The Lighthouse Pub in Wescott gets to keep its concrete patio after a circuit court ruling Wednesday ended a four-year legal battle with the Shawano County Board of Adjustment.
Owners Jeff and Tammy Stachowiak have been fighting an order to remove the patio since 2009 when their original request for an after-the-fact variance was denied.
“We knew we were right all along,” Jeff Stachowiak said after the ruling. “It cost a lot of money to prove we were right, but it’s worth it in the long run.”
“I’m just glad it’s all over,” Tammy Stachowiak said.
The Board of Adjustment had been court-ordered in April 2012 to explain the reasoning behind the 2009 denial, but at their July 2012 meeting, board members — several of them new to the board since the previous decision — concluded there was not sufficient information in their records to provide a more detailed explanation.
They decided to start their review from scratch, hearing new testimony and visiting the Lighthouse property at W6440 Gumaer Road.
In the end, however, they voted 3-2 in September 2012 to uphold the 2009 denial, sending the matter back to court.
Kristine Pihlgren, attorney for the Stachowiaks, argued the board’s denial was arbitrary and unreasonable during a hearing in Shawano-Menominee County Circuit Court on Wednesday. She said the board did not make a decision based on the facts of the case.
Pihlgren also argued the Stachowiaks had met the burden of proving a hardship that required a variance for the patio.
Pihlgren said her clients relied on the advice of contractors and a county Zoning Department employee who told them they did not need a variance to replace the tavern’s aging wooden deck with a more aesthetic and handicapped-accessible concrete patio.
It was not until a year later that the new patio was put in place, but in the meantime — unbeknownst to the Stachowiaks, Pihlgren argued — the county’s rules changed, and a variance would be needed.
John Bruce, attorney for the board, said the board followed the county’s zoning ordinance and had no choice but to deny the variance.
The zoning code calls for several conditions to be met for a variance to be granted: The property would have to have unique physical limitations; denial of the variance would create a hardship on the property owner; or a denial would be contrary to the public interest.
Bruce said the public interest in terms of the zoning code means protecting the environment.
“The board is stuck with the law and sometimes they have to make unpopular decisions,” he said.
The Stachowiaks had wide community backing, with some 100 supporters crowding into a basement meeting room at the courthouse last year to rally the board to grant a variance.
Dozens of supporters also attended Wednesday’s hearing, breaking into applause when Judge William Kussel Jr. issued his ruling.
Kussel immediately cut the applause off and told spectators to take their response and comments into the hall.
Kussel grilled both attorneys during the hearing about what they believed were the reasons for the county zoning ordinance, what the definition of a hardship is and what is meant by “the public interest.”
Pihlgren argued those interests should also include the economic interests of the community.
In handing down his ruling, Kussel said the transcripts of the Board of Adjustment meetings do not show much discussion of what should have been key points in the board’s decision.
He said not much time was spent talking about whether the Lighthouse property had unique characteristics that warranted a variance, or what environmental harm might be caused by the patio.
Instead, Kussel said, there was more discussion of other matters such as whether the patio was accessible to the handicapped.
“I find the board had insufficient basis at this point to deny the variance,” Kussel said.
Kussel said he wasn’t chastising the board and noted it was a complicated issue, but he said the denial was capricious and arbitrary and reflected board members’ will rather than the facts.
Kussel ordered the board to grant a variance.
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