DATE:January 27, 2005 Session of the Board
PRESENT: Bruce Duckworth - Chair, Robert Roloff - Vice Chair, Halsey Sprecher, Richard Vogt, Linda White
STAFF PRESENT: Gina Templin, Dave Lorenz, Lance Gurney
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 White, seconded by Vogt.
Motion carried 5-0.
The Board adopted the agenda for the January 27, 2005, session of the Board on a Motion by Vogt, seconded by Sprecher.
Motion carried 5-0.
Motion by White, seconded by Vogt to adopt the December 16, 2004 minutes.
COMMUNICATIONS:
Dave Lorenz stated that he spoke with Judy Ashford, Clerk for the Town of Merrimac, stating that the town has no opinion on either appeal for the Township.
Lance Gurney asked the Board to meet with staff and himself at 8:30 a.m. prior to the regular Board meeting. The Board agreed that time would work.
APPEALS FROM PREVIOUS HEARINGS:
A. Mark Richards, SP-38-04, requesting variances pursuant to s.8.05(1)(b) and s.8.09(1)(i) to authorize an addition, as built, within the minimum side yard setback exceeding the maximum square footage allowed.
Chair Duckworth stated he would not take part in the Richard hearing, as he was not present for the initial hearing and advised the board that Roloff would act as chair.
Roloff stated he had brought the wrong material to the hearing today and would require time to review the minutes from the hearing in August so that he could act properly on the hearing.
Duckworth stated they would hear SP-38-04 after they addressed SP-57-04.
APPEALS:
B. High Blue Ranch, LLC, Mike Wilson, Agent (SP-57-04), request a variance for 2 bridges, pursuant to s.8.06(2) to authorize the location for 2 private bridges within the minimum setback of a navigable water.
Roloff dismissed himself to review material for the postponed hearing on SP-38-04.
The Board determined this would be an area variance.
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.
The Board discussed the filling and grading permit that was issued by the Planning & Zoning office and verified what they are acting on today.
Mr. Lewis Herro, appearing as agent, being the Realtor dealing with the property, spoke of some of the issues in trying to develop the property and the request to install 2 bridge to get access to 2 homes. He spoke of the wetland delineation and the requirements for a variance. Mr. Herro stated that the hardship is the conditions unique to the property and the ownership has not caused the problem. Such issues are shoreland zoning areas, limited access to the property and is not self conflicted. Unique property limitations would be the slopes and wetlands and configurations on the property. He also stated that there is a waterway going through the property and would like to see that waterway conserved for the public interest. He then spoke of the permit that was received from the DNR. Additional comments include the limited zoning on the site, the adjacent lands being used for residences and the variance will not conflict with any of the current uses of this property or the adjoining property owners.
Duckworth asked the applicant to show unique property limitations. Herro stated that the entrance to the property and the wetland and waterway area all come into the property at the same points.
Duckworth asked about the area where the bridges would be placed and its uniqueness. Herro stated that the uniqueness is that they are protecting the wetlands and the areas around it.
Duckworth asked the applicant to discuss unnecessary hardship. Herro stated the unnecessary hardship are the slopes, wetlands, waterways and others that are already there, not something that was done by the property owners and it will make the property safer for the people that will be using the property. He stated they would not be going in and doing major changes on the property and the proposed land use is consistent with the zoning requirements.
Vogt asked about Exhibit II, 16 and II, 12, and asked if they are proposing to cross the tributary going east/west and stated that if they enter the property to the north, they would have to cross the tributary to the north and if that was considered a navigable stream. Herro stated anything is possible, but crossing the north stream stated it would be difficult because of the slope of the lands.
Vogt asked if the DNR and staff all agreed that these two sites would be the best sites. Herro stated he believes so.
White asked if there is anywhere else on the property you could put a house without crossing the creek. Herro stated there is not.
William Schmitz, appearing in opposition, stated he was at the first meeting and believes there is a water problem and the board has pictures of the damage caused by water and said that he was informed that this may not be what is intended for the property and the owner has already changed his request twice and feels the grading for the two houses will make the property like a funnel and will increase the water problems already on the property. He also stated that the owners could get to the property off of Highway K. He then spoke of the fact that the board was threatened that if they didn't get the permit, the property owner would put numerous cattle in there to cause more damage then what the housing might do. He asked who is responsible for the damage caused on his property from the grading and the damage from the excess water directed through there. He then asked the board to provide a provision that you can not put multiple housing in there or excessive grading to cause more damage to adjacent property owners. He also asked why you need two bridges for just 2 homes.
Mr. Michael O'Brion, appearing in opposition, stated that he agrees with everything Mr. Schmitz said and asked if the bridges will work and anytime you disturb a wetland you are in trouble and that area is extremely wet and from one meeting to another the owners proposal keeps changing.
Mr. Phil Craker, appearing in opposition, stated he is the Town Chair for the Town of Winfield and stated they were opposed to the permit for putting the culvert and grading in and are opposed to the bridges and this request as well. The town is against the entire driveway access, prior to dealing with the culverts and bridges. He also asked how the board can look at the photos or video and determine how great the area is for this request and feels they should see the property in person. He then spoke of all the meetings the owner had with DNR and county staff and that no one ever approached the Town of the request, when the first step they need to complete is the driveway permit from the Town. He described the property and the cattle that have grazed on the property as well as the abundant wildlife, and the property is not unique as the entire township of Winfield is exactly the same of this property. He doesn't feel there is a hardship as the land can be used for other uses than residential, as it has in the past, and the culverts that are there have been underwater in the past and the more you disturb it, the worse you're going to make it. The Town Board feels they need protect the rights of the people around them.
Duckworth confirmed that the property is similar to other properties in the area. Mr. Craker stated the entire town is the same as this property.
Vogt asked if the Town has Exclusive Ag zoning. Craker stated they do not.
Vogt asked if the Town is starting their Comprehensive Plan. Vogt stated they are scheduled to start working with the county in 2006. He then described how the Town has dealt with issues themselves.
White asked if there was anywhere else on the property the house could be built without crossing the creek. Craker stated he believes so, but that is probably not where they want their house.
Sprecher confirmed that the owners did not approach them on developing the property or asking for a driveway permit. Craker explained the Town requirements for driveways.
Vogt asked about the existing field road entrance and if it would be suitable for a residential drive. Craker disagreed and explained the drive that services the farm building only and described how the property used to be.
Vogt confirmed that the owners have access to use the farm drive and if they need a permit since they are coming off of a private road. Craker stated possibly not officially, but the town concern is the culvert and bridges that would affect their roadway.
Sprecher asked if the Town would be against them to put more homes in there. Craker stated they have never approached the Town with anything and they would like to see a restriction of the number of homes put in.
Vogt asked if he is aware of any private bridges that have been built in the Township in the last 20 years. Craker stated some culverts have been built but he is not aware if they received a DNR permit.
Mr. William Schmitz, reappearing in opposition, stated that the drive, and he owns land around there is there never was an easement for the drive and it was found out that they were infringing on the property when it was surveyed and an easement was given off the town road to their property and the easement was for the original farm and what they are getting is just from the Town road.
Ms. Rosemary Greenwood, appearing in opposition, stated that when she was at the last meeting, it was stated that they had applied for 1 building and now they are applying for 2 homes? Duckworth explained why the meeting was postponed for today and explained that this board is not in charge of how many homes are built, but are dealing with the bridges.
Mr. Lance Gurney, appearing as interest may appear, stated he is with Sauk County Planning and Zoning and explained that the 2 variances should be considered separately and will address a couple points that were raised. He referred to pictures on Exhibit V,1, and spoke of the property layout and why can't you have 2 homes on the property only using one bridge. He then referred to Exhibit II,12, and explained where the drive would come into the property as proposed and would cross the stream to gain access to the western knoll and then cross the stream again to gain access to the other home site. Exhibit II,16 was then discussed and Mr. Gurney stated that there are 30-40 acres there and the possibility to put 2 homes which would make the standards for granting the second variance null and void.
White asked about Exhibit II,16, and is there anything they would have to cross if they built in the area around where the map states "steep slopes". Gurney stated that the current field road is on the lower level, but certainly you could make the case that if they can get a drive up to the other farm, so without seeing the property first hand, but from maps, it may be very steep, but feels you could gain access to the property from there.
Vogt asked how many permits for bridges and culverts has the DNR issues for private bridges and culverts. Gurney stated that since he has been here, there have been request very similar where farm drives cross wet areas, stream, etc., where they were not allowed to go through and had to gain access from the adjacent owners to access the property from other sites, and one other had to get a bridge and it was viewed as an extension of the public right-a-way, so no variance was needed. He did say that bridges most likely have been put in without permits. He also stated that if you are comparing the culvert to a bridge, the bridge will have a greater benefit to protecting the resources, but the staff does not support the disturbance that the project will cause.
White asked what the minimum lot size was in Ag zoning. Gurney stated ½ acre.
Mr. Lewis Herro, reappearing. Duckworth asked Mr. Herro what his interest is in the property. Mr. Herro stated he would be involved in the possibility of building the 2 homes. He also stated that they are aware of the water and protecting it. He then stated they had a meeting with the Town chair at the town hall and the biggest problem seemed to be that he wasn't made aware of the project prior to this coming about. He also spoke of the meeting with the DNR and Mr. Sorenson. They will follow the rules, permitting process, and whatever is needed.
Duckworth referred to Exhibit II,16, and asked why you can't build the homes on the first upland knoll. Mr. Herro stated you can do anything. Duckworth asked again, could you build houses on those steep slopes. Mr. Herro stated you could, but they wouldn't be cost affective.
Duckworth asked if you could get an easement off the farm road farther down to the west. Mr. Herro stated that the elevation using blacktop or concrete drive would cause more water problems.
Duckworth asked how steep the hill is. Herro stated he doesn't know, but slopes up 6-10 feet.
Duckworth asked about why you need the second bridge and why you can't build both homes from where you would put the first bridge. Herro stated that the first bridge is allowing the people to get access to the property and the second bridge is to allow the second home.
Duckworth asked again why you can't build the homes using the one bridge, versus separating them and using 2 bridges. He asked the applicant if it was a case of simply wanting to put the houses where they want to put the houses. Herro stated that was correct.
Mr. Mike Wilson, appearing in favor of the request, stated that Mr. Craker said they had not asked for a driveway permit, but they did go to a Town Board meeting in June and did ask for a driveway permit and they would not require a permit because there is an existing driveway. He also stated that they are proposing just 2 residential homes and not making a large development out of the property. He then spoke of the building sites and feel they are the two best sites for building the homes and they did look at other alternatives. After that the wetlands were discussed as well as the need for a variance to put the bridges in. He stated the property would be split about 70/30.
White stated that the applicant has her respect for all they've done to try to make this workable and she then spoke of the requirements for a variance and the decision the court has dictated for them the follow. She then referred to Exhibit II,16 and directed him to the area that says "steep slope" and why a house could not be built on that. Wilson explained that because of the wetlands and steep slope, he doesn't feel you can come into there. They also intend on using the creek to split the property. He then explained to build 2 houses on 1 point, stated that there is about 1 acre which is the flattest spot and to squeeze two homes right next to one another doesn't feel that would work the best, as the two spots they have picked out are the most convenient.
Seeing as no one wished to appear, Duckworth closed the public portion of the hearing at 10:15 a.m.
Duckworth reviewed the ordinance and the request and discussed the requirements of granting a variance.
Vogt stated that he sees that the DNR permitted the structures under Chapter 30 statutes and an administrative rule NR115, the county ordinance, and the issue of a variance has not come up within about 20 years. In this case, because they are putting bridges across there, he is not sure a permit is required, but approval of a bridge crossing, so he is having some problems with the request. To address the issues of a variance, he feels it is a unique area, as there is a stream there that wasn't dredged, tampered with and is a natural stream and to try to cross that or try to cross wetlands, which you can't do. This is an 80 acre parcel with wetlands and a stream and is a character of the land. As far as public interest to convert the parcel from pasture area to residential would improve ground water quality and also flooding. From a water quality stand point it is in the best interest of the public.
White stated she agrees with Vogt and feels public interest has been protect. She is struggling wit the fact that they have denied variances to other because they don't meet the variance based on the fact that they can build somewhere else. She feels this property is no different that way.
Duckworth asked if there are any unique physical limitations to this property versus others. White stated the property is not unique compared to other properties, but it is unique in itself with how things have come about.
Duckworth stated in an idea world, they would have delineated the wetlands and split it before going forward.
Vogt said, as the gentleman said, you can do anything engineering wise, but you have to look at practicality.
Duckworth stated that he agrees that neither variance would harm public interest and protect the wetlands. However, the unnecessary hardship, there appears to be other building sites available on other parts of the property. He also stated he has problems with unique property in the fact that the Town Chair has said this property is no different from other properties. He also doesn't feel that hardship was shown.
Sprecher stated he is concerned about the long driveway as far as fire and health protection and the fact that people can not be serviced.
Duckworth stated the board needs to focus on the 2 bridges. He also stated that per the 2 supreme court decisions, it is up to the applicant to prove all 3 areas for a variance, not the board, not planning and zoning and feels that in 2 of the areas the applicant did not prove to his satisfaction and will oppose the variances due to the lack of the applicant proving unique physical limitation and unnecessary hardship.
Motion by White, seconded by Duckworth, to deny the request, as the applicant did not prove the 3 requirements for a variance.
Motion carried 3-1, with Vogt in opposition.
The board recessed for 5 minutes.
Motion by White, seconded by Roloff to remove SP-38-04 from the table.
Motion carried.
A. Mark Richards, SP-38-04, requesting variances pursuant to s.8.05(1)(b) and s.8.09(1)(i) to authorize an addition, as built, within the minimum side yard setback exceeding the maximum square footage allowed.
Duckworth apologized to the board as he was present for SP-38-04 and he will chair this hearing. The then discussed the case and why the request was tabled.
The board determined this was an area variance.
Dave Lorenz, Environmental and Zoning Specialist, appeared and gave the history and background of the request. Mr. Lorenz concluded with the staff recommendation of conditions to be placed on the request if approved by the Board.
Duckworth asked if we got a survey. Lorenz stated we did not get a stamped survey, but measurements from the property owner.
Duckworth stated that according to testimony, the property was surveyed, but the applicant has not given us that survey. Lorenz stated that was correct.
Mr. Mark Richards, applicant, appearing in favor of the request, stated that the zoning committee wasn't aware of the square footage when he applied for the side variance and the only place he could put his addition was on the back side of the cottage to make it handicapped accessible. He also stated he talked to all his neighbors and the Sumpter Township approved the variance.
Duckworth asked if he built the addition without permits. Richards stated he did. He also stated he would have needed to get a variance to put it on if he hadn't already built it anyway.
Duckworth advised the applicant that he needs to address the variance requirements.
Richards stated the hardship was that he could not get a wheel chair through the old kitchen and there was only one spot where he could put the addition, which is where it is located.
Duckworth stated that the applicant's testimony is that the property was expanded because he wanted to expand it. Richards stated it was expanded for access.
Duckworth asked how this will not harm the public interest. Richards stated that it improved the looks of the old structure, which was rotted and in bad shape and has improved the appearance.
Duckworth asked how is lot is different from others. Richards stated that it isn't that different other than the fact that the original cottage was built 10 feet from the property line.
Duckworth asked how big the house is now. Richards stated it is about 850 sq. ft.
Duckworth asked if all the addition is farther away from the water than the rest of the structure. Richards stated that was correct and you can't see if from the shore.
White asked for Dave Lorenz, and asked if a permit was issued for the structure already or if it is waiting on this board. Lorenz stated the permit has not been issued, and can not be unless the variance is approved by the Board.
White also asked about the addition and how it relates to the setback. Lorenz explained. White asked that even though the addition is outside of the 75 foot setback, it is included with the entire house. Lorenz stated it is the total living area within the setback.
Vogt stated the addition was built 77 feet back from the shore. Lorenz stated that the ordinance limits the structure as a whole, not the just addition, to the expansion size.
Duckworth asked about the 50% improvement clause. Lorenz stated that has more to deal with Chapter 9, Floodzone issues, which this property does not deal with.
Seeing as no one else wished to appear, Duckworth closed the public portion of the hearing at 10:50 a.m.
Duckworth reviewed the ordinance and the request, as well as the requirements set by Supreme Court case law, to grant a variance.
Duckworth stated that he feels that an old cottage that is within the setback and the expansion not encroaching any more than the original does not harm public interest, as well as building the addition away from the water, not harming public interest. It is not going to have negative impact on the shoreline or the neighbor. The property is a small lot, but they are all small in this area.
White feels the applicant could have met the setback.
Duckworth stated the hardship was that the addition was built without a permit and if a permit was applied for, there would have been several flags raised at that time.
White feels she doesn't have a problem issuing a variance to make the house larger because it is small and is an improvement, but does have an issue with allowing it within the 10 foot setback.
Roloff asked if they treat it differently because it is "as built" versus something that comes in in proper order.
White reviewed previous cases where applicants were denied even though structures were already built.
Duckworth stated if they allow people to build and then ask for a variance and approve it, they are encouraging people to go about things illegally.
Roloff asked why in the shoreland ordinance, what was the purpose of creating these setbacks, was to protect the public interest, the beauty of the shoreland and from building structures to densely, too close together and the effect it would have on the resources. He also stated he has problems with consistency here.
Duckworth spoke of the shoreland ordinance and is not sure the side yard setback. He also thought at one time the ordinance allowed a structure to be remodeled up 50%, and feels the county board did not want this type of expansion.
Roloff feels this property does not have unique property limitations and is not any smaller than any other lots in the area and to grant this variance, maybe contrary to what the ordinance states to protect public interest. He also does not feel that not granting the variances would prevent the owner from using the property as a permitted use.
White asked if there is room outside of 75 feet from the setback, could the applicant build the addition allowed within the rules.
Duckworth stated they don't really have testimony one way or another. White said that would have influence over her decision.
Roloff stated the reason they tabled it was because they didn't have an accurate survey of the property, which the board requested, and still have not received.
Motion by White, seconded by Roloff, to deny the request based on not proving the 3 requirements for variance. Motion carried 5-0.
B. Blaine Miller, SP-01-05, requesting a variance pursuant to s.7.10A(3)(e) to authorize the location of a storage shed, as built, within the minimum rear yard setback.
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.
Duckworth asked if the structure would need a county permit and if it was applied for before it was built and why. Lorenz stated that it would need a county permit, as it is considered an accessory structure and it was not applied for before it was built.
Roloff asked how it is zoned. Lorenz stated it was RC-5. Roloff stated so there is no assurance from the Town that this will not be used for human habitation.
Mr. Blane Miller, applicant, appearing in favor of the request, stated that he has owned the property for 18 years and had reviewed the setbacks in February and did not build the building until a permit was received from Excelsior and was unsure of the rear setback and would have met it if he knew what it was. He also said he would have plenty of room to meet all setbacks and doesn't plan on living in the structure but plans on building a house in the future. He stated the rear property owner has no problem with the rear setback.
Duckworth asked when he received a permit from Excelsior and who he got it from. Miller stated he got it around August, but sent his brother up to get the permit from the Town and he is unaware who he received it from.
Duckworth asked how he knows the side yard setbacks are 25 feet. Miller stated he reviewed literature that his brother provided him, verbally. He has nothing in writing.
Roloff verified he has a permit from the Town. Miller stated he has a copy in the vehicle.
Duckworth asked the applicant to address the issues of a variance. Miller stated he messed up in building the structure in his placement. He also stated he has signatures from neighboring property owners stating they don't mind where the building is placed.
White asked when the permit was received from the township did they tell you it was also needed from the county. Miller stated he is not sure as his brother received the permit. He also stated it would be hard to move the building and is only asking for 19 feet in his variance.
White asked if the neighbor behind the applicant would sell 20 feet of property. Miller stated they were simply hoping it wouldn't get to that point.
Roloff asked if he has explored having 19 feet deeded to him. Miller stated they talked about it but not in detail and asked if it would have to be 19 feet, but what would the width have to be.
Roloff stated if the variance were to be denied, he would have to move the building or purchase more land.
Miller stated the board met on the 11 th and stated they would not be opposed to the variance.
Vogt asked if the brother who got the permit for him owns the property to the rear. Miller stated he is not, but it is his son.
Seeing as no one wished to appear, Duckworth closed this portion of the hearing at 11:25 a.m.
Duckworth reviewed the request and the ordinance.
Roloff stated there are no unique property limitations.
White stated it would not hurt the public interest.
Vogt stated that it does not meet any of the requirements for a variance.
Duckworth spoke of the RC-5 adoption and its rules.
Motion by Vogt, seconded by White, to deny the request based on not meeting the requirements of a variance. Motion carried 5-0.
C. Grede Foundries, SP-02-05, requesting a special exception permit pursuant to s. 7.05(2)(k)10 to authorize the renewal of a special exception permit to operate a private landfill.
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.
Duckworth asked about any complaints and inspections by Planning & Zoning. Lorenz stated that he is not aware of any complaints or inspections on the property, as this has been the first time he has been on the property.
Duckworth confirmed that this is simply a renewal of their original permit. Lorenz stated that is correct.
Roloff asked if this would be a 5 year permit again. Lorenz stated that is up to the disgression of the board.
Roloff asked if this will take care of their needs for 15 years. Lorenz stated that is what their application states.
Mr. Franklin Brey, agent for applicant, appearing in favor, stated that they are requesting an extension to their original permit.
Duckworth asked if any complaints were received on this site. Brey stated there has not been. He also spoke of discussions with the DNR at closing part of the site without any issues.
Duckworth asked if there was anything in the original permit requirements that he would like changed. Brey stated that increase the 5 years to come back to renew would be nice. He then spoke of the life of the site and extending that as long as possible with finding other sources for the material versus putting it in the landfill.
Vogt asked if the material is considered a solid waste. Brey stated it is considered an industrial by-product, which is mostly sand with other materials in it.
Vogt asked what other uses for the material have they used. Brey stated that they have worked with the City of Reedsburg, the material was used to raise the grade of the property in the Industrial park to expand it for future building sites.
White asked if this is a material that could be field spread or needs to be covered. Brey stated it has to be covered. The closure that was done on a portion of landfill involved the placement of 6 feet of sand with no impurities in it and then on top of that is 6" of topsoil and is seeded and revegetated that way.
Sprecher asked if the product is brought in from other sources. Brey stated that is correct.
Duckworth stated without a place to dispose the product, the Foundry would have difficulty in operating. Brey stated that was correct.
Ms. Linda Borleske, appearing in favor, stated that she is the Supervisor for the district and is Chair for the Town planning committee. She stated she spoke with the majority of the landowners and ask that the wells are continued to be monitored by the DNR.
Duckworth asked if none of the neighbors complained about the trucking. Borleske stated they had initially complained about the trucking, but it seems to have gotten better.
Duckworth asked if anyone has called her to complain. She stated she has received no calls.
Seeing as no one wished to appear, Duckworth closed this portion of the hearing at 11:45 a.m.
Duckworth reviewed the request and the ordinance.
Motion by Duckworth, seconded by Roloff, to grant the special exception permit request with the conditions listed by Planning & Zoning.
Motion carried 5-0.
The board recessed for 5 minutes.
D. Doug and Pam Halverson, SP-03-05, requesting a variance, pursuant to s. 8.06(1)(c)2, 8.05(3)(c) and 8.06(2) to authorize the removal of an existing nonconforming structure and building a new residence within the minimum road setback on a substandard lot, within the minimum setback from the lake.
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.
Roloff asked about the boathouse variance. Lorenz explained what the variance for the boathouse was for.
Vogt asked about the road, which is 50 foot wide from ROW to ROW, which makes it a substandard road. Lorenz stated that was correct.
The board determined that both variances are area variances.
Ms. Pam Halverson, applicant, appearing in favor of the request, stated that the unnecessary hardship is that the cottage is a 3 season cottage, uninsulated and does not have a full bathroom. They want to rebuild the cottage the same size it is now, but make it usable for year around use. They do intend to build a garage for storage though as well. The cottage would also need to be updated for the roof, the water and heating. She stated that the unreasonable use of the property is that they can not use it during the winter months. She then stated that as far as public interest, updating the cottage would not cause harm to the public and the neighbors on the right side of them have been granted a variance for their garages from the road setback. She also stated that the hardship under the current ordinance is that they would only have 17 feet of buildable area because the lots were created 50 years ago and that they had received a letter from the DNR stating they are in opposition to the request.
Duckworth asked if they talked to the Township. Halverson stated they did, but they told them they would need to come here and seemed to be in agreement with it, but did not say yes or no either way.
Vogt asked if they had talked to a builder to see how to minimize the encroachments into the setback and if the entire thing is going to be demolished, it would appear that there is some wiggle room to at least minimize the setback requirement and the reorientation of the design of the house. Halverson stated that they have not looked into that, other than getting a modular home placed on the foundation and they would do the finishing work. The garage would be the only thing in addition to what is already existing.
Roloff asked about the dimensions of the house, which restricts the square footage?
White read the ordinance in relation to the living area.
Duckworth asked why this property is unique. Halverson stated that it is the smallest lot out there and has less water frontage that all the lots around there.
Mr. Doug Halverson, applicant, appearing in favor of the request, spoke of the garage placement without having to remove trees in the yard.
Duckworth asked about the 3 requirements for the variance. Halverson stated it would add beauty to the lakeshore and add use. He then stated that public interest, they would restore the shore of the public access at the same time as their lot under their own cost.
Seeing as no one wished to appear, Duckworth closed this portion of the hearing at 12:15 p.m.
Duckworth reviewed the request and the ordinance and the standards that need to be met to approve a variance. He also stated he doesn't feel an unreasonable hardship has been proven, however the lot seems to be one of the few that is different, but no farther away from the water setback then what is available.
Vogt stated he doesn't feel any effort was made to try to minimize the setback distances. He understands that everything isn't going to fit what they want to do, but no effort has been made to minimize the requirements, either the side yard, lake or road.
White stated that it is a tough sell in that they already have use of a cottage.
Roloff feels the applicant has not shown unnecessary hardship, public interest doesn't seem to really be addressed, although unique property could be shown.
Motion by Roloff, seconded by Sprecher, to deny both variance requests based on the fact that the 3 standards for a variance were not proven.
Motion carried 5-0.
E. Jeff and Sheri Rodgers, Atwell and Sons, Constructions, SP-04-05, requesting a special exception permit pursuant to s.8.08(3)(a)1 to authorize filling and grading on slopes in excess of 20% within 300 feet of Lake Wisconsin to construction a new residence.
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.
Duckworth asked about a plot plan and if it showed where they were going to fill and grade. Lorenz stated one was received, but it only showed the building, deck, driveway and septic system.
Duckworth asked if on the south side they cut the property and along the north it has been built up. Lorenz stated that was correct.
Duckworth asked about setbacks for the retaining walls. Lorenz stated we don't have setbacks for retaining walls as we do a structure.
Duckworth asked if the land has been raised higher than the neighboring property and it doesn't look like there are any water control devices in place. Lorenz stated that was correct.
Mr. Mike Ganser, agent, appearing in favor of the request. Duckworth asked where the plan is for the filling and grading. Ganser stated it is Exhibit II,6. He spoke of the rock retaining walls to be done in the spring and hauled black dirt and fill off site due to the lot being very narrow.
Duckworth asked how the slope of the land is being changed due to filling and grading. Ganser stated they are filling in the area of the septic, around the retaining walls, which would be less than a truckload of fill to be brought in.
Duckworth asked about photo 2 and that fill was moved around. Ganser stated no fill was added to the driveway and the grade goes down towards the house, which is why it looks like it is significantly higher.
Duckworth asked if he was on site prior to digging and if he made Exhibit IV,4. Ganser stated he was on site and only did the setbacks on that exhibit.
White asked how they became aware that this permit was needed. Ganser stated the zoning office notified them that it would be needed after all permits were issued.
Vogt, referring to Exhibit II,3 through IV,3, and asked what the story was on those. Ganser stated those were required to be submitted when the original permit was issued. Vogt asked if the site plan on II3 was submitted with IV,1 with the permit application, and IV,3 is the same drawing. Ganser stated that was correct. Vogt stated at that time there were no contour lines or indication that any other permits were required. Ganser stated that was correct.
White spoke of the letter from the county.
Duckworth verified that the topo lines were done after the filling and grading was done. Ganser stated that the setback lines were done before anything was disturbed.
Mr. Doug Atwell, appearing in favor of the request, stated that the contour lines were shot on the property twice and gave distances on the property, but he did not draw the contour lines in, and doesn't know who did. He doesn't believe it was in 20% grade before construction. It is a tight lot and trying to fit the septic, garage and house they needed to grade. There is going to be a lot of fixing up in the spring.
Duckworth asked what it looked like before. Atwell stated it was flat before construction and once the project was started, they were notified that they would need a grading permit. He stated that he felt this was a witch hunt and believe that they don't need this.
Duckworth asked if he has built near the water before. Atwell stated he has not.
Duckworth asked what the plan is to finish the project near the north side. Atwell stated that along the driveway, they dropped the elevation of the garage 6" to help minimize the driveway and according the landscape plan they are proposing a small rock retaining wall to help water runoff to the neighbors property and feels once the project is done they will have less water runoff to the neighbors property than before.
Duckworth asked if fill would be to the top of the rock wall. Atwell stated they would fill up to the top of the wall.
Mr. Gene Franks, appearing in opposition of the request, stated that he is the property owner to the right where the septic system is located and they welcome the new neighbor, but some of the excavation, when the property was cut into, it was severe and have 3 basic concerns, 1 - safety, 2 - erosion and 3 - the plans themselves. He spoke of the plan and the rock wall at point D, which will be 60 feet long by 4 feet high, which would mean that he will now have a 4 foot drop off and is worried about safety of people in his own yard. He then spoke of erosion control or any kind of detail plan of what they are building and what the retaining wall will do. He is also concerned about the plans and there being a 6 foot drop, a ramp and then a 4 foot drop and then in another place, it speaks of the reverse of that and feels the plans do not provide enough information to make a decision on what the final outcome will be. He then stated that they have placed fill in the area where they stated they did not, and feels it was increase about 2 to 3 feet high and is worried about drainage.
Ms. Nancy Dybul, appearing in opposition, stated that she is the house to the North and have grave concerns that they are just waiting for the problem to start happening. The property was flat and the property and driveway was raised at least 4 to 5 feet before any building was started. She also doesn't feel that the rock wall proposed will address any water run-off or drainage and there had been no water problems because it was a flat piece of property. She also stated that she is concerned and had contacted the county on what was happening and the potential problem. She also stated that she was sent a letter from Mr. Rodgers asking neighbors to talk to him before they talk to the county because it will cost him money to come here.
Duckworth asked if she brought any photos of the property before development. Dybul stated she did not.
Mr. Mike Ganser, reappearing, stated that the neighbor has retaining walls on their own property and if it was a major concern they wouldn't have them themselves. He then referred to picture number 6, and stated that the distance between the house and the rock retaining wall would be nearly 20-22 feet. He then addressed the neighbor on the north side, as they have drain tile on their property buried into the Rodgers property and down to the lake. He also spoke of a pitch going the wrong way for neighbors.
Duckworth asked about the discrepancy in the plans going from page 1 to page 2. Ganser stated this is the first time he's seen the plan, but it will be 4 feet, down another 4 feet and then down another 2 feet.
Duckworth asked if the plans they have got, there has already been a modification. Ganser stated the plans are just in error.
White asked about the wood deck. Ganser stated it was already there, but not sure how long.
Roloff asked about the neighbor to the north and the property being raised and is it the testimony that the property was not raised. Ganser stated that he doesn't believe so, but was not there at all times during excavation, so it could have been raised, but if it was it was only a foot or 2.
Duckworth referred to picture number 3, it looks like it has been filled where the white truck was parked. Ganser stated that he was not there for everything that was done, but feels it was not filled more than a foot or two.
Roloff spoke of picture 3 and it looks like a lot of fill has taken place on the north side.
White also said to compare the aging of the rocks on the neighboring property versus the newness of things on this property and would be pressed to say it was only filled a foot.
White stated it is flat on top now because of filling and grading, not because that is the way it was before and there wasn't a rise to the driveway before that point. Ganser stated to the garage yes, there is a rise, but not at the road.
Vogt referred to Exhibit II,5, and it appears there are spot elevations along the 2 property lines and reviewed them, and asked if those are on the natural ground. Ganser stated those were natural ground and didn't go more towards the lake.
Mr. Doug Atwell, reappearing, stated he shot the grades and they are on the natural ground, taken 2 weeks ago.
White asked if any shots were done on the driveway as it is now. Atwell stated he thought the issue was whether the property was over 20% not anything else.
Roloff stated the issue that got you here was the 20% issue, but the issue the neighbors are raising is the transition from the their property to this one. Atwell stated the did fill on the north side by 18 inches at the most, which should cause less water damage to their property and feels the work they did will deter water damage.
Duckworth stated they need plans they need to study and all they have is sketches.
White stated they are sketches that have discrepancies or are incorrect at best.
Vogt asked about the plans showing the house, not the deck, and in the photos the deck looks to go out much further than stated, and fill looks like it was brought in doesn't feel he has enough information, as the contour maps show something completely different. Exhibit IV,4 definitely shows a 20% slope where the deck is, which has dirt moved in, moved around and excavation done. Atwell stated the board is speculating what was there and what was not and now they are months into the project.
Roloff asked if it was his testimony that the grade was 20% or more. Atwell stated that was his testimony. Roloff asked if he created the 20% grade from the work they did. Atwell stated that if the grade is 20% then they made it that way.
Dave Lorenz, reappearing. Roloff asked if he thinks the 20% slope was created by the excavation or existing before the excavation. Lorenz stated he believes it existed before excavation, especially where the deck is. He explained how they determine the grade and what they do.
Mr. Doug Atwell, reappearing, stated that if that is the case, then if a person put a flower bed in their backyard would they have to come to the board.
Ms. Nancy Dybul, reappearing, stated that they put in new gutters over the summer and put in a drain, but the water problem and the tile connected to the new gutters has nothing to do with the runoff by the new neighbors. She also spoke of the rock wall to address water problems, which make her believe they acknowledge there is a problem.
Mr. Gene Franks, reappearing, stated that there are trees going in between the property and will not stop small kids from wandering and their wall will come 10 feet from their property line.
White asked if there are retaining walls on his property. Franks stated that on the opposite side of the property there is a walkway and a dropoff with rocks around it and have plantings all around there so the kids can not go in that area or through the bushes to get the walls. He stated he is looking for a practical solution to the problem.
Seeing as no one wished to appear, Duckworth closed this portion of the hearing at 1:18 p.m.
Sprecher stated he would be in favor the request, but there needs to be modifications so that the neighbors and the property owners are both satisfied and Planning and Zoning should see that these conditions be fixed.
The board discussed tabling the request.
White stated that from the testimony that was received is something that can be solved between neighbors, but has concern with the water runoff.
Vogt stated we need a set of decent plans that they can look at and then make a decision, or do they leave it to the county. He continued to talk about the lack of information in the plans already submitted.
White stated that one of the things that differentiate this from others, is that it appears there has already been a substantial amount of earth movement, and others have been much simpler issues.
Sprecher stated he feels there is enough evidence today that the neighbors don't want to stop the project, but want their property protected as well, which they have that right. He also feels the retaining walls are on private property and the neighbors don't belong there.
Motion by Roloff, seconded by Vogt, to approve the request, with the conditions by Planning and Zoning, but change condition "A" to say that no site work shall proceed until Planning and Zoning receive plans that adequately show specifications that would assure slopes stability of the rock walls, as well as address water runoff onto the neighboring properties.
Motion carried 5-0.
The Board adjourned at 1:30 p.m.
Respectfully submitted: Halsey Sprecher, Secretary