DATE: September 23 , 2004
PRESENT: Bruce Duckworth, Chair, Robert Roloff, Halsey Sprecher, Richard Vogt, Linda White
STAFF PRESENT: Mary White, Dave Lorenz
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 White, seconded by Roloff. Motion carried 5-0.
The Board adopted the agenda for the September 23, 2004 session of the Board. on a motion by Sprecher, seconded by White. Motion carried 5-0.
Motion by Vogt, seconded by Sprecher to adopt the August, 2004 minutes. Motion carried 4-0 with White abstaining.
COMMUNICATIONS: None to report.
Duckworth advised the board that they needed to set the dates for 2005, which would be the 4th Thursday of the month, other than in November and December. Motion by Roloff, seconded by Sprecher to accept the dates as provided by Duckworth. Motion carried. 5-0.
APPEALS:
A. Sally Glorch (SP-43-04), requesting a special exception pursuant to s.7.10(2)(b)4 to authorize the excavation and expansion of an existing pond within 300 feet of a property line. The property is located within the RC35 District, Town of Baraboo.
Mr. Dave Lorenz, Environmental and Zoning Specialist, appeared and gave the history and background of the request. He then reviewed photos and video of the site. Mr. Bremer concluded with the staff recommendation of conditions to be placed on the request if approved by the Board.
White asked about the age of the existing pond and how they ended up in front of the board. Lorenz explained the age and that the pond is here because of a neighbors concern of water runoff during the heavy rains and the expansion of the surface area and depth of the pond requires a special exception permit.
Ms. Sally Glorch, applicant stated that she built the house last year and in the process they needed to cut away some of the hillside and didn't realize that the water runoff was going to be a problem. The pond has been there since the early 1900's and was always referred to as sky pond. She then stated that there were dead trees around the pond and she took those out and took out some of the cow manure from the pond. She didn't really make the pond bigger or deeper, just took out dead wood and soil to just clean it up.
Roloff asked about the outflow of the pond where it goes over the birm. Glorch stated that it has always been like that and has not changed. The property has a lot of springs and wet areas.
Duckworth asked about having Blums work on the bank to fix the erosion off of the bank. Glorch stated she just had them move some dirt on the bank. She continued to discuss the erosion and water runoff with the board members.
White asked if the pond if fed from runoff from the hillside or seeping from a spring. Glorch stated it is fed by both, runoff and the spring.
Roloff asked about Exhibit II,2, the letter to Mr. Sorenson, the second paragraph speaks of the drainage problem and installing a culvert. Glorch stated that this is a culvert up by the house and has nothing to do with the pond. Roloff asked if the runoff complaint by the neighbor is from the driveway, which was fixed by the culvert and has nothing to do with the pond. Glorch stated that was correct.
White asked how long the cut out is between the pond and the ditch. Glorch stated that she doesn't have a big runoff, and the photos show what the property was like after all the heavy rains this spring.
Duckworth asked if Blum fixed the gully. Glorch stated that he did not fix it and she just has to put a couple shovels of dirt in there.
White asked if she was planning to use riprap so this doesn't happen again. Glorch stated she would be willing to do that if the board wished.
Duckworth reviewed Glorch's testimony and Glorch agreed that he was correct.
Dave Lorenz, reappearing, responded to a question from Duckworth about the maintenance of the pond being in the jurisdiction of the board. Lorenz stated that it was the decision of the staff in that the dredging of the pond needs to be reviewed by the Board. He also stated that while he was out taking photographs the area is naturally fed.
White asked if he was out to look at the runoff of the construction site. Lorenz stated that Steve Sorenson addressed the construction complaint.
White asked how the pond was noticed. Lorenz stated that while Sorenson was on site, he felt that the pond may be contributing to the problem of runoff that he was there to address.
Vogt asked if Sorenson related anything to how the washout occurred. Lorenz stated nothing was relayed to him, and it did follow a heavy rain.
Ms. Darlene Hill, appearing in opposition, representing the Town of Baraboo, stated that at no time was this request made to the town. She also spoke of the July 16th letter from Glorch to Steve Sorenson. The problem they have, the proper procedures to the Town have not been followed and that is why they are in opposition.
Duckworth asked if they need a permit from the Town. Hill stated they do.
White asked if they need a permit for maintenance from the Town. Hill stated they don't need a permit for maintenance, but if they dig or build something.
Vogt asked if the town would have required a permit from them. Hill stated that is correct.
Roloff stated that the issue seems to be the maintenance of a pond or construction of a pond.
Seeing no one else wished to speak, Chairman Duckworth closed the public portion of the hearing at 9:30 A.M.
White stated concern with overflow in the future.
Vogt stated he wonders if the County had looked into giving a "birthday" so to speak.
Duckworth stated that the Planning Administrator felt it was enough work to warrant a special exception permit.
Sprecher expressed his concern with people getting the information so they know what applications need to be made and conditions met to avoid this kind of after the fact issue.
Motion by Roloff, seconded by Vogt to grant a special exception to authorize the expansion and excavating of a pond with conditions as listed by Planning and Zoning Department. Motion carried 5-0.
B. Robert and Nancy Lee (SP-44-04), requesting a variance pursuant to 7.10(3)(e) to authorize a change of lot line that will have an existing garage within 75 feet of a rear lot line, located in a Resource Conservancy 35 District.
Mr. Dave Lorenz, Environmental and Zoning Specialist, appeared and gave the history and background of the request. He then reviewed photos and video of the site. Mr. Bremer concluded with the department recommendation of approval with conditions as specified in the staff report.
Duckworth asked about the permit for the garage and the exhibit showing where the proposed lot line would be.
Roloff stated he is having a hard time sorting out the way it is now and what is being proposed.
Duckworth asked what the rear yard setback was in 1991 when the garage was built. Lorenz stated that when the garage was built, the setback was 25 feet, however after the town changed their zoning it is now 75 feet.
Roloff stated they received a letter from Greenfield stating they have a moratorium on land divisions. How would that work if they approved the variance. Lorenz stated that Greenfield would have to approve the CSM, but because they are not creating a new lot, he is not sure if that would affect their moratorium.
Vogt asked about the 3 feet on the rear lot line, that distance is just because the shed is there, but they could go 75 feet, therefore they would not need a variance. Lorenz stated that was correct. Vogt asked if that would include the shed. Lorenz stated any structure is suppose to have a 75 foot rear yard.
Roloff asked if the shed was a portable lawn/yard shed. Lorenz stated he wasn't sure, but it does look like that.
Duckworth stated that he will rule that this is an area variance and spoke of the 3 items the applicant must speak of.
Ms. Nancy Lee, applicant, appearing in favor of the request, stated that they have offered the property to their son-in-law, but he does not want it and have inquired to Planning and Zoning on how to rectify the problem. She also stated that the small shed is on concrete.
White asked if the shed is part of the concrete or if it is sitting on a concrete slab. Lee stated that the walls are attached to the concrete. Lee continued to state that the setback would be 5 feet which would give plenty of space for a mower to get back there if needed.
White asked if the shed in question is hers. Lee stated that the shed and all structures belong to her. White asked if the offer to sell more land included the shed. Lee stated it did not.
Duckworth asked what the unnecessary hardship would be. Lee stated if they needed to give up the concrete pad for their motorhome and their fire pit, that would be a hardship.
Duckworth asked why this land is unique. Lee stated that this property was all wooded and her husband took down the trees and made all of this out of a simple wooded area.
Vogt asked who owns the garage. Lee stated her daughter and son-in-law own the garage.
Vogt stated the garage is there and the lot line runs through the middle of it, who uses the garage. Lee stated they use the garage. Vogt asked about the asphalt drive to it and the lot line adjustment will move the garage to their property. Lee stated they will be giving them this property for piece of mind, they don't have to do this.
Duckworth asked if she doesn't know how the garage got built there. Lee stated that is correct. Duckworth asked about the letter from her, signed by her stating that she gives permission to them to build the garage and septic on their property.
White asked if she was willing to sell them more land. Lee stated no.
Vogt asked about the septic field and whose it is. Lee stated it was her daughters and son-in-laws.
Vogt asked how the septic field got built there. Lee stated the same way and the property was to be giving to her daughter as an inheritance anyway.
White asked if the property was split at the time the house was built. Lee stated that it was and it is in the packet. Lee continued to describe the csm.
White stated it looks like they are dealing with 4 different pieces here and she reviewed where the structures are.
Mr. Bob Ginther, Attorney, representing David Nelson, who is one of the co-owners of the land where the variance is being sought and feels that the request is not ready for resolution and what is being proposed which would be conveyed to resolve the building encroachment issues, and there is not agreement between David and Cindy Nelson and the Lees and resolution of the issue. There is no existing rear yard setback violation as the property is now, the side yard is what is not in compliance at this time. They are proposing to transfer a piece of land that would create a setback violation.
Duckworth asked about the unnecessary hardship issues. Ginther stated that they do not meet the hardship requirements. The garage was built by the Nelson's with the cooperation of the Lee's. The hardship is self imposed.
Vogt stated if you took the lot line 75 feet south of the shed, you would meet the setback. Ginther stated that the 3 feet on the exhibit is the variance they are looking for, not a distance. Vogt explained his math. Ginther stated this boundary dispute could be resolved without a variance. He also spoke of the public interest protected and requiring a 75 foot setback from the shed or the garage will not deprive the Lee's from reasonable use of the property.
White questioned why he felt the Lee's could be forced to sell their property. Ginther stated he did not say that, but said that there is a boundary dispute that could be settled without a variance.
Duckworth reviewed the criteria for a variance again and asked if there was any other information Ginther would like to provide. Ginther stated that he has addressed the fact that the applicants do not meet the criteria for an ordinance and until the Lee's and Nelson's agree on a parcel to be conveyed and accepted, granting a variance won't accomplish anything.
Lance Gurney, Planning & Zoning Director, appearing as interest may appear, stated he has been working with both parties for several months now and advising them to what the ordinance says and asked the board to refer to the CSM, Exhibit II, 4 to clarify…. Lot 1 an 2 are existing CSM, and the parcel where the garage and the shed primarily rest, is on a lot of record, which predate the subdivision requirements, so there are 4 lots that are recognized in this area.
Vogt asked if the land owned by David Nelson is a lot of record also. Gurney stated he believed it is a lot of record created by deed and not a CSM. He also stated that he concurs with Mr. Ginther in that the hardship was self created. He then reviewed the permit application and plot plan that was submitted with the permit and there is no lot lines anywhere on there and the land referred adjacent to them as one contiguous lot with no lines separating them and did not correctly identify the lot line that was existing there and on the permit show setbacks that meet the requirements of the ordinance. On exhibit IV, 4, the permit for the garage, the setback distances also meet the requirement of the ordinance and in Exhibit IV,5, again they did not correctly identify the lot lines and there seems to be fault with the information that was provided.
Roloff asked about Exhibit II,4, CSM, and what the date it. Gurney stated it was pretty recent. Roloff asked if when the permits were in process, what the CSM created at that time. Gurney stated that all the lots existed prior to all construction and permitting.
White asked if the house meets all the setbacks. Gurney stated it is hard to tell and referred to exhibits, but also that when this was applied for, the zoning was different, and the house met the standard and at this time would be considered a legal non conforming structure. The house is not at issue here, but the garage is. Gurney also stated in terms of the shed that is there, it is a portable shed and is bolted to the concrete, but you could remove the bolts and remove the shed from the concrete.
Ms. Cindy Nelson, appearing in favor of the request, stated that they are looking for 3 foot setback and feels it would be a hardship on her parents because of all the money they have put into the concrete and could take the garage down, but the that would be a hardship on both owners. If the variance is not received they will drop the issue and would cause the property to be unsellable.
White asked how this would cause the property to be unsellable. Nelson stated because of the garage built on both properties.
Duckworth asked how this happened. Nelson stated that at the time it was ok, but didn't know what she was doing. Duckworth stated that she signed her name stating the information she provided was true and correct, but she didn't know what she was putting down. Nelson stated she just did what they told her to.
Ginther, reappearing in opposition, stated that Ms. Nelson felt there would be a hardship because of the loss of fire pit and the land would be landlocked. He stated that the 75 foot setback would not land lock the parcel because it would still have 40 feet of frontage on Neuman Road. Also the fire pit would not be lost because meeting the setbacks would not affect the pit.
Seeing no one else wished to speak, Chairman Duckworth closed the public portion of the hearing at 10:25 A.M..
Duckworth reviewed the standards to grant a variance. The board confirmed that they don't feel the request meets the hardship requirements or any of the other items being addressed.
Vogt stated that the underlined issue is not the variance, but what is going on between the two parties and something can be gerrymandered to resolved the issue where a variance is not needed. The shed is moveable and portable.
White stated that we can't require the Lee's sell more of their property or tell Mr. Nelson that they must accept the land.
Motion by Roloff, seconded by White to deny the variance, as none of the conditions for a variance was met. Motion carried 5-0.
The Board adjourned at 10:30 A.M.
Respectfully submitted,
Halsey Sprecher, Secretary