DATE: July 22, 2004
PRESENT: Bruce Duckworth, Chair Robert Roloff, Halsey Sprecher, Richard Vogt,Linda White
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 9:00 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 Sprecher. Motion carried 4-0 (Vogt absent)
The Board adopted the agenda for the July 22, 2004 session of the Board with changes on the SP hearing numbers, and a withdrawn case for Oliver to be heard in September and with the Luther hearing not being heard, as that case involves litigation, on a Motion by Roloff, seconded by Sprecher. Motion carried 4-0 (Vogt absent).
Motion by Sprecher, seconded by White to adopt the June 27, 2004 minutes. Motion carried 4-0 (Vogt absent).
COMMUNICATIONS:
None to report.
APPEALS:
A. John Hillmer and Deb Hintz, SP-29-04, a special exception permit pursuant to s.7.10(2)(b)4 to authorize the construction of a pond within 300 feet of a road or property line.
Matt Bremer, 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. Bremer concluded with the staff recommendation of conditions to be placed on the request if approved by the Board.
Duckworth asked about a letter from the DNR having the proposed pond in a site that they don't agree with. Bremer thought the letter referred to a previous site, but would let the owner answer that.
Sprecher asked about regulations on the depth of a pond. Bremer explained.
John Hillmer, applicant, appearing in favor of the request, reviewed the location of the pond per the photos.
Duckworth asked about Exhibit II,5 if that is where the proposed location is and the DNR's objection to the site. Hillmer explained that the location is now where the DNR suggested it should be.
Duckworth asked about details such as if it is a dug pond, if it will have a dyke, etc. Hillmer explained.
Duckworth asked what negative affects this will have on the neighbors property. Hillmer stated it should benefit the neighbor as it will direct water into a flow line with the contour of the land and will help drain neighboring properties.
Duckworth asked if he has talked to the Town Board. Hillmer stated that he has provided fees for a permit, but it has not been received yet.
White asked about a creek located near the site and ownership of adjacent properties. Hillmer explained.
Duckworth asked what will be done with the spoils from the pond. Hillmer stated it will be used for the septic system and re-landscaping of the yard from that work.
Roloff asked if there was an outlet for the pond. Hillmer stated it is just a catch basin for the groundwater.
Darlene Hill, Chair Town of Baraboo, appearing in favor of the request, and stated that this is another case where the Town of Baraboo is left in the dark and have no opposition to the request.
Dean Broetsch, appearing in opposition to the request, stated that he is the property owner that is adjacent to where the pond will be located and spoke of sloping on the property and water runoff onto his property from the Hillmer property. He also wondered about the actual size of the variance from the 300 foot setback and the mosquitos and west nile disease. He concluded by stating his concern for additional wildlife around a state highway and the other land owned by the applicant and if the pond can be moved to that land, as well as other wildlife scrapes in the area - do they need more?
White asked about the other ponds/scrapes and how they affect the area. Broetsch explained.
White asked if it will affect the amount of waterflow or will it just redirect it. Broetsch stated he feels the water will just be redirected and doesn't know how he'll keep it off of the adjacent lands.
White asked if the applicant has spoke to him about it. Broetsch stated that he did speak to him and his father about 3 months ago.
Sprecher asked Hillmer if he has looked into get the soil and building the pond from other property that he owns. Hillmer stated the soil is more clay and not as suitable for the septic and also spoke of photos from the heavy rain this year and can provide them if requested, but does not have them at this moment.
Roloff asked how close the pond is to the property line. Hillmer stated anywhere from 40 to 100 feet and can work with the property owner on that.
Roloff asked what a buffer strip would be. Hillmer stated it will be whatever is recommended by Pheasants Forever and/or Sauk County Land Conservation.
White stated that on a project like this, you can take down or build up, and asked what the maximum depth from the property line to the south edge of the pond would be (total pond size). Hillmer stated around 500 feet.
White asked how far from the east boundary line. Hillmer stated about 300 feet.
Roloff advised the applicant to provide a number that is going to stick with, so the board can make a decision and the interested adjacent owners will know an amount as well. Hillmer stated no more than 60 feet.
Seeing as no one wished to appear, Duckworth closed the public portion of the hearing at 9:40 a.m.
Duckworth reviewed the ordinance and the request.
White stated she is uncomfortable that there is no plan to actually show what will be done with the project and the dimension that will be left.
Duckworth referred to Exhibit II,5, which shows the buildings and proposed location.
Roloff spoke of the scale shown on the Exhibit, and the southwest corner of the pond is about 150 feet from the road and 150 feet from the east property line.
Motion by Roloff, seconded by Sprecher, to approve the request with the conditions listed by Planning & Zoning with the additional condition that the pond not be located any closer than 60 feet from any property line. Motion carried 4-0.
B. Donald and Karen Gardner, (SP-31-04), a special exception permit and variance per s.7.05(2)(k)5, to authorize the operation of an existing dog kennel within 1000 feet of a neighbors residence.
Duckworth reminded the Board that they need to decide if it is a use variance or an area variance, which will determine the criteria they will have to meet.
Roloff stated that a kennel is a permitted use, and the question is distance. Sprecher stated that a kennel is not permitted in Exclusive Ag.
Duckworth stated they are requesting to have it zoned to Ag, however the other committee has asked for the Board to make a decision before the rezone.
Roloff asked if they can deal with a hypothetical situation seeing as it is not zoned Ag yet.
Duckworth stated he is not sure whether it is an area or use variance and the board needs to decide.
Roloff stated that the Board can assume it is zoned Ag and not Exclusive Ag, and the only reason they are granting the variance is because they are within 1000 feet from the property line and believes it is an area variance that they are looking for.
The Board continued to discuss the variance issues. Sprecher stated he agrees that it is an area variance. White also agrees that she views it as an area variance.
Matt Bremer, 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. Bremer concluded with the staff recommendation of conditions to be placed on the request if approved by the Board.
Richard Vogt is now in attendance. Duckworth informed Vogt of the decision by the Board that the applicant is requesting an area variance and that the Planning and Zoning Committee request that the Board of Adjustment make their decisions first.
Donald Gardner, applicant, appearing in favor of the request, stated that they have had a dog kennel since July 1980, but when the zoning for the Township rezoned the town to Exclusive Ag in 1986, they didn't inform them of the change.
Duckworth asked how many dogs they have. Gardner stated they used to have 60 dogs, but now have 30 and don't plan to increase that.
White asked what the maximum number of dog they would have at one time. Gardner stated they have 26 puppies right now, but they will be gone at 8 weeks old.
Duckworth clarified that they have 30 stock dogs and around 26 puppies. Gardner stated the puppies are in the basement.
Duckworth stated if the Board allows them 30 dogs, that will include adults and puppies. Duckworth also asked what he does with the waste and what happens with the dog that die. Gardner stated he puts the waste on his garden or buries it and dogs that die go to the Vet and they take care of it.
Roloff asked if the Board put a limit of 30 breeding stock dogs as a condition would that be satisfactory. Gardner stated it would as long as they can still sell the puppies.
Vogt asked about 210 +/- feet. Gardner spoke of his septic system.
Duckworth spoke of the variance and what the applicant needs to talk about. Gardner stated that if they get the building, the dogs will be inside year around and will be able to keep them and the property cleaner.
Duckworth asked about complaints. Gardner said they do have complaints and the sheriff has been there, but hasn't ever seen a problem.
Duckworth asked about hardship. Gardner stated that his hardship is financial and if they can't sell the pups, they would only have social security to live on.
White asked if there was any other place on the property to put the building and not need the variance. Gardner stated there is not.
Duckworth asked how the distance was established. Gardner stated that he stepped it off and Planning and Zoning was also there and measured it.
Vogt asked if it would be possible to move the footprint of the building further to the east to cut that distance down. Gardner stated then it would be closer to his septic system.
Duckworth stated that according to Exhibit II, 10, the property is 320 feet deep. The Board discussed placing the building in a different spot.
White asked if the building will have water. Gardner stated they have electric water dishes, but the building will not have water.
Duckworth asked if the 800 foot distance is to the new building or the back property line. Gardner stated that the proposed building is 10 feet from the back property line and the 800 feet was measured from there to the property line of Allan Held.
Duckworth asked how the property is unique (he explained the requirements for a variance). Gardner stated that he doesn't see any reason why the standards in the ordinance shouldn't apply.
Duckworth asked if he talked to the Town Board. Gardner stated that he has talked to the Town Board and they did go along with the request.
Roloff asked about the possibility of moving the shed to the east and if they explored the idea of moving the building to the east to get it as close to 1000 feet from the neighbor. Roloff referred to Exhibit II,10. Gardner stated no, they have not looked into it.
White asked if the location picked was for convenience. Gardner stated it was based on the access to the water hose.
Greg Auby, Attorney representing the applicants, appearing in favor of the request, spoke of the standard to the area variance, not allowing it would prevent the applicant from using the property. He also stated that the reason the property is unique is the location of the kennel, wherever it is located, it will not be 1000 feet from an adjacent landowner, and that site was picked because it is the exact location of the existing kennel. He concurred with the board that it is an area variance and once the special exception is granted, it is an area variance.
Vogt asked in reference to Exhibit VI,2, and II, 11, where the other neighbors are located. Auby could not answer and refers to the owner.
Bremer, reappearing, stated that the measurement of 800 feet, was done very loosely by Brian Simmert when they were looking into the rezone and he is unaware of what instrument or tool was used to do that. He also referred to VI,2, the parcel in question, Gardners own 0545 and the 0542 is a house across the road from the Gardner's property. All adjacent owners are across the road.
Duckworth verified that they do not know when or how the area was measured. Bremer stated that was correct, that Brian Simmer would need to answer that.
Duckworth asked about information from the Town Board. Bremer stated he has none.
Seeing as no one wished to appear, Duckworth closed the public portion of the hearing at 10:23 a.m.
Duckworth reviewed the ordinance and the request.
Duckworth suggested talking about the variance first and seeing as it is an area variance, the applicant must demonstrate the ordinance prevents them from using the property and the restrictions are unnecessarily burdensome.
Duckworth stated he is somewhat unwilling to waive the protection that the county board has set, however, if the affected adjacent land owner would waive that protection in writing, he may be able to go along with it. He also stated they need to show unique property limitation and not to harm the public interest.
White stated that the fact that the property is small, it doesn't look like there is a way to get that kennel 1000 feet from a property line.
Vogt stated he doesn't feel you could have a kennel and move it anywhere on that property and meet the 1000 foot setback and feels that would be the unique property limitations.
Duckworth asked about not contrary to public interest, if the Town Board feels they can have a kennel there, it wouldn't be contrary to public interest.
White asked about a grandfather status of the kennel seeing as it has been in existence since 1980.
Roloff spoke of the neighbor signing off on the 1000 foot setback, but on II,15, may have the signature of Allan Held. Duckworth stated though his concern of the property being owned by more than just Mr. Held and would like signatures from all owners of that property.
Vogt spoke of VI,2 and neighboring properties and if there are homes located on those tax parcels and feels there is some discrepancies of the distances of those and agrees that all property owners within that 1000 foot setback should be signing off.
The Board spoke of the length of time the kennel has been in existence. White suggested that putting
Motion by Duckworth, seconded by White, to grant the special exception permit for the dog kennel, and grant the variance for the dog kennel, assuming the property will be rezoned to General Ag, in addition, adding that the maximum number of breeding stock dog be 30, and puppies under 10 weeks of age do not count in that calculation, and 2, that all owners (according to tax records) of lands within the 1000 foot setback sign a document that clearly states that they are willing to waive their right to have the 1000 foot setback reduced to 800 feet and the letter must be received by Sauk County before the land is rezoned, and 3, that the special exception permit is issued to the applicants, Donald and Karen Gardner only.
Vogt stated his concern of 800 feet be in error and should be remeasured with a device to show more accuracy.
Motion carried 5-0.
C. John Oliver, Ethanol Productions, Inc. (SP-31-04) - hearing withdrawn.
D. Steven and Laura Mallon (SP-32-04), a special exception pursuant to s.7.05B2(b)3 to authorize the construction of a pond within 300 feet of a road or property line.
Matt Bremer, 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. Bremer concluded with the staff recommendation of conditions to be placed on the request if approved by the Board.
Duckworth asked about the 1 acre correction. Bremer explained.
White asked how close to the boundaries the pond will come using the full acre. Bremer stated they have no intention of using the full acre and if they expanded that, they would go north and east because that is what the topography would suggest.
Steve Mallon, applicant, appearing in favor of the request, spoke of the slopes associated with the pond and the safety issues associated with them, as well as the 10 foot depth for the fish and wildlife habitat. He also stated to the property line/Mill Road is 280 feet, measured with a tape, and that location can not change, as he is nearing the wetlands and have discussed this with the DNR. The measurement of 250 foot to the west, if he increases the size of the pond, would lower that distance from 250 to 225 and can go more to the east, however the topography would make it difficult. He then spoke of the material being used for a retaining wall at the barn shown and landscape and seed.
Duckworth asked if it is a dug pond. Mallon stated it will be an excavated pond.
White asked where the water will come from. Mallon stated that it will be filled naturally, from groundwater and the migrated wetlands.
Roloff stated there will be no outlet to the pond. Mallon stated that is correct, and it is simply an excavation on a naturally low area.
Duckworth asked which way the water flows. Mallon stated it flows north to south and if there was run off, it would go to the pond area and then onto the natural wetlands. He also stated he does not plan on using any birms to contain the water depth.
Vogt asked about the water and the spoils to be removed. Mallon explained and let them know that he does not plan on changing the site for its agricultural use.
Duckworth asked about the Town Board. Mallon stated he does have a letter of approval from the Town and does have the approval of Statz (adjacent owner), but not in writing.
Vogt asked if anyone is working with him as far as the drainage way near there and sediment coming from the valley. Mallon stated that is correct and if the vegetation isn't left around the pond, it will flow in. He also explained that he has the ability and resources per his employment to do the job correctly.
White asked about the personal use/private use. Mallon stated it is private property and will continue to be so.
Verna Hillabrand, appearing as interest may appear, spoke of how this will affect the community of Blackhawk as land owners and asked if this pond will be spring fed and how much of the runoff will come from the pond into the marshy areas that could cause some flooding.
Vogt asked where she is located. Hillabrand stated she is right on the corner of Mill Road and Blackhawk Drive, within the Village of Blackhawk.
Seeing as no one wished to appear, Duckworth closed this portion of the hearing at 10:55 a.m.
Duckworth reviewed the ordinance and the request.
Roloff stated that in regard to Ms. Hillabrands concerns, the pond will not affect the water runoff.
Duckworth stated he would feel more comfortable if they set a minimum distance to stay from the property line, such as 220 feet.
Motion by Roloff, seconded by Sprecher to grant the request with the conditions listed by Planning and Zoning, with an added condition that the pond does not come closer than 220 feet to a property line. Motion carried 5-0.
The board adjourned for 5 minutes.
E. Daniel Sergi (SP-23-04), requesting a variance pursuant to s.7.18(3)(b) to authorize the construction of a garage within the minimum road setback, located within a single family zoning district. (Shown on the agenda as 6. A.)
Duckworth is not taking part of this request as he did not hear the first testimony and Vice Chair Roloff is conducting the hearing.
Motion by White, seconded by Sprecher, to remove from the table. Motion carried 4-0.
Roloff stated that they will not be hearing testimony that was given at the first hearing, but asking for additional information that was requested by the board at the last hearing. The board must also decided whether or not the variance requested is a use variance or an area variance and the only standard that could not be established is the public interest protected and needed more precise dimension of where the garage will be.
White stated that when this was discussed the first time, they needed to know where the property line and road right of way was in reference to the garage, which they have received.
Dave Lorenz, appearing as interest may appear, stated that they did receive 2 maps of proposed locations, Exhibit II 5 and II 6, the difference being the setback to the side yard and the minimum to the side yard would be 14.8 feet to meet the minimum setback and the 11.5 is a new request that wasn't made previously.
Roloff asked if these maps were included with the letter from the Town Board. Vogt stated they were not.
Tom Newlun, Agent for the Applicant, appearing in favor of the request, stated that they sent 2 maps under the understanding that you had to have a 25 foot minimum aggregate setback, and understood the ordinance to mean something different. And if the variance is necessary at the garage location, they would like approval of 11.5 feet from the setback.
Roloff stated that they would need 10 feet from the side setback.
Newlun stated that they are requesting 44 feet from the centerline of the road.
Dave Lorenz, reappearing, stated that the way the ordinance is interpreted, is you need a total of 35 aggregate, but 10 foot minimum.
Roloff spoke of the two plans submitted and that the side yard setbacks of Exhibit II,6 meets the requirements, so that is the one the board will use.
Newlun, reappearing in favor, stated that the Town Board is in support of the request and the board should have that letter. Roloff referred to the letter, Exhibit III,2, authorizing the garage within the minimum road setback and approved the site survey on the request and approve the garage on the survey.
Roloff stated that for his hearing, the only thing they were concerned with is the setback from the road.
Seeing as no one wished to appear, Roloff closed this portion of the meeting at 11:25 a.m.
Motion by Sprecher, seconded by White, to grant the variance, as proposed on site survey II,6, with the conditions given by Planning and Zoning with the original request. Motion carried 4-0.
At this time, Chair Duckworth returned to the meeting and notified that the Luther request has been withdrawn.
F. Larry Smith (SP-16-04), requesting two special exception permits pursuant to s.7.05(2)(k)10 and 7.05(2)(k)20 to authorize the location of a private landfill. (Shown on the agenda as 6. C.)
Duckworth then spoke of the Smith request and a motion by Vogt, seconded by White to remove the hearing from the table.
Duckworth discussed with the Board of the reason for tabling being the lack of evidence showing that Mr. Smith met the requirements of the Solid Waste Management plan at the previous hearing and whether or not the Board would like to hear additional testimony to what was provided at the public hearing. The Board decided that based on the testimony heard at the public hearing and the fact that the request was tabled only to verify compliance with the management plan, no additional testimony would be heard by the Applicant or other. The Board also discussed after notification that the Sauk County Management plan speaks only of how the landfill in the Town of Excelsior is to be operated and does not address private landfills.
Duckworth then spoke of new information received, such as additional letters to the Board from adjacent property owners and other interested parties. Lorenz, Planning and Zoning, stated that it starts with Exhibit III, 28 through Exhibit III, 43.
Duckworth clarified that these are exhibits received by Planning and Zoning after the April, 2004 meeting, and will include those into the record, and take into consideration.
Lorenz reviewed the Exhibit(s) III, 28 through III, 43 by item and clarified what each one is. While going through the information, Sprecher stated he did not have a couple of the Exhibits. Lorenz explained that as the Office had received information pertaining to the request, they were copied and mail out to board members immediately and a "packet" had not been made, but left to the board members to assemble. To allow for all new copies to be made and assembled for easier viewing, the board adjourned for 5 minutes.
Duckworth, after allowing time to review all exhibits, asked the board again if they would like to hear additional testimony. Seeing as the board did not request to hear any, they continued deliberation.
Duckworth reviewed the ordinance and request.
Duckworth asked if anything has been received stating it is consistent with Town policies. Roloff, referring to the Town minutes, the board changed the minutes to reflect that they voted no, instead of no opinion as stated before. Duckworth stated that it does not refer to their Town policies.
White spoke of the testimony of Mr. Brooks from the last hearing. Duckworth clarified that he had in his notes that Mr. Brooks was opposed to the expansion of the landfill.
Motion by Duckworth, to approve the special exception permit for the operation of the private landfill, as it is a permitted use, in operation for a number of years, with minimal complaints, and it is a needed use in Sauk County, with the additional conditions from Planning and Zoning, as well as, no open burning at either site, that the landfill can only accept material listed in Exhibit II-2 and other material must be properly disposed of within 30 days of the material being dumped, any notices of violations, warnings or fines assessed by any state or federal agency must be reported in writing to the Planning & Zoning office within 15 days of receiving the warning or assessment, the permits do not allow the applicant to operation a junkyard, secure all permits to operation the private landfill, and one violation of any of the imposed conditions will result in the private landfill being in probation status for the next four years and a second violation of any of the conditions result in suspension of the private landfill special exception permit and Mr. Smith must reapply to the Board of Adjustment.
The board then discussed, referring to Exhibit II, 11, the size of the existing and expanded landfill. White clarified that the dimensions are what the landfill will be operated on, including the existing site.
Vogt clarified that 400x600 plus what he has now is what they are giving approval to. Duckworth stated that the 400x600 is the total site area. The board continued to discuss the site area.
Duckworth clarified that his motion is that he can operation an area of 400x600, which includes the area he is already operating and should be marked off by Planning & Zoning.
Dave Lorenz, reappearing, explained the dimensions on the map and the request was for the 400 feet to start at the toe of the existing fill that is there and run to the west.
White asked if there is any estimate on how much is there already. Lorenz stated he would just be guessing and has never actually measured it. White asked for an estimate. Lorenz stated that probably about 100 feet or so, running east to west.
White asked to the best of his knowledge, this dimension is within all the setbacks. Lorenz stated that road setbacks are not an issue and as far as property lines there are no restrictions for fill, but only structures.
White asked if he were to expand 400x600 feet how close he would be to the property line.
Duckworth stated he is not willing to add on 400x600, but he has that area in total, as part of his motion.
Motion seconded by Sprecher.
White asked if the special exception was given to Mr. Smith and nontransferable. Duckworth stated he would include that in his motion, and Sprecher stated he would second that as well.
Roloff stated that he has a problem with the Town Board not going along with the request. White stated when those concerns are brought up the board typically refers those issues back to the Town Board, and it should be something in their policies. The board discussed that the Town Board needs to address the Town Policy at their level.
Roloff spoke of the letters received, there are people that believe this is not a compatible use.
The Board continued to discuss issues regarding the Town's decisions and the intent behind the 5 year permit and ability to prevent the operation from continuing after that.
Vogt stated he is uncomfortable with the fact that this has been in operation for a number of years, yet petitions of people against it and possibly change the 5 year permit to 2 years or 1 year.
The board discussed the lesser year time limit will give the Town, County, Mr. Smith and neighboring land owners the ability to go through the process and a means to regulate the project, which serves the public interest.
Duckworth amended his motion for the 5 year permit, to be reduced to 2 years, seconded by Sprecher. Motion carried 4-1 with Roloff in opposition.
The Board adjourned at 12:20 p.m.
Respectfully submitted,
Halsey Sprecher
Secretary