Board of Adjustment Meeting Minutes

DATE: April 22, 2004 Session of the Board

PRESENT: Bruce Duckworth, Halsey Sprecher, Robert Roloff, Richard Vogt,Linda White

STAFF PRESENT: Gina Templin, Dave Lorenz

OTHERS PRESENT: See individual appeal files for registration appearance slips.

Duckworth called the session of the Sauk County Board of Adjustment (BOA) to order at approximately 9:00 A.M. He 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 Roloff, seconded by Sprecher. Motion carried 5-0.

The Board adopted the agenda for the April 22, 2004 session of the Board on a Motion by White, seconded by Vogt. Motion carried 5-0.

Motion by Vogt, seconded by White to adopt the March 25, 2004 minutes. Motion carried 5-0.

COMMUNICATIONS:

Sprecher stated he received a phone call regarding a hearing and advised the caller to write a letter to the Board.

Lorenz notified the staff of the tornado drill.

Todd Liebman, Sauk County Corporation Counsel appeared and advised the Board on the new action taken on variance request by the Courts, which would impact decisions made by the Board of Adjustments in relation to the unnecessary hardship rule.

Roloff asked Liebman to differentiate between area variance and use variance. Liebman explained.

APPEALS:

A. Craig and Jamie Hubertz (SP11-04) requesting a special exception permit pursuant to s.8.08(3)(a)1 to authorize filling and grading on slopes of more than 20% in the Shoreland District.

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.

White asked about the boathouse shown on the plans. Lorenz explained that where the boathouse is shown, they are in compliance with the ordinance and will simply be addressed with a land use permit.

Mr. Craig Heubertz, applicant, appearing in favor of the request, stated Zobel has assured them with his experience working with properties around the lake, he will follow the plans that were drawn up by the Landscape Architect to follow all erosion control (Exhibit II,6).

Duckworth asked if Exhibit II,6 is the plans that show what the property will look like when its done, however there are no elevation lines shown. Heubertz referred to Exhibit II,7.

Duckworth asked how far down near the lake they will be filling and grading. Heubertz explained that the dirt will be pushed up and not piled down below and spoke of silt fencing.

Duckworth asked how wide the path is that will be put in. Heubertz stated it would be about 4 feet and terraced, made from all natural materials. Duckworth asked if it will be driven on. Heubertz stated they would not and would access the lot from a natural stone driveway on the top of the lot.

Duckworth asked what will be done with the water that drains from the property. Heubertz explained that some of the waterflow will be draining to the lot on the east where it is mainly wooded and there is also a waterway to be directed down along the side of the house.

White asked how far the house is from the parking area. Heubertz stated about 125 feet.

Seeing as no one wished to appear, Duckworth closed the public portion of the hearing at 9:30 a.m.

Duckworth reviewed the ordinance and the request and discussed the water diversion onto neighboring properties.

Vogt referred to Exhibit II,4, and on the east side there is an existing swale and on the west side there is also a swale, but seems to lead to the property to the west and discussed.

Motion by Roloff, seconded by White to approve the request with the conditions listed by Planning & Zoning and add condition E that states that no water will be diverted or flow onto the neighboring lots. Motion carried 5-0.

B. Steve Kearns, dba Willowood Inn, (SP-12-04), requesting a special exception permit pursuant to s.7.08A(2)(b)17 to authorize a campground at an existing motel.

Steve Kearns, applicant, appearing in favor of the request, presented Exhibit VII, a new plot plan of the campsite request as modified by the Town, for 8 not 12 camp sites and a community fire pit, rather than separate one and the restrooms will be upgraded and the portable septic units will not be visible from the highway.

Duckworth asked about increased emergency services. Kearns stated that he does not see it increasing anything, but making access for emergency services easier with the clean up of brush and the creation of trails. He also stated that the sites will be located in the treed area.

Duckworth asked if the town spoke of limiting the number of campers. Kearns stated they did not and the campers will be following the same quiet times as the motel does which is between 10 p.m and 8 a.m.

Duckworth asked if water and electricity will be run to the sites. Kearns stated there is no intent to put electricity, but once a septic is installed, they will consider water at that time.

White asked if the motel was open year around. Kearns stated it is.

Darlene Hill, Town of Baraboo, appearing in favor of the request, stated that the Town has agreed to everything that the Kearns had presented to the board today.

Seeing as no one wished to speak, Duckworth closed the public portion of the meeting at 10:17 a.m.

The board discussed the ordinance and request.

White spoke of the compatibility with the uses in the area.

Motion by Roloff, seconded by Sprecher to approve the request along with the conditions listed by Planning & Zoning and the conditions/modifications made by the Town of Baraboo. Motion carried 5-0.

C. Larson Auto Dealership (SP-13-04) requesting a special exception permit pursuant to s.7.09(2)(b)10 to authorize a new vehicle dealership.

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.

White asked if permission would need to be granted by DOT to access the lot from Highway 12. Lorenz stated it would, but he is unsure if the applicant has received that as of yet.

Don Larson, applicant, appearing in favor of the request, stated that he has his contractor and engineer able to review plans. Larson continued to give background information on the business.

Duckworth asked about the location and how it would impact the neighborhood. Larson stated that depending on the DOT and plans for Highway 12, he discussed the location of the property and feels that they would not adversely impact the surrounding area and the woods and hill adjacent to the property would not be affected.

Duckworth asked if auto dealerships typically require a lot of police and fire service. Larson stated he hopes not and in the past hasn't had a lot of need for it. He also stated that they plan to run a neat facility.

White asked if this would be an addition to the other lots they have. Larson stated that they don't own the east side location, that is a lease and the west side location will be disposed of and the lots will be combined into this new one.

Duckworth asked about the need for water and sewer. Larson stated he doesn't feel it will be an issue and spoke on the need of additional space.

Duckworth asked about traffic studies of being located off of Highway 12. Larson stated he does not, but doesn't feel they will change the traffic and if the plans follow through for the Bypass, the existing road would be a frontage road.

Vogt asked about Exhibit II,3, sheet G-5 and the grading on the west side and asked if that grading will all be done at this time. Larson stated it would be, however the grading that the DOT would do, would be done at the time they did the road, but all the grading for the dealership would all be done now. The board continued to discuss the bypass plans and the road issues affecting this request.

Duckworth asked about the pond. Larson stated it probably would not hold water.

Ron Melner, appearing in favor of the request, stated that in developing the property they've worked with the Town of Baraboo and the DOT. He also spoke of the detention pond to control stormwater and runoff, however because of the nature of the material that is out there, he does not see if ever holding water. He then addressed any lighting issues that may affect the public interest, the operating hours, and future growth. He then referred to a map showing the proposed bypass.

Roloff asked if the lot was about 40 acres. Melner stated there is about 10 acres of developed and 10 acres of undeveloped land.

Vogt asked about the regrading. Melner stated the regrading is for the land balance of the site. Vogt asked if that will be used as ag land or fallow field. Melner stated that at this point it will be fallow and spoke of land adjoining that future use.

He then referred to a drawing and materials used on the facility.

Duckworth asked if car dealerships normally cause problems in an area. Melner stated they do not.

Darlene Hill, appearing in favor of the request, read the motion by the Town of Baraboo Plan Commission for the request, along with conditions they've made on the request (Exhibit VII,1). She also stated that he would not increase the traffic any more or less.

Vogt asked about dark lighting for the lot. Hill stated she does not know.

Doug Wilcox, MSA Professionals, appearing in favor of the request, stated that they have met with DOT on the driveway access and made a design based on an intersection with acceleration and deceleration lanes.

Vogt asked if all the grading that is shown on the plan will be done at this time. Wilcox stated that is correct.

White asked what the construction period would be on the project. Wilcox stated approximately June until October.

Seeing as no one wished to appear, Duckworth closed this portion of the hearing at 10:15 a.m.

Duckworth reviewed the ordinance and the request.

Roloff stated he feels this is a compatible use for the area with all the other commercial uses and would be in favor of it.

Motion by Sprecher, seconded by White, to approve the special exception request with the conditions listed by Planning and Zoning in addition to the recommendation of the Town conditions. Motion carried 5-0.

The Board recessed for 5 minutes.

D. Bluegreen Vacation Club Inc., dba Christmas Mountain Village, (SP-15-04) requesting a special exception permit pursuant to s.7.08A(2)(b)12 to authorize the construction of a new Preview Center (sales building).

Duckworth asked about recommendation "D". Lorenz explained.

Carter Arndt, MSA Professionals, appearing for the applicant in favor, explained the intentions of developing the core of the resort and gave a little background history and traffic and safety concerns with the layout of the resort right now. He then referred to Exhibit II,6 showing the board the layout of the property and the proposal. He also referred to Exhibit II,8 showing the elevations of the proposed building.

Duckworth asked about the ownership. Arndt stated they are the owners for the majority of the surrounding property to make them the continuous property owners.

Vogt questioned the stormwater plan and referring to Exhibit II,6 and does not see any stormwater drainage from the parking lots. Arndt stated that this exhibit does not show the full stormwater plan and grading specifics. He continued to explain the storm water plan.

Vogt asked if those plans have been finalized. Arndt stated they will be finalized in the next 4 days, relative to bidding and can supply the county copies of all those plans.

Duckworth asked where the water will be going. Arndt stated it will be going across a large green area in the golf course and it is owned by the applicant.

Duckworth asked about the abandonment of the lot that surrounds the laundry facility. Arndt explained that the golf course and the land the building is on is 1 parcel.

Roloff asked if they will change the laundry property by abandoning the line. Arndt explained.

Vogt asked about the Town. Arndt stated they have met with the Town and it has been approved.

Duane Brooks, Town Chair, Dellona, appearing in favor of the request, stated that Town has approved of the request and see no problems.

Vogt asked if the Town will be requiring anything in reference to the water runoff. Brooks stated he didn't know.

Seeing as no one wished to speak, Duckworth closed the public portion of the hearing at 10:45 a.m.

Duckworth reviewed the ordinance and request

White asked if the Zoning Department considered the applicants request on the Survey. Lorenz explained the requirement of the survey to remove the property line.

Roloff asked Lorenz to explain the Survey issues using Exhibit II,6. Lorenz explained.

White asked about the size of the lot for the survey and if they have wiggle room. Lorenz explained the CSM process.

Motion by White, seconded by Sprecher, to approve the request with the conditions listed by Planning & Zoning. Motion carried 5-0.

E. Lawrence Smith SP-16-04, requesting two special exception permits pursuant to s.7.05(2)(k)10 and s.7.05(2)(k)20 to authorize a private landfill site and an agricultural related business (sale of old farm machinery).

White asked if these are both approved, the conditions would go with either/both request. Lorenz stated that is correct, but up to the board to modify them.

Larry Smith, applicant, appearing in favor of the request, stated that the contractors like the landfill because of the ease of use and the neighbors like to use it because it is handy for them to not have to go the County Landfill which would be closing. He then presented signatures from people approving of the request and signatures from contractors stating the need, Exhibit III 12-14 and Exhibit III, 15. He also presented Exhibit III, 16-19 which is photographs of things he makes out of the materials he gets out of the landfill and old farm machinery.

Duckworth asked about the contractors bringing material in dump trucks and how long he's been doing that and how he regulates what is brought. Smith stated that he's been doing this for 20 years and he is always there when they dump and when they do dump without his presence, he checks every night what has been brought and slips are always filled out by the people that dump and with problems, he would contact the DNR.

White asked about the DNR. Smith stated that the DNR will come by about once a month and checks things out. White asked about a penalty system. Smith stated they will not haul there anymore.

White asked about photo IV,2. Smith stated those tires are for his garden and is used for his tomato plants. They are stored there temporary.

Duckworth stated that the DNR visits the sites and asked if these are official visits. Smith stated they aren't, but they stop whenever they are in the area.

White brought up neighbors letters concerns with aesthetics. Smith explained what he does with some of the materials.

The board asked about the signatures he presented and where they come from. Smith stated they are from neighbors and people that use his services.

Duckworth asked about conversations from the Town board. Smith stated he did appear before the Town Board and it was approved. He presented Exhibit III,20, a letter from the Town Board from December.

Smith then presented Exhibit III,21-26, photos of a neighbors yards who complain about the junk on the applicants property and Exhibit III,27, an aerial photo of the lands surrounding him.

Duckworth asked about the ag related business. Smith explained some of the uses he has for the old equipment and the things he makes out of them.

Duckworth asked if he has a sign for the business. Smith stated he did have one, but the neighbors complained that they didn't like the looks of the signs so they had to take it down.

Duckworth asked how many acres are owned. Smith said he owns 173 acres and explained what he does with the materials and crafts he makes. He also stated that he took old stumps and wood out of the landfill and made the deck out of it.

Vogt asked when he's buying and selling in antique farm machinery and could not really be used for agricultural uses today and also has craft items, as well. Smith says that is correct.

Roloff asked about a letter received April 17th from a neighbor relating to the fire (Roloff read part of the letter) and asked his comments on them. Smith stated the tires were not burnt and he did use gas to start the fire and had a problem with the wind after the fire was already started. He spoke of the someone complaining about the smoke and the road needing to be blocked off, although cars still passed through the road.

Duckworth asked why this is a desirable thing to do in this location. Smith stated that it is a convenience for the neighbors and the contractors.

Duckworth asked how this would negatively impact the community. Smith stated he doesn't feel it would negatively impact the community at all.

Duckworth asked if he was burning anything out there and asked about dust, noxious or toxic gases, noise, etc. Smith stated he is not burning and there is no dust, noxious or toxic gases or excessive noise. Dumping is only during daylight hours.

Duckworth asked about vibrations or chipping any of the material. Smith stated there are no vibrations and he does intend to chip if he gets enough material.

Duckworth asked how many trucks he gets in a day/week. Smith stated it depends on the job, there could be 15 trucks, but thats for the larger jobs. Other times, he's only hauled in 10 loads all year.

Roloff referenced the ordinance on private landfills and asked about the solid waste management plan and if anyone has spoke to him. Smith stated he has not seen the plan, but the DNR seems to feel he is in compliance.

White again asked about the signatures. Smith explained.

Roy Voltz, appearing in opposition of the request, stated that he feels someone can bring something in there that is contaminated or hazardous materials and worries about the groundwater.

White asked how long he's lived in the area and if there have been other fires. Voltz stated he's lived there for 30 years and there has been other fires.

Roloff asked Voltz about his opinion on the ag related business. Voltz stated if the place is kept clean its ok and told the board they should view the site.

Shirly Stevens, appearing in opposition, said that she can see the landfill right now and when the fire was there she had black soot all over the yard, vehicles and house.

White asked how long she has lived in the area. Stevens stated that shes been there for 20 years. White asked what the problem was and if it was aesthetics. Stevens stated it is a terrible thing to have to look at.

Vogt asked about a platted subdivision in the area and asked where her property was located. She stated she has a 12 acre parcel adjacent to the site. Vogt asked if there are other residents in the culdesac to the north. White said there are.

Duckworth asked about the ag related business. Stevens stated she has no objection to that.

Duane Brooks, Town Chair, Dellona, appearing in opposition, stated that the Township has never approved either request for Mr. Smith and the ag related/antique business is in opposition as well. Brooks then spoke of the town reasoning for the lack of approval for the landfill and inconsistent record of enforcement by various agencies and leaves their township quite vulnerable. He stated that he is aware that they can not act on the current land fill, but can oppose the expansion. He then addressed the ag related business and stated that the Town wishes to go as "no comment".

Roloff asked what he feels the difference is between a private and public landfill. Brooks stated he feels there is no difference. Roloff asked about the solid waste management plan.

White asked what he feels is an ag related business. Brooks stated that he doesn't feel the bathtubs are ag related and if it was, he would expect it to stay an ag related business.

Vogt asked if it would fit as a cottage industry. Brooks agreed.

White asked if the use would be grandfathered. Brooks stated that he feels it would still have to be a special permit.

Kenneth Benzel, appearing in opposition, is worried about the stuff that is dumped there and referenced the request to expand. He then referred to the Land Use plan that was developed by the town and how it is necessary to refrain from spot zoning and we must follow the land use plan.

Andy Raupp, appearing in opposition of the request, stated that he doesn't feel the roads are wide enough to handle the traffic and feels they are unsafe. He also stated that last summer he burned at least once a week and complained about the noise the dump trucks make.

Larry Smith, reappearing in favor, stated that the road has not changed for the last 50 years and trucks have been using the road for the last 25 years and there hasn't been any issues. He told the board that this is his livelyhood, he can't just go to town and get another job. He also spoke of the landfill that Schyvinch has on his property.

White asked what size the landfill is now. Smith it is about 400-600 feet wide, but 80% of it hasn't been used for 10 years and he spoke of how the contractors fixed the road before after they did all the hauling for the interstate project.

White asked if he advertises for the crafts he sells. Smith stated he puts a sign out on the weekends in his front yard.

Vogt asked about how much he is looking to expand. Smith stated he wants to expand another 400 feet out, but doesn't see using that much room.

Vogt then asked about the solid waste management rules and if he has talked to the county about this. Smith stated he has not, other than the DNR and the Public Health Department.

Steve Luther, appearing in favor of the request, stated that he was at Smiths property about 6 weeks ago to look at the crop land and walked through the property, viewed the landfill and his property and is very impressed with what he has there. He couldn't comment to any unwanted materials, but what he did see was stumps, rocks and old machinery and felt there was nothing wrong with what is there.

White asked Lorenz about the grandfather issues. Lorenz stated that he does not know when the landfill ordinance was put into place, so he does not know if it was illegal, but the department has looked at it as a grandfather use and the expansion of it is what is kicking in the issue of the needing a special exception permit.

White asked how they determined it needed an expansion permit, rather than continuing to use the landfill within its current boundaries. Lorenz explained.

White asked if there have been complaints to the Zoning Office. Lorenz stated he is not aware of any prior to the notice of the board of adjustment.

White then asked about the ag related business. Lorenz explained. White asked if when in Ag, can you accommodate the resale of things such as bathtubs. Lorenz explained. White asked if the permit was granted for the ag related use, would that include everything on site. Lorenz stated that it should be limited to farm related uses.

Vogt asked about contacting the county on the landfill ordinance. Lorenz explained the inspections by the county and the landfill ordinance talks more about the operation of the landfill and there was a committee formed, but it is not clear in reading the ordinance who had jurisdiction over that ordinance.

Vogt asked about other private landfills. Lorenz stated he is not aware of any other private landfill permitted through the department.

White asked the difference between private and public. Lorenz stated that has to do with the ownership of the property.

Seeing as no one else wished to speak Chair Duckworth closed the public portion of the hearing at 12:10 p.m.

Duckworth reviewed the ordinance and the request and asked to keep the two request separate.

Vogt stated he feels it is a stretch to say that what he does is agricultural related.

Motion by Roloff, seconded by Vogt, to approve the request for an agricultural related business with the conditions listed by the Planning & Zoning Department. Motion carried.

Duckworth then spoke the private landfill and said that he takes items to the Sauk County landfill and they never check what is being dumped. Roloff spoke of the provisions at the landfill for handling things. He also spoke of his concern on the prevention of dumping things that don't belong there and what compliance needs to be done with the solid waste management plan.

White asked if this can be approved if they don't have knowledge if he is in compliance with this or not and questions the "established" boundaries.

Duckworth stated they need to determine if it is compatible with the surrounding properties. White stated Mr. Brooks stated it is not compatible with the Town.

Sprecher asked if this is denied and he's been operating, can he still continue to operate the landfill. Duckworth stated that may be a questions for Corporation Counsel.

White asked about tabling the request until information can be obtained from Mr. Smith.

Roloff agrees on tabling the request to allow for Mr. Smith to address questions he needs to answer, the Town time to act on the request and for the Board to get answers from Corporation Counsel.

Motion by White, seconded by Roloff, to table the request until more answers can be given. Motion carried 4-0, with the chair obstaining from the vote.

The board recessed until 1:00 p.m.

The Board reconvened at 1:10 p.m.

F. Duncan and Gillian Cairns (Wally Kotlowski, agent) SP-17-04 requesting a special exception permit pursuant to s.8.08(3)(a)1 to authorize filling and grading on slopes of more than 20% in the Shoreland Protection District.

Wally Kotlowski, appearing for the applicant, appearing in favor, stated that he is the agent and builder for the property owner and responsible for anything that would occur on the construction type. He stated that the Town of LaValle approved the request at their April hearing and discussed the project of building the home and driveway and issues of the slopes and anything below the house towards the waters edge, will not be disturbed and the property owners have asked that as few trees be taken out for the entire project as possible. The majority of the slope work will be done for the driveway.

Duckworth asked about the driveway, cut down one side, build up the other side, dig the house out and do very little grading where the house is. Kotlowski stated that was correct and explained some of the elevation change in the natural slope that will work well with the home to be built.

Duckworth asked if all the work will be done by him. Kotlowski stated that the excavation will be done by Ray Zobel and sons.

Roloff asked about the retaining wall. Kotlowski explained.

Duckworth asked about making sure there is no water diverted onto the neighboring property. Kotlowski stated it will not be an issue and explained the drainage.

Vogt asked about the cross section of the driveway and the use of the boulders. Kotlowski stated the boulders will only run the distance where grass and vegetation would not be able to stabilize the slope.

Vogt asked about the slope. Kotlowski stated they are looking at a 3 to 1 slope.

Seeing as no one else wished to speak, Chair Duckworth closed the public portion of the meeting at 1:26 p.m.

Duckworth reviewed the ordinance and the request.

Vogt, referring to the video, asked about the flat spot down by the lake. Kotlowski explained the lay of the land. Vogt asked how wide the flat spot near the lake is. Kotlowski stated it is about 40 feet wide and is a marsh grass and all the neighbors are mowing it.

Motion by Roloff, seconded by White, to approve the request with the conditions listed by the Planning & Zoning Department as well as the condition that no water be diverted onto the neighboring property. Motion carried 5-0.

G. Steven and Marsha Luther and LeRoy and Lois Luther (Anthony Tomaselli, agent), SP-18-04, requesting a variance pursuant to s.9.04(4)(a) to authorize the construction of a structure in, on or over a floodway area which is designed for human habitation and a change in administrative decision pursuant to s.9.07(3)(b)1 to remove a stop work order issued at this parcel.

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 no recommendation being made to the board because of the change in administrative decision.

Duckworth asked about the 2001 Flood Insurance Rate Map came into being. Lorenz explained.

Vogt asked when it was adopted. Lorenz stated it was approximately May 2001, but he does not have the exact date.

Sprecher asked about the variances of the map. Lorenz explained.

Roloff asked when the surveyor brought the elevation data to Planning & Zoning, did he communicate which data he was using. Lorenz stated there was nothing on the plans stating what map was used for the determination.

White asked if the surveyors are suppose to be aware of this? Lorenz explained the role of a surveyor when flood zone issues come into question. White asked whether or not there was a house there already made any difference. Lorenz explained why the county was able to provide a permit to replace the septic and the information that was received from the Surveyor.

Vogt questioned if the person applying for the permit is to submit the flood elevation for flood proofing the holding tank and asked about a sign off from the DNR. Lorenz explained that the State gets to review the plans before the county and the plans submitted had a reference point of flood elevation shown on it, but it was the wrong data.

Duckworth asked about the soil evaluation report. Lorenz explained that is part of the application that goes into the state and the processes.

The board discussed the septic system options and requirements.

Duckworth asked about the elevation shown on the soil test and if it was site specific or if it covers a broad range. Lorenz stated the elevation shown on the report is site specific.

Roloff confirmed that per 1980 data, the site was ok, but per 2001 data, the site is not ok.

White asked how the error was found. Lorenz stated that Planning & Zoning was contact by someone questioning the building in the area because of the history of flooding.

Vogt confirmed that they could have put in a new septic system. Lorenz stated that is correct.

Duckworth asked if Planning & Zoning checked/verified the numbers/calculations the Surveyors provided. Lorenz stated that the office does not verify the surveyors calculations and being a licensed surveyor they should be submitting correct data.

White asked about the new home construction permit. Lorenz explained.

Tony Tomoselli, Attorney for the Applicant, appearing in favor, presented a petition in favor of the 2 requests (Exhibit VII,1 and 2) and Exhibit VIII, 1-3, a legal documentation supporting the variance. He spoke of the process that was taken by the property owner to obtain permits and permission to build the new home. He then referred to II,12 showing the back of the permit, Exhibit III,3 a letter from FEMA and they would like a variance allowing them to go forward so the county is protected from FEMA and the DNR.

White asked Tomoselli to define reasonable. Tomoselli stated they cant give FEMA the authority to tell them whatever they want. They would like to tell FEMA and the DNR to give a letter to the County saying they won't proceed with legal action. They need the variance to help Sauk County prevent from getting sued.

White asked if he believes that a variance will give them the leverage to change the opinion in this letter. Tomoselli stated he is referring to Exhibit III, 2 and 3, not Exhibit III, 6 and disagrees with FEMA's latest letter which is being referred to and believes if the Board gives the variance they can convince FEMA to go back to the original letter.

Duckworth asked Tomoselli to discuss how they would meet the requirements of the granting of a variance. Tomoselli stated that the Section 9.04(4) is unenforceable comparing it to the Outagamie court case. He also stated that the hardship would be the complete loss of a 70% completed house and feels it will not have a negative affect on the neighborhood and the land is uniquely situated on a floodplain island per the 1980 report and the entire property is protected by a levee.

Duckworth clarified why he feels the property is unique. Tomoselli said because of the levee and the drainage ditch and well as the obstruction of water. He also stated that because they will be removing the old house, there will still be only 1 residence on the property. He spoke of the loss of a legal nonconforming use.

Duckworth asked if the permit was issued because the floodplain box was unchecked? Tomoselli said he can't tell you why the county issued the permit. Duckworth stated the application says "please check all that apply" and at that time the Luther's believed they were not in the floodplain. Tomoselli said that he believes Luther did not know if he was in the floodplain and believes that it is their responsibility to determine whether or not he is in the floodplain.

Vogt asked if the county sees the application that goes to the Department of Commerce and if they sign off on that before it goes to the State. Tomoselli stated that he believes the county sees the information submitted to the Department of Commerce. He then referred to Exhibit II,20, that prior to issuing the permit, a staff member was on the site and filled out paperwork during a soils and site evaluation.

Vogt asked about the issue of flood insurance. Tomoselli stated that they are willing to waive any right that they would have for flood insurance and waive any right they would have as far as disaster relief for the property. Vogt stated that there is a condition that federally insurance lending institution can not provide a loan without flood insurance. Tomoselli stated that is correct and it is part of the burden the Luther's are willing to take to get the variance.

Vogt asked if the levee issue was addressed for federal and state standards for levee protection and to use that as an argument of why you have flood insurance. Tomoselli stated that it is unique because there is a levee and it will contain water.

Roloff, referring to II,19 has elevations on from the surveyor and the date on the fax is October 30, 2003, and is the document that the county used as far as the elevations are concerned. Tomoselli stated he believes this is the map that they used to determine the elevations. Roloff stated that it wasn't the surveyors duty to determine whether is was 1980 or 2001 maps. Tomoselli stated that there is a representation of elevation on Exhibit II,14, with respect to what the surveyor has to do, they have to provide the data and the county has to verify it.

Vogt stated there was a mistake made from the very beginning using the wrong maps.

Duckworth asked when Exhibit II,19 was made. Tomoselli stated he does not have the information and when the surveyor took all the elevations and when the map was done.

Vogt stated Exhibit II,18 shows a surveyors certificate in April, 1994, which refers to the Certified Survey Map.

White asked about Exhibit II,13, the date of the applications. Tomoselli stated that the county approved a permit for a new structure.

Tomoselli then stated that the second request is for the removal of the stop work order and referred to the Village of Holbert versus Brown County and advise the board what their responsibility is and feels that they should not allow the Zoning Administrator to say no for this particular case.

Roloff asked about a variance with conditions and what they were. Tomoselli stated that they would like a variance with the conditions subject to a letter from FEMA to Sauk County indicating that they can go forward and that would not be the factor that would result in the revocation of Sauk County's flood insurance program and that the Department of Natural Resources would not sue the county for allowing them to move forward.

White states what happens if either of those letters does not come through. Tomoselli stated that they wouldn't get their variance and they would appeal and sue the county.

Steve Luther, applicant, appearing in favor of the request, stated that he and his family are the land owners and they want to build a house for his farm help. He said that the first floor of the house sits at 806 and County Highway T is about 803 and said that the water would have to come 3 feet over County Highway T to be at the first floor level of the house and since owning the house they have gone through 4 flood events and never had any flooding in or around the house. He also gave some background of the marsh and property surrounding them in reference to the water issues and the stop work order that was issued on the house.

White asked about the local flood events and referenced the hydrologist statement that the flood of 93 and 2000 were at 65% of a 100 year flood event. Luther explained his perception of the flooding. White asked if there were any concerns in the crop planning that some of the land was in the floodway. Luther said he had never heard of the terminology before.

White asked about the soils and holding tank. Luther stated he was unaware of any state restrictions on the holding tanks.

Roloff asked about the letter from FEMA, Exhibit III,2, states an error based on the surveyor. Luther stated he was contacted that they needed a site elevation because of the floodplain and called a surveyor to handle it.

Duckworth asked if he is on the levee/drainage district and when the elevations were being changed they didn't get involved. Luther stated they were never contacted.

White asked how many acres are owned in that area. Luther said roughly about 900 acres. White asked how long they've owned it. Luther stated they purchased the property in 1994 and the house and buildings were surveyed out because the previous owner kept the buildings for about 2 years before selling that to them as well.

White asked what he feels is a reasonable solution to this. Luther stated that they were trying to get someone from FEMA or DNR here and they are not interested in looking at the site and feels that no one cares that they have a problem and feels that raising the house 4 feet is not going to do it and they could possibly making some type of retention pond, as well as waiving the flood insurance and such based on history not maps.

Lowell Haugen, appearing in favor of the request, stated that he has walked that land and never had to walk in water and feels that if the applicant is willing to work with FEMA and the DNR would like to see the board give them a special exception permit with the conditions that all parties work together.

Eugene Larson, appearing in favor of the request, stated that he feels the Luther's are improving the property and in good faith went through the process for application and strongly supports their petition for the lifting of the stop work order on their house. Personally, he stated that the water level would be over Highway U, not T and has farmed property around there and drove over the road adjacent to the Luther's farm without issue. He also stated that the FEMA maps would put an additional 5-7 feet of water over Highway U.

Bill Turner, appearing in favor of the request, stated that Luther's have been good neighbors and keep buildings well maintained.

Richard Gumz, appearing in favor of the request, stated that he is in favor of the variance request and provided some history of the property in relation to the water since his ownership in 1995. He also spoke of Fairfield Road being out of the floodplain, yet it has been flooded more than the Luther's land.

Kevin Delory, appearing in favor of the request, presented Exhibit IX, a presentation to the Board and spoke of the letters received from FEMA and asked the Board to grant the variance. He recognized that their surveyor made a mistake and everything sprung off of that and if the county turns down the variance they have no leverage to work with FEMA and the DNR.

Lance Gurney, Department of Planning and Zoning, appearing as interest may appear, presented Exhibit X, FIRM maps, dated March 7, 2001. He first spoke of the variance request and stated that he agrees with Duckworth and there are 3 standards that need to be approved, and have been working with the Luther's, their attorneys, the DNR, and FEMA since 2003 and have made numerous efforts to get communication from FEMA and the DNR and it wasn't until this week that official letters were sent. He stated that he agrees that the numbers seem suspect, but there is processes in place to have that data reviewed through FEMA and spoke of the public hearing process that took place. The notification went out to the town clerks on Feb 7, 2001, publication of the notice in the paper was March 2001. As far as the variance request, per case law, who is responsible for what is immaterial. He then reviewed for the board what processes were taken that led up to the stop work order. He also stated that what the surveyor had been hired to do was a LOMA, which would amend the floodway boundary and that information was submitted based on the 1980 data and FEMA contacted the surveyor to let him know that the data was based on the wrong data and that a LOMA can not be done in the floodway.

White asked about the permit application floodplain information. Gurney stated the applicant should fill it out and the department should verify.

Duckworth asked about the permit. Gurney explained.

Vogt asked when the LOMA was submitted and the survey to show the parcel was above the floodplain to get the LOMA. Gurney referred to the map that was submitted with the permit application and his office was not aware that the LOMA was being applied for until the day the stop work order was put on the project.

The board recess at 3:45 p.m. Until 3:50 p.m.

Chad Hendee, Assistant Corporation Counsel, appearing as interest may appear, acting as legal counsel for the Board. He first discussed the matter to grant a variance in this case, the ordinance states that a variance shall not allow a structure to be built within the floodway. However, if it is deemed appropriate, the board can grant a variance to build, but the Outagamie case simply allows the Board of Adjustment the ability to grant a variance, not that they should grant a variance. Hendee then spoke of the unnecessary hardship issue and in his opinion this is a use variance and spoke of why he came to that conclusion and the applicants must meet that they have no reasonable use of the property to grant this variance. He also addressed the idea of granting a variance with the conditions that Luther's will work it out with FEMA, DNR, and the county, he is not sure as to the certainty to be able to say the remedial requirements imposed by FEMA and the DNR. If the Luther's do not believe the determination is reasonable, then what.

Vogt asked what kind of precedent you see this setting. Hendee said that litigation could change the courts opinion that they deem it inappropriate to have an absolute restriction of something, yet a Board of Adjustment should be able to be flexible while following the standards and procedures.

Duckworth asked how use variances and area variances interact in this situation where there was a preexisting structure which has been removed and now we find the preexisting structure should have remained because it can't be rebuilt. Hendee compared the Outagamee case and this request.

Roloff asked about use and area variances and when this whole thing started, if knowing what is known now, the probably wouldn't have torn down the old house and is concerned about this not being exactly a use variance. Hendee stated there is a case that was released in 2004, State verus Outagamee and explained to the board what was involved.

Dick Grant, appearing as interest may appear, stated that he is familiar with boards of adjustment and boards of appeals and feels the most recent supreme court ruling is based on home rule and local rule should definitely stand supreme or carry the greatest amount of weight in that decision making.

Tony Tomoselli, reappearing in favor, stated that he did not make himself clear on the position to Mr. Gurney's actions, and feel that he wasn't wrong, but the ability of the board to go beyond the ordinance and have them say its just not fair so that they can allow them to proceed. He also told the board that he feels it is not a use variance, but an area variance and the home is useless without the variance, not the land.

White asked if the home has a full basement under it. Tomoselli stated they do. White said that the basement is below the floodplain and asked if the entire house should be above the floodplain. Tomoselli stated his interpretation is that the living space of the home needs to be above floodplain.

Seeing as no one else wished to speak, Chair Duckworth closed the public portion of the hearing at 4:15.

Duckworth reviewed the ordinance and the request and the board first addressed the variance.

Vogt stated he is privy to the history of this study and the elevation change was the result of the redetermination of the floodplain in Columbia County in relation to the Wisconsin River and the levees. The initial flood elevation of the Baraboo River hinged on the Wisconsin River and whether or not the levees would fail.

Duckworth directed the boards attention to whether they think it is a use variance or an area variance.

Roloff stated he would say it is an area variance because they should have never loss the use because of the mistake. The use was there, they were just going to change the vehicle for the use.

White asked if they are addressing the property as a use or addressing the structure.

Vogt believes it is a use and the argument that it is an area variance is weak and reference the ordinance to building a structure for human habitation. He also referred to Exhibit II,19 and the basement floor elevation, and in floodplain/floodway areas, basements aren't allowed unless they are at or above the regional flood elevations.

Roloff feels the experience the applicant went through is an unnecessary hardship.

Duckworth asked is it unnecessarily hardship to take away the permit, based on the fact that the application wasn't correct, stating it wasn't in the floodplain and signed by the applicant and feels when the numbers are that close to what the floodplain elevation is, someone would explore that the numbers are correct, feels that it is an unnecessary hardship, as it isn't the applicants fault, but one of his agents, but whether that fits the unnecessary hardship that they need to address is another issue.

White asked if the basement below floodlevel is an allowable thing. Lorenz stated that you can have a basement in a floodplain, however, per the floodplain ordinance, the floor can not be lower than the elevation and it would need to be floodproofed 2 feet above the floodplain elevation.

Vogt stated he would have made sure he got a LOMA from FEMA to make sure they wouldn't have to get flood insurance and feels that something wasn't done right procedure wise on both ends.

White asked how much of a problem was done by the people they hired versus the county and feels that people you hire giving you wrong information is your own hardship, yet the county given you the wrong information is a little different.

Duckworth asked about unique property.

Roloff feels it is unique because it is levied from the Baraboo River and on the highest point. Duckworth stated that other property around them has the same features.

Sprecher spoke of the history testimony given of the property not flooding.

White said if you look at the county losing its FEMA insurance, referring to the letter from FEMA, states the structure should be removed.

Roloff stated he can't understand why FEMA went from extending something from one day to being a bulldog the next.

The Board then reviewed Exhibit III, 1 and 2.

Vogt stated that when they talk about surcharge - it is floodway right now and if there was a study done if you have an amendment putting you in the flood fringe, then you would have a nonconforming structure, rather than a nonconforming use. To grant a variance, just to grant the variance is not in the public interest.

Roloff stated that two conditions for a variance would suggested by the applicants, would add a third condition that the applicant will have trouble getting insurance and that takes the board off the hook for coming back at them.

Duckworth stated he feels the two conditions are beyond the scope of the board and they need to look at the land.

Motion by Roloff, seconded by Sprecher, to approve the variance request with the conditions listed by the applicant (letter from FEMA stating it will not revoke the county's FEMA insurance and a letter from the DNR stating they will not sue the county and a letter from the Board of Adjustment to the applicant stating that increased flood insurance premiums and risk to life and properties may results, per the Section 9.08(3)(d)3.

White asked who will decide if the letter from FEMA is comfortable enough to proceed.

Roloff stated he feels the public interest is being cared for, where if they can't work it out, the applicant is going to pursue other methods.

Vogt stated he could go along with that with those conditions, because if they aren't met the variance is dead.

Motion carried 4-1, with Duckworth in opposition.

The board then acted on the change in administrative decision.

Minutes by Hartman.

The board then questioned taking action on the administrative decision to life the stop work order placed by Planning & Zoning.

The board then discussed with Hendee and Tomoselli not acting on the request to release the stop work order. The board determined that it was not necessary based on the previous variance decision and the discussion with both parties that they would not need to act on the stop work order release.

H. The Kraemer Company, LLC (SP-19-04) requesting a special exception permit pursuant to s.7.05(2)(k)19 to authorize the renewal of a special exception permit issued in 1999 for this existing mineral extraction site.

Duckworth asked about complaints or violations. Lorenz stated that he has had none. Vogt asked about satisfaction of reclamation. Lorenz stated he was satisfied.

Richard Marino representing Kraemer Co LCC appeared in favor. Described some reclamation done in the quarry.

Duckworth asked how much output stays in Sauk County. Marino replied that a vast majority or a 100 stays in Sauk county and explained the maps, stated that the lifetime may be 10-15 years, but this is hard to predict.

Duckworth asked about complaints. Marino stated that there was a complaint about truck hauling on the weekend in 1999 and that there was a truck hauling after hours, which they installed a gate with a lock to remedy the problem.

Duckworth asked about new housing development. Marino stated that he knew of a Mr. Nolden's daughter. Duckworth stated that he needed a map that shows houses near the quarry.

Sprecher replied that map 2-10 provided good reference. Marino stated that they notify neighbors when blasting, also P&Z. No complaints.

White had question about reclamation of original special exception permit and how the reclamation was carried out and was it on track. Marino stated he thought they were on track and reserves may be ahead of schedule.

Duckworth asked about additional permits. Marino said DNR - Drainage, DNR- vehicle operation. Duckworth referenced the 1999 letter. Does Kraemer want any changed? Marino wanted E changed to 24 hours to 48 hours because of weather problems that they've experienced in the past.

Shawn O'Donnel appeared as interest may appear. He stated that he was left off of the notification list and thought trucking hours should be limited to M-F 6-9, no trucking on weekends. He also wanted notification if blasting may affect is well and thought that trucks were too loud. He stated that he was the complaint in 1999 and felt thought it was handled properly.

White asked about the notification problem. Was it for meeting or blasting. He stated it was for meeting.

Matt Bremer, Planning & Zoning appeared as interest may appear and stated there were no problems or complaints. Duckworth asked his opinion of the notification of 48 to 24. Bremer thought that the change was warranted due to weather and verified that the reclamation met the requirements of NR 135.

Seeing that no one else wished to speak, Chair Duckworth closed the pubic portion of the hearing at 5:13pm.

Duckworth reviewed the ordinance and the request. Duckworth requested that the 1999 permit be renewed, except change in E 48 to 24 hours.

Motion by Duckworth, seconded by Vogt, to approve the request with the conditions listed by the Planning & Zoning Department and the change from 24 hours to 48 hours. Motion carried.

I. Todd Harbort (SP-20-04) requesting two variances pursuant to s.8.06(2)(d)3 and 8.06(2)(d)5 to authorize the construction of a boathouse on slopes of more than 20% in excess of 22 feet wide and larger than 640 sq. Ft.

Duckworth asked if there was an area on the property that could be used for construction that was less than 20%. Lorenz stated that there may be an area, but that it would need to be surveyed.

Roloff asked if was a permitted use. Lorenz stated that the problem was the slope and the size. Roloff also asked if there was another area suitable. Lorenz again replied that there may be, it also may be subject to size.

White asked if other boathouses in the area were granted variance to boathouse size. Lorenz didn't know of one. Duckworth stated there may be one previous.

Todd Harbort appeared in favor, and stated that his hardship is a swale and it fills with water if a boathouse would be placed there. Drainage off of neighbors property. He also stated that the grade was 1-2% over 20. He stated that the size was to accommodated his pontoon boat and a jet ski. Harbort provided pictures of other boathouses that may be the same size. He stated that they were condo zero lot line boathouses.

Duckworth asked if he felt his hardship was not to have a boathouse. Harbort stated that a boathouse would provide adequate storage a save on maintenance of a boat lift. He also thought that it would help the appearance of the water to have the boats out of view.

Roloff asked about the swale situation. Harbort replied that the swale had drainage problems.

White asked about design. Harbort replied that they would be similar to the photos he presented. White asked about a flat roof with a viewing area. Harbort said that a lot of the boathouses in the area have a viewing area.

Harbort produced a letter from the DNR. He stated that the letter said DNR doesn't regulate boathouses. He also said he had a letter from Demass (neighbor). He wasn't opposed to it. The other neighbor didn't sound too happy about the proposed plan.

Vogt asked if Harbort thought he could move the proposed construction 20 feet. Vogt thought that the maps provided allowed for construction without disturbance of a 20% slope. Harbort replied that this would impact drainage.

White asked about moving trees for the construction. Harbort replied that he would move a few and replant a few.

Scott Hewitt, Grothman and Associates appeared in favor and commented on the slopes indicated on the map he produced. He stated that the property was shaped like a bowl and if the boathouse was located in the area at the bottom of the swale, it would have the most negative impact on natural drainage. Due to the position of neighbors, a large tree, he thought that the site was the best use on the lot. Hewitt said the plan was to minimize disturbance.

White asked about tree cutting. Hewitt thought that a half of a dozen trees would be removed. White asked Hewitt to point out trees on the photos that would be removed.

Richard Grant, Town Chairman Town of Merrimac appeared as interest may appear. He read a letter from the town board that stated the town recommended enforcement of the ordinance. He was concerned about tree cutting and that would require another application. He commented on the condo 0 lot line boathouses. He commented on the surface water runoff, prior history of the property was investigated by the DNR in the past.

Lance Gurney appeared and commented on the understatement of the tree cutting and another application may be necessary. He also commented on the condo boathouses. He stated that the boathouses were actually two boathouse.

Seeing as no one else wished to speak, Chair Duckworth closed the public portion of the hearing at 5:46.

Duckworth reviewed the ordinance and the request.

Duckworth thought that first variance was an area variance. Motion by Duckworth, seconded by Roloff to deny the square footage variance based on the lack of hardship. Motion carried 5-0.

Motion by Vogt, seconded by Sprecher to deny the slope variance. White had questions of distance from waterway. Duckworth responded that this can be enforced by P&Z. Motion carried.

The Board adjourned at 5:51 p.m.

Respectfully submitted,

Halsey Sprecher

Secretary