Board of Adjustment

SAUK COUNTY BOARD OF ADJUSTMENT

                                               January 26, 2017 Session of the Board

 

PRESENT:                  Linda White, Chair
Dan Kettner, Vice Chair

David Allen
Henry Netzinger

Nick Ladas

ABSENT:                    None.

 

STAFF PRESENT:     Dave Lorenz

                                    Gina Templin

                                    Lisa Wilson

                                   

OTHERS PRESENT: See Registration slips

 

Chair White 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 Allen, seconded by Netzinger.  Motion carried, 5-0.

 

The Board adopted the agenda for the March 30, 2017 session of the Board on a motion by Allen, seconded by Ladas.  Motion carried, 5-0.

 

The Board adopted the minutes from the January 2017 Board of Adjustment meeting on a motion by Kettner, seconded by Netzinger.  Motion carried 5-0.

 

COMMUNICATIONS: 
None.

 

APPEALS:

 

A.        Joe Carbonaro (SP-03-17) requesting a special exception permit to authorize the continued operation of a lodging house.

 

Dave Lorenz, Conservation, Planning and Zoning, provided a history and background of the request, verified the Town of Baraboo has reviewed and suggested approval of the request.  Lorenz reviewed photos and a video of the project and property and concluded with conditions to be placed on the appeal if it is to be granted. 

Joe Carbonaro, applicant, appearing in favor of the request, stated that all inspections are currently up to date, including the State of Wisconsin and has had no issues.  Carbonaro stated the house is well maintained, lawn and snow removal service, garbage service and all taxes are paid on time.  He also stated that he has had no complaints from any neighbors, the Township or the County.  He screens his renters and is geared towards mostly families.  He requested an extension of the permit as well as the renewal.

 

White asked who the primary contact is.  Carbonaro stated he is the primary contact, as well as the person who cleans the house and the person who takes care of the lawn and the snow removal.

 

White spoke of the letter to all neighbors notifying them of who the contact information is and reminded him that with the new permit that will need to be done again.  Carbonaro stated he will do that again.

 

Allen spoke of the renewal term.  Carbonaro stated he would like a 5 year permit this time versus the 2 years.  He would like to finish up the 3 year and then get an additional 5 year term.

 

White explained that they don’t owe another 3 years and reviewed how the renewal permits operate.

 

Randy Puttkamer, representing the Town of Baraboo, appearing as interest may appear, stated the Town has had no complaints and at present time people are able to rent their homes out for income prior to retiring in the area.  He stated they also shadow this applicant for other applications.

 

Seeing as no one else wished to appear, Chair White closed the public portion of the hearing at 9:21 a.m. and the board went into deliberation.

 

White stated she felt it is a good application

 

Ladas asked if they can issue an 8 year permit.  White state she felt they need to be consistent which is a 5 year permit.

 

Motion by White, seconded by Ladas, to approve the special exception permit to authorize the proposed location and operation of a lodging house, with the conditions requested by Conservation, Planning and Zoning in addition to notification provided to all neighbors within 1,000 feet mailed with contact information and a copy to CPZ with a list of who it was sent to.   Motion carried, 5-0.

 

B.        Cloud 1, LLC (SP-04-17) requesting a change of administrative decision regarding the denial of a conditional use permit for a cellular tower by the Sauk County Conservation, Planning and Zoning Committee January 24, 2017.

 

Dave Lorenz, Conservation, Planning and Zoning, provided a history and background of the request, reviewed photos and a video of the project and property.

 

Kettner asked if there is electricity at this site.  Lorenz stated there is electric service at the site.

 

Kettner asked if there is electric service at the site and does it follow the easement.  Lorenz stated he does believe there is service and it does follow the easement.

 

Todd Liebman, Sauk County Corporation Counsel appeared and stated he is representing the Conservation, Planning and Zoning Committee and the Board of Adjustment has counsel available, Mike McKenna. 

 

Mike McKenna, Counsel for the Board of Adjustment, stated he reviewed the standard, and not taking new evidence is correct.  He statedthe Board will serve as an error correcting agency.  He stated it would be out of order to provide new evidence or discuss how the decision was made.

 

Todd Liebman, appearing on behalf of the Conservation, Planning and Zoning Committee, provided Exhibit L, which is a brief supporting the upholding of the committees decision.  He believes what is not at issue is whether it was properly noticed and published, the application was presented, although there could be some discrepancies between the application and the ordinance and those matters were not raised during the meeting and the committee did not make their decision based on those errors.   He stated all parties were given ample opportunities to present their case and be heard including impacts and issues to include the private drive/easement that the site is being served.   He did state that he advised the committee not to interpret the easement, but allow for a court of law.  He also spoke to the tower siting ordinance being a part of the zoning ordinance to comply with state law and what can be part of a decision in approving a tower.  He felt the committee did not include anything in their decision that was against State or Federal law.  He feels the greater weight of evidence and the law supports the committee’s decision and urges the Board of Adjustment to uphold the decision.

 

Ladas asked if their basis for using the conditional use and the question about the ingress/egress on the road.  Liebman stated if you reviewed the motion by Supervisor Johnson he mentioned that was one of the issues for not approving the site.

 

Ladas said the fact that the electric company has an easement on the road is different than the tower company coming in one time to put up a tower.  Liebman stated that an electric company is a necessary service of modern life.  He also stated he didn’t believe you could prevent the power company from using the easement versus a land owner from allowing a use on his land that would use the easement.

 

Joshua Fernald, Applicant, stated that this is the first time he’s attended an appeal like this.  He stated that when he applied some of the data wasn’t available when they applied with their appeal due to time constraints.   He stated that he has no other legal arguments to make outside of what was provided in the brief.

 

White asked if there were any challenge to the legal notice or the public hearing or all people being able to speak.  Fernald stated they have no objection to those issues.

 

White asked about the aesthetics or the easement.  Fernald stated that the aesthetics were discussed at length and the easement was also discussed.  It was their understanding that the easement was able to be used.

 

White asked on what basis are you challenging they made their decision inappropriately.  Fernald stated they felt that the decision was made based on aesthetics and not on the easement and that the easement should be decided in court.  

 

White asked if they received a copy of the transcript.  Fernald stated they did now.

 

Natalie Bussan, Cross, Jenks, Mercer and Mafai, appearing in opposition, stated she is involved is due to the decision issued, referring to Exhibit C (X-1), speaking of the findings of fact and conditional use criteria, for some reason when these were drafted they are in support of issuing the permit, the evidence was different than what was provided in the decision.   She also spoke of the misunderstanding of an electrical easement and can establish that there is not an electrical easement, which is not new testimony, but was provided originally.

 

White asked if all the easement owners would need to sign off on any electrical service.  Bussan stated she believes they would have to sign off on fiber conduit.

 

White stated if this is a review of what happened at the meeting, it would be applicable.  She stated that if she has gone outside of this to research statutes, then it will not be heard.  Bussan stated she has argument that is based on what was heard at the hearing, but would like to see today that the Board correct the finding of fact on this document that allow them to do that.

 

Mike McKenna, reappearing, urged the Board to consider the error correcting functions of the Board and the findings of fact and conclusion of law need to support what the decision was.

 

Kettner asked about the criteria that the committee set forth, is the Board now being asked to change the criteria because it was not adequate in making the original judgement.

 

White asked if this simply is a case where the document doesn’t simply match the decision made by the committee.

 

McKenna had the Board walk through the findings of fact from Exhibit C.

 

Board allowed the Bussan to review material to support the error correcting function.    She provided Exhibit M which is a copy of a powerpoint she reviewed.

 

Kettner asked if there is electricity provided to the structure that is there now.  Bussan stated there is electric power there now.  She explained law regarding electricity.

 

The conditions for a conditional use permit for a mobile tower site is missing from the decision, which Bussan reviewed.

 

White asked how many electrical feet would need to be available in section18 for the tower to be available.  Bussan stated based on what her clients have told her she feels it would have to be trenched from some other electrical source.

 

White stated it has already been indicated there is an electrical power source and asked if there is power to the site.  Bussan stated there is power to the residence there, but it is unclear if there is power available, but knows there is not an easement available for power for a tower.

 

White spoke of the reference between section 17 or 18.  Bussan stated the project is on 17.  Bussan explained that the easement is only on 17 and not on 18 and would need to be through Section 18 to get to Section 17.  She also spoke of a Fiber Conduit easement.

Allen spoke of good cellphone service in the area and stated there is no good cellphone service on Lake Redstone.  Bussan stated she can only refer to what was testified to in the record.

 

Ladas stated that the finding of facts was wrong, but the decision was correct.   Bussan stated she feels the document simply needs to have the errors fixed.

 

Joshua Fernald, reappearing, stated the Town of Winfield did approve the request.

 

White asked about the application.  Fernald stated that the state law is that if it is incomplete they have to be notified within 45 or 90 days.

 

White reviewed the information suggested was not in the application.  Fernald explained.  White spoke specifically about the electrical easement.  Fernald stated he believed the easement was up the entire road, however, he believes they can pull all the power they would need right off of Mr. Carr’s property, and addressed the power usage of a tower.

 

White asked Fernald to address the access issues.  Fernald explained the road, the conditions, and monitors.  Fernald stated that staff that would simply walk to access the site, no matter how long the access is.

 

White asked about the length of time to build and the traffic.  Fernald explained it would take about 6 weeks to build, but only 1 day of a semi/crane.  

 

Netzinger asked about coverage maps.  Fernald stated the site will serve Lake Redstone and two neighbors did show up to the Town meeting stating were looking forward to the services, as well as AT&T looking to contract on the tower, however, he cannot share the contract.   He spoke of other sites, the location and topography.

 

White asked how much is covered by LaValle telephone or Reedsburg phone.  Fernald explained.

 

Ladas asked about the road condition and repair.  Fernald explained that they would record the conditions of the road and they would make improvements on the road.

 

White spoke of information in the transcript from Mr. Franzen speaking of AT&T and TMobile.  The Board confirmed there was previous testimony regarding AT&T.

 

White asked why they believe the decision was made inappropriately.  Fernald stated he felt the aesthetics and emotional appeal was the main decision, the access was not completely understood and at the time was understood that they had the right to use the access.  He stated he understands it was a contentious site.

 

Seeing as no one else wished to appear, Chair White closed the public portion of the hearing at 10:50 a.m. and the board went into deliberation.

 

White stated she is very concerned they don’t have access for fiber optics and having historical basis for having power run is enough to give them access.  She also believes the record needs to be corrected.

 

Kettner stated he feels uneasy that they are being asked to correct a record or substantiate a record to support a decision that had been made and then have someone say “we would have said this”.   Kettner feels if we change one side, should the other side be allowed to also change.

 

White stated she feels maybe they should send this back to the committee to have them address these correctly.

 

Kettner stated the restriction says aesthetics shall not be the basis of the decision.  One can say it’s not the sole decision, but reading through the overwhelming majority, it is very clear it was in fact, aesthetic reasoning and it seems that was a huge factor in weighing this decision.

 

Ladas feels aesthesis played a role in the decision, but doesn’t feel it significantly increases coverages and LaValle has fiber access and he doesn’t see necessity for this.  He agrees that finding of facts don’t support what they did it on conditional use.  He also has an issue with the ingress/egress on the private road.

 

Netzinger feels that Exhibit C needs to be done over and it should be done over by the Committee not the Board of Adjustment.

 

White stated the testimony supports the decision, but she feels the office simply didn’t catch what went on versus what they sent out.

 

Netzinger stated he doesn’t even feel the road supports residents living back there.

 

White stated the Board’s decision is whether the committee said if they made their decision correctly, not whether the decision was written correctly.  She said they can send it back to them to correct.

 

Kettner asked if the applicant gets another shot to redress the difficulties that claim to exist.

 

Mike McKenna, reappearing, stated they have the authority to immediately correct the record or remand back to the zoning board to correct the record and ensure the findings are consistent with the decision.  He suggested that the motion include that you state it is not for a rehearing.

 

White stated she believes the concerns for the access are the primary reason for being denied, so she believes the committee acted appropriately.

 

Kettner stated he feels the Board is “prettying up” what they failed to, but feels aesthetics was a major reason for their decision, although not the only one, as the access road was an issue.  He does believe the committee itself needs to take care of its own inadequacies.

 

Allen stated he has a problem overturning the committee’s decision, as they acted appropriately based on the information they had at the time.  He said he would have liked to have seen more information provided.

 

Netzinger stated they are looking at something they don’t have all the information on, however, he supports the decision the Committee has made, although he believes their decision leaned towards the aesthetics, even though they did consider the access.

 

Ladas stated he feels the Committee looked at everything properly, and even though aesethics was a large issue, the other conditional use standards were also looked at.  He also believes they need to go back and edit their findings of fact to match the decision that was made.

 

Mike McKenna, reappearing, based on the suggestions of remanding the matter back to the zoning board to make sure the findings match the decision.  McKenna advised that a new haring not be allowed, but the applicant could then re-appeal. 

 

Motion by White, seconded Ladas to support the decision made by the Conservation, Planning and Zoning Committee, but remand the decision rendered to edit the findings of fact to match the decision made based on testimony provided at the hearing.  Said edit would not include a new public hearing.      Motion carried, 5-0.

 

The Board recessed for 10 minutes.

 

C.        Lee Oliver & Jonathan Hofeld (SP-05-17) requesting a special exception permit to authorize the location and operation of a lodging house.

 

Dave Lorenz, Conservation, Planning and Zoning, provided a history and background of the request, reviewed photos and a video of the project and property and concluded with conditions to be placed on the appeal if it is to be granted. 

 

Ladas stated they’ve been operating since 2009 and what brought it to our attention.  Lorenz stated the neighbor went through the process to go through the permit for a lodging house and informed them they needed one.

 

Lee Oliver, applicant, appearing in favor of the request, stated they live in the San Fransisco Bay area, the neighbor; Bill Hetzel manages the property onsite, while they manage the property online.   She spoke of the property and renovations done.

 

Kettner asked if there has been an inspection of the home since the remodel of the home.  Oliver stated the State did an inspection of the home and then they are reinspected every year.  She stated they limit the number of guest, she has contact with everyone, the house has 4 bedrooms and an office, which is allowed for the septic system. 

 

White asked how they ended up in Sauk County.  Oliver stated they have family in the area.

 

White asked if they allow outdoor fires.  Oliver stated they do and it is between her property and Hetzel property.  White asked if there fire extinguishers.  Oliver stated they have 2.

 

White asked if there are fireworks allowed.  Oliver stated they do fireworks, but not renters.  White stated they need to put into their general guidelines.

 

White asked if tents or campers are allowed.  Oliver stated they are not.  White stated they needed to be added to their general guidelines.

 

Jean Berlin, appearing as interest may appear, stated she is County Board Supervisor District 22, stated there is an influx of people that own property in Bear Creek that don’t live in Wisconsin and believes the community needs to stay rural and worries about absentee owners.

 

White asked if there have been any reports of problems.  Berlin stated she has heard a lot of things, but everyone needs to be good stewards of their land.  She is also concerned about the fact that they have been operating for so long without permits.

 

Ladas questioned if there have been any formal complaints to the Town.  Berlin explained her supervisory district and said she has had people talk to her, but is not sure anyone has provided a formal complaint.

 

White explained what Berlin could do to assist the Town and keep into contact if there are any issues.

 

Seeing as no one else wished to appear, Chair White closed the public portion of the meeting at 11:40 a.m.

 

White stated she feels they fit the criteria.

 

Netzinger feels it is ok and they live in the house.

 

White would like to add that there are no tents or campers and no fireworks allowed.

 

Motion by Netzinger, seconded by Allen, to approve the special exception permit to authorize the location and operation of a lodging house the conditions recommended by Conservation Planning and Zoning, as well as no tents or campers, no fireworks allowed and notification to all neighbors within a mile of the property which contains all contact information.  Motion carried 5-0.

 

Lisa Wilson, Director, appeared and updated the BOA on the “hog house” lodging house operated by Mr. Hetzel. 

 

Motion by Netzinger, seconded by White, to adjourn at 11:45 a.m.  Motion carried, 5-0.

 

Respectfully submitted,

 

 

 

Henry Netzinger, Secretary