Board of Adjustment

DATE: August 27, 2009 Session of the Board

PRESENT: Richard Vogt, Chair

Robert Roloff, Secretary

Linda White, Chair

David Wernecke, Alternate

David Allen

ABSENT: Fred Halfen

STAFF PRESENT: Gina Templin

Dave Lorenz

Mark Steward

OTHERS PRESENT: See individual appeal files for registration appearance slips.

Chair Vogt 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 White, seconded by Roloff. Motion carried 5-0.

The Board adopted the agenda for August 27, 2009 meeting on a Motion by Wernecke, seconded by Allen. Motion carried 5-0.

Motion by Roloff, seconded by White to adopt the August 20, 2009 minutes. Motion carried 4-0, with Wernecke abstaining.

COMMUNICATIONS:

None to report.

APPEALS:

• Roecker Family Land LLC (SP-34-09) requesting a special exception permit to authorize the location and operation of an agricultural related business (feed supply store).

Dave Lorenz, Environmental Zoning Technician, appeared and gave the history and background of the request as well as photos and a video of site. He then recommended conditions to be placed on the appeal if the request were approved.

Vogt asked if the property used to be an active farm. Lorenz stated that it is currently an active dairy farm.

Wernecke asked where the new building or building addition will be located. Lorenz stated that was not provided by the applicant, however Exhibit II, 4-6 gave details on the proposed addition, but we don't know where it's going.

Wernecke asked if there could be issues on setbacks. Lorenz stated the parcel is large enough and don't have concerns on setbacks.

Allen asked if the building was going to be added to an existing dairy building. Lorenz stated he will refer that to the applicant.

Randy Roecker, applicant, appearing in favor of the request, stated that Loganville shut down the feed mill in that area and feel there is a need for a mill. He provided a background and history of the property. He stated the building would be 60x75 feet and would incorporate a feed mill and storage building. He then referred to Exhibit II,8 showing where the building will be placed, between the road and the free stall building.

Vogt asked about Exhibit V,1, photo number 1. Rocker stated that photo shows the location well.

Vogt confirmed he will be running the dairy operation and this would be a side business. Roecker stated he will build the facility and rent out a portion of it to his nutritionist, use for his own storage and then also run the feed mill out it.

Vogt asked about the nutritionist, referring to Exhibit II,2 and 3. Roecker stated he feels there is a need in the area and would be small and not ever get to the size of the ones located in Sauk City .

Vogt asked about the Town Board. Roecker stated they do have approval from the Town Board.

Wernecke asked about parking. Roecker stated there would be enough room for about 5 cars. They also discussed the driveway.

White spoke of the ownership of the land and the ownership of the business. Roecker explained that he would own and build the business, but the nutritionist would be renting space in the building, and he would be using the building as storage.

White asked for restrooms in the building. Roecker stated they don't need a septic in there now, so they have no plans, but they will have it plumbed in so that they can add it in the future.

White asked about grain storage. Roecker stated they have discussed purchasing the grain storage facility next to them, which they would tie into the business.

White asked how long they have operated the dairy in that location. Roecker stated about 4 years.

White asked about complaints or comments from the neighbors on the dairy. Roecker stated that they have not, but when they built it, it was new in the area and people had some concerns.

Wernecke asked how the property lies. Roecker stated it is beneficial to the building, as the lay of the land works out well with the opportunity to back trucks in that location and continued to explain how the land will work with the building proposed.

Wernecke asked about the slope. Roecker confirmed it goes east to West.

White asked if he is close to a creek or wetlands. Roecker stated there is a small stream just down from the property.

The Board discussed the possible issues to the creek.

White asked about traffic. Roecker explained that the road has the capability to handle big trucks as they run on it already and don't expect a lot of traffic, as the business will remain small and a county store type niche market.

White asked if they will sell anything beyond feed. Roecker stated maybe a few farm supplies and/or dairy supplies, but nothing like a large store.

Wernecke asked about gutters. Roecker stated it will be a commercial type business so that some day it could be used for multi use.

Wernecke asked about the runoff. Roecker stated that the freestall above is much larger and they have no gutters on that.

Wernecke asked where the water will be absorbed. Roecker stated the front lawn is large and that is where it collects and is absorbed.

White asked again about the water runoff. Roecker stated that the water would run into the creek through grassy areas.

White asked about any oil or anything like that. Roecker stated they would not. He also drew on Exhibit VI,2, which will be labeled as Exhibit VIII,1 where the building will be located.

Daron Smalley, appearing in favor of the request, stated he is the nutritionist that was talked about earlier and stated this is an opportunity to meet the needs of the dairy farmers in the area and having a local supply building would be beneficial.

Vogt asked if any mixing would be done. Smalley stated they will be doing mixing and explained how it will be set up.

Vogt asked if he will be providing delivery service as well. Smalley stated he would be.

White asked about dust. Smalley stated the advantage of building new allows them to take advantage of the new technology and stated that the setup will allow for the mixing and grinding machines will be outside of the building so there would not be dust inside the building, but there would be some outside.

White asked about hours of operation. Smalley stated 6 days a week and ½ day on Saturday.

White asked about full time staff. Smalley stated 1 employee besides him.

Vogt asked about his office location. Smalley stated he has an office out of Portage , but would also have one in the building.

Vogt asked about the business. Smalley explained that it is a service business out of his home.

White confirmed that the owner would not have ownership in this business. Smalley explained that the property owner would not have ownership in the business, he would be the sole owner.

Tom Broughton, Chair Town of Westfield, stated that the Board supports the request and there is a need in the area.

Joe Prem, appearing as interest may appear, stated that it is an Exclusive Ag township and the existing mill has closed leaving the need for the service. He also spoke of grain drop off sites and commends Randy for trying this.

Gail Carson, appearing in favor of the request, stated that it is a necessity in the neighborhood and will be an asset to the community.

Randy Roecker, reappearing in favor, stated that the building will match the rest of the buildings that already exist.

White asked about the difference in the ownership of the business and the ownership of the building.

Wernecke asked again about the water runoff. Roecker explained the building layouts and the grass areas where the water collects and is absorbed.

Dave Lorenz, reappearing, took questions from the Board about the application being from Roecker Family LLC, but Integrity Nutrition is going to run the business. Lorenz explained that with the zoning ordinance the land owner is responsible for what occurs on their property. He referred to the similarities with the mineral extraction requests that they've heard and the Board has the opportunity to make conditions on the permit stating that if the operator changes, they have to come back to the Board.

Seeing as no one else wished to speak, Chair Vogt closed this portion of hearing at 9:45 a.m.

The Board discussed the request.

White felt because Roeckers will also be using the building, they will want to make sure that the business being operated will be done correctly and doesn't have an issue with the business being owned by someone other than operating the business.

Roloff stated it looks like this has community support and is well maintained and is an ag business that the Town Board is in support of.

Motion by Roloff, seconded by White, to approve the special exception permit for an ag related business with the conditions recommended by Planning and Zoning. Motion carried 5-0.

B. Tim & Gail Carson (SP-35-09) requesting a variance to authorize the location of a proposed addition to an existing tavern.

Dave Lorenz, Environmental Zoning Technician, appeared and gave the history and background of the request as well as photos and a video of site. Also stated he submitted additional information, Exhibit VIII 1 and 2, a sanitary permit and the staff concerns of existing soil conditions on the site. He then recommended conditions to be considered on the request if the appeal is approved.

White asked about the concrete slab. Lorenz explained that the slab is not the issues, but the railings and proposed awing.

Roloff asked where 50 feet from the right of way falls on the patio. Lorenz stated that Steve Sorenson provided a preliminary measurement and felt it was about 90 feet to the proposed addition, but there is no survey.

White confirmed that the building is with the setback. Lorenz stated it is, but is considered an existing legal non conforming

White asked about where the measurement was taken from. Lorenz explained.

Wernecke asked about the measurements. Lorenz explained that the concrete extends about 10 feet out from the building.

Wernecke asked if there are expansions that would not require a variance. Lorenz stated that that all would need a variance.

White asked how far off the back they could expand to and what the existing size of the building is. Lorenz was not positive.

Vogt, referring to Exhibit II,8 and if he has any comment on the plat of survey that shows the 100' right of way and then an additional 50'.

The Board continued to discuss the right of way and setbacks from the road.

Wernecke verified that an existing building that does not meet the setbacks can be added onto. Lorenz stated it can with a variance.

Gail Carson, applicant, appearing in favor of the request. Vogt explained the 3 conditions that must be met for the Board to approve a variance request.

Carson explained that they would like to put an awing with railings on the front of the building, adding character, shielding ice and snow from forming over the winter time and they also have handicap customers that they need to open up the walkway.

Vogt asked about Exhibit V,1, photo 2 and verified what is existing and what is being proposed. Carson stated that the overhang would be similar to what exists on the side and the railing would go to the end of the building.

Vogt asked about hardship. Carson stated she doesn't feel they will suffer a loss, but they are trying to make it more convenient for the clients.

Vogt asked if it will ever be enclosed. Carson stated it will not be enclosed.

Vogt confirmed it is for the safety of clients. Carson stated that is correct.

Vogt asked about unique limitations to the property. Carson spoke of curb appeal and the existing concrete is about 5 feet out and the roof extension.

White asked how long they have owned the property. Carson stated about 3 years.

White explained what a unique limitation to the property would be.

Vogt confirmed that this is for some aesthetics, but primarily for the safety of clientele. Carson stated that is correct.

Vogt asked about putting tables outside. Carson stated that no tables would be put out front and it will only be used for a clear walkway.

Wernecke asked about parking spots specifically for the disabled. Carson stated they do not have designated handicap spots right now, but they will and all the concrete that is there is already to code.

White asked about the concrete pattern. Carson stated it is that way because they were going to put up a railing, but they were told they could do it, but then stopped.

Vogt asked if the roof is what kicks off the need for the variance. Carson stated she believes that is correct.

Lorenz reappearing. Roloff asked about the railing and if it will be allowed whether the variance is granted or not. Lorenz stated that the building is not just non conforming with the setback, it is also a non conforming use and explained that to the board. He also stated that per the ordinance you can not have any expansion to any building containing a nonconforming use with out a variance. He also stated if the rail is not attached to the building, it could be considered an open fence, but it would be up to the Zoning Administrator if the railing is considered expanding the nonconforming use.

Vogt asked if it is not attached, it is up to Planning and Zoning to make the call if this is an expansion of a non conforming use.

The Board continued to discuss nonconforming uses.

Joe Prem, appearing in favor of the request, stated he is the Town Chair, presented Exhibit VIII,1 a resolution from the Town Board and spoke of the history of the property. He said he also spoke to Steve Muchow, Sauk County Highway Commissioner and he does not see an issue with the request. He spoke of the hardship, the community uses it a lot, and the Town wants to encourage the local business to reinvest in what they have. He also addressed property limitations and with everything being in the road setback, there are no options for them.

White stated it is not just the post that are the issue, it will also be the overhang.

Wernecke asked about rezoning. Prem stated that he doesn't feel it needs to be rezoned because it could open up the property to several other uses. He said it is a possibility but he is not real enthused on that idea.

Vogt asked if he feels it not contrary to public interest. Prem stated it is not.

Vogt asked about the unique property. Prem stated that it is unique as no matter what you do, you would be required to get a variance.

Vogt and Prem spoke of the safety issues at the site and this request would eliminate some of the safety issues.

Wernecke asked what the limitations are on nonconforming uses and setback issues. Lorenz explained.

Seeing as no one else wishes to appearing, Chair Vogt closed the hearing at 10:35 am.

Roloff stated the application is not contrary to the public interest, but in order for them to grant the variance they are required to have unique property limitations and the applicant needs to show that they could not use the property for a permitted purpose, unless the conformity to that is unnecessarily burdensome, which it is not.

White feels there are some unique property limitations as the road came after the building was there. However, hardship has not been proven and they will still be able to use the business as they always have.

Wernecke stated he can not support the variance because the use is a nonconforming uses, the building itself is in the setback and to expand that does not meet the pattern that the county or state has required over time and it does not meet the requirements of an unnecessary hardship. He stated he also feels there is room to move around on this property and the public interest would be protected, but it does not meet the legal standard.

Allen stated he would like to see it approved, but does not see how it can without meeting the 3 criteria. While the request is common sense, they can't allow the common sense, as in this case its not legal.

White spoke of the inconsistency that would be created if they do approve the request.

Vogt stated it is not contrary to the public interest, but feels there are unique property limitations in the ways that the parking is set up and it can become a safety hazard. However, the hardship has not been met and there is nothing in the testimony that says if they can't build it like that, they can't exist or it will be too much of a burden on them.

Motion by Roloff, seconded by White to deny the variance based on not proving testimony of hardship, nor a unique property limitation to allow the proposed expansion. Motion carried 5-0.

C. Morris Moseman (SP-36-09) requesting a special exception permit to authorize the location of three proposed ponds.

Serge Koenig, appearing as agent for the applicant, appearing in favor, stated he is from Sauk County Land Conservation, explained that it is similar to the other wetland scrapes that he has brought to the board previously and explained the prairie mix, the scope of the project, that the land will be in the CRP program, the buffers in place so the ag field around it will not be polluting it and keep it from becoming and algae bloom. He also stated that the Town of Troy did approve the request.

Vogt asked about surrounding lands. Koenig explained.

White asked where the water will come from. Koenig explained that it will be ground water and water runoff. He also stated that this area has been filled in over the years and they are merely taking it back out.

Wernecke asked about the wetlands. Koenig verified.

Vogt asked if all the neighboring property owners have been contacted. Koenig stated he doesn't know, he doesn't make the contacts.

Vogt asked what the daylight line is. Koenig explained it where the cut meets the surface of the ground.

Allen asked about John Ederer's reason for voting in opposition. Koenig stated he doesn't know.

Steve Sorg, appearing in opposition, stated he is an adjacent land owner on the west and south and feels that the valley is not getting drained the way it should be now and is backing up into his land and feels that the water will continue to back up into his even more. He stated that he feels the project will negatively impact his property.

Vogt asked if he would rather see it cropped. Sorg stated he would, but would also like to see how this will help the drainage from the valley. Vogt explained that from a hydrologic standpoint they will impound water, but it is below the natural ground that is there now. Sorg stated the drainage basin is almost flat and is backing up all the water.

White stated she felt it may be better. Sorg stated that he needs someone to show him how this will make things better.

The Board continued to explain.

Serge Koenig, reappearing. Roloff asked if these scrapes will increase or impede the flow of the water through the valley. Koenig stated after speaking with the land owner he would rather have it all cropped, but it is so wet there, he can't get crops in there. He also stated he doesn't feel it will alter the water flow any way and feels it could be the vegetation that is there that could be holding the water up before getting to the drainage way. He continued to explain the benefits of how the scrape is proposed.

Seeing as no one else wished to appearing, Chair Vogt closed the hearing at 11:05 a.m.

The Board reviewed the request and the ordinance.

Vogt stated that he feels one of the reasons why crop land to the west is wet is because the ditch filled up with sediment and creates a constant maintenance problem and feels this is the alternative to cropping.

White stated this is an example where Mother Nature is better served where land is not cropped.

Motion by Vogt, seconded by Wernecke, to approve the special exception permit with the conditions listed by the Planning and Zoning Department. Motion carried 5-0.

D. Brian Barritt & Jennifer Scarpaci (SP-37-09) requesting a variance to authorize a residence as built within the minimum road setback.

Vogt asked about the road setback and the survey from MSA showing the setback distances and asked how far into the setback is the building. Lorenz explained.

Vogt asked how far into the setback the house is. Lorenz stated according to the applicant, it is 15.5 feet from the road right of way to the building and the minimum is 30 feet. Lorenz stated they could have spun in 90 degrees and have it fit.

Vogt asked about the building permit. Lorenz stated that the location was missed when the permit was reviewed.

Vogt asked why on the plat the setback from the road was not placed anywhere and feels if you are building a house and you are getting permits, part of that process should be showing the confines of where you can place your house. Lorenz spoke of the requirements of doing a subdivision plats and what is actually shown on what was provided.

White asked if there are other houses out there that are too close to the road. Lorenz stated he didn't feel so. He also spoke of how the problem was found.

Roloff spoke of a land use permit being issued in error and a condition of the permit was to do the survey and why was it not submitted. Lorenz stated the survey was done by MSA, but they gave the survey to the builder and the builder did not forward it onto the Department and if that would have happened, all they would have been dealing with is the foundation.

Roloff confirmed that the house was built and sold to the new owners and now they have to deal with the variance request for an area variance. Lorenz confirmed.

White asked if they would have done what they were suppose to do, this would not have been an issue. Lorenz stated that the permit should have never been issued to start with and the site plan was substandard, but that is no excuse.

Roloff confirmed that Planning and Zoning should not have issued the permit, but that TipTop should have provided the survey when it was done and this could have been avoided and the present owners had nothing to do with what is taking place.

Wernecke asked about the current owners brining lawsuit against the builder and previous owner.

Wernecke asked if Planning and Zoning gets a copy of the subdivision plat and how was it not caught that those lots could not be built on. Lorenz stated Planning and Zoning does get a copy of the subdivision plat.

White asked about the construction company and the subdivision. Lorenz explained.

White asked if the construction company has done other spec homes, getting permits through Planning and Zoning. Lorenz stated he is unsure.

Mark Londo, MSA, appearing for the applicant, stated that he is the one that did the foundation setback survey that appears in the application. He was asked by TipTop to stake the building as part of the building permit requirements and explained why the building is positioned the way it.

White asked about being aware of the 30 foot requirement but assumed that Planning and Zoning was looking at that as a side yard instead. Londo stated that was correct. He also spoke of the owner intending to construct a deck on the back of the house.

Vogt reviewed the history. Londo confirmed and explained that in the future they will be turning in their surveys directly to Planning and Zoning and feels that is happening all over the industry to avoid this kind of thing in the future.

Londo stated the hardship is the house is occupied by a family that did not create the hardship and was never notified of the issues of the house location when the property was sold. The unique property limitations with the land being very small to begin with and to turn the house would create other issues and the public interest, being that it is on a cul de sac, there is not an issue with public safety and no harm.

White asked how many lots have homes on them. Londo stated the 4 th home is currently under construction and explained where the current homes reside on the plat.

Vogt asked if this has gone to the Town Board. Londo stated it has and their position is that they do not wish to abandon any right of way and beyond that they are not willing to make any recommendation.

White asked if this house could sit on other lots in the subdivision. Londo stated it would fit on one of the lots across the street.

Gary Kowalke, appearing in favor of the request, stated that he is the developer of the subdivision and built the house with Pat Henry and he paid over $3000 for permits on that building and feels that someone dropped the ball on it and it was a simple mistake and feels there is no reason for the Board to meet because he's gotten nothing for the money he's paid.

White asked why the survey was sent to him and he did not turn it in to the County. Kowalke stated that the survey was given to Pat Henry and he didn't turn in the survey, it wasn't his problem.

Wernecke asked when the plat of the subdivision was laid out, did they have an idea of the size homes they were going to build and know they were problematic. Kowalke stated they are not problematic, you can just adjust the size of the house and what really upsets him, is he paid for permits and gets nothing.

Vogt spoke of the subdivision plat containing a corner lot notation or laid out on the actual plat itself showing that you have to be at least 30 feet in from each right of way so that there is an envelop for the building.

White asked if this is typical for what is put in for plot plans. Kowalke stated he does not get into that part of that and TipTop is the one that provided that sketch.

Wernecke spoke of the Town and County permit fees. Kowalke stated they paid the county, the town and the sanitary permit fees.

Wernecke asked if the Town Engineer reviews and inspects the process. Kowalke stated they do.

Vogt stated the survey was done the flags were set out the concrete was poured and they survey was done and the contractor didn't submit to the county and no one was conscious of the fact that on a corner lot you need the 30 foot setback.

White asked what the septic is. Kowalke stated it is hooked up to the sanitary district.

Steve Cohoon, appearing as interest may appear, stated he is representing the Town Board of Baraboo, and that it came to them as a special exception permit and forward it to the county. He also spoke of the engineer and the preliminary plat had both descriptions, but the final plat failed to do that and only had one setback description. He also spoke of their inspector being aware of setbacks and they are trying to change that.

White verified that it is the Town's preference that the house gets taken out of the road right of way. Cohoon stated the house is either removed or a variance given, the Town will not abandon the right of way. He also stated that he personally doesn't have a problem with the house because of the location of it and being on a cul de sac.

White stated his opinion as a citizen is it should be granted, but as a Town representative not to give up the road right of way. Cahoon stated that is correct.

Dave Lorenz, reappearing. White spoke of a variance for Luther farms where the house was built in the floodplain, the State said it didn't matter, it can't be there. Lorenz stated that this setback is a county issues where the Luther issue was a Federal and State rules that were applied.

Seeing as no one else wished to appearing, Chair Vogt closed the hearing at 11:50 a.m.

The Board discussed the request and ordinance and that this is an area variance.

White stated she is appauled that Tip Top does not have a representative at this meeting, seeing as they are the ones who did not forward the survey which could have prevented this.

Vogt stated this issue should have been caught somewhere along the line either on the plat map that was approved or the permit application review. He also asked each member to provide input on the 3 conditions.

White spoke of the Township giving up the road right of way and the liability aspect and feels it is contrary to public interest, but as far as the subdivision is concerned there is none for the neighbors. As far as unique property limitations, there is not room to put the house in it, but it can still be used for housing and does not feel it is unique. Financial hardship can not be a consideration and having to move out while the house is moved can not be considered a hardship. Based on those issues, her vote would be against the variance.

Roloff stated that public interest being protected is not an issue and the site and vision from that intersection is not an issue and has seen many intersections with shrubs that pose more of an issue than this home would. He also feels there are unique property limitations in that the size and shape of the house would dictate what the house would be and feels they did the best they could making the home fit. He then commented on unnecessary hardship and the person seeking the variance is the present owner and they had nothing to do with the situation they are in and purchased the property in good faith and to deny this variance would unreasonably prevent the owner from using this property for the permitted use and to conform to the setbacks would be unnecessarily burdensome, and feels the variance should be granted.

Allen stated he feels it meets all three criteria and feels the only place this should be dealt with is in a court of law and feels he would vote in favor of the variance.

Wernecke stated he is struggling with it as you could go either way. He feels that the unnecessary hardship was imposed by the inventors, builders, governmental units and not the current property owner. He also stated that the hardship due to unique property limitations were created by the people that came prior to the current owners, but the property could have been built on within the setbacks. As far as no harm to public interest, he does not feel any safety issues are created by leaving the house where it is located.

White also stated that the builder that did not show up, the message to him will be to unload it fast if you have a problem and then the current owner will have to deal with it. She stated it is not their responsibility to decide who is responsible; it is their responsibility to decide if this meets all the laws put forward to them.

Vogt stated he recalls the case in Christmas Mountain and agrees with all opinions, but in order to make this right, it is unnecessarily burdensome for the builders for clogging the courts up as to who has to pay for it and has an owner that bought the property in good faith. He also addressed unique property limitations that there may not be any, but a lot of people dropped the ball and does not feel it is contrary to public interest.

Wernecke stated that if this is going to be approved, only the existing building is allowed the variance, and not any subsequent building or additions to the building would not be approved.

White did state that with the number of people that would have to get involved in this legally, it could create a hardship that is unnecessary, but is still unsure of unique property limitations and the owners should not be allowed to plant anything that is allowed to obstruct further site.

The Board discussed restricting plantings.

Motion by Roloff, seconded by Vogt, to approve the variance request with the conditions listed by Planning and Zoning. Motion carried 3-2 with White and Wernecke in opposition.

Meeting adjourned.

Respectfully submitted,

Robert Roloff,

Secretary