DATE: August 24, 2006
PRESENT: Bruce Duckworth, Chair Halsey SprecherRichard VogtLinda White
ABSENT: Robert Roloff
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 9:04 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
Sprecher, seconded by Vogt.
Motion carried 4-0.
The Board adopted the agenda for the August 24, 2006, session of the Board
on a Motion by Vogt, seconded by Sprecher.
Motion carried 4-0.
Motion by White, seconded by Vogt to adopt the July 27, 2006 minutes.
Motion
carried 4-0
None to report.
Dave Lorenz, Environmental and Zoning Specialist, appeared and gave the history and background of the request and the property. He then reviewed the photos of the site and concluded with the staff recommendation.
Duckworth asked the location of the mobile home park. Lorenz confirmed that the mobile home park is adjacent property to the proposed use.
Vernagene Sawyer, applicant, appearing in favor of the request, stated that the campground is a small project and will be protected on all sides from public view. She referred to exhibit II,11, which described the use of the property as well as campground rules.
Duckworth asked what the Town Board’s opinion is. Sawyer stated that the Town Board has approved the request and something should have been passed onto the Board.
Duckworth asked how far it is to the nearest campground. Sawyer stated there is one about 4 miles away and the closest one is in Christmas Mountain, however, it is private and you have to be a member to use that facility.
Vogt asked about the pond that is shown on the layout. Sawyer stated it is an existing pond which was formed from a low area.
Vogt, referring to Exhibit II,4, asked about the spring that is shown on the csm. Sawyer stated that goes across North Avenue and further than that, but she stated the area shown on the map there is all dry land.
Vogt asked if there will be a contract to have the port-a-potties taken care of. Sawyer stated she would have a contract to have them taken care of whenever required.
Sprecher asked about firewood. Sawyer stated that they will provide the firewood and no need for them to bring in any wood. She stated in the beginning they will be offered wood for free due to the cleanup for campsites and then after that, they will be able to purchase wood.
Vogt also spoke of fire wood and the requirements/restrictions currently at state parks. Sawyer stated at no time would the campers be allowed to bring in their own firewood.
Seeing as no one else wished to appear, acting Chair Duckworth closed the public portion of the hearing at 9:25 a.m. and the Board went into deliberation.
Vogt stated this has been around and has gone through the process for the rezoning issue.
Sprecher spoke of looking at the project through the Planning, Zoning and Land Records Committee.
Motion by Sprecher, seconded by White, to approve the request with the
Planning and Zoning conditions.
Motion carried 4-0.
Duckworth ruled the variance requested is to be considered an area variance.
Dave Lorenz, Environmental and Zoning Specialist, appeared and gave the history and background of the request. He then reviewed the photos of the site. Mr. Lorenz concluded with the staff recommendation of conditions to be placed on the request if approved by the Board.
Duckworth asked when the structures where built and what the setbacks were at that time. Lorenz stated they were built in 1985-1986 and the setback distances were the same then as they are now.
Sammy Nixon, applicant, appearing in favor of the request, stated that he has owned the property for about a year and when he applied for a permit to make repairs to the property, he became aware of all the issues with the property and has done what he can to bring the property into compliance. He feels that the home being built 20 years ago and not being able to reduce the size of the house and foundation, he feels is a hardship. He then addressed the garage and it is built far enough from the centerline of the road and the side yard, he just doesn’t have the 25 foot aggregate because of the location of the house. He then addressed the public interest and stated that the adjacent neighbors have both provided letters to the board stating that they are in favor of the board granting the request.
Duckworth confirmed that both adjacent neighbors have stated in writing that the variance would not cause public harm. Nixon stated that this is correct and copies of that should be located in the packets.
Duckworth also asked about the Town Board. Nixon stated he appeared in front of the Town Board and they approved his request and should have something in writing to the Board as well.
Duckworth asked about the hardship issue. Nixon stated that the house being built 20 years ago and moving the house isn’t possible.
Duckworth asked if he purchased the residence through a Realtor and asked if he has consulted the neighbor to purchase more land. Nixon stated he purchased the house through Julie Alibrando, Remax and he has consulted the neighbor and he can not sell any property because that would make his own property become non-compliant.
Vogt asked where the mound system is located. Nixon, using Exhibit II,20 showed where the mound is located between the house and the road. He explained that the mound system was only for a 2 bedroom home and the previous owners had expanded the house and made the septic system non-compliant. So at that time, he had to replace and upgrade his septic system to bring it into compliance.
Vogt asked if there is storage underneath of the deck. Nixon stated it is open and is not storage.
Dave Lorenz, reappearing.
White asked if the house was permitted at the time it was built and asked about the staff knowing the setback issues. Lorenz stated that the house was permitted, but could not find any permits on the garage. He stated he is not sure about the inspection done in 1985 on the septic system, as the staff did not inspect the homes at that time.
Sprecher asked if they granted the variance and the property would be sold, would the variance carry over and the new owners not have to come back for a variance again. Lorenz confirmed that this variance would make the property compliant with the current property owner and any future owners, however any additions would have to come back to the board for approval. He also stated that the applicant has been very cooperative and dealing with the Planning & Zoning Department on all the issues.
Sprecher asked if they are granting approval of the deck the way it is now, would that work to allow him to rebuild? Lorenz stated the board should put their intentions in the motion.
Seeing as no one else wished to appear, Chair Duckworth closed the public portion of the hearing at 9:47 a.m. and the Board went into deliberation.
The Board discussed the issues of future buildings or rebuilding any structures if they were destroyed by fire, etc. The also discussed reducing the setbacks for future uses.
Motion by Duckworth, seconded by Vogt, to approve the variance on the
setbacks for the house, deck, and garage as the variance will not result
in harm to public interest because of the neighbors and township putting
in writing that they approve of the request, the physical limitations of
the property include the structures being built by a previous owner and
the neighbor can not sell land because of their own compliance issues and
the unnecessary hardship requirements are met, due to the house would have
to be moved just over 5 feet to meet the zoning requirements. This owner
didn’t build the structures. The motion also includes that the applicant
can rebuild the deck in the same footprint as it is now, and will be looked
at as a replacement structure and not a new structure. This also includes
the conditions listed by Planning & Zoning.
Motion
carried 4-0.
Dave Lorenz, Environmental and Zoning Specialist, appeared and gave the history and background of the request. He then reviewed the photos of the site. Mr. Lorenz concluded with the staff recommendation of conditions to be placed on the request if approved by the Board.
Duckworth asked why this is classified as a contractor storage yard and not lawn and garden supply. Lorenz explained that the landscaping business is what brings them into the classification as a contractor storage yard.
Vogt asked about the existing buildings and this was an excavating company. Lorenz explained that the excavating company did own the property and a lot was created for this business and new owner. The board continued to discuss the property lines.
White asked if they would be subject to the screening required for a contractor storage yard. Lorenz stated that this is up to the discretion of the board and there are guidelines to follow if the board determines this is necessary.
White asked if this can be seen from the houses in the area. Lorenz spoke of the location of the homes and stated that there is not really any residences in this area.
Duckworth stated that this is in a commercial district and doesn’t see where there is screening required in a commercial district. He also verified that Planning & Zoning’s position is that this is not a lawn and garden supply because there is outside storage of materials and equipment used as part of the business.
Jason Sammons, applicant, appearing in favor of the request, stated that they are doing something very familiar to what has always been done on the property by the previous owner. He spoke of the screening and stated that they wanted the building in the front to screen where the materials and equipment would be stored, so that the building would screen it. He also spoke of the bins being placed along the east side property line so that people could not drive back and forth over the three properties that are located there. He also stated they have skid-loaders, lawnmowers and trucks.
Duckworth asked about impairing the uses of neighboring property, safe access and adequate parking, access for emergency vehicles, increased use of local services. Sammons stated they meet the requirements for all of the above. Duckworth also asked about a storm water management plan. Sammons explained the storm water runoff of the property. Duckworth asked about air, water or noise pollution. Sammons stated he would not.
Vogt asked about the excavating company. Sammons stated they are still located there, however they are just under new ownership.
Seeing as no one else wished to appear, Chair Duckworth closed the public portion of the hearing at 10:10 a.m. and the Board went into deliberation.
Vogt spoke about the memo from Brian Simmert in regards to the LaValle Comprehensive Plan which shows the use as an acceptable use.
Motion by White, seconded by Vogt, to approve the request with the conditions
listed by Planning & Zoning, modifying recommendation 6 c. that the
permit is not transferable and only issued to Jason Sammons, and removing
the requirement to have the request renewed in 5 years.
Motion
carried 4-0.
Dave Lorenz, Environmental and Zoning Specialist, appeared and gave the history and background of the request. He then reviewed the photos 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 what the permit that was granted in 1985 was for. Lorenz stated that he believes it was for a boat house. White stated a boathouse was requested and denied in 1984 and then the plans were changed and requested then in 1985. Lorenz stated that is correct and that the boathouse was never built.
White asked about the February 28, 2003 request and if it the same request as it is now. Lorenz stated that is correct.
Vogt spoke of the order from a judge for a forfeiture of a fine and also to remove the portion of the deck that was located in the setback. He is asking what has transpired there and if they are going to take some of the deck off and they are not going to remove the posts. Lorenz stated they are applying to remove some of the deck to comply with a gazebo portion of the ordinance. He also said he will read a statement provided by the Director of Planning and Zoning.
Mr. Richard Lehman, Attorney representing Evelyn Propp, appearing in favor of the request, spoke of the background and history of the deck, as well as the legal and enforcement of the removal order, depending on the board’s decision today.
Duckworth asked if the Judge put the extension on the removal order in writing. Lehman stated he did not, but implies that he has an extension until the Board of Adjustment hearing can be held, due to scheduling the next court date on September 11, 2006. Lehman continued to explain the permit that he is seeking on behalf of Ms. Propp. He also spoke of the state statutes they are seeking their approval under for the deck
Duckworth asked how Lehman interprets the 15 foot max height requirement of the ordinance. Lehman explained his interpretation of the ordinance and feels they are well within the 15 foot limit and feels the existing structure meets the terms set by the state statutes, and that the Board has no choice but to approve it. He then spoke of the vegetative cover and asked that as part of the approval the board allow the owner to remove noxious brush and the ability to remove certain trees and allow a stairway going down to the waters edge.
Duckworth verified that in Exhibit II,4, the exposed joists and I beam will be exposed for a porition of it and what will stop this owner or future owner from putting the flooring back? Lehman stated it will be their approval.
The Board discussed the history of the property owner and dealing with Planning & Zoning. Duckworth spoke of the nuisance of leaving the deck open. Lehman stated the owner has proposed putting a railing on the deck. Duckworth stated he is not convinced that this existing structure meets the structure that is indicated in the ordinance for a gazebo.
Vogt spoke of Exhibit II,2, the explaination of the applicants request and laying out what is proposed, but does not see in writing to the extent that was testified here. The letter does not include the items listed today, nor does the application to the board speak of the boathouse, the stairs or vegetative issues, nor a retaining wall. Lehman confirmed that the application only deals with the deck.
Mr. Richard Grant, Chair, Town of Merrimac, appearing in opposition. Asked why we are here and the matter has been heard by the Board of Adjustment, result of that decision, the Sauk County Courts have upheld the Board’s decision, yet we are here again. He spoke of the letter of the ordinance and the spirit of the ordinance and spoke of the gazebo and read from the ordinance pertaining to a structure/gazebo. He also spoke of the intent of the ordinance which he was a major part of, as well as the prescedence the board would set if they approved this deck as meeting the “gazebo” amendment. He also spoke of the structure as being historically referred to as a deck and historically being used as a deck, not a gazebo.
Vogt asked about action from the Town Board. Grant stated that they have not and have choosen to have no comment in that the Town level structure is that any request go through a Planning and Zoning commission first and then to the Town Board. He also stated stated that because of violations on this property, they would also need to be heard by their Board of Appeals, so the Town Board is waiting until the other bodies of the Town Board can hear the appeal.
Dave Lorenz, reappearing, stated that he is reading a statement in opposition to the request by Lance Gurney, Director of Planning & Zoning. Letter is considered Exhibit VIII,1.
Duckworth asked why a special land use permit is before the Board. Lorenz explained. Duckworth stated he does not see that provision in the ordinance. He also verified that the DNR is stating that decks can be built to the 75 foot setback line and then they can exceed that by 200 feet with the special land use permit. Lorenz stated that is correct. Duckworth stated that does not sound like the spirit of what the county ordinance states.
Mr. Lehman, reappearing in favor, stated that the structure allows for an exposed basement and exiting the house under the deck and moving the beam in to meet the requirements, would make it difficult to walk under the deck without bumping their head on the beam. He also spoke of supporting the beam in the sandy soil.
White asked if MSA are the ones that built the deck. Lehman stated they have done no professional work with respect to the deck, but did some drawings for him when they were out there. White asked if they were reliable. Lehman stated they were. White stated there is a difference in their drawing from his testimony.
Lehman presented Exhibit IX, 1, a copy of a state statute and told the Board that they can not enforce the spirit of the law and they have no choice but to grant the permit.
Vogt asked if the county ordinance may be more restrictive than the state statute. Lehman stated he does not believe so. Vogt stated that under the administrative rule that was set, that county ordinance can be more restrictive. Lehman stated generally yes, he agrees, but not in regards to this particular state statute.
Vogt stated he also has an issue to the definition of structure and feels the I beam and posts are structures. Lehman stated he agrees they are all structures.
White asked if the state statute referred to was discussed in front of the Judge. Lehman stated it was, but he does not have any order or agreements in writing.
Mr. Grant, reappearing in opposition, stated that hardships when they are being considered, you will find that hardships that are self inflicted or self created are not to be considered in decision making. He also spoke of the findings from Judge Reynolds from last year.
Duckworth clarified that the Judge’s decision was to the owner to tear the deck off and if they can’t meet the deadline date, they could return to the courts for an extension.
Seeing as no one else wished to appear, Chair Duckworth closed the public portion of the hearing at 11:15 a.m. and the Board went into deliberation.
White stated that she feels the beam is the size it is because they didn’t want to add more supporting posts and feels it can be moved or changed to provide for adequate support.
Duckworth stated they can make a decision on the special land use permit, they could seek clarification from the Board’s legal counsel, or they could say they don’t see any legal authority in the county ordinance that says it is a matter for the Board to decide on.
Vogt stated, referring to Chapter 8, definitions 37 a., does not say anything about the Board of Adjustment.
Duckworth stated he is leaning towards tabling the request so that they can seek legal counsel to determine if it is something the Board should be making a decision on and if it is, then they need to have other questions answered by counsel.
Vogt stated that if something like this was granted, other riparian owners would get very inventive in building other structures because of a prescedence set by the Board with this decision.
The Board continued to discuss.
Vogt spoke of the applicants testimony that the deck is a separate structure from the house.
Motion by Vogt, seconded by White, to table the motion until the Board
can meet with legal counsel to clarify whether or not the case should be
before the board, how the deck fits into the definition of a structure
and would like more definite plans from the applicant that what has previously
been submitted.
Motion carried 4-0.
The Board then reviewed a hand out relating to a draft public policy for setbacks on small nonconforming lots. The board decision to review the policy and discuss in greater detail at the October hearing.
The Board adjourned at 11:30 a.m.
Respectfully submitted: Richard Vogt, Vice Chair