Date: November 20, 2003
PRESENT: Bruce Duckworth (Chair), Robert Roloff, Halsey Sprecher, Richard Vogt, Linda White
STAFF PRESENT: Gina Templin, Dave Lorenz, Chad Hendee, Acting Corporation Counsel
OTHERS PRESENT: See individual appeal files for registration appearance slips.
Chairman Duckworth called the session of the Sauk County Board of Adjustment (BOA) to order at approximately 9:00 A.M. The Chair introduced the members of the Board, explained the procedures and the order of business for the day. The staff certified that the legally required notices had been provided for the scheduled public hearing. The certification of notice was accepted on a motion by Vogt, seconded by Roloff.
Motion carried 5-0.
The Board adopted the agenda for the November 20, 2003 session of the Board on a Motion by Sprecher, seconded by White.
Motion carried 5-0.
Motion by Roloff, seconded by Vogt to adopt the October 2003 minutes.
Motion carried 4-0 with White Abstaining.
COMMUNICATIONS: None to report.
APPEALS:
Chair Duckworth spoke of the notices stating a variance was requested, where in fact a special exception is what is requested and the board will note that.
Dave Lorenz, Environmental and Zoning Specialist, appeared and gave the history and background of the request. He then reviewed the photos and video of the site. Mr. Lorenz concluded with the staff recommendation of conditions to be placed on the request if approved by the Board.
Mr. Tim Johnson, applicant, appearing in favor of the request, stated that Mr. Lorenz covered the application well and was approved last year for personal use and local neighbor use to use the facility for riding during off season time when the weather is not nice for outdoor riding. He has recently been approached by a local instructor to use the facility to utilize during off season times for training and riding. He also stated he met with the local town board and they could not see any reason not to grant the permit. All activities will be done indoor and has ample parking for more than enough vehicles, 2 enterances/exits from the parking lot, which was approved by the County Highway Commissioner.
Duckworth asked he was boarding horses as well. Mr. Johnson stated he was not.
Duckworth asked if the structure would be increased. Mr. Johnson stated he would not be and is ample enough for what he is doing as well as accommodating the instruction.
Duckworth asked about the riding taking place outside. Mr. Johnson stated it is for indoor riding.
Vogt asked if the riding instructor would use their horses or ones owned by them. Mr. Johnson stated she brings her own horses and equipment. Vogt verified that this would merely be a place for her to hold instruction. Mr. Johnson stated that was correct and she would only be using the indoor facility when the weather didn't allow for outdoor sessions.
White asked about income from people utilizing the facility. Mr. Johnson stated he does not and would have income from the instructor, but doesn't plan on anything for sure. He has been approached by a handful of people to utilize the facility.
Duckworth asked if this was going to be a facility where it is advertised to use the facility for other to ride. Mr. Johnson stated right now he does not have that, but would like the opportunity to allow people to bring in their own animal and equipment and ride.
Sprecher asked about the horse traffic for the instructor. Mr. Johnson stated the clients do not have their own horses, but the trainer/instructor brings her horse for the instructions.
Ms. Sharon Stark, appearing as interest may appear, stated she has adjacent land to the stable and uses the stable. She has no objection to the building and uses up to this point but is concerned that any approval doesn't allow things to go on other than what she has witnessed, such as longer hours, outside lights, lighted signage, etc. Would not enjoy having more of a commercial aspect to it, but what has been testified today is ok.
Duckworth stated that there would be a need to have outside lighting for safety at night.
Seeing as no one wished to appear, Chair Duckworth closed the public portion of the hearing at 9:20 a.m.
Duckworth reviewed the request and the ordinance.
Motion by Roloff, seconded by Sprecher to grant the special exception permit with the conditions listed by Planning and Zoning.
Motion carried 5-0.
Chair Duckworth reminded the board that even though this hearing is similar to one that has already been heard, todays testimony is all new testimony and the previous case is not to be included with this.
Dave Lorenz, Environmental and Zoning Specialist, appeared and gave the history and background of the request and reviewed the photos and video of the site. Mr. Lorenz concluded with the staff recommendation of conditions to be placed on the request if approved by the Board.
Duckworth asked if this was an application for all of the subdivision or just the lots that are listed in Exhibit II,2, second paragraph. Lorenz stated this is an application for the shoreline area for cutting and/or filling and grading. Lot 15 is a separate issue and is on another application, so it is not included within this request. Duckworth stated 9 lots are described, does this cover just those 9 or the entire subdivision. Lorenz stated in his opinion it is just for those 9 lots and explained the tax parcel numbers that are listed at this time.
Vogt asked about Exhibit II,13, it shows lot 9, which is not listed on Exhibit II,2, as well as outlot 2 is not shown. Lorenz stated that is a question for the applicant.
Duckworth asked if there are other lots that have been graded that are a concern to Planning and Zoning. Lorenz stated those lots are the lots that the Director was concerned about.
Mr. Ronald Steiner, Agent, appearing in favor of the request, gave some history of the application, the site and the project and stated that his client was not quite sure on some of the restrictions of the filling and grading and apologized for that. He then reviewed the areas that were covered in the request, and were pin-pointed by Lance Gurney and this is what this application is for.He stated they are addressing the disturbance areas and nothing else.
Duckworth asked Mr. Steiner to go through the lots and explain where grading has taken place. Mr. Steiner referred to a blow-up version Exhibit II,12and stated that nothing was done to change the grading other than the clean up efforts in the removal of the old mobile homes, decks, etc. Outlot 1 had nothing on it and grading was done as far as clearing. Lot #1 had clearing done where the mobile home and deck were. Duckworth asked Mr. Steiner to draw on the exhibit for a better understanding of where the grading took place. He did so on Lot 1,2 and 3 and explained that the clearing/grading was done based on the removal of the mobile homes and other structures as well as the driveways that were pre-existing. He then explained Exhibit II,13,showing lots 9, 10, 11, and 13. Duckworth confirmed that this is all the filling and grading that was done on these lots. Mr. Steiner stated it isn't filling and grading to him, but what took place is the removal of existing structures and leveling off.
Vogt asked about the grading of driveways. Mr. Steiner stated they were graded to level them off, but is not aware of any material removal.
White asked about the curved line that surrounds the property. Mr. Steiner stated that delineates areas that previously had a more of a wooded area.
Roloff asked about the term "LCE". Mr. Steiner stated it means "Limited Common Elements".
Vogt asked about Exhibit II,2, an October 9th letter to Mr. Lorenz, states areas of disturbance and lot 9 is not mentioned in the letter and hasn't been discussed and outlot 2 is mentioned in the letter but is not shown on any of the exhibits. Mr. Steiner stated the areas that are shown were the ones that were given to them by the county. In terms of outlot 2, it is done already and was graded previously because of storm sewer construction. Vogt stated he wants to make sure that the board is considering everything the application covers.
Roloff asked Mr. Steiner to point out Outlot 2. Mr. Steiner stated that there is no maps showing outlot 2, but it is included in the request.
White asked if the permit is for what has already been done or if there will be additional filling and grading. Mr. Steiner stated that as the home site are developed, there will be additional filling and grading and that will have to be addressed when those sites are developed. The request is for filling and grading that has already taken place.
The board discussed the lots that were to be addressed and verified that all work has been done under this particular request.
Vogt asked about the next case to be heard and there is an exhibit with that showing outlot 2. Exhibit II,9 in SP-44-03. Mr. Steiner stated that was correct.
Duckworth then asked about the vegetation removal within 35 feet of the shoreline. Mr. Steiner gave an overview using Exhibit II,12 and 13 and then referred to the Landscape Architect.
Roloff asked Mr. Lorenz if Mr. Steiners statement was correct as far as the tree cutting. Lorenz stated there is not a lot of evidence of fresh tree cutting with the 35 feet, but feels there was a lot of shrubbery removal, but not being on the site prior to that removal, he can't verify exactly how much was removed.
Mr. Steiner then continued to explain the tree-cutting/shrubbery removal using Exhibit II,13.
Vogt stated that this was not done intentionally to clear the brush, but to clean up the area of the structures and asked if this was correct. Mr. Steiner stated he was not involved in working with the contractor at that time, so he can not say for sure. However looking back on this, more detailed instructions should have been given to the contractor to let him know what he could and couldn't do.
Duckworth asked about pictures or documentation of what the site looked like previously to the disturbance. Mr. Steiner stated he does not, but feels the video showed good information to what the site may have looked like and reminded the board that it was a residential use, a mobile home site and had many areas mowed, but did have some wooded areas and undergrowth, but predominantly a residential use.
White asked if there will be more clearing done if this permit is given. Mr. Steiner stated this permit request is for what has already been done. For further filling and grading request, they will have to come back.
Mr. Joel England, appearing in favor of the request, stated he is the landscape architect, and had taken a visual assessment of the sites to see if there was any bank disturbance or erosion to see what has transpired from the cutting and felt most of the disturbance was on Outlot 1 and appeared to be on the fringe of the 35 foot setback. He then explained what is included in the replanting plan.
Duckworth asked about recommendation of replanting bank cover and "care-free" areas. Mr. England stated that was correct and further explained what will be done on Outlot 1.
White asked about Exhibit II,12. Mr. England stated that was correct and spoke more about the trees that were cut and most of them were group very close together and spoke of productive tree growth. He also said that a lot of the growth that was cut, were aggressive plants and they will come back.
Mr. Ronald Steiner, reappearing in favor, addressed shielding proposed parking or structures and stated there will be none on Outlot 1. He then concluded with asking the board for their support and approval of the request.
Duckworth asked if he agrees with Mr. England. Mr. Steiner stated he's not a landscaper and has to trust him and has advised the clients that they can not mow or disturb anything within the 35 foot setback.
Mr. Cliff Schneider, appearing in favor of the request, stated that he is one of the owners/developers and stated he is probably the guy that is responsible for the clearing and explained what was there before things were cleared out. He stated they never dug into any ground, but merely graded the land and spent 3 months cleaning up the old tires, old metal and the outlot 1 is where they had the most issues and explained what happened there. He stated they never cut 1 tree and the only shrubs that were removed were done with a weed-wacker by himself.
Mr. William Cole, appearing in opposition on behalf of Steven Weynand, stated that Mr. Weynand owns 5 parcels within the development that are independent of the development and presented Exhibit VIII, 1 a map showing the lots owned by Mr. Weynand and if they are only trying to fix a violation that is already done, they have no reason to object, however if they are going beyond that, then they do have an objection. He then referred to the map and the shaded green areas are the same as the areas that were pointed out as cut/disturbed and interprets the permit to mean they will be doing more disturbance unless they plan to do their planting by hand. He also encourages the board to hold the applicant to exactly what their testimony is and feels the applicant hasn't provided adequate information for the board to make their decision and make the applicant be very specific and detailed. He then presented Exhibit IX, photos of the property showing erosion control and sediment going into Lake Wisconsin. Mr. Cole concluded with asking the board to asked the applicant to show more specifications and detail as to what was done and what is planned to be done before a decision is to be made on the request.
Mr. Steve Weynand, appearing in opposition, stated that he was on the site on Monday afternoon and on the east side of the project he saw maybe 5-9 trees cut on the top of the cliff and only counting the trees that are 5 inches or more in diameter because the smaller trees were mowed down. The largest tree that was cut was about 13 inches in diameter, all within the 35 foot distance of the Lake Wisconsin. Mr. Weynand used Exhibit VIII, 1 to show the location he is referring to and guesses it would be lot 25 or 26.
Roloff asked Mr. Weynand to explain where his photos were taken, which lot numbers. Mr. Weynand stated it is on LCE#7 where they discharge.
Mr. Richard Grant, appearing as interest may appear, stated he has much knowledge and history of the property and can answer any questions for the board and that the property had been in great neglect and described some of the vegetation that appeared within the 35 foot setback.
Mr. Joel England, reappearing in favor of the request, addressed the issue of disturbance and what is to be replaced and added to.
Roloff asked about the mechanical procedures used to plant. Mr. England stated much of the replanting will have to be done by hand. Roloff asked about tilling or grading. Mr. England stated none, other than a light brushing with rakes.
Mr. Jeff Schluter, appearing in favor of the request, stated he did appear in front of the board at the last meeting and the amount of development that happens around the lake would occur with mass grading and with theirs they tried to keep the vegetation and reminded the board that there was a lot of junk left on the property, shore and in the water and with the removal of the junk, equipment could have done damage in that, but they did not go in and remove any trees/shrubs.
White asked if they will be doing the construction on all the lots or will they have the right to have others and will those property owners be notified that if there is any filling/grading or tree cutting to take place, those individuals have to come to the board to address that. Mr. Schluter stated that was correct.
Roloff asked about the statements made by Mr. Weynand and if that would be the area that is to be heard in the next case. Mr. Schluter stated he was not sure and pointed out to the board that he was not sure if that fell within the 35 foot setback.
White stated that there is nothing going on for filling and grading within the 35 foot setback. Mr. Schluter stated that is correct. White asked about any other lots that will be coming in for a "Band-Aid" to fix something that has been done. Mr. Schluter stated there is not, and owners will be notified of the requirements.
Mr. Ronald Steiner, reappearing, reiterated that the areas addressed in this care were the ones pin-pointed by the Planning & Zoning Department.
Seeing as no one wished to speak, Chair Duckworth closed the public portion of the meeting at 11:03 a.m.
Duckworth reviewed the ordinance and request and stated that the filling and grading and tree cutting request will be handled separately.
The board discussed.
Motion by Roloff, seconded by Vogt to approve the request for filling and grading for the areas described as Outlot 1, Lots 1,2,3,10,11,12, and 13, and Outlot 2, as shown on Exhibit XI,9 from SP-44-03, along with the conditions listed by Planning & Zoning and no draining of materials onto the neighboring property.
Motion carried 5-0.
Motion by Vogt, seconded by Sprecher, to approve the request for tree cutting and shrubbery removal and replanting plan, with the conditions listed by Planning & Zoning.
Duckworth and White stated that they have a problem with the plans and lack of detail, as well as not knowing what existed prior to the removal. The Board discussed.
Motion carried 4-1 with Duckworth in opposition.
The board adjourned for 5 minutes.
Dave Lorenz, Environmental and Zoning Specialist, appeared and gave the history and background of the request, He then reviewed the photos and video of the site. Mr. Lorenz concluded with the staff recommendation of conditions to be placed on the request if approved by the Board.
Duckworth asked if they graded the entire lot. Mr. Lorenz stated the entire construction area surrounding the house was stripped and graded, but the immediate area around the shoreline was not graded.
White asked for an estimate of how many square feet. Lorenz stated he did not.
Duckworth asked for any picture prior to the disturbance. Lorenz stated he had none.
Mr. Ronald Steiner, Agent, appearing in favor of the request, referred to Exhibit II,9 and spoke of the impact along the 35 foot buffer was very minimal and an old boathouse was removed as part of the clean up efforts and a good portion of the site is cleared and the ordinance discounts the footprint of the home along with 15 feet around that. The additional sites for landscaping shown on the exhibit don't all fall within the 35 foot setback and addressed them.
White asked if the house obtained the necessary permits before the construction began. Mr. Steiner stated he was not involved in the construction but could get an answer for the board.
Duckworth asked what the lot is going to look like when the project is finished. Mr. Steiner stated there will be local grading to implement the landscaping around the home. Duckworth asked about a pile of rocks shown in Exhibit II,3. Mr. Steiner stated he does not believe the pile of rocks are part of the landscape plan, but was no aware of them being there.
The board continued to discuss the landscaping with Mr. Steiner.
White asked about the red tape shown around the trees. Mr. Steiner stated it does not have any significance to him.
Mr. Jeff Schluter, appearing in favor, spoke of the lot in its previous condition and the planting plan submitted for the property.
White asked if the house was permitted prior to construction. Mr. Schluter stated it was permitted but a stop work order was issued to take care of the filling and grading problems.
Mr. William Cole, appearing in opposition, asked if this is a request for a permit to cure what they've already done or do more? He also stated that the board is allowing for something unknown, what was done? He also spoke of a precedent that is being set by the board approving these requests, and suggests that the red tape around a tree is commonly used by a contractor to note which trees are to be cut. He also speaks of a brochure for special exception permits and the requirement to wait one year before reapplying.
Mr. Richard Grant, appearing as interest may appear, stated to give elevations or slopes on that property would be no more than 12% on that entire property. The soil disturbance included the removal of structures, the footings, the well, a sanitary system and driveways. The Town issued a building permit for the structure and was done after Sauk County issued their permits for that structure.
Duckworth asked how vegetated the shoreline was before construction. Grant explained that it was very near lawn like with limited vegetation.
Seeing as no one wished to speak, Chair Duckworth closed the public portion of the meeting at 11:52 a.m.
Duckworth reviewed the ordinance and request.
Sprecher stated that the red cords are tying a post to the tree to hold a sign and doesn't feel it is for anything else.
White asked how it relates to the brochure. Lorenz stated he doesn't believe it is in Chapter 8 and in the Town of Merrimac the county only has shoreland jurisdiction.
Roloff states there are statutes and there are policies.
Mr. Richard Grant stated that the information that is addressed in the smaller brochure does not appear in the handbook.
The board suggested hearing from legal counsel on whether or not you could apply.
The board asked Corporation Counsel Chad Hendee's opinion on the brochure. Attorney Hendee asked Mr. Cole if he has seen in the Sauk County ordinance where the brochure can reference. Hendee asked for further legal backing before an opinion is given and asked for a period of time to not make a decision on this until the next meeting or even postpone for later today.
Duckworth asked about notifying. Hendee stated that the board would need to notice under open meetings law to discuss and make a decision after his opinion in rendered.
Vogt asked if the ordinance states this, then what was gone through today is wiped off the books.
Hendee suggested that if the finding is that a person is not able to apply for 1 year after being denied, all statements and testimony is useless and if the one that was just approved is not allowed.
Roloff stated that if they made a decision and they found that they are bound by the brochure.
Hendee suggested to follow the pattern, make a decision and put that on the record in the open forum with the understanding that he needs to clarify the legality of the application itself based on the brochure. If he finds it was not an appropriate application, it will have to be reheard.
Motion by White, to table the request until hearing from legal counsel.
Motion fails for lack of a second.
Motion by Vogt, seconded by White, to approve the filling and grading request with the conditions listed by Planning and Zoning with the understanding that the decision could be set aside based on findings and advice from legal counsel, as to whether this was a legal application and the additional condition not to divert water onto the neighbors land.
Motion carried 5-0.
The board discussed the tree/shrubbery removal.
Motion by Roloff, seconded by Sprecher, to approve the tree cutting/shrubbery removal with the conditions listed by Planning and Zoning.
Motion carried 4-1 with White in opposition.
The Board adjourned at 12:25 p.m.
Respectfully submitted: Halsey Sprecher, Secretary