July 28, 2011
Author: Robert Procter

The Wisconsin Builders Association Hot Line is a service provided for the Wisconsin Builders Association by the law firm of Axley Brynelson, LLP. Legal Hot Line Answers should be considered a general statement of applicable legal information. Given this format, it is impossible to fully address all potential legal issues which might apply in any particular situation. A determination of any individual’s legal rights in a transaction can only be obtained after a complete analysis of the law and its applicability to the particular fact situation. Please contact the author of the article if additional information is needed, or private counsel, if legal advice is needed.

May a code officer deny a building permit to construct a full kitchen in the basement of a single family residence because the code officer is of the opinion that adding the second kitchen would turn the single family residence into a duplex, which is prohibited in the applicable zoning district?

A: The answer to this question generally turns on the language of the zoning ordinance – in this case, the definition of a “single family residence” as compared to a “duplex.”

Using the City of Appleton ordinances as an example, a single family dwelling is defined as “a residential building containing one dwelling unit.” A two family dwelling (i.e., a “duplex”) is defined as “a residential building containing two dwelling units.” A dwelling unit is defined as “a residential building or portion thereof intended for occupancy by one family . . .” (emphasis added).

Under the above definition, intent becomes an important part of the code officer’s determination. Specifically, the dwelling unit must be intended for occupancy by more than one family to constitute a duplex. As a practical matter, the applicant would have to demonstrate how the remodeled house is not intended for use by two families. In practice, this is done by demonstrating that the current design of the house prevents its use as a two family dwelling, taking steps in the design or construction of the home improvement that would discourage its use as a two family dwelling (i.e., insuring there are not separate doors and stairwells that allow for private use of one section of the house) or by entering into an agreement with the municipality whereby the homeowner agrees to restrict the prohibited use. Once the applicant demonstrates the house will not or cannot be used for the prohibited use, the code officer must issue the permit, provided all requirements of the applicable ordinances have been met.

If the code officer does not issue the permit despite the applicant meeting all of the ordinance requirements, the next step in the process would be to get the basis for the denial in writing and appeal that decision to the board of appeals (if the decision is by a municipality with zoning powers) or the board of adjustment (if the decision is by a county). CAUTION: There are strict time lines that must be followed in making such an appeal and you should immediately seek legal advice and review the applicable ordinances. It is important to take this step to preserve any potential appeal rights to the court. If the board of appeals or board of adjustment rules against the applicant, the next step is to file a certiorari appeal with the circuit court. There is a strict deadline from the date the board of appeals or the board of adjustment files its decision to appeal that decision to the circuit court. If the appeal is not filed within that time period, the circuit court will not hear the matter, and the decision of the board of appeals or board of adjustment will be final.

Finally, it is our experience that trying to work with the municipal officials is often more effective than going through an appeal process. Generally, the applicant must identify the concerns of the code officer and address those concerns. This has the benefit of not taking up a significant amount of time and expense in the appeals process.

For more information about the Wisconsin Builders Association Hot Line, contact Robert Procter at 608.283.6762 or rprocter@axley.com.