The summer 2026 issue of the Marquette Lawyer magazine has a number of entries concerning the Hon. Diane S. Sykes, L’84, including a set of one-page essays by seven different faculty on how their Marquette Law School courses draw on her writings as a judge of the U.S. Court of Appeals for the Seventh Circuit since 2004 or as a justice of the Wisconsin Supreme Court between 1999 and 2004. This is the fifth of the seven essays. The illustration of the faculty member, taken from the magazine and appearing here with the blog post, is by John Jay Cabuay.
I switch over late in the semester in first-year Property from traditional common-law doctrine to modern zoning law. The students for the most part welcome the switch, but some find the abundant map amendments, conditional permits, special uses, and assorted variances as problematic additions to existing zoning ordinances. Fortunately for instructor and students alike, Justice Diane Sykes’s thoughtful opinion for the Wisconsin Supreme Court in State ex rel. Ziervogel v. Board of Adjustment (2004) not only sorts out the state standards for variances but also provides a valuable metaphor for understanding how variances might best be conceived.
The case itself involved a request for a variance from Richard Ziervogel and Maureen McGinnity, of Washington County. Ziervogel and McGinnity owned a property that fronted Big Cedar Lake and included a 1,600-square-foot summer home, located 26 feet from the high-water line for the lake. In hopes of converting the summer home to a year-round house, Ziervogel and McGinnity sought to add 10 feet to the top of their summer home, a vertical addition that would ultimately include an office and two bedrooms. In order to do so, they requested a variance because the local zoning ordinance prohibited the expansion of any structure within 50 feet of the lake. The local zoning board had denied the request, and the case, as it came through the courts, concerned the standard properly to be applied in considering a variance.
Justice Sykes’s opinion begins by reiterating the distinction between “use” and “area” variances, noting that while an area variance might change the shape and size of a structure, this type of variance was unlikely to be much of a threat to the character of a neighborhood. To Justice Sykes’s consternation, the reigning case law failed to appreciate this or to distinguish between the two types of variances when setting standards for petitioners’ requests for variances. For both a use variance and an area variance, a petitioner was required to show “no reasonable use” of the property was possible without a variance. This standard would obviously have prevented the petitioners in State ex rel. Ziervogel from obtaining a variance. After all, they already owned and presumably enjoyed their summer home on Big Cedar Lake.
After making her way through the confusing and frequently changed Wisconsin case law, Justice Sykes articulated a more appropriate standard. Henceforth, she stated, petitioners for an area variance need only show that compliance with a zoning ordinance would be “unnecessarily burdensome.” A court might determine if petitioners met this standard by considering the purpose of the zoning ordinance at hand and also the public interests that were at stake. Justice Sykes’s opinion then remanded the case for further proceedings involving the correct standard.
Ziervogel and McGinnity were no doubt pleased by Justice Sykes’s reasoning and her restatement of the variance standard, and, in addition, Wisconsinites benefited from greater clarity and thoughtfulness regarding how to perceive area variances in general. Interestingly enough, Justice Sykes achieved this larger purpose not through anything as pedestrian as a denotative rule but rather through a connotative metaphor.
Elaborating on a suggestion from a venerable practice guide by E.C. Yokley, Justice Sykes advised that a variance could be conceived of as an “escape valve.” The latter is a safety mechanism that releases excessive pressure from a container or a piece of machinery. Customarily spring-loaded, an actual escape valve opens automatically when internal pressure exceeds external pressure. An escape valve guards against equipment damage and, horrors, might even prevent the container or piece of machinery from exploding.
When the metaphor is invoked in zoning law, the variance as an “escape valve” provides the system with a way to avoid unduly rigid controls on property owners. The variance releases the pressure they might feel from well-intentioned but seemingly inflexible zoning ordinances. First-year Property students troubled by the way variances confuse and complicate zoning ordinances may take to heart Justice Sykes’s reminder that variances are actually valuable devices for making zoning work more prudently.