PUBLIC HEARING BEFORE THE
SAWYER COUNTY BOARD OF APPEALS
20 FEBRUARY 2007
Board of Appeals = BOA
RZ = Ray Zubrod, Chairman
AG = Alan Gerber, Vice-Chairman
KZ = Kenneth Zeroth
LN = Larry Neff
LR = Laura Rusk
HB = Howard Brossard, 1st Alternate
DH = Darwin Hintz, 2nd Alternate
Zoning Administration = ZA
WAC = William A. Christman, Zoning Administrator
CY = Cindy Yackley, Deputy Zoning Administrator
1) Call to Order and Roll Call
RZ calls the Public Hearing before the Sawyer County Zoning Board of Appeals to order at 7:00 P.M. in the Sawyer County Courthouse, 10610 Main St., Hayward, Wisconsin. Roll is called finding present: RZ, AG, KZ, LR, HB, DH, WAC, and CY. Attorney Mike Kelsey representing BOA. A court reporter also present.
2) Statement of Board and Hearing Procedures.
Those wishing to speak will be afforded the opportunity provided they identify themselves. RZ gives order of submitting files to BOA, taking testimony, and making a decision. Requests orderly procedure. Gives appeal deadline.
3) Statement of Hearing Notice.
Public Hearing published as a Class 2 Notice in accordance with Chapter 985 of the Wisconsin Statutes in the Sawyer County Record on January 31 and February 7, 2007.
REHEARING OF A VARIANCE APPLICATION INITIALLY HEARD BY THE SAWYER COUNTY BOARD OF APPEALS ON JANUARY 25, 2006
TWJ Forest Resources, LLC c/o Thomas Johnson. Part of Govt Lot 1, S 35, T 40N, R 5W, Parcel :1.2. 1.32 total acres. Property is zoned Commercial One. The applicant is the principal in ownership of the three parcels concerning the request to move the boundary lines between two of the parcels, transferring approximately 100’ of lake frontage. The boundary change will result in both parcels meeting the lot width (150’) requirement for a Class #2 lake (Perch Lake) but not meeting the minimum lot depth of 200’ at right angles. No additional parcels are being created as a result of the boundary change and the parcels, as they currently exist, do not meet the 200’ requirements. There is no physical configuration for either existing parcel that could satisfy the 200’ requirement and both are currently non-conforming and would remain non-conforming after the boundary change. Variance is requested as Section 4.417, Sawyer County Zoning Ordinance, would require that the lots must have a minimum lot width of 150’ and a minimum lot depth of 200’ on a Class #2 lake.
The Court remanded this case to the Board with instructions to reconsider the application for variance and rehear and decide this matter in conformance with the legal standards governing area variances.
WAC reads application/public hearing notice into record. Kelsey recaps, reads all documents/exhibits.
1) March 29, 2005 letter
2) May 23, 2005 letter
3) Minutes May 20 Zoning Committee
4) Brief of Johnson’s January 25
6) Proposed map
8) June 14, 2005 letter
9) 1-3 maps Johnson properties
10) Revised map 4/18/05 2 pg.
11) Tax lister map, :1.2 highlighted
12) Transcript of January 25 Board of Appeals
13) Board of Appeals decision February 7, 2006
14) Minutes April 18, 2006
Kelsey asks CY if any new opinion letters or correspondence were received. CY: No new correspondence received. Kelsey asks Johnson if he wants those previous letters are part of the original application and part of Exhibit #4. Johnson states no. Johnson has packet for marking exhibits and passes out. Those exhibits are marked #15-#20. AG asks for some clarification. Kelsey states the BOA will be addressing the 4.417 portion of the ordinance and asks Johnson if he believes that’s right. Johnson states yes, correct. Johnson presents his case/presentation. Johnson asks WAC some questions.
8:45 PM – 10 min. break and back to order
RZ asks for those in favor/opposed. No response. Board deliberates. AG: Is there an unnecessary hardship? He states denying the request would not deny the applicant from using his property. KZ speaks on the rectangle requirement. He also states by granting the variance the Board would be diminishing the requirements and ordinance. RZ reads an excerpt from Johnson’s brief of 1/25/06 (page 12 & 14) with regards to unnecessary hardship and unique property limitations. LR asks why Johnson wanted WAC to state his personal opinion about this case. Kelsey submits a blank “Conclusions of Law” document and labels it Exhibit #21 and states this should be used in these findings. Kelsey has a few questions for Johnson: *Ownership of both properties? *Acreage of Parcel :1.2? *What is square footage of Parcel :1.1? 19,400 sq. ft. *Remnant part of :1.2 = would be added to Parcel :1.1. *Would Parcel :1.1 and rest of parcel be combined and ever sold as one parcel? Yes. *Questions on the white building. *Condoing? Has not looked into that, too complex.
AG motions to deny the request.
Unnecessary hardship is not present since strict application of the terms of the ordinance would not render conformity with such restrictions unnecessarily burdensome. The owner currently has use of the property and will still have use of the property with or without a zoning variance.
The variance would be contrary to public interest and would not observe the purpose of the ordinance. Our interpretation of the purpose of the ordinance is to establish uniformity or consistency in developing/using parcels in unincorporated areas of Sawyer County.
KZ seconds motion to deny.
The variance will be contrary to public interest and will not observe the purpose of the ordinance and do justice because 1) giving of the relaxation of the ordinance in this degree would be to deny the intent of the ordinance. It providing the substantially lower of the required amount of restricted area to the Sawyer County standard of development. 2) What has been requested is to make what is a non-conforming property now and a more diminished overall size and still non-copnforming an acceptable result. This would be simply for the convenience of the owner and basically cherry picking.
4 vote aye (in favor of the vote).
Kelsey tells the Board that there are a number of findings of fact and that he can submit those findings to the Board for them to say or Kelsey can do it, prepare a written decision with Mr. Zubrod’s signature. Kelsey asks court reporter to read back the motion. LR and DH are asked how they feel.
LR agrees. States her main problem she had in her mind on her decision was that while Johnson’s argument made some sense in the purpose. What is the purpose of that dimensional requirement? She states that certain things the BOA has to go on and she feels her purpose (BOA’s purpose) is to enforce the Zoning Ordinance according to the conclusions of law that were just stated. Because someone couldn’t state the exact purpose of the dimensional requirement, doesn’t think that’s a reason to not use it.
DH agrees completely with the motion. Feels strongly that there is a purpose for the requirement and the purpose more or less is determined by the people who made the ordinance. Keep the minimum size limit of the lot, and doesn’t feel there is a hardship.
Kelsey asks Board to state the unique property limitation. He states the Board needs to explain a little bit better. Why is the property not unique?
Questions in the 3-step test:
1) Do unique physical characteristics of the property prevent compliance with the ordinance?
AG: It’s already non-conforming. If that makes it unique – the propety is non-conforming with the Zoning Ordinance, Section 4.417. And to grant the request would make the remnants of the division even more non-conforming.
2) Would the granting of the variance harm the public interests?
AG: The particular request does not in itself harm the public interest. But establishing a precedent and allowing 114’ side lot dimension negates all the sections of the current zoning code.
3) Is unnecessary hardship present?
AG: Unnecessarily burdensome or unreasonably prevent the owner from using the property for a permitted purpose or render conformity of such restriction unnecessarily burdensome, neither of those apply, because failure to grant the variance doesn’t change anything. It’s useable now. It will be useable without.
RZ states if the building burned down they could rebuild.
LR motions to have Kelsey prepare a written decision and findings of fact and to adjourn this to March 20, 2007 where then Chairman Zubrod will sign the written decision.
AG seconds motion.
DH states he most likely will not be at that next month’s meeting. Kelsey states that if DH has any additional comments he should submit them in writing in a sealed envelope.
1) Town of Hunter – Robert B. Bodett et ux. #07-004. Unit #1, Johnson’s Resort Condominium, S 17, T 40N, R 6W, Parcel -8.1. Doc #333915. .494 acres. Property is zoned Residential/Recreational Two. Application is for the construction of a 10’x42’ addition onto an existing dwelling with a dwelling setback of 66’ to Lake Chippewa. The proposed addition will be located 76’ from the ordinary high-water mark of the lake and will result in a total dwelling footprint of 1660 sq ft. Variance is requested as Section 4.421(2)(b)(4), Sawyer County Zoning Ordinance, would restrict the total dwelling footprint to 1500 sq ft. The Town Board has denied. The Board of Appeals tabled this application in January.
Mike Kelsey representing. Applicants want to add a 10’x42’ addition which included a 10’x6’ deck onto the south side of cabin. Existing footprint total is 1300 sq. ft. With addition, total to be 1660 sq. ft. An excess of 160 sq. ft. Applicants went back to the Town of Hunter with the request. Town wants total structure to be no more than a total of 1500 sq. ft. Property is unique. Septic system is to the rear of cabin. No room or very little. Asking for resonable use of their basement. At present entrance to basement is from the outside. Kelsey approaches and passes out a handout that shows a photo of an existing unit already within the condo, that they (applicant) were hoping to build. Also other sketches of the proposed layout of the interior. Structure lies within 66’ of ohwm, therefore limited to 1500 sf. Applicant’s hardship is the uniqueness of the property due to their location within the condo. The unit is 10’ from northerly property line. Unit has expansion area due to condo rules. Kelsey states there is no alternate plan. States the Town is imposing their will and is being arbitrary. KZ speaks on the handout that was submitted and the photo of the proposed cabin layout. Kelsey states that the photo of the cabin was at one time the applicant’s intention to build something like this. This was before they found out the 75’ setback was encroached upon. Kelsey asks Board to reconsider their request. Len Eckerly, Town of Hunter Supervisor: They have reasonable use now. Larger families cannot be a reason for granting variances. The Town suggested applicant take the porch off. No basement underneath it. If porch remvoed, Town would agree to a 2nd story. Attorney for applicant refused. Applicant wouldn’t go for anything else. He (Eckerly) would rather see same footprint because of impervious soil. The allowable expansion for this condo unit has been used. Cabin was rebuilt in 1980 and expandable area was used up then. Setting a precedent for others to come in and ask for more expansion. Town wants same footprint. KZ asks if the Town has any flexibility in going any dimension to the side if they remove the porch? Kelsey states if the porch is removed the applicant doesn’t need a variance. KZ: His understanding, with the removal of the porch the building would be non-compliant by 1 foot. Eckerly: The Town would go along with that. They could go up to 2-story, not in favor of going outside existing footprint. They would have use of a basement and 2nd story. The Town has also required homes to be moved because of geing too close to the water. Town has to stick to their guns and the 75’ setback or within reason. The courts have upheld the 75’ setback. Kelsey reiterates past statements. AG states he wasn’t on site. Asks Kelsey what the proposal includes. Another deck and another screen porch? Existing porch is discussed. Not on a foundation. Not good construction to have a floating porch. Kelsey not sure of specific floorplan.
AG motions to approve the requested 10’x42’ addition only if the existing screen porch is removed. The plan that they submitted showed that a roughly 20’x10’ portion of the proposed addition would be screen porch and deck. If they don’t want to use it for that and want to use it for year-round living space it’s fine, as long as the footprint doesn’t exceed the new proposed 10’x42’.
Kelsey, for clarification, approaches and draws an example out on paper. Conclusion is the front porch is to come off.
RZ seconds motion.
Findings of Fact: There would be no change in the use in the zone district. It would not be damaging to the rights of others or property values. It would be due to limitations unique to the property.
1) Section 4.26, Accessory Uses and Structures – WAC suggests postponing this agenda item to the March public hearing due to the time of night (10:30 PM).
RZ motions to postpone to March.
LR seconds motion.
COMMUNICATIONS AND MISCELLANEOUS
1) Next regular meeting of the Sawyer County Board of Appeals March 20, 2007 at 7:00 PM.
LR motions to adjourn.
AG seconds motion.
pc: Board of Appeals – 7 County Board – 15
County Clerk – 1 WMS, DNR – 1
Corp. Counsel – 1 NABA – 1
Summary prepared by KT May 18, 2006