HomeMy WebLinkAboutBoard of Adjustment 12-18-08 PUBLIC HEARING NOTICE
'The St. Croix County Board of Adjustment has scheduled a public hearing for Thursday, December 18, 2008, at 8:30
a.m. at the Government Center, 1101 Carmichael Road, Hudson, Wisconsin, to consider the following requests under
the St. Croix County Zoning Ordinance. The Board will view each site in question, after which the Board will
deliberate and vote on the requests.
SPECIAL EXCEPTION & VARIANCE
1. APPLICANT: James Swan
LOCATION: Government Lot 2 of Section 26, T28N, R20W, Town of Troy
ADDRESS: 177 Glenmont Road
REQUEST: Item #1: Special Exception request for construction of a stairway in the Riverway District
pursuant to Section 17.36(F)(3)(a)(3) of the St. Croix County Zoning Ordinance.
Item #2: Variance request to use two landings in 31 feet of elevation in the Riverway
District pursuant to Section 17.36(H)(12)(a)(3) of the St. Croix County Zoning Ordinance.
VARIANCES
2. APPLICANTS: Robert Lee & Tom Lee
LOCATION: Government Lot 1 of Section 23, T28N, R20W, lots 18 & 19 Plat of St. Croix Beach,
Town of Troy
ADDRESS: 190 Cove Road
REQUEST: Variance for filling and grading on slopes greater than 12% in the slope preservation
zone in the Riverway District pursuant to Section 17.36(H)(3)(c) of the St. Croix
County Zoning Ordinance.
RECONSIDERATION
3. APPLICANT: Donna Murr
LOCATION: Part of Government lots 1 & 2, Section 24 T28N R20W, Town of Troy
ADDRESS: 202 Cove Ct.,
REQUEST: Item #1: Variance to use two contiguous substandard lots in common ownership in
the Lower St. Croix Riverway District as separate building sites pursuant to Section
17.36 1.4.a. 1-3 of the St. Croix County Zoning Ordinance.
Item #2: Variance to reconstruct and expand a nonconforming principal structure
without using the same footprint as the original structure in the Lower St. Croix
Riverway District pursuant to Section 17.36 I.2.e.1(g) of the St. Croix County Zoning
Ordinance.
Item #3: Variance for filling and grading and placing a structure in the slope
preservation zone (SPZ) in the Lower St. Croix Riverway District pursuant to Section
17.36.H.3.a -c of St. Croix County Zoning Ordinance.
Item #4: Special exception request for filling and grading within 40 feet of the slope
preservation zone (SPZ) in the Lower St. Croix Riverway District pursuant to Section
17.36.F.3.a.5 of St. Croix County Zoning Ordinance.
Item #5: Special exception request for filling and grading in excess of 2000 square
feet in the Shoreland District pursuant to Section 17.29(2)(c)3 of the St. Croix
County Zoning Ordinance.
Item #6: Variance to construct retaining walls and stairs that encroach within the
OHWM setback in the Lower St. Croix Riverway District pursuant to Section 17.36
G.5.c.1 of the St. Croix County Zoning Ordinance.
r Item #7: Variance to construct a patio within the OHWM setback in the Lower St.
Croix Riverway District pursuant to Section 17.36 G.5.c.1 of the St. Croix County
Zoning Ordinance.
Item #8: Variance to construct a deck within the OHWM setback in the Lower St.
Croix Riverway District pursuant to Section 17.36 G.5.c.1 of the St. Croix County
Zoning Ordinance.
All interested persons are invited to attend said hearing and be heard. Additional information may be obtained from
the St. Croix County Planning and Zoning Department, Hudson, Wisconsin at (715) 386 -4680.
Clarence W. Malick, Chairperson
St. Croix County Board of Adjustment
VORIGINAL
BOARD OF ADJUSTMENT MEETING AND HEARING MINUTES
December 18, 2008
The meeting was called to order by Chair Clarence Malick at 8:30 a.m.
A roll call was made. Malick, David Peterson, and Joe Hurtgen were present. Jerry McAllister and
Sue Nelson were absent.
Staff included: Kevin Grabau, Code Administrator; David Fodroczi, Planning & Zoning Director;
Pam Quinn, Zoning Specialist; Alex Blackburn, Zoning Specialist; Steve Olson, St. Croix County
Land and Water Conservation Department; Don Gillen, Assistant Corporation Counsel and Judy
Olson, Recorder.
Guests: James Swan, Louie Filkins, Robert Rolle, Joe Murr, Dan Baumann, Carrie Stoltz, Marilyn
Schuchman, Lisa Schuchman
Staff confirmed to the Board that this was a properly noticed meeting.
Motion by Hurtgen, 2 nd by Peterson, to approve the November 20, 2008, minutes as presented.
Motion carried unanimously.
The next meeting for the Board is scheduled for Thursday, January 22 at 8:30 a.m. in the County
Board Room of the Government Center in Hudson.
Application #1: James Swan — Special Exception and Variance
Blackburn presented the staff report. The applicant requests an after - the -fact special exception permit
and variance for a wooden stairway that has been constructed on his lot in the Lower St. Croix
Riverway District in the Town of Troy. Blackburn showed the existing stairway with elevations at
each level. He showed photos of the stairway and landings. Mr. Swan had provided photos of the
property from the River during summer with full leaf on conditions and the stairway was not
conspicuous. One verbal complaint was received from one neighbor that the construction of this
stairway affected their view. WDNR requested a vegetative management plan. WDNR had no
concerns with erosion. Based on the findings of fact and conclusions of law, staff recommends denial
of the variance request. Staff recommended tabling the special exception request until this stairway is
brought into compliance by removing two of the existing landings and retaining one landing at either
the 700 or 709 foot elevation. Landings must be placed at vertical intervals of no less than 20 feet
according to the ordinance. Removal of the two additional landings is to be completed by July 1,
2009. Town of Troy has approved the construction.
Board members reviewed additional photos submitted by Mr. Swan.
Blackburn noted the DNR reference to the need for a vegetative management plan and that this
application did not need Chapter 30 permits. There were no comments on construction. Malick
questioned if the County ordinance with limitations on landings is directly based on DNR regulation
NR118. Grabau stated that the 20 foot requirement is part of that. Malick stated that he could see no
comments on the landings from DNR.
After signing the oath to tell the truth, Mr. Swan testified that he and his wife have lived at the present
location on the River for 22 years. The property has features that they like, mostly that it is invisible
from the River and they want to preserve that. The original stairway was constructed of railroad ties
with steel posts. The slope has moved over the years displacing the ties resulting in a hazardous
stairway. The old stairs were difficult to navigate so he knew that they must be replaced. He had to
find a route down the slope to provide a way that would not create a disturbance to what they had. He
stated that he did not get a permit and didn't know he needed one. The stairs were constructed on a
a
ST. CROIX COUNTY BOARD OF ADJUSTMENT
Thursday, December 18, 2008
8:30 a.m.
Government Center, Hudson, Wisconsin- Community Room
AGENDA
A. CALL TO ORDER/ ROLL CALL
B. OPEN MEETING LAW STATEMENT
C. ACTION ON PREVIOUS MINUTES
D. DATE OF NEXT MEETING: January 22, 2009
E. UNFINISHED BUSINESS
F. PUBLIC HEARINGS — See Attached
G NEW BUSINESS
1. Pending Court Cases
a. Elert Appeal
b. Murr Decision
1. Closed session pursuant to Wisconsin Statutes 19.85(1)(g) to confer with legal
counsel concerning strategy to be adopted by the Board with respect to
litigation in which it is involved. Reconvene in open session. *
2. Potential suspension of the Board's Rules and By -Laws and reconsideration of
the Board's 2006 decision on the Murr application (File SE0057).
H. ANNOUNCEMENTS AND CORRESPONDENCE
L ADJOURNMENT
(Agenda not necessarily presented in this order.)
SUBMITTED BY: St. Croix County Planning and Zoning Department
DATE: November 10, 2008
COPIES TO: County Board Office County Clerk
Board Members News Media/Notice Board
*CANCELLATIONS /CHANGES /ADDITIONS
a
ST. CROIX COUNTY BOARD OF ADJUSTMENT
Thursday, December 18, 2008
8:30 a.m.
Government Center, Hudson, Wisconsin- Community Room
AGENDA
A. CALL TO ORDER/ ROLL CALL
B. OPEN MEETING LAW STATEMENT
C. ACTION ON PREVIOUS MINUTES
D. DATE OF NEXT MEETING: January 22, 2009
E. UNFINISHED BUSINESS
F. PUBLIC HEARINGS — See Attached
G NEW BUSINESS
1. Pending Court Cases
a. Elert Appeal
b. Murr Decision
1. Closed session pursuant to Wisconsin Statutes 19.85(1)(g) to confer with legal
counsel concerning strategy to be adopted by the Board with respect to
litigation in which it is involved. Reconvene in open session. *
2. Potential suspension of the Board's Rules and By -Laws and reconsideration of
the Board's 2006 decision on the Murr application (File SE0057).
H. ANNOUNCEMENTS AND CORRESPONDENCE
L ADJOURNMENT
(Agenda not necessarily presented in this order.)
SUBMITTED BY: St. Croix County Planning and Zoning Department
DATE: November 10, 2008
COPIES TO: County Board Office County Clerk
Board Members News Media/Notice Board
*CANCELLATIONS /CHANGES /ADDITIONS
PUBLIC HEARING NOTICE
'The St. Croix County Board of Adjustment has scheduled a public hearing for Thursday, December 18, 2008, at 8:30
a.m. at the Government Center, 1101 Carmichael Road, Hudson, Wisconsin, to consider the following requests under
the St. Croix County Zoning Ordinance. The Board will view each site in question, after which the Board will
deliberate and vote on the requests.
SPECIAL EXCEPTION & VARIANCE
1. APPLICANT: James Swan
LOCATION: Government Lot 2 of Section 26, T28N, R20W, Town of Troy
ADDRESS: 177 Glenmont Road
REQUEST: Item #1: Special Exception request for construction of a stairway in the Riverway District
pursuant to Section 17.36(F)(3)(a)(3) of the St. Croix County Zoning Ordinance.
Item #2: Variance request to use two landings in 31 feet of elevation in the Riverway
District pursuant to Section 17.36(H)(12)(a)(3) of the St. Croix County Zoning Ordinance.
VARIANCES
2. APPLICANTS: Robert Lee & Tom Lee
LOCATION: Government Lot 1 of Section 23, T28N, R20W, lots 18 & 19 Plat of St. Croix Beach,
Town of Troy
ADDRESS: 190 Cove Road
REQUEST: Variance for filling and grading on slopes greater than 12% in the slope preservation
zone in the Riverway District pursuant to Section 17.36(H)(3)(c) of the St. Croix
County Zoning Ordinance.
RECONSIDERATION
3. APPLICANT: Donna Murr
LOCATION: Part of Government lots 1 & 2, Section 24 T28N R20W, Town of Troy
ADDRESS: 202 Cove Ct.,
REQUEST: Item #1: Variance to use two contiguous substandard lots in common ownership in
the Lower St. Croix Riverway District as separate building sites pursuant to Section
17.36 1.4.a. 1-3 of the St. Croix County Zoning Ordinance.
Item #2: Variance to reconstruct and expand a nonconforming principal structure
without using the same footprint as the original structure in the Lower St. Croix
Riverway District pursuant to Section 17.36 I.2.e.1(g) of the St. Croix County Zoning
Ordinance.
Item #3: Variance for filling and grading and placing a structure in the slope
preservation zone (SPZ) in the Lower St. Croix Riverway District pursuant to Section
17.36.H.3.a -c of St. Croix County Zoning Ordinance.
Item #4: Special exception request for filling and grading within 40 feet of the slope
preservation zone (SPZ) in the Lower St. Croix Riverway District pursuant to Section
17.36.F.3.a.5 of St. Croix County Zoning Ordinance.
Item #5: Special exception request for filling and grading in excess of 2000 square
feet in the Shoreland District pursuant to Section 17.29(2)(c)3 of the St. Croix
County Zoning Ordinance.
Item #6: Variance to construct retaining walls and stairs that encroach within the
OHWM setback in the Lower St. Croix Riverway District pursuant to Section 17.36
G.5.c.1 of the St. Croix County Zoning Ordinance.
JAI4101RO
design and build situation. He had to find a route and build. There were some obstacles such as trees.
The stairway does not interfere with the view to his house or the neighbors. The existing gazebo was
on the property when they bought it. The only access to the path to the gazebo is the stairway. The
second landing was necessary to avoid not removing several trees. The stairway is completely
screened from the River. He requested the Board consider his application and approve the special
exception and variance. He noted that he doesn't think changing the layout would improve anything.
He took into consideration the safety of getting down the bank to the River by using the different
levels.
Peterson asked if the additional landings were built to help avoid trees. Mr. Swan answered yes.
Bob Rolle stated that he is acting in an unofficial capacity though he is a member of the Troy plan
commission and representative on St. Croix Riverway matters. The Town heard this matter and
discussed with DNR staff and understood that the DNR had no objections to the plan as presented,
only comments regarding vegetation. The Town has approved a permit. The Town also issued a fine.
On another matter related to this the Town noticed that Mr. Swan had maintained vegetation — the
property is visually inconspicuous. The Town also determined that it was built competently. What he
has done would cause less harm to the environment. Town considered two important factors; is what
we are permitting causing more erosion or pollution in the River? If not it would seem reasonable to
grant a variance. What is presented by the County today is the argument that a variance can't be
granted because it is contrary to the ordinance. It is the Town's understanding that a variance is
contrary to law. The reason to grant a variance is whether or not it causes harm. Is it reasonable to
allow it? All variances are contrary to law. This issue needs to be addressed and resolved in the
future.
Malick referred to a document from an engineer, a plan view from an engineer and the certification on
it stating that he certifies that this document was prepared under his direction and that he is a
registered professional engineer in the State of Wisconsin. It is signed Richard Vasatka with no date.
Malick questioned if Mr. Vasatka has approved the construction method and materials after - the -fact or
has he approved the drawing. In the Town of Troy letter dated September 15 to the DNR it includes a
summary of public hearing and plan commission comments. Rob Jones is quoted as saying, "a
Wisconsin professional engineer has signed off on the footings and construction methods used."
Malick questioned if Mr. Jones is an engineer and is he saying Mr. Vasatka is the one who approved
after - the -fact the footings and construction?
Blackburn met with Mr. Vasatka the previous day and did not provide any more information on the
certification. The engineer for the Town of Troy signed off on the construction method and footings.
Blackburn stated there is no description of stairs in the zoning ordinance. Landings are not defined in
the ordinance. Grabau stated that the applicant said, "the only way to access the existing gazebo and
avoid removing trees was to build the various levels." Malick noted the reasons for variances and
purpose of the ordinance in limiting the number, size and structure of landings. The whole
controversy of this issue is whether part of this is to be removed and asked if the staff thinks some of
landings could be removed without removing trees. Blackburn agreed that the landings are quite
close. Landings L1 and L3 could be reconfigured to reduce the number of landings to one. A gravel
path could be used to access the gazebo. Discussion of this and reasons to do that number of landings
used as resting places.
With no other questions, Malick announced the hearing closed.
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Application #2: Robert Lee & Tom Lee — Variance
Quinn presented the staff report. The applicant is requesting a variance in order to install a
replacement private on -site wastewater treatment system (POWTS) within the slope preservation zone
in the Lower St. Croix Riverway District in the Town of Troy. The Lees have owned the property
since 1962.
After signing the oath to tell the truth, James "Louie" Filkins, Ogden Engineering, spoke in favor of
the application. He showed the lot location and surrounding properties. There is no public road
access to the lots. There are several cabins in a common area. Access is by boat or footpath. The area
is primarily in the slope preservation zone. The cabin was built in the 1960s and has an older drywell
system that is functioning but needs updating. There is not much in the area that meets septic codes or
Riverway codes. Because of the character of the lot, there is not much area that will be allowed by the
Riverway ordinance for a replacement septic system. He tried to locate the system in another area on
the property but soils were not suitable. Filkins testified that the dwelling is a three bedroom cabin,
not two as shown on the site plan and that the site has its own water supply from a well in a shed on
the property, not from an off -site shared well. In creating the plan they tried to preserve as many trees
as possible. There are many trees between the system and the River. Malick questioned if evergreens
could be planted outside the new septic field replacing the removed trees and creating a screen from
the River. Filkins stated that there is room between the path and railing to provide screening. A few
smaller trees must be removed. There is quite a bit of vegetative covering between where the system
would go and the River. The Town of Troy, during concept review, recommended that vegetative
screening be looked at.
With no other comments or questions, Chair Malick closed the hearing.
The Board recessed from 9:43 to 9:53 am.
Application #3: Donna Murr — Reconsideration
Malick stated that he met recently with members of the Murr family along with Gillen, Fodroczi,
Blackburn and Grabau and discussed what could be done. The Board members suggested raising the
present structure in its present footprint without using fill, strengthening the foundation, raising it up
and adding another level. The rest of the structure would be above flood level and leaving the bottom
level into which floodwaters could intrude during flood conditions. The family did not want any part
of the structure subject to flooding. They have concern with mold and resulting reactions. They
wanted to go with the previous plan that cuts into the slope. If they couldn't agree to building on the
present footprint is there possibility that they find a location farther back but without cutting into the
slope — a completely new structure. All this would be based on the premise that the lot would be
divided so there would be a second saleable lot above the bluff. Raising the rim of the current septic
tank would keep floodwater from entering the tank. Staff went back to look at flood proofing issues
and what is legal regarding floodproofing — need grounds for a variance.
Grabau reviewed the background of the case. The Murrs submitted an application for eight items
including variances and special exceptions. A hearing was held on June 22, 2006. After hearing all
testimony, all items were denied. The Murrs filed suit in circuit court. The circuit court ruled in favor
of the Murrs on seven items. It did not rule in their favor on the variance to sell and develop two
contiguous substandard lots in common ownership in the Lower St. Croix Riverway District
as separate building sites pursuant to Section 17.36 1.4.a. 1-3 of the St. Croix County Zoning
ordinances. After that decision was rendered by circuit court judge the Murrs filed an appeal from the
decision. The Board also filed an appeal with Malick acting as representative of the Board for the
seven reversed items and Gillen for the other issue. Mr. Waterman, attorney for the Murrs contacted
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the P &Z department to see if the Murrs and the Board could find common ground and settle outside
court. In November the Board voted to reconsider its original decision. Grabau stated that this public
hearing was noticed properly. Malick and staff met the previous week with members of the Murr
family and both parties' attorneys to discuss what options are available to settle this outside court. In
order for the Board to reconsider its decision, the item was placed on this meeting agenda for
discussion and also required a public hearing as part of the process. It is not necessary to make a
decision today as there are no specific plans to review. It is only for discussion and to hear from
different parties. The public hearing can be adjourned, not closed so it can continue next month.
Malick clarified a problem in the record regarding suspending the bylaws and requested a motion to do
that so this can be reconsidered. Motion by Peterson, 2 nd by Hurtgen, to suspend the rules and bylaws.
Motion passed unanimously.
Malick asked if anyone wished to speak for the Murrs. Lisa Schuchman asked about the grounds for
reconsideration. Malick stated that this is initiated by the Board. It is willing to reconsider to open it
up for other ideas.
After signing the oath to tell the truth, Joe Murr stated that no decision was made on what direction
they want to take. Same discussion as they had in the previous meeting - what changes the Town of
Troy has approved. The Murrs have not come up with any direction. They will talk with the architect.
Malick asked if any research on flood proofing standards was done by staff. Fodroczi stated he had
some contact with family members on technical information relative to topography and elevation. He
doesn't have information on this. Identified things that might be previously prepared.
After signing the oath to tell the truth, Dan Baumann, WDNR, shared information regarding
precedents and where the County could exercise some caution. The regulation authority on the
Riverway is two -fold for the County — the Riverway ordinance and more critical the floodplain
ordinance. The emphasis should be on meeting requirements of NR116 and the floodplain ordinance.
FEMA, which administers the flood insurance can, if decisions are made that are contrary to ordinance
requirements, take drastic measures against the municipality which could include suspension so no one
in the County could get flood insurance or be eligible for any hazard damage relief. We need to
determine what can be done within the floodplain ordinance and then see how that fits into the
Riverway ordinance. There are situations where a structure would not be allowed today. A structure
that was built before the ordinances were adopted is now legal non conforming. The opportunities for
change are very limited, especially in the Riverway and in a floodplain. It decreases the ability to do
things without jeopardizing, on a County wide basis, the eligibility for flood insurance or the
department taking action against the municipality and the County for decisions in violation of what the
County has already approved as part of the Riverway ordinance. The rules are not written for one
piece of property. They are written for a resource or for a zoning district - the Riverway — or for
public health and safety — the floodplain. The same steps will be taken for any new applications or
amendments to a current application that were taken in the past — protecting the floodplain eligibility
of the County flood insurance program and the applicability of the Riverway ordinance. The DNR is a
consultant to the municipalities and wants to keep the municipality in good standing with the flood
insurance program and keep from creating a situation where the State could take legal action against
the municipality for granting decisions that are unfounded or are in direct violation of the ordinance.
Malick stated that this is an awkward situation. The Board found no hardship but the judge said there
is hardship. Both sides think they will win on appeal. The DNR has not joined the lawsuit. In
reviewing cases from Minnesota jurisdictions as a county representative on the Lower St. Croix
Management Commission's Partnership Team, he noticed that flood proofing is quite common.
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Typically, they approve raising them up, sometimes on fill and sometimes not on fill. Often there are
big trees that would be killed by piling sand around them to raise up the structure. Baumann stated
that flood proofing does not get a structure out of the floodplain which would affect the ability to have
flood insurance on property. To meet criteria there must be dry land access or some agreement with
local municipality to provide rescue service by vehicle. The Murr family wants to raise money for
flood proofing work by selling an extra lot. However, this may affect the future owners of the
property in obtaining flood insurance needed for a federally backed mortgage.
There was discussion about the 50% rule — 50% of equalized accessed value over the life of the
structure, which would be critical to the Murr's decision. Discussion on what structural change is
considered part of the flood proofing and what would be considered improvement. If they sell the
extra lot, but are not able spend the proceeds on the building, it would be a major barrier.
Joe Murr stated that the proposal approved by the judge takes it out of floodplain with the use of fill.
Fill will affect 14 trees on the River side. The family wants a structure that does not get wet. Fill will
be needed.
After signing the oath to tell the truth, Marilyn Schuchman who lives on an adjoining property, asked
about how much research was done on moving the structure back, protecting the slope. How much
will be affected. She is concerned with what will be going on with the hill and the possible effect of
flooding on her property with the Murr structure moving farther into the hill. Malick stated that the
Board's original decision was to deny the application. One reason was because it would be necessary
to cut into that hill. Schuchman expressed concern with the affects of this to surrounding properties in
future years.
With no one else asking to speak, Chair Malick recessed the hearing.
Motion by Peterson, 2nd by Hurtgen to table this item to the next meeting. Motion carried. Board will
meet with Gillen in closed session.
Quinn showed a video of the Lee property.
The Board recessed for lunch and site visits at 10:50 a.m.
The Board reconvened at 12:45 p.m.
Decisions
After hearing the testimony and reviewing the material in the record, the Board rendered the following
decisions:
Application #1: James Swan — Special Exception and Variance
Staff recommends tabling the special exception request until this stairway is brought into compliance by
removing two of the existing landings and retaining the one landing allowed at either the elevation of
700 feet or 709 feet. Removal of the two additional landings to be completed by July 1, 2009. Malick
agreed since Carrie Stoltz of WDNR needs to submit another memo regarding landings/bench. Motion
by Hurtgen, 2nd by Peterson to table the special exception request until the stairway is brought into
compliance with a deadline of July 1, 2009. Landing 1 must be reduced to the width of the stairway, 36
inches. Landing 3 must be reduced to the width of the stairway, 36 inches. In addition, the bench that is
part of Landing 3 must be removed.
Having heard all the testimony, considered the entire record herein, and reviewed the site, the St.
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Croix County Board of Adjustment makes the following findings of fact and conclusions of law:
1. The applicant is James Swan, property owner.
2. The site is located at 177 Glenmont Road in section 26, T28N, R20W, Town of Troy,
St. Croix County, WI.
The Board makes the following findings of fact and conclusions of law for
request #1:
3. The applicant submitted an application to the St. Croix County Board of Adjustment
for an after - the -fact special exception permit for a recently constructed wood stairway
in the Lower St. Croix Riverway Overlay District pursuant to Section 17.36 F.3.a.3)
and subject to the performance standards in Section 17.36 H.12 of the St. Croix
County Zoning Ordinance.
4. A new stairway was engineered and constructed without a special exception permit
during late May and early June and a stop order was issued sometime in June 2008.
5. According to the application and to Board on site inspections, the stairway meets all
but one of the design standards stipulated in Section 17.36 H.12 of the St. Croix
County Zoning Ordinance. The stairway is located on a steep, densely vegetated
slope exceeding 20 percent. The stair treads do not exceed 48 inches with no handrails
or canopies. The stairway is located on concrete filled sonotubes and constructed of
unfinished wood. The stairway is not visible from the river. No trees were removed
to install the stairway. The old stairs will be abandoned and this will be the only
stairway for this property. The new stairway has not caused accelerated erosion. A
registered professional engineer has designed the stairway and construction appears to
be in compliance with the engineered plans. The new stairway does not comply with
the first part of Section 17.36 H.12.a.3) that states that, landings must be located at a
vertical interval of not less than 20 feet and shall not exceed 40 square feet in area.
6. According to the application and Board observations the stairway meets all the
provisions of Section 17.70 (7)(a) The stairway would not violate the spirit or general
intent of the chapter and would not be contrary to the public health, safety, and
welfare. With the condition to modify the additional landings this request would not
affect property values in the neighborhood. This request would not be a nuisance by
reason of noise, dust, smoke or odor.
7. According to the application and Board observations the stairway would be consistent
with Section 17.36 J.2.b.2)a) j) The stairway is not visible from the river. The
construction method using concrete filled sonotubes required minimal vegetation
removal and there was no apparent run -off or erosion. The terrestrial and aquatic
habitat would be minimally impacted.
8. Steve Olson from the St. Croix County Land and Water Conservation Department has
reviewed the application and visited the site. He found the site to be stable with
minimal disturbance and the stairs appeared to be screened from the river.
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1
9. The Wisconsin Department of Natural Resources Carrie Stoltz has reviewed the
application and requested a vegetation management plan.
10. The Town of Troy has approved the construction of the stairway.
The Board makes the following findings of fact and conclusions of law for
request #2:
11. The applicant submitted an application for an after the fact variance to use two
landings in 31 feet of elevation for a stairway in the Lower St. Croix Riverway
Overlay pursuant to Section H. 12.a.3)
12. The new stairway does not comply with the first part of Section 17.36 H.12.a.3) that
states that, landings must be located at a vertical interval of not less than 20 feet and
shall not exceed 40 square feet in area.
13. The stairway that was constructed has a vertical drop of 31 feet. The top of the
stairway starts at an elevation of 720 feet, the one and only landing should then be
placed at an elevation of 700 feet. It could also be rationalized that if you were to start
at the bottom of the stairs elevation of 689 feet then the one and only landing could be
placed at an elevation of 709 feet. The current stairway contains three landings at the
following elevations, Ll at 713.1 feet, L2 at 704.9 feet and L3 at 696.7 feet.
14. This request is not consistent with Section 17.70 (6)(e) in that the hardship was self-
created by constructing the stairway without a permit. This stairway would also affect
the view of the river from the neighboring properties and may be detrimental to
property values.
On the basis of the above Findings of Fact, Conclusions of Law, and the record herein, the Board
tabled the special exception request until the stairway is brought into compliance as outlined below.
After the stairway is brought into compliance the Board will consider a variance to allow the landing 2
(L2) to remain at the 704.9 elevation instead of the required 700 foot or 709 foot elevation.
The following must be done by July 1, 2009;
1. Landing 1 (L1) must be reduced to the width of the stairway, 36
inches.
2. Landing 3 (L3) must be reduced to the width of the stairway, 36
inches. In addition, the bench that is part of L3 must be removed.
Motion carried unanimously.
Application #2: Robert Lee & Tom Lee — Variance
Malick would like them to plant a few trees. Because this is a three- bedroom home, not two - bedroom,
there is a need for a larger system than originally planned. Quinn thought that it would still fit in the 1800
square feet of disturbed area. Filkins showed that the cabin has its own water supply, not a shared well.
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Having heard all the testimony and considered the entire record herein, the Board finds the following
facts:
General Findings and Conclusions:
The Board makes the following general findings of fact and conclusions of law pertinent to
both requested items:
1. The applicants are Robert & Thomas Lee, property owners, with Paul Steiner, Steiner
Plumbing and Electric, Inc. and James Filkins, Ogden Engineering Co., acting as his agents.
2. The site is comprised of Lots 18 and 19 Plat of St. Croix Beach in Section 23, T28N, R20W,
Town of Troy, St. Croix County, WI.
3. Staff from the Planning and Zoning Department and the Land and Water Conservation
Department conducted a joint site visit on December 8, 2008. POWTS- Certified staff has
reviewed the plan and soil report data and find that the proposed replacement POWTS meets
or exceeds all applicable state standards in COMM 83. In addition, the replacement system
would allow abandonment of an existing septic tank, eliminating potential groundwater or
river contamination due to failure of an unknown age /condition wastewater system. The site
limitations - including lot size, excessive slopes, and soilibedrock conditions - preclude use of
other portions of the parcel for POWTS installation. Holding tanks are not an option on this
site due to the availability of on -site wastewater treatment per Section 12.1 F.4.b. of the St.
Croix County Sanitary Ordinance, as well as the subsequent need for frequent pumping, which
would be difficult on this site. At the hearing on December 18 applicant's engineer, James
Filkins, testified that the dwelling contains three bedrooms, not two as shown on the site plan.
This will require additional infiltration area, but still should be able to stay within the 1,800
sq. ft. area designated for grading. Mr. Filkins also indicated an error on the site plan
regarding a shared well; the cabin has its own well in the shed on the northwest corner of the
lot.
4. The Town of Troy reviewed the concept application under its Riverway Ordinance during a
December 4, 2008 Plan Commission meeting. The Plan Commission recommended the
applicants include the following items in their town Riverway Application:
• A more complete vegetation management plan be submitted;
• Verification that the POWTS requirements in Comm 83 and county ordinance have been
satisfied;
• Photographs clearly showing the existing vegetation in the proposed areas of filling and
grading; and
• Assurance that trees are planted every 12 feet across the front of the property.
5. The St. Croix County Land and Water Conservation Department has reviewed the plans and
finds the erosion control plan for the proposed grading activities to be adequate. The LWCD
recommends the perimeter erosion control is maintained until self - sustaining vegetation is
established. Immediately after construction all disturbed areas shall be seeded and mulched
according to the plans submitted.
6. The Wisconsin Department of Natural Resources has reviewed the plans and recommends
considering a holding tank due to the seasonal use of the dwelling. However, Chapter 12 of
the county ordinance prohibits the installation of holding tanks unless it is the only option for
a replacement POWTS. The project as proposed could meet the standards identified in the
County Ordinance and NR 118 and does not require a Chapter 30 permit.
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i
7. The applicant filed an application with the Board of Adjustment for a variance for filling and
grading in the slope preservation zone in the Lower St. Croix Riverway District to install a
replacement POWTS for an existing legal, nonconforming seasonal residence pursuant to
Section 17.36 H.3.c of the St. Croix County Zoning Ordinance. The applicant proposes to
disturb an area of approximately 1800 square feet within a slope preservation zone to install
the septic tank, dose tank, and five in- ground dispersal cells.
8. This cabin was remodeled in 2005 with Zoning Administrator approval, but replacement of
the POWTS was not proposed at that time. This request meets the spirit and intent of Section
17.36.I.2.d.1)i), which allows filling and grading activities necessary to upgrade a private on-
site wastewater treatment system, to replace sewer or water laterals, or to install storm water
or erosion control measures during alteration or reconstruction of a nonconforming principal
structure.
9. According to the applicant's agent, three or four elm trees (2" — 5" diameter) will be removed
to install the replacement POWTS. Existing cherry and oak trees around the perimeter of the
excavation will be preserved. The project will not entail the disturbance of any wetlands, nor
will it add impervious coverage or change the drainage of the site. With conditions for
protecting existing trees outside the POWTS excavation, replacing any vegetation that is
removed or that dies as a result of the replacement system with native vegetation, and properly
implementing the erosion and sediment control plan, this request will meet the standards in
Section 17.36 H.5 of the St. Croix County Zoning Ordinance.
10. This request would not be contrary to the public interest, which is to protect slope preservation
zones in the Lower St. Croix Riverway District to prevent soil erosion, maintain property
values, and preserve and maintain the exceptional scenic, cultural, and natural characteristics
of the water and related land of the Lower St. Croix Riverway. Replacing an aging POWTS
would help to prevent soil and water contamination from wastewater discharges, which
eliminates a potential public health hazard and helps to maintain the property value of an
already developed parcel. As part of the project, erosion and sediment control measures would
be employed, and efforts would be made to protect existing trees outside the POWTS area.
With the conditions listed in Finding #9 above, the exceptional scenic, cultural, and natural
characteristics of the Riverway would be preserved and maintained.
11. Literal enforcement of the provisions of the Ordinance would create an unnecessary hardship
due to the unique physical characteristics of the property. The parcel is small, consisting of
two contiguous substandard lots totaling approximately one half acre. The majority of the
parcel slopes steeply toward the St. Croix River with slopes in excess of 25 percent, a small
portion with less than 12 percent, and the remainder within slope preservation zones greater
than 12 percent. These site characteristics were not self - created by any actions of the property
owners. The replacement system would occupy all of the suitable, available area within the
parcel that is outside the 50' OHWM setback and not on slopes that exceed 24.9 percent.
Approximately 1800 square feet would need to be disturbed within the slope preservation zone
for installation of the replacement system to meet applicable state and county setbacks.
12. According to the applicant's agent and County POWTS- certified staff, the proposed
replacement POWTS is the only type of system that will work well with the unique limitations
of the site. A holding tank would not be appropriate on this site per Section 12.1 F.4.b. of the
St. Croix County Sanitary Ordinance, as well as the subsequent need for more frequent
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pumping. A POWTS generally has to be serviced once every three years (potentially less for a
seasonal dwelling), while a 3,000 - gallon holding tank generally would have to be pumped as
often as once every two to three months during occupation.
13. The applicants are requesting minimal relief from the standards in the Ordinance. The amount
of disturbance within the slope preservation would not exceed 1,800 square feet and is the
minimum necessary to install the septic tank, dose tank, and the wastewater treatment cells in
compliance with other applicable state and county standards.
14. Substantial justice would be done by allowing the applicant to continue using the existing
legal, nonconforming seasonal residence on the property - which is a permitted use in the
Lower St. Croix Riverway District - while reducing threats to public health and soil and water
resources. Denying this variance would require the continued use of an aging POWTS that
could fail and contaminate the soil, groundwater, and surface water. The replacement POWTS
is designed to minimize tree removal, soil disturbance, erosion, and any other negative
environmental impacts.
With the following conditions:
1. This variance approval allows the applicant's agent to install a septic tank, dose tank, and
piping to a POWTS, which requires excavation of the tank holes and five, three -foot wide
trenches for dispersal of wastewater within the slope preservation zone. All work shall be done
in accordance with the conditions below. The total disturbed area for the project shall not
exceed 1,800 square feet. Approval of these amendments does not include any additional
structures, vegetation removal, filling and grading, or other activities.
2. Prior to commencing any excavating activities, the applicant shall submit to and have
approved by the Zoning Administrator a maintenance plan for servicing the septic tank,
including the logistics of getting pumping equipment to the site and removal of waste material
by a licensed septic pumper.
3. Prior to commencing construction of the amended items, the applicants shall be responsible
for obtaining all other required local, state, and federal permits and approvals, including but
not limited to approval from the Town of Troy and a County sanitary permit.
4. Prior to commencing any excavation activities, the approved erosion control measures shall be
installed and shall be maintained in place until the entire site has been stabilized with
permanent native vegetation consistent with the vegetation management plan (see Condition
#5 below). During construction, the smallest amount of bare ground shall be exposed for as
short a time as possible. Temporary ground cover such as mulch shall be used until permanent
native groundcover is established.
5. Prior to commencing any excavation activities, the applicant shall submit to and have
approved by the Zoning Administrator a vegetation management plan for the project. The plan
shall include:
• A description of the measures to be taken for protecting all existing trees outside the
proposed excavation site (as shown on the applicant's site plan).
• A list of replacement trees, shrubs, forbs, and/or grasses native to the area and
suitable for stabilizing steep slopes, preventing erosion, and providing non - invasive
cover. Replacement trees shall be planted in accordance with the replacement
schedule in Section 17.36 H.8.f. of the St. Croix County Zoning Ordinance. All
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stated the driveway access /easement was favorable with the adjoining neighbors. She
said they have checked out alternatives, like having a building below and the animals up
above, but not having a permanent driveway would make the property uninsurable.
Louie Filkins, engineer, signed an oath and spoke in favor of the request. He showed the
technical side of the property. He testified 30 acres are buildable on top and there are
four acres that are buildable on the bottom with the wooded area. He stated the hardship
was not self created, but it was created by the St. Croix County Ordinance changing. He
said request is for a single family home and an equestrian facility. He testified a large
area on the lower portion is set aside for the storm water pond. He said the lower portion
would help a little bit to alleviate the water running down the hill. He stated the driveway
will slow the water down rather than increase it. Filkins said the Town of Kinnickinnic
will likely review the application at their December 18, 2008 Plan Commission meeting.
He stated construction is being planned for the Spring/Fall of 2009. He stated the
applicants want to start and finish the project the right way. He testified the request
would not violate the spirit and intent of the ordinance and the unique characteristics
were not self created. He said ninety percent of the buildable area cannot be accessed
without the variance being granted. Louie testified they will fully comply with the all the
storm water conditions and feel it is very important.
No one testified in opposition.
The Board recessed for lunch and site visits at 10:45 a.m.
The Board reconvened at 1:05 p.m.
Minutes
Motion by Malick, second by Peterson to approve the October 23, 2008 minutes as
distributed. Motion carried unanimously.
Decisions
After hearing the testimony and reviewing the material in the record, the Board rendered
the following decisions:
Application #1: Town of Warren — Special Exception
Motion by McAllister, second by Peterson to approve the special exception requests for
governmental use and filling and grading in the Town of Warren based on the following
findings of fact and conclusions of law:
1. The applicant is the Town of Warren, property owner.
2. The site is located at 720 112 Street, government lot 6 of Section 28, T29N,
R18W, Town of Warren, St. Croix County, Wisconsin.
3. The applicant filed with the Planning and Zoning Department an application for a
special exception permit to grade an area five acres in size in a shoreland area for
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replacement trees shall be at least two inches DBH (except on slopes exceeding
25 percent, where one inch DBH may be substituted to minimize disturbance) and
planted no more than 12 feet apart and parallel to the river.
6. Prior to commencing an excavation activities, the applicant shall submit to the Zoning
Administrator a Compliance Deposit equal to $500.00 to be held by the Zoning Administrator
until all conditions of this approval have been met, at which time the deposit will be refunded
in full along with a Certificate of Compliance.
7. Prior to commencing any excavation activities, the applicant shall submit to the Zoning
Administrator a construction timeline and contact information for all of the excavators,
landscapers, plumbers, and other contractors working on the site. The applicant shall schedule
an on -site pre - construction meeting with the Zoning Administrator to:
• ensure that all pre - construction conditions have been met;
• ensure that all contractors involved are aware of the conditions of the approval; and
• ensure that the applicant is aware of his roles and responsibilities as the property owner.
8. Within 30 days of completing the project, the applicant shall submit to the Zoning
Administrator record drawings of the site prepared by a registered surveyor and photographs
of the property as viewed from the St. Croix River. The applicant shall be responsible for
replacing any trees that eventually die as a result of the replacement system, and planting
additional native trees, shrubs, and groundcover as determined necessary by the Zoning
Administrator to meet the Lower St. Croix Riverway District vegetation standards in the St.
Croix County Zoning Ordinance.
9. Within 30 days of completing the project, the applicant must record an affidavit against the
property describing the approved maintenance plan for servicing the septic tank with the
County Register of Deeds. The intent is to make future owners aware of the responsibilities
incurred in maintaining the septic tank and POWTS. The applicant must submit a copy of the
recorded affidavit to the Zoning Administrator at this time.
10. Any minor change or addition to the project, including but not limited to design of the project,
shall require review and approval by the Zoning Administrator prior to making the change or
addition. Any major change or addition to the originally approved plan will have to go
through the variance approval process.
11. The applicants shall have one (1) year from the issuance of these approvals to commence
installation of the replacement POWTS and two (2) years to complete it. Failure to do so may
result in expiration or revocation of this decision, after which time the applicants will be
required to secure a new variance before starting or completing the project.
12. These conditions may be amended or additional conditions may be added if unanticipated
circumstances arise that would affect the health and/or safety of citizens or degrade the natural
resources of St. Croix County. Conditions will not be amended or added without proper
notice to the applicants and an opportunity for a hearing.
13. Accepting this decision means that the applicants and all property owners have read,
understand, and agree to all conditions of this decision.
Motion by Peterson, 2 °d by Hurtgen to approve application #2. Motion carried unanimously.
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1
Pending Court Cases
Elert Appeal
Malick listened to oral arguments. Judge Cameron is handling the Elert case. Cameron seemed to
favor the Board's position. If the structure is removed there could be problems with erosion. Malick
encouraged Gillen to talk to the Elerts' lawyer to work out something to make sure that when removal
is done the slope is stabilized. There was evidence from Mr. Filkins that these are unstable slopes.
The owner testified that it is muddy around there.
Gillen joined the meeting. He stated that he had talked with Nick Vivian last week. He has not heard
back from him. Gillen stated that he thinks the judge will rule in our favor. There will be a decision
90 days from last week. If the judge rules in our favor, we have to figure out how to get the structure
out of there without collapsing the bank. Hopefully the owner will work with staff. Staff will want to
see the details on how it is to be removed. Gillen noted the possibility of leaving the present wall in as
a retaining wall. Fodroczi suggested some mitigation instead of a fine. Set an amount for some
project to mitigate something real instead of creating a problem that must be fixed. Get the estimate of
cost of stabilization and invest that amount somewhere else in the Riverway. A fine was not assessed.
There is also a need to plant larger trees in front of the fire pit and remove one sidewalk. The owner is
to provide an estimate of the cost of removal of the structures so a mitigation amount can be assessed.
Grabau stated that requiring mitigation in this case may encourage someone else to build what is
nonconforming and just pay mitigation. Malick suggested that there could be double assessment for
mitigation. There is evidence that Elert relied on local town officials and acted in good faith.
Removal of the structure now poses several risks to the Riverway values.
Application #3: Donna Murr - Reconsideration
This hearing will continue at the next meeting. Peterson asked Gillen if we can wait until the February
meeting to schedule the Murr case. Gillen said that would be no problem. Fodroczi questioned if there
was any discussion that would merit a closed session. The Board and Gillen concurred that no closed
session was necessary. Malick noted that WDNR was glad that the judge upheld the Board regarding
the two lots. He also emphasized that the whole flood insurance program with the County could be at
risk.
Date of next meeting — There were no new applications. Grabau will be meeting with the Murr
family on December 22. He could tentatively schedule a meeting for January 22 depending on the
results of the December 22 meeting. Board members will be notified one week ahead.
The meeting was adjourned by the Chair at 2:00 p.m.
Respectfully submitted,
C.W. "Buck" Malick, Chair udy Olso , Recording Secretary
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recommends that the following 6 recommendations be added as conditions for
approval by the Board of Adjustment:
• That a double silt fence be installed by October 1, 2008, as an erosion control
measure around the pond.
• That the slopes of the pond be returned to their condition in December of
2007.
• That a re- vegetation plan be required to reseed and replace trees within 35 feet
of the OHWM with native species.
• That the re- vegetation plan be completed by June 1, 2009.
• That County personnel inspect the re- vegetation completion in June of 2009 in
addition to the following two summers to confirm that the erosion control
measures are working.
• That the Oak savanna restoration enhancement and follow -up maintenance
document by Troy D. Meacham of Land Craft Seed and Services, submitted
as Document #3 of the Special Exception Application, be implemented in
addition to any other restorative measures deemed necessary by County Land
and Water Conservation personnel and their contractors.
7. The St. Croix County Land and Water Conservation Department reviewed the
application and has no objection to the proposed Oak Savanna restoration project
on the Helen Houle property. Document #3 from Landcraft Seed and Services
lays out the restoration enhancement and follow -up maintenance well. The
LWCD would like to see perimeter erosion control installed between the pond and
any future grading activities. The perimeter erosion control shall be maintained
until self - sustaining vegetation is established.
8. The Wisconsin Department of Natural Resources has informed staff that Carrie
Stoltz issued an After- The -Fact General Grading permit (docket # GP- WC -2008-
68899) for this project and forwarded a copy to the Planning & Zoning office. She
had no further issues with this project and it is understood that a vegetative
management plan will be required by the Planning & Zoning department as part
of the special exception permit process.
With the following conditions:
1. This special exception permit allows the applicants to disturb an area greater than
one acre on slopes less than 12 percent in the Shoreland District of an unnamed
pond as part of an oak savanna restoration project in accordance with the plans
submitted, and as provided in the conditions below. Approval for this special
exception permit does not include any additional grading, filling, or tree removal
beyond the scope of the restoration plan, nor any structures, uses, or other
development activities.
2. Prior to finish grading and seeding, the applicants shall secure any permits
required by the Town of St. Joseph and obtain any other required local, state, or
federal permits and approvals.
9
Staff presented the application and the staff report. The Somerset Town Board
recommended approval of the request. St. Croix County Land and Water Conservation
Department did not need to review the application. Wisconsin Department of Natural
Resources will not require a Chapter 216 permit. Staff recommended approval of the
request based on 10 findings of fact and conclusions of law with 13 conditions.
Doug Hoskins signed an oath and spoke in favor of the requests. He testified there would
be at a maximum 150 customers using the snow tubing area with more during the
weekends and less during the week. He said with the size of the hills and number of
lanes that will be open will only allow for approximately 150 people. He stated they do
not anticipate installing any loud speakers. He testified the closest neighbor is over 2,000
feet away from the snow tubing hill. He did not feel the reflective lights would be a
problem. A couple of neighbors were in support of it.
John Strese, adjoining property owner, signed an oath and spoke in opposition to the
request. He testified there was no where near 2,000 feet between the tubing area and
adjoining neighbors. He stated he wasn't sure if that would affect anything or not, but
does not feel the nearest neighbor is more than 2,000 feet away. He said his property was
probably within 500 feet of the golf course.
Application #3: Rosemary Kelly & Phillip Sosnowski — Variance
The applicants requested a variance to construct a driveway that would require filling and
grading on slopes that exceed 25% grad in the Ag Residential District in the Town of
Kinnickinnic.
Staff presented the application and staff report. Town of Kinnickinnic was sent a copy of
the application for review, but the Town Board and Town Planning Commission did not
receive the request from the applicant and was not placed on the November meeting
agendas. The Town Board and Planning Commission will submit comments or a
recommendation regard the variance request for consideration after completion of their
review. St. Croix Land and Water Conservation Department reviewed the application
and recommended the Board include a condition that the applicants need to provide a
storm water management and erosion control plan and operation and maintenance plan
for the grading activities if the variance is granted. Wisconsin Department of Natural
Resources reviewed the application and determined the project would not require a
NR216 Storm water permit. Tracy Hawthorn, who resides immediately east of the
proposed driveway location, had concerns regarding existing stormwater runoff problems
and potential impacts of the variance request. Staff recommended tabling the decision
based on 16 findings of fact and conclusions of law with 12 conditions with additional
information needed.
Rosemary Kelly signed an oath and spoke in favor of the variance. Rosemary testified
the long -term goal of the land was for a homestead and equestrian facility. She stated
there was a letter to Neil Anderson providing what their intent for the property was back
in 2000. She said they never intended to sell or divide the land or build on the lower
portion. She stated they hoped the driveway would mitigate the water issues. Kelly
2