024
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2023AP105 Cir. Ct. No. 2022CV598

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

MARC A. SILVERMAN,

PLAINTIFF-APPELLANT,

V.

CALEDONIA BOARD OF APPEALS,

DEFENDANT-RESPONDENT.

APPEAL from an order of the circuit court for Racine County:
DAVID W. PAULSON, Judge. Affirmed.

Before Gundrum, P.J., Neubauer and Lazar, 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. 2023AP105

¶1 PER CURIAM. Marc A. Silverman, pro se, appeals from a circuit
court order affirming, on certiorari review, the decision of the Caledonia Board of
Appeals (the Board) denying his request for variances. Specifically, Silverman
sought variances from ordinances governing accessory structures in his yard and
requiring that such structures be set back at least thirty-five feet from the street.
The denial of the variances makes it unlawful for Silverman to maintain the array
of thirty solar panels currently installed in his street yard with zero setback. We
conclude that the Board made an adequate record of its decision, based its decision
on sufficient evidence, and did not act contrary to law. Accordingly, we affirm.

BACKGROUND

¶2 There is no genuine dispute regarding the following facts.

¶3 In August 2021, the Village of Caledonia zoning department issued
Silverman a notice of a zoning violation for installing a solar array (thirty solar
panels, each eighteen square feet in area) in the street yard of his property located
on State Highway 31 in Caledonia. Prompting the notice was the fact that the
ordinance required a street-yard setback of thirty-five feet for the solar array, and
Silverman had set up the array with zero setback. The notice provided Silverman
with one month to move or remove the solar panels. He failed to comply.

¶4 Silverman sought permits for the solar array from Caledonia village
staff. Village staff determined that the solar array was not an essential service and
that the power array in aggregate (all of the solar panels) was one accessory
structure in excess of that permitted by ordinances in effect at the time. Therefore,
village staff denied Silverman’s permit application.

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¶5 In December 2021, Caledonia codified Ordinance
16-1-1(a)(11)(a)(10), which only permitted ground solar power arrays in the side
or rear yard in all residential districts within the village. Silverman’s property is in
a residential district. The ordinance specifically prohibited solar power arrays in
the street yard and did not include any provision for “grandfathering.”

¶6 Silverman next brought this matter before the Board appealing the
two determinations made by village staff and seeking two variances to permit the
installation of the solar array in his street yard with no setback from the street.
After considering the testimony and other evidence presented at the hearing in
light of the Municipal Code provisions at issue, the Board issued a written
decision. It made the following findings of fact:

• That a solar power array is not an essential service as
defined by code and is deemed a supplemental form or
use of electrical power.

• That the size of a solar array structure should include
the grouping of solar panels when calculating the size
of the structure and comply with accessory structure
regulations.

• That the variance would not be consistent with the
purpose and intent of the regulations for the district as
the Village Board decided to prohibit solar arrays in
street yards of residential properties.

• That the parcel in question does not have any
exceptional circumstances as there are other parcels
which are wooded and have lower elevations than the
abutting road.

• The applicant testified that there are expenses
associated with using other forms of energy sources,
however, economic hardship or self-imposed hardships
cannot be the sole basis for granting a variance.

• The variance is not necessary for the preservation of
utilizing a solar array on the property. The property
owner has options to install a solar array on the
property and comply with existing regulations.

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No. 2023AP105

Based on these facts, the Board disagreed with Silverman’s interpretations of the
relevant ordinances and denied his application for the variances.

¶7 Silverman sought certiorari review in the Racine County Circuit
Court. The court affirmed the Board’s decision. Silverman appeals.

DISCUSSION

¶8 On appeal, we review the Board’s decision, not the decision of the
circuit court. Roberts v. Manitowoc Cnty. Bd. of Adjustment, 2006 WI App 169,
¶10, 295 Wis. 2d 522, 721 N.W.2d 499. The Board’s decision is presumptively
correct and valid. State ex rel. Ziervogel v. Washington Cnty. Bd. of Adjustment,
2004 WI 23, ¶13, 269 Wis. 2d 549, 676 N.W.2d 401. As we may not substitute
our discretion for that committed to the Board by the legislature, we will not
disturb the Board’s findings if any reasonable view of the evidence sustains them.
Id.

¶9 On certiorari review our inquiry is limited to whether the Board
(1) kept within its jurisdiction; (2) proceeded on a correct theory of law; (3) acted
in a way that was arbitrary, oppressive or unreasonable and that represented its
will, not its judgment; and (4) reasonably might have made the order or
determination in question, based on the evidence. Roberts, 295 Wis. 2d 522, ¶11.

¶10 Silverman does not, and could not, challenge the Board’s jurisdiction
to decide the variance application. See WIS. STAT. § 59.694(1), (7) (2021-22).1
Rather, he argues that the Board exceeded its jurisdiction by enacting ordinances

1
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.

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No. 2023AP105

restricting the use of solar energy, including prohibitions against solar arrays in the
street yard and thirty-five foot setback provisions. He further argues that members
of the Board were without jurisdiction to decide his appeal due to perceived
conflicts of interest.

¶11 The Board is charged with interpreting, applying, and enforcing the
Caledonia ordinances. Moreover, it had the benefit of the parties’ pro and con
positions on the matter, including testimony and written submissions. Silverman
has not convinced us that the Board’s interpretation of its own ordinances is
incorrect. See Roberts, 295 Wis. 2d 522, ¶16. We conclude the Board acted
within its legislatively granted authority.

¶12 We next consider whether the Board proceeded on a correct theory
of law. Through WIS. STAT. § 59.694(7)(c), the legislature has delegated to local
boards of adjustment substantial discretion to grant variances where literally
applying zoning regulations would result in “unnecessary hardship not justified by
the underlying purposes of the ordinance in question.” State ex rel. Ziervogel, 269
Wis. 2d 549, ¶19. The hardship cannot be self-created, must be proved by the
property owner, and must be based on conditions unique to the property rather
than considerations personal to the property owner. Id., ¶20. The variance must
observe the spirit of the ordinance and may not be contrary to the public interest.
Sec. 59.694(7)(c).

¶13 Silverman argues that the Board misinterpreted and misapplied the
law. He contends that compliance with the strict letter of the ordinances would
result in the unnecessary hardship of forcing him to remove solar panels which
provide him essential energy services. We disagree.

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¶14 The 169-page hearing and decision meeting transcript establishes
that the Board considered the sections of the ordinances relating to structure and
setback requirements, including their purpose and intent. It also considered
whether the property was unique such that complying with the ordinances would
pose an unnecessary hardship to Silverman and, if so, whether it was self-imposed
or merely economic. It found that the property was not unique, that the solar array
did not provide an essential service to Silverman, and that the hardship Silverman
claimed was purely economic and self-imposed. Finally, the Board considered the
impact on the community, finding that granting the variances sought for the solar
array in the street yard with no setback would be contrary to the public interest.

¶15 These all are appropriate considerations. See WIS. STAT.
§ 59.694(7)(c); see also State ex rel. Ziervogel, 269 Wis. 2d 549, ¶¶19-20. The
Board proceeded on a correct theory of law. See Kraemer & Sons v. Sauk Cnty.
Bd. of Adjustment, 183 Wis. 2d 1, 8-9, 515 N.W.2d 256 (1994).

¶16 Silverman also complains that the Board’s decision was arbitrary
and represented its will, not its judgment, because it denied the variance based on
its “personal feelings” and “vague unspecific references to ‘the code.’”

¶17 The Board’s written decision cited numerous reasons for denying
Silverman’s request for a variance. The lengthy transcript fleshes out those
findings. Reading the written decision and transcript together, we conclude that
the Board adequately set forth both the criteria under which it rejected Silverman’s
variance requests and the grounds for the denial. See Lamar Cent. Outdoor, Inc.
v. Bd. of Zoning Appeals, 2005 WI 117, ¶¶26-27, 284 Wis. 2d 1, 700 N.W.2d 87.
A determination that has a rational basis is not arbitrary. Van Ermen v. DHSS, 84
Wis. 2d 57, 64, 267 N.W.2d 17 (1978).

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¶18 Finally, we consider whether the Board’s decision was reasonable
and based upon the evidence. On certiorari, we apply the highly deferential
substantial evidence test to determine whether the evidence is sufficient. Clark v.
Waupaca Cnty. Bd. of Adjustment, 186 Wis. 2d 300, 304, 519 N.W.2d 782
(Ct. App. 1994). Under the “substantial evidence” test, 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 the evidence
could also support a contrary determination. See Sills v. Walworth Cnty. Land
Mgmt. Comm., 2002 WI App 111, ¶11, 254 Wis. 2d 538, 648 N.W.2d 878.

¶19 Silverman argues that the Board’s decision was unreasonable.
Claiming that the Board employed “[c]onclusory statements and circular logic,” he
implies that no reasonable person could have reached the conclusions that the
Board reached regarding his application for variances. However, Silverman fails
to point to any credible evidence which reasonably calls the Board’s decision into
question. As such, Silverman’s arguments fail under the substantial evidence test.

¶20 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. Silverman failed to rebut the
“presumption of correctness and validity” attaching to the Board’s determination
that he did not satisfy the necessary standards. See State ex rel. Ziervogel, 269
Wis. 2d 549, ¶14; Sills, 254 Wis. 2d 538, ¶11. Thus, we do not have a basis to
reverse the Board’s exercise of its discretion in denying Silverman’s variance
applications. We therefore affirm.

By the Court.—Order affirmed.

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This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

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