DATE: May 27, 2004 Session of the Board
PRESENT: Robert Roloff, Acting Chair; Halsey Sprecher; Ben Malin; Richard Vogt; Linda White
STAFF PRESENT: Gina Templin, Dave Lorenz
OTHERS PRESENT: See individual appeal files for registration appearance slips.
Roloff 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 Vogt, seconded by White.
Motion carried 5-0.
The Board adopted the agenda for the May 27, 2004 session of the Board on a Motion by Sprecher, seconded by Vogt.
Motion carried 5-0.
Motion by Vogt, seconded by White to adopt the April 22, 2004 minutes.
Motion carried 4-0, with Malin obstaining.
Sprecher stated he received a letter pertaining to the Babbitt hearing and will provide that to Planning & Zoning.
Lorenz stated that Planning & Zoning received notice from the Town of LaValle re: the Kolb property and informed the board that the legal description on that letter is wrong, but they did approve the appeal for the correct parcel/lot.
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.
Ed Osowski, Applicant, appearing in favor of the request, spoke of the history of the property and the need to put in a basement versus the current crawl-space, the deteriorating concrete in the foundation of the house and other issues with the foundation. He also stated that his request has been approved by the Town Board and has been given one year to complete the project.
Vogt asked if he plans on changing or raising the house? Osowski stated that it will be raised one inch, dig out the basement and then lower it an inch again. He then went on to speak about the grade on the property. Vogt verified that it will be a full basement under the existing house.
White asked where the fill will go. Osowski explained that he will keep a load and the neighbor has asked for some material and the rest the building will dispose of properly.
Seeing as no one wished to appear, Roloff closed the public portion of the hearing at 9:20 a.m.
Roloff reviewed the ordinance and the request.
White stated it seems like a very straight forward project and would have limited bearing on the neighborhood or landscape.
Malin spoke of the non-conforming structure and the qualifications that the requests meets.
Roloff asked the board to deal with the variance for the project first. Malin stated the unnecessary hardship would be the deteriorating condition of the home and the need to do something.
Vogt stated that you apply the 50% rule and if you went in and redid the foundation for the existing house and reconstruct the foundation and leave the crawl space as is, does that meet the 50% rule. Because the house is not going to be changed, just a new foundation with excavation for the basement, what will it be used as, living space or for utilities.
Osowski, reappearing, stated that the basement will in the future have a bathroom, but otherwise used as a work room/utility room, but no bedrooms or anything like that.
Roloff asked about any unique property limitations. Sprecher stated there is no cost of putting a basement in verus the crawl space and asked about the information that has not been received from the Town of Merrimac.
Malin read from the ordinance and stated that he does not feel that the 50% rule applies to this property and the request being made.
Roloff stated that he feels the unique property limitations have been met and as far as the public interest, once the construction is done, no one will know the difference. He also stated that the applicant stated that his project was approved by the Town board.
Vogt asked about the 2 decks and the concrete slab and if any of that will be removed or replaced? Osowski stated that the deck in the front of the house has to be removed so the equipment can get in there and that deck will be replaced. The side deck will be removed from the house to put backfill in there, but will be attempting not to take it off. The concrete slab will be removed with the rest of the waste materials.
Vogt asked about the existing foundation wall for the crawl space. Osowski stated that all walls will be replaced.
The board continued to discuss the deck.
Motion by Malin, seconded by White, to approve the variance request with the conditions listed by Planning & Zoning with the additional condition that they received notification from the Town of Merrimac of their approval.
Motion carried 3-2, with Sprecher and Vogt in opposition.
The board then discussed the special exception permit.
Malin asked how far out the grading will come. Osowski stated that the plans are not to change any of the grade.
Motion by Roloff, seconded by Malin to grant the special exception permit.
Motion carried 3-0, with Sprecher and Vogt obstaining.
Roloff asked if everyone received a letter from the Babbitts asking for the request to be tabled for possible consideration at a future meeting.
Motion by Sprecher, seconded by Vogt to table the request.
Motion carried 5-0.
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.
Roloff asked about the slopes. Lorenz explained.
White asked about the distance from the lake. Lorenz explained. White asked if it would be impractical to build the garage futher from the lot line than what it is? Lorenz stated if you moved it you would also be involved in other issues such as filling and grading, erosion control, etc., but it is really up to the board to decide.
Vogt asked about other buildings along West Redstone Drive. Lorenz stated on Lake Redstone there are several garages that are located within the road setback because of the slopes of the land out there.
Daniel Sergi, Applicant, appearing in favor of the request, presented photos, Exhibit VII, and explained the slope of the land. He also spoke of the meeting from the Town of LaValle.
Malin asked how level things are down by the house. Sergi stated that it is more level between the house and the lake. Malin asked if he had considered putting the garage down by the house where things are slightly more level. Sergi stated that he would prefer it there, but the only problem is you can't get down their driveway in the winter, so it would not be able to be utilized the garage for 6 months out of the year.
Roloff asked about the driveway and construction wise, could you do it. Sergi stated that he has not measured there and isn't sure if it would fit, and didn't consider it because of the inability to use it for several months out of the year.
Roloff explained what the applicant needs to tell the board in order to get a variance granted.
Sergi spoke of the property layout and if the garage was put down near the shed area it would block the view to the lake and vegetation would have to be removed and would put it very close to the neighbors home.
White asked if there is a reason why a parking area has not been put in before. Sergi stated that they have looked at it and because of lack of funds they just haven't done anything. He also stated that if they put in gravel for a parking spot they would have to remove a telephone post. He said it is an option, but feels it isn't feasable.
Malin asked about far the in violation would the garage be. Sergi stated that he was on site with the contractor and discussed the garage location from the road versus having to make an incredible grade to put it out of the road setback, the contractor provided the numbers of 35-40 feet from the center of the road.
White asked if a certified survey was done on the property and stated that would be helpful.
Roloff asked if the contractor/applicant established the road-right-of-way. Sergi stated he did not do that and they have owned the property for 18 years, so the issues are nothing new that they are just experiencing for the first time and are well aware of what you are able to do and not do with that piece of property based on the lay and slopes on the lot.
White explained that she would like to see more information that a survey would provide.
Malin asked if it would be just a garage or if there would be a second story on the garage. Sergi stated it would be just a garage.
Sergi stated that there have been a number of variance granted on that specific road there and several of those are located closer to the road than his proposed garage would be. He also stated that the garage would meet all setbacks, other than from the road.
Ed Bodendein, Chair for the Town of LaValle, appearing in favor of the request, stated that the board is in favor of the request and has been on site to look at the location of the proposed garage and felt that what is being requested is the only possible position for the garage. He also spoke of several other garages in the area that are closer to the road than what this proposed garage would be and feels it will not affect any vision or cause problems for town vehicles.
Roloff asked if he viewed the property down near the house. Bodendein stated he was down there, and even though he didn't consider it, the lot is very seep.
Seeing as no one wished to appear, Roloff closed this portion of the hearing at 10:10 a.m.
Roloff reviewed the ordinance and the request.
White stated that it is hard to say that not having a garage is an unnecessary hardship as they have lived without it for so many years.
Malin asked where the applicant parks now. Roloff stated that testimony was that he parks in the neighbors drive and walks to his home.
Roloff asked about unique property limitations. Malin spoke of the slopes and topography of the land meeting the unique situation. Vogt agreed and spoke of the prescendents being set granting variances for garages in this area.
Roloff reminded the board that they are not bound by previous decisions by the board.
Sprecher stated that the local town board has made recommendation by viewing the site.
White stated that it would do the public interest good by not having them parking on the road.
Roloff stated that unnecessary hardship is a matter of personal value of whether or not they are necessary.
White stated that on lots like this, a hardship takes on a different twist.
Malin stated he agrees that they shouldn't be bound by other prescedents, but also spoke of the hazard that on street parking causes. He also spoke of what is a reasonable versus unreasonable hardship. He concluded by stating that he has reservations based on not knowing exactly where the garage is going to be.
Motion by Malin to approve the request until a proper plot plan is submitted showing exactly where the garage would be located, the size of the garage and showing the setbacks around the garage via the Certified Survey Map be submitted to the Planning & Zoning Department, along with the conditions listed by the Planning & Zoning Department.
Lorenz stated in order for Planning & Zoning to approve a permit, they need a number to guide them in approval of the permit, not something open ended, or suggested coming back to the board with the numbers.
White spoke of forcing the responsibility to the Planning & Zoning Office.
Vogt spoke of the lack of information.
Malin withdrew his motion.
Motion by White, seconded by Malin, to table the request until futher information can be provided by the applicant.
Motion carried 5-0.
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 ownership of the property. Lorenz explained.
White asked about the existing storage shed and if there was a special exception permit. Lorenz stated he is not aware of a granted request on the existing building and does not know if it would be transferrable if there was one.
Allan Ribbke, Applicant, appearing in favor of the request, stated that on the survey showing lot 1 and 2, Knudson was the previous owner and the lot was split and he owns lot 1 and Knudson owns lot 2. He also stated that he is tearing the existing building down because the Knudson is planning on building a new retail sales and service center for the car dealership.
Malin asked about the CSM and talks about a shed. Ribbke explain what the shed encompasses and that it is not part of the rental units, but for his construction business storage.
Seeing as no one wished to speak, Roloff closed the public portion of the hearing at 10:50 a.m.
Roloff reviewed the ordinance and request.
White asked Lorenz about the existing storage structure. Lorenz stated that if some other building is constructed there, permits and possible BOA will be required.
Motion by Roloff, seconded by Malin, to approve the request with the conditions listed by Planning & Zoning.
Motion carried 5-0.
Roloff stated that SP-25-04, because the applicant is stuck in traffic, the board would need to adjust the agenda and hear case SP-26-04 before SP-25-04 to be able to continue with todays meeting.
Motion by White, seconded by Sprecher to adjust the agenda as discussed.
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.
Sprecher asked when the house was built. Lorenz stated he believes in 2002-2003 and the mistake was made at the time the home was built.
Malin asked how this was discovered. Lorenz stated that there was some survey work done for some reason and it was discovered at that time. Malin verified that this was discovered because someone was trying to purchase the house.
Dave Schultz, First Weber, representing the Applicant, appearing in favor of the request, spoke of the history of the property and reviewed the survey map included in the exhibits as well as explaining how they ended up requesting a variance today. He also spoke of exploring the option of cutting part of the house off and the approval they received from Christmas Mountain Property Owners Assoc and the Town Board.
Vogt asked who built the home. Schultz stated that D'Amours built the house as a spec home and has never been lived in and the owners currently own and operate a log home business in Eagle River.
Roloff informed the applicant the requirements of a variance. Schultz stated that the hardship is that they have exhausted every other option, and is now left with a property he can't sell. He also stated that public interest has been explored and does not feel that any neighbors are being impacted and the fairway to the golf course is about 150 feet from the lot line and the outlot surrounding will never be built on.
Malin asked about the structure being on an angle. Schultz stated that he believes the house was probably squared according to the golf course, which runs in the opposite direction of the lot line.
Roloff brought up the fact that a builder built the house and is looking to bail out and discussed the lack of meeting the variance requirements.
White asked if a survey was done prior to the house being built. Schultz stated there was a survey received when they purchased the lot, but is not sure if they used that survey when building the house.
Robin Main, appearing in favor of the request, stated that they have been trying to purchase the property, but because of the encroachment, they have not been able to close on it. Feels it would be a shame to make the builder tear part of the structure down and believes it is a hardship.
Malin asked about the lot east of the property. Main stated she is not aware who owns that property.
Mary Sobojinski, appearing in favor of the request, stated that they have several lots for sale and spoke of some problems with the platted survey and a hardship being severely financial.
Malin asked if the diagrams that the board is looking at today if they are correct. Sobojinski stated that the stakes on this property are correct.
White asked if Bluegreen was made aware of the number of mistakes found on their platting. Sobojinski stated that all lots are sold and belong to individuals and doesn't seem to be their issues anymore. White feels that borders on misrepresentation by the seller. Sobojinski stated that it was all done by a registers surveyor and the stakes could have been moved.
Vogt asked about the original stakes being off.
Sprecher stated he is concerned about the builder building in the minimum rather than going away from the lines and feels the builder is responsible for making a big mistake and if a variance is granted on something like this, how are you going to do enforcement, after building first. Sobojinski stated they built where they did to be closer to the golf course for the view.
Seeing as no one else wished to speak Chair Roloff closed the public portion of the hearing at 11:25 a.m.
Roloff reviewed the ordinance and the request.
Malin asked if this board has the power to levee fines. Roloff stated it does not. Malin feels the solution involves leveeing a fine on whoever is responsible and that will tighten things up on surveys and how much fines will be and maybe the board should refer this matter to whoever does have the authority to levee a fine.
Roloff stated there are 2 parties that could resolve this, Bluegreen and the person who built the house to modify the house and it wouldn't have anything to do with the foundation and those two parties can resolve that. He also stated that he feels if a variance is issued, Bluegreen will have a change of heart and will get legal advice to seek out why the variance was granted. He continued to remind the board of the 3 requirements of a variance and feels they have not met all 3.
White suggested looking at page 22 which is a supreme court decision that binds them and feels this is self created by the builder.
Malin stated that financial issues are not criteria for boards of adjustment and feels that it is up to the builder to rectify the situation.
The board asked Lorenz if fines can be assessed and issues with that. Lorenz stated that a condition of every permit is that you maintain all setbacks and Planning & Zoning has the ability to issue a citation and can order them to correct the violation and if they don't it comes to the board of adjustment or to court and the judge would then have the ability to assess fines.
Can a judge reverse the board of adjusments decision. Lorenz stated they can.
Vogt asked Lorenz to review history. Lorenz spoke of the permit issued by the Department and the plans meeting the setback requirements, and it is looked at on paper going off of what is supplied by the person applying for the permit.
Sprecher asked if the builder wouldn't have to funish a building permit. Lorenz stated that the builder does have to submit floor plans and site plans to get a permit.
Vogt stated the applicant of the permit should have kept a copy of the permit. Lorenz stated they should and the town should have some record as well of the plans to issue their permit.
Vogt stated they can assume that all setbacks were met or a permit would not have been issued. Lorenz stated that there is plenty of room on the lot and there is no reason the house could not have been put in there to meet the setback requirements.
Motion by Roloff, seconded by White, to deny the request based on the failure to meet the standards for a variance.
Motion carried 5-0.
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.
Roloff asked about the low land. Lorenz explained.
Vogt asked about the filling project. Lorenz explained that his understanding is that they just want to take some of the steepness out of that area.
Jay Kolb, Applicant, appearing in favor of the request, gave some background history of the property. He also stated that he spoke to Steve Sorenson and felt it was something that could be done and the neighbor just recently received permission from the board to build a home and has coordinated with the neighbor and their contractor for the fill and at no time will it affect either property in regard to drainage, and will always have the correct erosion control measures. He then spoke of a pathway on his other lot and once the home is built on the neighboring property, there is not ability for equipment to get to his lots. He stated that the contractor has suggested to get the filling done first and get that stable before starting the pathway.
Roloff asked what kind of material will be used for the pathway. Kolb stated they will use gravel.
Vogt asked if the pathway will cross the fill. Kolb stated it will not, but will go along the west side of the rock and explained the existing one that is there now, however depending on weather conditions and the sale of the neighboring property, it is unusable. He also stated that the neighbors are both ok with the request.
Malin asked if the applicant would be cutting into the outcrop of if any pavement would take place. Kolb stated that he would not touch the outcrop and there would be no pavement, only gravel.
Seeing as no one else wished to speak Chair Roloff closed the public portion of the hearing at 11:55 a.m.
Roloff reviewed the ordinance and the request.
White asked Lorenz about the request for 1 special exception permit on 2 lots and once these plans are done, it is not significant to either parcel to have the special exception on it. Lorenz explained that the permit is for the project and ends with the project.
Motion by Sprecher, seconded by Malin, to approve the request with the conditions listed by the Planning & Zoning Department.
Motion carried 5-0.
The Board adjourned at 11:56 a.m.
Respectfully submitted: Halsey Sprecher, Secretary