HomeMy WebLinkAboutBoard of Adjustment 08-25-11ST. CROIX COUNTY BOARD OF ADJUSTMENT
Thursday, August 25, 2011
8:30 a. m.
Government Center, Hudson, Wisconsin- County Board Room
AGENDA
A. CALL TO ORDER/ ROLL CALL
B. OPEN MEETING LAW STATEMENT
C. ACTION ON PREVIOUS MINUTES
D. DATE OF NEXT MEETING: September 22, 2011
E. UNFINISHED BUSINESS
1. Chris & Sheila Rohl, Rohl Limestone Inc. tabled on July 28, 2011
2. Douglas & Ann McMillan tabled on July 28, 2011
3. Rehearing on Waldroff appeal of Highway Commissioner revocation of driveway
permits
4. Mathy Construction request for reconsideration of condition #10 of July 28, 2011
decision
F. PUBLIC HEARINGS
1. Special Exception Permit to exceed animal units:
Sheree Koehler & Michael Peters, 943 Hwy 12, Town of Warren
2. Reconsideration of denial of Special Exception Permit for filling & grading:
Derivative Developments, 2275 Cty Rd CC, Town of Star Prairie
G NEW BUSINESS
H. ANNOUNCEMENTS AND CORRESPONDENCE
L ADJOURNMENT
(Agenda not necessarily presented in this order.)
SUBMITTED BY: St. Croix County Planning and Zoning Department
DATE: August 18, 2011
COPIES TO: County Board Office County Clerk
Board Members News Media/Notice Board
* CANCELLATION S /CHANGE S /ADDITIONS
BOARD OF ADJUSTMENT MEETING AND HEARING MINUTES
August 25, 2011
CALL TO ORDER: The meeting was called to order by Chairperson Clarence "Buck"
Malick at 8:30 a.m.
ROLL CALL — Members Present: Joe Hurtgen, David Peterson, Sue Nelson and Jerry
McAllister.
STAFF PRESENT: Kevin Grabau, Code Administrator; Alex Blackburn, Zoning
Specialist; and Bonita Clum, Recorder.
Staff confirmed to the Board that this was a properly noticed meeting.
DATE OF NEXT MEETING: The next meeting for the Board is scheduled for
Thursday, September 22, 2011, at 8:30 a.m. in the County Board Room of the
Government Center in Hudson.
PUBLIC HEARING
Chris and Shiela Rohl Special Exception tabled on July 28, 2011: Blackburn handed
out exhibit 6, and indicated that all requirements for Rohl had been met. Malick asked if
there was anyone in the room with additional information. No one wished to speak either
in favor or in opposition. Motion by McAllister, 2nd by Peterson, to approve as
recommended by staff, based on the following findings of facts and conclusions of law.
Motion carried unanimously:
The applicants are Chris & Sheila Rohl, property owners, and Rohl Limestone,
Inc., mine operator.
2. The site is located on County Highway U in Sections 11, 12, and 13, T28N,
R19W, Town of Troy, St. Croix County, Wisconsin.
3. The applicant filed with the Planning and Zoning Department an application
to renew a special exception permit for an existing non - metallic mining
operation pursuant to Section 17.15(6)(g) of the St. Croix County Zoning
Ordinance and subject to the provisions of Section 14.3A.6.a. of the
Nonmetallic Mining Ordinance.
4. The applicant has complied with all the conditions of the special exception
permit approved on June 26, 2006.
5. The applicant has complied with annual reporting requirements and has paid
annual nonmetallic mining reclamation fees through 2011.
6. The Town of Troy has not submitted a written recommendation on this
request.
7. The Highway Department recommendations will be forthcoming.
The Land and Water Conservation Department (LWCD) has reviewed the
reclamation and operation plan and stated that the proposed stormwater pond
expansion should address the stormwater issues to the west side of County
Highway U. The reclaimed areas are well established and the proposed cost of
reclamation looks adequate. Based on the above, the LWCD has no objection
to the renewal of the special exception permit
9. The Wisconsin Department of Natural Resources has not submitted a
recommendation on this request.
10. This request does not violate the spirit or general intent of the Ordinance since
nonmetallic mining is a permitted use in the Ag Residential District and is an
industry that contributes to the County's economic well being.
11. The mine will be internally drained. With conditions to follow the
reclamation plans, this mining operation will not be contrary to the public
health, safety, or general welfare or be substantially adverse to property values
in the surrounding neighborhood.
12. With conditions to maintain the screening along County Highway U and
limiting hours of operation, the existing mining operation and proposed
expansion will not be a nuisance by noise or contrary to the property values in
the area.
13. With conditions to use water for dust control this request will not be a
nuisance by reason of dust.
14. With conditions to maintain a 100 -foot setback around all active mining areas
this request will comply with the provisions of Chapter 14, the St. Croix
County Nonmetallic Mining Ordinance.
15. With conditions to increase the pond size as proposed in the stormwater plans
this request will not be contrary to public health in the area.
With the following conditions:
1. This special exception approval allows nonmetallic mining to proceed
according to the plans received May 1, 2006 and as provided in the conditions
below. Approval does not include any expansion in area or operations not
indicated in those plans.
2. This permit is valid for a period of five years and expires July 28, 2016, after
which time it must be renewed pursuant to Section 14.3 A.6.a.of the
Nonmetallic Mining Ordinance.
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3. Reclamation plans shall be followed.
4. Screening along County Highway U shall be maintained.
Hours of operation shall be from 7:30 AM — 4:30 PM Monday through Friday,
with occasional extended hours of 7:00 AM — 6:00 PM during crushing and
on Saturdays only with permission from the neighboring property owners, the
Robinsons.
6. Dust control measures shall be used.
7. Mining operations shall maintain a 100 foot setback to the property lines.
8. The pond size shall be increased as proposed in the storm water plans.
9. Upon any change in ownership or operation of the mine, the applicant shall
submit to the Zoning Administrator the name and contact information of the
owner and primary mine operator. The operator shall comply with all of the
general requirements and conditions listed in the nonmetallic mining and
reclamation standards in Chapter 14 — Nonmetallic Mining Ordinance (unless
varied per conditions).
10. The applicant shall be responsible for adhering to all local, state, and federal
rules, regulations, and permits during the life of the operation.
Douglas and Ann McMillan Variance Reconsideration tabled on July 28, 2011: -
Blackburn handed out a letter that was drafted by the McMillans. - Malick read the letter
to all attending. Mr Boyd, the attorney for the McMillans, signed oath and spoke in favor
of the McMillans. He mainly wanted to respectfully ask the board for a decision as soon
as possible. Boyd stated that he felt the McMillans had answered all questions and that
since all the facts are here, a decision seems to be the next step. McMillan signed an-
oath and spoke in favor, stating that if there are any other questions or concerns he would
be happy to answer them. Malick felt that there was an additional set of windows on the
river side. McMillan clarified by stating that the area where the windows currently are,
will not be changing, however the size of the glass is changing and therefore it appears
that there are more windows on that side of the home. Malick agreed that since the roof
line is changing from a cable type roof to a dormer type roof, the house will be less
visible from the river. The original plans for the house have not changed. McAllister
read a quote from Senator Mondale on the importance of preserving the river. He wanted
to stress that we need to keep these things in mind when making a decision.
Rehearing on Waldroff appeal of Highway Commissioner revocation of driveway
permits: Mr Waldroff was not in attendance, so his attorney, Kristina Ogland, requested
that this application be held until after the next case.
Mathy Construction request for reconsideration of condition #10 of July 28, 2011
decision: The Board inquired if there was anything new to support this request for
reconsideration. Condition # 10 states: the applicants must amend this permit if they
acquire any contracts for frac sand. This amendment application must include the
number of truck loads per day that are hauled out of this mine.
Tony Tomashek signed an oath and spoke in favor. Mathy Construction has now received
a contract for frac sand. Motion by McAllister, 2nd by Nelson to grant reconsideration
and to place on next month's agenda. Motion carried unanimously.
PUBLIC HEARING
Special Exception Permit to exceed animal units - Sheree Koehler and Michael
Peters: Staff presented the application and staff report. Sheree Koehler signed an oath
and spoke in favor. Koehler mentioned that in the packet there is a letter from her vet
stating that she takes good care of her animals. She also included letters from her
neighbors in favor of the special exception. Koehler would like this decision to be
permanent in the event the property would ever be sold. Koehler also mentioned that she
and her husband have been discussing the possibility of purchasing a dump trailer to hold
and dispose of manure. James R. Peabody, neighbor, signed an oath and spoke in
opposition. Peabody wants this request to be looked at very carefully. His main concern
is the contamination of the ground water. Peabody says the ground water flows Southeast
to Northwest, and his well is directly in this path. Koehler rebutted with the fact that all
the water out there is high nitrates, which is common for farm property. She also has had
the Land and Water Conservation Department look at this and confirm that a berm,
currently between her property and the ravine, is stopping any flow into the ravine.
Malick asked for the hearing to remain open.
PUBLIC HEARING
Reconsideration of denial of Special Exception Permit for filling and grading -
Derivative Developments: Staff presented the application and staff report. Steve
Kaufman signed an oath and spoke in favor. His main event is on September 15, 2011.
His property is in better shape now than it used to be. He actually had no winter erosion,
and would like to wait until April to comply with the decision. Kaufman was concerned
with having to install four substations for dumping on the adjoining Sandbox property as
this area will only be used after the main area is sold out. He would like to install one or
two to see if they even get used. His customers do not use their campers all day, they just
bring them for a place to put their heads down at night. Motion by McAllister, 2nd by
Peterson, to approve with no camping or parking until inspected by Steve Olson from the
Land and Water Conservation Department to show that restoration is complete. Motion
carried unanimously. Motion by Peterson, 2nd by Nelson to suspend rules and bylaws
with a two - thirds vote to allow immediate reconsideration of two dump stations on the
Sandbox property at this time. Motion carried unanimously. Motion by Hurtgen, 2nd by
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Peterson to schedule a further reconsideration in September of 2012 to determine if there
is a need to install the other two dump stations. Motion carried unanimously.
Rehearing on Waldroff appeal of Highway Commissioner revocation of driveway
permits continued: Mr. Waldroff still was not present, and his attorney, Kristina Ogland,
isn't sure why, but would like to ask that the hearing be rescheduled for next month.
Motion by McAllister, 2nd by Nelson to place on next month's agenda. Motion carried
unanimously.
The Board recessed for a break at 11:15 a.m.
The Board reconvened at 12:30 p.m.
DECISIONS:
After reviewing the material in the record, the Board rendered the following decisions:
Special Exception Permit to exceed animal units: Sheree Koehler and Michael
Peters.
Motion by Nelson, 2nd by Hurtgen, to approve as recommended by staff, based on the
following findings of facts and conclusions of law:
1. The property owners are Sheree Koehler and Michael Peters.
2. This site is located in the NW 1 /4 of the NE' /4 of Section 19, T29N, R18W, in
the Town of Warren.
3. The applicant filed with the Planning and Zoning Department an application
for a special exception to exceed one animal unit per acre pursuant to Section
17.15(6)(u)
4. This horse breeding operation will be for 40 animal units, which is 40,000
pounds of animal. With conditions for the applicant to conduct an on going
estimation of horse weights, this request would not be detrimental to the health,
safety or general welfare since the manure management plan can accommodate
the waste from 40 animal units.
5. The Town of Warren recommends approval of this special exception request.
6. The Land and Water Conservation Department states that the manure
management plan meets the applicable standards and recommends that the
applicant submit a soil test every 4 years.
7. The Wisconsin Department of Natural Resources (DNR) has submitted no
comments.
8. The Wisconsin Department of Transportation (DOT) has submitted no
comments.
9. This request will not violate the spirit or general intent of the ordinance since
this use is permitted by special exception in the Ag. Residential District.
10. With conditions to follow the manure management plan this request would not
cause water pollution and therefore would not be contrary to the public health,
safety or general welfare. Following the manure management plan will
reduce odors so this request will not be detrimental to property values or be a
nuisance by reason of odor.
11. The noise and dust will be minimal therefore this request will not be a
nuisance by reason of noise or dust. There will be no smoke generated.
With the following conditions:
This special exception permit allows the applicant to operate a horse breeding
facility with up to 40 animal units as indicated in the plans submitted on
January 6, 2011, and outlined in the "Background" section above. Approval
for this special exception permit does not include any additional animal units,
structures, services, operations, or employees not indicated in the plans.
2. The applicant shall supply a count of the animals and their approximate
weights to the Zoning Administrator once per year in August.
3. A soil test for Phosphorus shall be submitted every 2 years.
4. The manure management plan shall be followed.
5. All lighting associated with the business shall be directed downward and
shielded away from neighboring properties to minimize glare.
6. No manufacturing, retail services or other services shall take place on this site.
7. The applicant shall be responsible for keeping the property in a neat and
orderly manner.
8. The applicant shall be responsible for contacting the Zoning Administrator to
review this special exception permit for compliance annually in August.
9. Any minor change or addition to the project, including but not limited to
additional animal units, shall require review and approval by the Planning and
Zoning Department prior to making the change or addition. Any maj or
change or addition to the originally approved plans, including, but not limited
to additional animal units will have to go through the special exception
approval process.
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10. These conditions may be amended or additional conditions may be added if
unanticipated conditions 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 notice to the applicant and an opportunity
for a hearing.
11. Accepting this decision means that the applicant has read, understands, and
agrees to all conditions of this decision.
Motion carried unanimously.
Douglas and Ann McMillan Variance Reconsideration:
Motion by Nelson, 2nd by Peterson to approve as recommended by staff, based on the
following findings of facts and conclusions of law:
1. The applicants are Douglas and Ann McMillan (collectively, "McMillans" or
"Applicants ").
2. The site is located in Section 13, T28N, R20W, Town of Troy, St. Croix
County, WI.
3. The ceiling on the second floor of the McMillans' home is less than 7 feet,
and therefore does not comply with the Building Code which generally
requires that ceilings have a minimum height of at least 7 feet and that
habitable rooms that have ceilings of less than 7 foot minimum must have at
least 7 foot ceilings over 50% of the floor space. Comm. 21.06.
4. The existing clearance at the top of the stairs leading to the second floor of the
McMillans' home is 4 feet, 7 inches, and therefore does not comply with the
Code which requires stairway clearance of at least 6 foot, 4 inches. Comm.
21.04(2)(d)(1).
5. The McMillans' home is partially located in the slope preservation zone.
6. The St. Croix County Zoning Code provides that "structures located wholly or
partially within a slope preservation zone may not be expanded."
§ 17.36.1.2.e.(1)(b).
7. The McMillans have filed an application with the Planning and Zoning
Department for an area variance to expand a non - conforming structure located
partially within a slope preservation zone.
8. Specifically, the McMillans propose to increase the height of the roof on their
home by approximately 3 '/z feet —from 26 feet, 3 inches to 29 feet, 8 inches.
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9. Under the McMillans' proposal, the height of the roof will still be more than
5 feet lower than the 35 foot maximum height permitted under the Zoning
Code.
10. The McMillans' proposal to raise the height of the roof of the structure by
approximately 3' /z feet will increase the ceiling height on the second floor so
as to bring the second floor ceilings into compliance with the Building Code
and the clearance at the top of the stairs leading to the second floor into
compliance with the Code requirements for stairways.
11. Changes in the state Uniform Building Code do not justify variances for pre-
existing structures, per se, but they are a factor in determining that the
standards for a variance are met.
12. The applicants stated on July 28, 2011 that they do not propose to change the
area or the height above the ground of the windows on the river side of the
house except to increase the number of windows from 3 to 5.5, as shown on
the plan.
13. The proposal to increase the height of the roof by approximately 3' /z feet will
also result in eliminating hazards caused by the sharp corners and low hanging
portions of the lower ceilings on the second floor, and will make the second
floor of the home more accessible to emergency response personnel and
equipment.
14. County Boards of Adjustment are empowered to grant "variance[s] from the
terms of the ordinance as will not be contrary to the public interest where,
owing to special conditions, a literal enforcement of the provisions of the
ordinance will result in unnecessary hardship, so that the spirit of the
ordinance shall be observed and substantial justice done." Snyder v.
Waukesha County Zoning Board of Adjustment 74 Wis.2d 468, 471 -72, 247
N.W.2d 98, 101 (Wis. 1976).
15. Area variances have been granted for renovations involving de minimis or
minimal expansions of existing structures and where variances were necessary
for safety code requirements and enhanced visitor safety. See, e.g. State v.
City of Oconomowoc 2009 AP 3201, ¶¶ 7 & 10 (Wis. Ct. App. March 16,
2011).
16. Area variances have also been deemed appropriate to allow property owners
to construct a porch to prevent the accumulation of snow and ice on the front
steps of the home caused by the roofline on an existing structure. See, e.g.
Mueller v. Chippewa County Zoning Board of Adjustment 2010 Al? 2530
(Wis. Ct. App. May 3, 2011).
17. The Board itself has previously granted applications for several variances to
enable property owners to construct a home in the slope preservation zone on
vacant property located within approximately one mile from the McMillans'
property, including a 100 foot variance from the ordinary high water mark
setback, a variance to build and excavate on slopes exceeding 12 %, and a
3 foot variance from the side lot setback. See, e.g. Hense v. St. Croix County
Board of Adjustment 2004 AP 3180 (Wis. Ct. App. Sept. 20, 2005)(applying
Ziervogel 269 Wis.2d 549 ¶ 33).
18. At one time, the Board was not authorized to grant a variance unless it
determined that, "without the variance, [the property owner] would have no
reasonable use of the property." State v. Kenosha County Board of
Adjustment 218 Wis.2d 396, ¶¶ 31 -32, 577 N.W.2d 813 (Wis. 1998).
19. The "no reasonable use" standard no longer applies to area variances.
Ziervogel v. Washington County Board of Adjustment 269 Wis.2d 549,
¶¶ 33 -35 & 41, 76 N.W.2d 401, 411 -12 (Wis. 2004)(overruling State v.
Kenosha County supra).
20. The applicable standard now focuses on "whether compliance with the strict
letter of the restrictions governing area, setbacks, frontage, height, bulk or
density would unreasonably prevent the owner from using the property for a
permitted purpose or would render conformity with such restrictions
unnecessarily burdensome." Ziervogel 269 Wis.2d 549 ¶ 33, 676 N.W.2d
401, 411 (quoting Snyder, supra, 74 Wis.2d at 475, 247 N.W.2d at 98).
21. `By definition, all variances depart from the purpose of the zoning ordinance
and implicate the public interest, because they permit something that is
otherwise strictly prohibited. But they do so to varying degrees and levels of
acceptability, depending on the type of variance requested and the nature of
the zoning restriction in question. As such, courts have long recognized a
distinction between use variances, which permit a landowner to put property
to an otherwise prohibited use, and area variances, which provide exceptions
from such physical requirements as setbacks, lot area, and height limits."
Ziervogel 269 Wis. 2d at 562, ¶ 21, 676 N.W.2d at 407.
22. The McMillans are requesting an area variance, and they have the burden to
establish that strict compliance with the Code "unreasonably prevents" them
from using the property for a permitted purpose or that strict conformity with
the applicable restrictions is "unnecessarily burdensome." Ziervogel 269
Wis. 2d at 562, ¶ 20, 676 N.W.2d at 407.
23. The McMillans are requesting the area variance for the permitted purpose of
using the space as bedrooms.
24. The low ceilings and stair allowances currently do not comply with the
existing Building Code.
25. The low ceilings and obstructed spaces on the top floor of this structure
currently limit the use of the space by adults for bedrooms.
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26. The low ceilings and stair allowances also make the space dangerous and limit
accessibility of emergency equipment and personnel to the second floor.
27. The non - compliant low ceilings on the second floor of the home are
conditions unique to the property and not personal to the McMillans, as those
non - compliant low ceilings exist as a feature of the second floor of the home
regardless of whether the McMillans owned the property.
28. The non - compliant low ceilings on the second floor of the home do not
constitute a self - imposed hardship created by the McMillans because the
ceilings were their current height when the McMillans bought the home.
29. As a result of conditions that are unique to the property and not personal to
them, strict compliance with the St. Croix County Zoning Code
§ 17.36.1.2.e.(1)(b) "unreasonably prevents" them from using the property for
a permitted purpose or that strict conformity with the applicable restrictions is
"unnecessarily burdensome."
30. The Board must therefore evaluate the McMillans' hardship in light of the
purpose of the zoning restriction at issue. Ziervogel 269 Wis. 2d at 562, ¶ 20,
676 N.W.2d at 407.
31. The purpose of St. Croix County Zoning Code § 17.36.1.2.e.(1)(b) is to
protect the slope preservation zone and the St. Croix riverway.
32. The McMillans' proposal will not expand the footprint of the structure.
33. The McMillans' proposal will not expand the square footage of the home.
34. The term "expansion" in the ordinance is not limited to the footprint of a
house, but includes the volume. Expansion of volume may be permitted when
the standards for a variance are met.
35. The McMillans' proposal will not expand the square footage of the roof. The
McMillans have conferred with their engineer and confirmed that the
proposed changes to the elevation of the roof will not increase the runoff from
the roof and thus will not increase any potential erosion on the property.
36. A steeper roof will promote faster precipitation runoff, other factors being
equal. However, the increased pitch from 6:12 to 8:12 for this roof area and
this shingle type is not a threat.
37. The roof has gutters with leaf deflectors on both sides of the house. Two of
the three downspouts are connected to flexible, corrugated plastic pipes,
which conduct much of the roof water to a place near the beach. To work
properly, the rain gutters need cleaning at least twice yearly. The gutters are
not now and will not, after the proposed remodeling, be difficult to clean from
a stool or short ladder. The pipes can be readily flushed.
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38. The deck is constructed of plank with spaces. Any water that exceeds the
capacity of the gutters will fall on the deck, dissipate its kinetic energy and
run through the spaces. There was no sign on July 28, 2011 of soil erosion
originating beneath the deck.
39. An excellent mix of species of screening trees was thriving between the house
and the river on July 28, 2011, sufficient to screen the additional height of the
house. Trees along the river are subject to threats from wind, disease, insects,
drought, compaction of the ground, ice and other causes.
40. The variance will not grant, extend or increase any use prohibited in the
zoning district.
41. The variance will not require amendments to this ordinance or its associated
maps.
42. The proposal to increase the height of their roof by approximately 3' /z feet
does not conflict with the purpose of the restriction because the proposed
variance will cause no harm to the slope preservation zone or the St. Croix
riverway.
43. The variance must not be contrary to the public interest. Ziervogel 269 Wis.
2d at 562, ¶ 20, 676 N.W.2d at 407.
44. The variance will not damage the rights or property values of other persons in
the area.
45. The McMillans' neighbors have not objected to the McMillans' proposal to
increase the height of their roof by approximately 3' /z feet, although they have
questioned runoff from another building.
46. The Town of Troy has previously approved the McMillans' request for a
variance by a unanimous 7 -0 vote (with one abstention), finding, inter alia,
that "the variance will not harm the public interest," "the variance meets the
core concerns of the ordinance," "the structure is now and will continue to be
inconspicuous from the river," "raising the roofline without footprint
expansion will not contribute additional runoff or erosion that affect the water
quality of the river," and "this variance will not adversely affect neighboring
property values."
47. The proposal is not contrary to the public interest.
48. Granting the variance will actually promote the public interest insofar as it
will bring the McMillans' home into compliance with existing Building Code
requirements which have been enacted for safety of the inhabitants and the
welfare of the public.
With the following conditions:
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Applicants shall record a copy of this approval letter in the county public land
records for the view of future owners and other interested persons and shall
provide a file- stamped copy to the Zoning Administrator.
2. The roof gutter and pipe system shall be maintained. A rain garden shall be
installed and maintained satisfactory to the Land and Water Conservation
Department.
3. A deck with the same permeability shall be maintained under the roof gutters.
4. The building materials shall be earth tone in color and the glass in the new
windows shall be non reflective.
Applicants and their successors shall replace trees that cease to screen between
the house and the river. Trees of smaller than four inches dbh need not be
replaced. Trees of four inches dbh at the time they die or break shall be
replaced by trees of not less than one inch dbh. Replacements shall be
positioned as near as practical to the location of the trees they replace.
6. The windows on the river side of the house shall not be raised or increased in
area except for one more window, as on the plan. If new ones are substituted,
they shall be of non reflective glass.
Motion carried, McAllister apposed.
Chair Malick adjourned the meeting at 1:40 p.m.
Respectfully submitted,
Sue Nelson, Secretary
Bonita Clum, Recording Secretary
August 25, 2011
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