HomeMy WebLinkAbout030-2066-95-000 (3) 06/12/2013 08:41 AM
Parcel #: 030-2066-95-000 PAGE 1 OF 1
Alt. Parcel M 35.30.20.609E.609F 030-TOWN OF SAINT JOSEPH
ST.CROIX COUNTY,WISCONSIN
Current OX
Creation Date Historical Date Map# Sales Area Application# Permit# Permit Type #of Units
00 0
Tax Address: Owner(s): O=Current Owner, C=Current Co-Owner
0-KENNEDY, ROGER G&PAMELA J
ROGER G&PAMELA J KENNEDY
185 RIVERVIEW ACRES RD
HUDSON WI 54016
Districts: SC=School SP=Special Property Address(es): '=Primary
Type Dist# Description " 185 RIVERVIEW ACRS RD
SC 2611 SCH DIST OF HUDSON
SP 1700 WITC
Legal Description: Acres: 1.930 Plat: N/A-NOT AVAILABLE
SEC 35 T30N R20W PT GL 4 COM 395 FT N& Block/Condo Bldg:
743.4 FT W OF SE COR SEC 35:TH W 256.3 Tract(s): (Sec-Twn-Rng 40 1/4 160 1/4)
FT S 329 FT, E 256.3 FT TH N 329 FT TO
POB 35-30N-20W
Notes: Parcel History:
Date Doc# Vol/Page Type
10/25/2007 862956 PR
05/17/1974 321936 511/169 WD
2013 SUMMARY Bill M Fair Market Value: Assessed with:
0
Last Changed: 05/11/2011
Valuations:
Description Class Acres Land Improve Total State Reason
RESIDENTIAL G1 1.930 284,200 266,300 550,500 NO
Totals for 2013:
General Property 1.930 284,2000 266,300 550,5000
Woodland 0.000
Totals for 2012:
General Property 1.930 284,200 266,300 550,5000
Woodland 0.000 0
Lottery Credit: Claim Count: 1 Certification Date: 10106/2005 Batch M 05-29
Specials:
User Special Code Category Amount
Special Assessments Special Charges 00 Delinquent Charges 00
Total 0.00
t . t. :r
r
BOARD OF ADJUSTMENT DECISION
Request of Joan G. Kennedy for )
a special exception use, Article )
:3 . 12 D 7 b (2) /3 . 12 E d/ 9. 4 A 2 3, )
addition to existing structure. ) A-2-81
ST. CROIX COUNTY ZONING ORDINANCE. ) March 24, 1981
Location : SEk of SE-',-,, Section 25 , )
T35N, R20W. St. .Townshi Joseph P )
P
The St. Croix County Board of Adjustment conducted a public
hearing on March 24 , 1981 , to consider the request of Joan G. Kennedy
for a special exception use, Article 3 . 12 D 7 b (2)/3 . 12 E d/ 9 . 4
A 2 3 , addition to existing structure, ST. CROIX COUNTY ZONING
ORDINANCE .
The Sw :x' � +� Br, Y.Gi, �� .dR1i�►r, ln.
, ,.+wawkMY �MIMry,i.. r-,.. ,.uMn MMIII�MMV- - •r....,ypl+yMllw •
inspection bf—thae9 4•tt
After inspection, . the St. Croix County Board -of Adjustment
entered an Executive Session to discuss the request .
After returning to open session the following decision was
rendered :
Motion by Supervisor Handlos to deny the request for addition to
existing structure for the following reasons :
1 . Structure will be visually conspicious from the river .
2 . Inadequate area for structure on less than 12% slope without
excavating slope area that could cause an erosion problem.
3 . Inadequate area for waste disposal
4. Cannot meet the 40 foot setback from bluffline or 12% slope .
Seconded by Supervisor Meinke . Motion carried. Vote to deny :
Handlos , yes ; Meinke, yes ; Pierson, yes .
Lance Handlos , Secretary c elf
St. Croix County Board of Adjustment
Lll: HCB: sl
Joan G. Kennedy
William Radosevich
Carolyn Barrette
ATTACHMFNT S
2
A.
I State of Wisconsin DDEPARTMENT OF NATURAL RESOURCES
est Central District Headq\u rters CaJtAo.t D. Baadn
1300 West Clairemont Avenue secretary
Call Box 4001
Eau Claire, Wisconsin 54701
March 25, 1981 8 IN REPLY REFER TO: 3590-8
CO
1
Mr. Harold C. Barber vj R 3�
Zoning Administrator lQN1 Jg
Hammond, WI 54015 pFFI� 8J
C"'/
Dear Harold:
This letter is to confirm our concurrence in the St. Croix County
Zoning Board of Adjustment's denial of a special exception permit to
Joan G. Kennedy on March 25, 1981.
The property of the applicant is located in the SEA, SEA, Section 35,
T30N, R20W, St. Joseph Township.
The applicant has not proven that the proposed house addition would be
visually inconspicuous from the river during periods of summer vegetation.
Also, an addition of the size shown on the applicant's sketch would
require grading on a slope greater than 12% and there could also be
problems with erosion from such grading.
Sincerely,
L
J mes L. Lissack
istrict Director
THIS IS 100% RECYCLED PAPER
ATTACHMENT T
BOARD OF ADJUSTMENT HEARING
March 24,. 1981
10 :00-3 : 00
Meeting called to order' by Chairman Pierson At 10:00 a.m. in the
County Board Room, Hudson, 641. All members present.
Minutes of the January 27 and March 10 , 1981, meetings accepted
as read.
Hearing called to order ,by Chairman Pierson at 10 :00 a.m.
Zoning Administaator r d notice of hearings as published in the
county and local r►sas&pag +
1.. Article 3.4 B 1 is ling Navigable body of water.
Appellant: Girl .Seannt Council of St. Croix Valley
Location: Hudson Tship
2. Article 3, 12 D 7 b; (2) , 3 . 1.2 E 3 D and 9 .4 A 2. 3
Appellant Joan Kennedy
Location: St. Joseph Township
3 . Article 8 .4 B 3 b and 3. 7 B
Appellapt: Robert Maitrejean
-Locaation% Star Prairie Towuship
Jane Crosby, Director of Property, R.R. 1, Centuria, Wisconsin,
presented the request of the Girl Scout Council to put a sand blanket
75 to 100 feet into Shank Lake, to make a swimming beach. The lake
bottom is now silty and needs sand blanket to make a beach.
Questions by members of the Board.
Chairman Pierson info=*d Ms . Crosby that the Board will make a
decision after inspection of the property and the Zoning Administrator '
will notify her of their 4Ucision.
Attorney William Radosevich and Mrs . Joan ,Xanneesentedathe
request of Mrs . Kennedy to construct additions facilities
existing. structure located in the 3t. Croix Riverway District. She
would like to add two bsdrgoms, a 'garage, bath and laundry room to
the present structure.
Mr . Steven Johnson, ,Associate Director of the Minnesota-Wisconsin
Area Boundary Commission spoke in favor of the request . He cited,
attorney' s opinion for Minnesota, that the 40 foot setback from the
bluffline -on an existing structue addition, could be unconstitutional .
Mr. Johnson would like the following restrictions placed on the site.
1 . Addition not be placed on A slope greater than 12%
2. No removal of Pruning of any vegetation.
3. Holding tart szxiitcr.1 system-
Mr . Richard Thompson, R.R. 2, Hudson, adjoining land owner , objects
to the request• stated
sanitarycsystema t a
isinadequateand would
mer cottage. He feels
need to be replaced. 'Also, there is an erosion problem.
Al Santala, D.N.R. , informed the Board that he has some questions
of their legal staff. He has not visited the site as yet .
ATTACHMENT R
Questions by members of the Board.
Chairman Pierson inform ed those present that they will make a
decision after inspection of the property and the Zoning Administrator
will notify them of the decision. D.N.R. also has veto power over
the county.
Mr. Robert Maitrejean presented his request, to put an addition
on a cottage that could not meet the setback from CTH "C" and the
Apple River. He wishes to add a bathroom and bedrooms that. would
exceed the 50%replacement Value of` the cottage. This would become
a year round 'residence.
Questions by members of the Board,
Chairman Pierson informed Mr. Maitrejean that the Zoning Admin-
istrator will notify him of,,,tbeir decision after inspection of the
property.
Hearing closed for inspection of properties in question.
Board Vent into execu AVe session and returned to open session
to render decisions .
1. Kennedy: Motion by Supervisor Handlos to deny the request
of Joan Kennedy to construct an addition to the present
strteeture for the following reasons :
1. Structure will be visually conspicious from the river.
2. Inadequate area for structure on less than 12% slope
without excavating slope area that could cause an
erosion problem.
3 . Inadequate area for waste disposal
4. Cannot meet the 40 foot setback from bluffline or
12% slope.
Seconded by Supervisor Meinke. Motion carried. Vote to deny :
Handlos , yes; Meinke, yes; Pierson, yes .
2. Girl Scouts : Motion by Supervisor Meinke to approve the -
request of the Girl Scout Council to put a sand blanket on
the bed. of Shank Lake. Seconded by Supervisor Handlos .
Motion carried. VoCe. to approves Handlos , yes ; Meinke, yes ;
Pierson, yes .
3 . Robert Maitrejean:. Motion by Supervisor Meinke to approve
the request of Robert Maitrejean to put an addition on the
present structure th4t would not .extend closer to the road
CTH "C" or the water .(Apple River) . Seconded by Supervisor
Handlos . Motion carried. Vote to approve: Handlos, yes ;
Meinke, yes ; Pierson, yes .
Next hearing scheduled for April 28th at 10 :00 a.m. , with meeting
scheduled with pilots , Farm Bureau and other parties interested in
airstrips.
Agenda: 1. Consideration for repealing existing airstrip
standards,
2. Meeting with all interested parties on creation
of new standards for private airstrips in St . Croix
County.
Motion by Supervisor Xeiakq to adjourn. Seconded by Supervisor
Handlos . Motion carried.
LawaceAce Handlos ,
' Sgcr*retry
STATE OF WISCONSIN CIRCUIT COURT ST. CROIX COUNTY
-----------------------------------------------•.-----------l------------
STATE OF WISCONSIN, ex rel
JOAN G. KENNEDY, REALTOR,
Plaintiff-Petitioner,
-vs- MEMORANDUM OPINION
ST. CROIX COUNTY BOARD OF
ADJUSTMENT, ST. CROIX COUNTY, co
WISCONSIN, q RF�F�UF �o
U� 19�
ZpN�NG 83 �
Defendant-Respondent.
------------------------------------------------- ---°Ff� --- ----
This matter is before the Court on of Certiorari.
The undersigned, at the request of both counsel and
in company with both counsel, viewed thepproperty under dispute approxi-
mately eighteen months ago, and then for whatever reason counsel did
not file their briefs as originally scheduled, the Court receiving the
last brief on July 7th, 1983.
The Petitioner, Joan Kennedy, has a small dwellings
which is located right on the bluff line in the Town of Hudson, Sty
Croix County, Wisconsin. As the undersigned recalls walking out on the
deck attached to what is basically a one room dwelling, the deck, if
not over the ledge, is at the very edge of the bluff. The property
was purchased by the Petitioner in 1974 , and the Purchase Agreement,
Attachment 0 to the Return, states : "This agreement is contingent upon
the buyer's satisfying herself prior to closing that there are no State
or Federal restrictions which would prevent remodeling or expansion of
the existing residential structure. " !!
The proposed addition would be 20x22 feet by
20-22 feet, one story, consisting of kitchen and dining facilities and
bathroom, with a tuck-under or basement garage. All of the .proposed
addition would be within one hundred feet of the bluff, and a good
portion of said addition would be within 17orty feet of the bluff. The
addition would be attached to the rear of the present structure.
The existing residential structure was built during
1969 and predates any state, county or local zoning restrictions .
Petitioner signed an affidavit on the 15th day of' May " 19740 and she
was satisfied that there were no State and Federal restrictions Vbich
would prevent remodeling or expansion of the existing residential
structure; the affidavit heinq qiven to eliminate the contingency
contained in the above-described Purchase Agreement.
Petitioner' s application fort.--expansion of the
existing dwelling states that the proposed addition does not exceed
fifty percent of the existing structure 's market value at the time
St. Croix County adopted its zoning ordinance in 1976 ,
in denying Petitioner's application for a Special
Exception Use Permit, the St. Croix County Board of Adjustment stated
the following reasons for denial: 1) Structure will be visually con-
spicuous from. the river. 2) Inadequate area for structure on less
than twelve percent slope without excavating slope area and could
cause. an erosion problem. 3) Inadequate area for waste disposal.
4) Cannot meet the forty foot setback from bluff line or twelve
percent slope.
The Board's decision was unanimous .
The scope of a Court's review on Certiorari is
to determine whether the Board kept within its powers ] did the Board
act according to law; is there substantial evidence in the record to
support the Board' s decision; was there a rational basis for the Board's
exercise of discretion; or was the Board's determination arbitrary,
oppressive or unreasonable, representing the will of the Board and not
its judgment. State ex rel Geipel v,' Milwaukee , 68 Wis 2d 726 ;
Van Ermen v, H&SS Department, 84 Wis 2d 57 ; State ex rel Kaczkowski v.
Fire and Police Commission, 33 Wis 2d 488; and State ex rel Ruthenberg
v. Annuity and` Pension Board, 89 Wis 2d 463,
It is the position of the �Petitioner that since the
existing structure preceded state and county setback lines and its
application comes within Section 59 ,97 (10) on nohconformiAg, uses , that
Petitioner is entitled to the proposed addition providing that the
c o e proposed cost f th addition does not exceed fifty percent of the
p
assessed value of the existing structure. Further, there has never
been any discontinued use of the existing structure for a twelve month
period. Further, that the proposedladdition would not increase the
non-conformity.
It is the position of the Board that the reviewing
court cannot. alter its decision if there is any valid reason for the
denial even though one or more of its reasons may be in error,
-2-
The present application is inadequate for the
Board to act on as it lacks adequate plans, description and costs .
It is inadequate as to what excavation, if any, is going to take
place, and as to its septic system. The Board's denial on this
basis is justified and is not an abuse of discretion.
The position, however, of the Board that because
its ordinance regulating bluff setback lines is pursuant to Section
30. 27 of the Wisconsin Statutes and thus is not subject to the nonce
conforming use provision in Section 59.97 (10) of the Wisconsin Statutes
is erroneous.
Dated this the 28th day of July, 1983.
B1'�THE COU
ao �. artholomew
Circuit Judge
III'
i
II
-3-
1
STATE OF WISCONSIN CIRCUIT COURT BRANCH ST. CROIX COUNTY
STATE EX REL, 'JOAN
G. KENNEDY, REALTOR
BRIEF OF PETITIONER
VS. File No. 81-CV-154
ST. CROIX COUNTY BOARD OF ADJUSTMENT,
ST. CR01X COUNTY, WISCONSIN.
---------------- ---------------------------------------------------------
• I
NATURE OF ACTION
I
This action is a statutory certiorari proceeding, wherein the petitioner
seeks court review of the March 24, 1981 Decision ,of the St. Croix County
Board of Adjustment, which denied the application of Joan G. Kennedy for a
Special Use Permit to construct an addition to her residence located on the
bluff line of the St. Croix River. This is not a common law writ of certiorari,
but rather is a certiorari proceeding created by statute, wherein, 'r the Court
may reverse or affirm, wholly or partly, or may modify the decision brought
on for review" Wis. Stats. 59.99(13).
FACTS
The petitioner, Joan G. Kennedy, is the owner of a parcel of land,
containing`1 .93 acres, located in the Town of St. Joseph, St. Croix County,
Wisconsin. Joan G. Kennedy purchased the parcel during May, 1974. At the time
of her purchase of the property, the parcel of land included an existing one
story one large room residential structure. Since the date of purchase, Joan G
Kennedy used the property for residential purposes without any interruption of
that use, and without any variation or expansion of the "use".
When the petitioner purchased the property in 1974, it was her intention
to construct an addition on to the existing structure, to provide adequate
kitchen, laundry and bath facilties. The Offer to Purchase, dated April 29,
1974, contained a contingency which allowed the buyer to satisfy herself prior
to closing that there were no state or federal restrictions which would prevent
remodeling or expansion of the existing structure. ( See attachmend "0": Return
to Writ). At the time the petitioner signed that certain Affidavit dated
May 15, 1974, releasing the contingency relating to governmental restrictions,
there were in fact no such restrictions. ( Attachment 0: Return to Writ )
The existing residential structure, built during 1969, predates any state,
county or local zoning restrictions.
During the 1973 Legislative Session, the Wisconsin Legislature adopted
s. 30.27, Wis. Stats. , entitled "Lower St. Croix River Preservation". This
section directed the Department of Natural Resources, as soon as possible after
May 7, 1974, to adopt by departmental rule, guidelines and specific standards
for local zoning ordinances which were to apply to the banks, bluffs and
Wm. J. ReAosevich bluff tops of the Lower St. Croix River. 30.27, Wis. Stats. , did not seek to
AFT09NEY AT LAW acquire river frontage, nor did it seek the removal of existing uses or structures..
P.O. Box 9
Tulgren Square
502 Second St.
Hudson, Wis,
54016
715,386-8234
Rather, it sought the prohibition of new residential, commercial or industrial
t
uses which were inconsistent with the purpose of the section.
". ..the standards specified in the guidelines
shall include, but not be limited to: a) the
prohibition of new residential, commercial
and industrial uses, and the issuance of
building permits therefor, where such uses
are inconsistent with the purposes of this
section, and b) the establishment of acreage,
frontage and setback requirements where
compliance with such requirements will re-
sult in residential, commercial or industrial
uses which are consistent with the purposes
of this section. . .'' W.S. 30.27(2)
I
The Wisconsin Department of Natural., Resources, pursuant to the foregoing
statutory direction, adopted Ch. NR 118, effective January 1 , 1976. NR 118
provided standards and criteria for the Lower St. Croix National Scenic Riverway,
mandating local units of government to adopt ordinances implementing the
standards contained in NR 118. NR 118.03(12) defined "Local Ordinance" as
"means any county, town or municipal ordinance, portion of an ordinance, or
amendment thereto, adopted by a local unit of government, with authority from
state enabling legislation, which regulates the use of the Lower St. Croix
River District."
S. 59.97 of the Wisconsin Statutes is the enabling legislation which
grants the power and authority to the county units of government to zone property.
Zoning laws cannot constitutionally be applied retroactively. To do so
would in many instances constitute a taking of property, and thus uses in
existance on the date of adoption of a zoning ordinance are generally allowed
to continue as a non-conforming use. The Wisconsin Legislature, in granting
the power and authority to county boards to zone, limited that grant of power
to counties to zone by providing for the continuation of non-conforming uses,
and by providing further that the county zoning ordinance could not prohibit
alteration of, addition to, or repair of non-conforming uses when the cost
thereof was less than 50o' of the assessed value of the structure.
Section 59.97(10) Nonconforming Uses. (a) An
ordinance under this section shall not prohibit
the continuance of the lawful use of any building
or premises for any trade or industry for which
r?�V such building or premises is-used at-the time. .
I.A such ordinances take effect, but the alteration of,
�.
� f or addition to or repair in excess of. 50% of its
assessed valve of any ensting.buliding or.
For tMe,purpose of .carrying on any-
`; ''"
proMiDited trade or new inclustry.withIn a district
Where suc. bulidings or s ruc ures are oca e , may
be prohibited. Tha continuance or e noncon orming
use or a emporary structure may be P rohibited.
If such nonconforming use is discontinued for a
period of 12 months, any future use of the building
Wm. J. Radesevich and premises shall conform to the ordinance.
ATTORNEY AT LAW
P.O. Box 9
Tutgren Square
502 Second St.
Hudson, Wis.
54016
715-386 8234
i
The existing St. Croix County Zoning Ordinance is adopted under the
authority of 59.97 Wis. Stats.
' Article XII, St. Croix County Zoning Ordinance defines non-conforming
use as:
r' Non-conforming Use: A building or premises '
lawfully used or occupied at the time of the
passage of this ordinance or amendments there-
to which use or occupancy does riot conform to
the regulations of this ordinance or any
amendment thereto."
Section 9.4 A.2 provides that no non-conforming use shall be expanded,
�'e larged or altered in any way which increases its non-conformity. It is the
ti contention of the petitioner that the proposed addition would not increase
non-conformity. The structure has been used as a single family residence,
and with the proposed minor addition, will still be continued to be used as a
single family residence, with no increase or change from its single family
residence classification. (An example of an expansion of non-conforming use
would be changing from a single family residence to a two family or multiple
family residence. Similarly,changing a commercial use to an industrial use
would be an expansion or an increase in the non-conformity of a use. )
Section 9.4 A.3 is applicable in this case, and provides a restriction in
situations 'such as this, where the "use" remains the same, but the structure
is being added to or altered: " No structural alteration, addition or repair
f to any non-conforming structure over the life of the structure shall exceed
50%' of its market value at the time of its becoming a non-conforming use,
unless the structure is permanently changed to a conforming use." 9.4 A.3.
St. Croix County Zoning Code.
Section 9.4 A.3. allows structural alterations, additions and repairs
hen such alterations, addition or repairs over the life of the structure are
less than 50°0' of its market value at the time of the adoption of the ordinance,
in this case, the petitioner has warranted that the cost of the proposed
addition shall not exceed the 50% rule. This section is consistent with the --
authority county units of government under 59.97 Wis. Stats., and is consistent
with other provisions of the St. Croix County Zoning Ordinance. If Joan G.
Kennedy's existing structure were entirely destroyed or damaged by fire or
strom, she could obtain a permit to permit reconstruction of the entire structure
so long as it were not more visually conspicuous. than the prior non-conforming
structure.
Notwithstanding Section 9.4 A 4, a variance
may be granted to 2ormit reconstruction o a }
nonconforming structure which is destroyed ` �
�� or damaged and which cannot be reconstructed w ��
in conformity with the standards of
Section 3.12, subject to con itions to be
imposed to assure that the reconstructed
structure will be no more visually conspicuous
Wm. I R-doseirich from the channel of the St. Croix River under ^�
ATTORNEY AT LAW `
P.O. Box s summer vegetative conditions than was the § `}
Tulgren Square prior nonconforming structure." (emphasis added)
502 Second St. 3.120) St. Croix Zoning Ordinance.
Hudson, Wis.
54016
715.3868234
Section 3.12 E of the County Zoning Code provides that the bluff line
setback line shall 'be located 100 feet from the bluff line. It is the
' position of the petitioner, that this requirement applies to new construction.
Under 3.12 (E)(3)(d) the Board of Adjustment is authorized to reduce the
setback line to 40 feet from the bluff line. However, pre-existing parcels
are governed by s. 3.12 H, which provides that special consideration for
parcels which were owned as separate buildable lots prior to the adoption of
the ordinance. This section allows the construction of a new building without
application of the 40 foot minimum bluff line setback, upon a finding by the
Board that the proposed building would not be visually conspicuous from the
river during the summertime. This section clearly authorizes the Board to
modify the 40 foot setback.
" .Pre-Existing Parcels.
1 . Parcels of record in the Register of Deeds
Office on the effective date of this Ordinance
which do not allow the project to meet the
standards of Section 3.12 may be allowed as
building sites as a special exception provided
that lands abutting the parcel in question are
not under ownership or control of the applicant
)V
and provided that the setback from bluffline,
which must be set by the Board, ,will not be
UIY, reduced to less than forty (40)`tee an at
nom all buil ings wi a eas
75 feet from normal high water elevation, that
the proposed use complies with flood plain
zoning and sanitary standards, and that a f e � ,
minimum net project area o on acre per dwell- �_
'irng"OYS"J:'t7i pprovided on the site. e oar • ����
ma m mum blu ine setback line
and the net project area specified above
upon a finding that the proposed building
will not be visually conspicuous from the
water level in the channel of the St. Croix
River under summer vegetative conditions."(emphasis added)
3.12 H 1 St. Croix County Zoning Ordinance.
DECISION OF ST. CROIX
COUNTY BOARD OF ADJUSTMENT
On February 27, 1981, the petitioner made application to the St. Croix
County Board of Adjustment, pursuant to Chapter 9 of the St. Croix County
Zoning Ordinance for a Special Exception Use Permit, to allow the petitioner
to construct an additional room and garage to the existing single family
structure. A copy of petitioner's Application to the Board of Adjustment,
is attached to the Return to Writ, as Attachment "G". The application
described the general character of the intended development, as being a small
structure of approximately 20 feet by 22 feet, one story with a basement
tuck-under garage, with a kitchen and bath facilities on the main floor. The
intended construction was to have been of earth tone or summer vegetation
colors, and construction would not disturb any slope in excess of 12a. The
applicant warranted that the proposed addition and modification to the existing
Wm. J. Y AT LA ieh structure would be substantial) less than 50% of the market value when it
ATiI]IINEY AT LAW Y
P.O. Box 9 first became a nonconforming use, on adoption of the Zoning Code.
Tulgren Square
502 Second St.
Hudson, Wis.
54016
715-386 8234
The Board of Adjustment conducted a hearing on March 249 1981 , there-
after, the Board conducted an on-site inspection, and subsequently issued its
decision denying petitioner's request for a Special 'Exception Use Permit, to
' allow construction within 100 feet of the bluffline.
The decision of the Board of Appeals is set forth on the Return as
Attachment "S", dated March 24, 1981 .
It is the petitioner's contention that the Board of Adjustment decision
of March 24, 1981 is in error in the following respects:
1 . The Board's finding that the proposed structure would
be visually conspicuous from the river is contrary to
the testimony and evidence produced at the hearing.
2. The Board's finding that there was an inadequate area
for the proposed addition on a less than 120' slope is
contrary to the weight of the credible evidence
produced at said hearing.
3. The Board's finding of inadequate area for waste
disposal is without any evidence whatsoever.
4. The Board erroneously proceeded on the mistaken
S1
� belief that it could not grant an exception to the
40 foot minimum setback requirement.
�.
DISCUSSION
` .
V `,t V
bisual Conspicuousness.
.J Cons icuousness. The only material evidence on the
q uestion
of whether or not the addition would be visually conspicuous from the St. Croix
River, in addition to the statements of the etitioner,
p , is the testimony of
Mr. Steven Johnson, Associate Director of the Minnesota-Wisconsin isc nsin Boundary
Area Commission. The members of the Board of Adjustment conducted an on-site
inspection, however, such inspection do n was conducted from the subject site,
� E
r.
looking toward the river, and not from the center ent of
the St. Croix r ix River
= j looking to the subject site. Mr. Johnson's agency is charged with the over-
all eneral supervision and implementation and administration of the Lower
St. Croix National Scenic Riverway. If there is a "protector" of the owes
St. Croix River, if there is someone intimately involved in the administration
of the regulations governing the Lower St. Croix Scenic Riverway, it is the
Office of the Minnesota-Wisconsin Boundary rea Commissio Mr. Steve
Y Johnson
(Attachment N, Page 6) testified that the proposed addition would not be
visually conspicuous. Mr. Johnson stated: it and based on that, and on the
visit I made to the property, must be about a year and one-half ago,o with
Mrs. Kennedy, I am satisfied that the addition would not be visually conspicuous,
provided none of the trees that are now screeing part of the site are removed."
Mr. Johnson went on to state further: " At least, in the foreseeable
WM. J. Radosakb future, until some younger growth comes up. But the whole driveway area from
ATTOMYAlLAW here on back is pretty heavily wooded, and then on down the slope. The whole
P.O. Box s section is y
Tulgren square pretty wooded. And I am satisfied that the addition there would
502 second St. not be visually conspicuous.', y pp
' Hudson, Wis. Y p' ( Mr. Johnson's entire testimony appears on
54016
715-386 szsa Pages 6-8 Attachment rT "
Return to Writ ).
1
I
ti
An examination of Attachment "H", the Surveyor's Site and Topographical
R
Map, indicates the subject property is located approximately 300 .feet from
the St. Croix River ordinary water line on the West, and that the structure .
is approximately 1000 feet from the St. Croix River on its South side.
2. 12% Slope. The Board of Adjustment found that there was an
inadequate area for the addition on land with a slope less than 12°0. This
finding is directly contrary to the topographical information set forth on
tR the site plan (Attachment H). A review of the surveyor's map indicates that
the Northerly most line of the proposed addition is at approximately a
� 202 foot gradient, with the Southern most portion thereof being at the 201.5 -
` '` 202.0 gradient. This indicates that at the exact location of the proposed
P P
addition, there is hardly any slope whatsoever. The adjacent slope is greater
than 120, however, the petitioner has warranted to the Board that construction
would not disturb any of the adjoining 12°0' slope. The Board apparently
confused
the nearby 12 ,o slope,. with the area of construction, which has
little or no slope at all.
3. Waste Disposal. During the hearing, questions were raised regarding
the adequacy of the septic drainage system. It is the petitioner's contention
that such discussion by the Board is not material to a determination of the
petitioner's request for Special Exception Use Permit. There are separate
county ordinances and administrative rules of the Department of Health covering
the installation and use of on-site sanitary systems. There is no evidence
that the system is inadequate, and if the existing sewer system were inadequate,
the County Zoning Administrator is armed with sufficient authority to require
any such property owner to reconstruct or improve a defective system. There
is no question that if this property were vacant, and if this applicant
requested to build a new structure, that under current sanitary system require-
ments, the area would be inadequate. However, the Board's finding of inadequate
area in this instance, overlooks completely the fact that there is an existing
system, and that there is an existing structure being served by that system.
There is no evidence whatsoever that the addition proposed would increase the
amount of waste, nor is there any evidence that the proposed addition would ,
in any manner over burden the existing system. If the addition is constructed
with the proposed basement or tuck under garage, it is obvious that the use
of the bottom level for winter storage of an automobile would not add to any
sewage problems. Similarly, re-locating an existing kitchen sink, or substituting
a bathtub for a shower have only an insignificant impact on the existing system.
Aadeseftch Under such circustances, it is the contention of the petitioner that the Board
erred in making such a finding with regard to the on-site sanitary sewer.
4. 40 Foot Bluffline Setback. The Board of Adjustment made a finding
that the applicant did not meet the 40 foot bluffline setback. The Board's
action was premised on their mistaken belief that it could not grant a Special
Exception to the 40 foot line setback. This position by the Board completely
AT LAW fails to take into consideration the rights of this
ATTORNEY AT LAW g property owner as the
P.O. Box 9
Tulgren Square
502 Second St.
Hudson, Wis.
54016
715-386-8234
holder of the nonconforming use. It further fails to take into consideration
the specific authority set forth in s. 3.12 H 1 . which provides that the
' .` 4 Board may modify the stated minimum setbacks. Steve Johnson, Minnesota-Wisconsin
Boundary Area Commission Associate Director, testified as to the desireability
and legal necessity of the zoning authority having the right to grant relief
from any dimensional provision. It is generally held that zoning ordinances
are arbitrary, oppressive or confiscatory unless there is a provision for the
granting of variances. McQuillins Municipal Corporations, Volume 8, Article
e, 25,46 Zoning. Page 117.
# \ It is submitted that the general rule stated in
McQuillins must be applied to all dimensional zoning requirements of the
t ' zoning ordinance. The Board of Adjustment erred in proceeding on the basis
that they could not grant a bluffline setback within 40 feet.
CONCLUSION
The subject property has some unique and distinct topographical features,
which require a Special Exception Use Permit in this case. The application
of the petitioner fully complies with the County Zoning Ordinance. The
petitioner in her application has warranted that construction will not occur
on a slope greater than 120, vegetation such as bushes and trees will not be
disturbed, earth tones would be used in construction, without there being any
increase ih the visual conspicuousness of the property.
The action and decision taken by the St. Croix County Board of Adjustment
fails to take into consideration the pre-existing and nonconforming use status
of the subject property, the Board decision fails to take into consideration
the power of the Board to modify and adjust the 40 foot setback requirement
under the code and fails to recognize the applicant's right to alter and repair
a nonconforming use, so long as the cost thereof is not in excess of 500 of
its assessed value at the time the structure became nonconforming. The
applicant has warranted that the cost of the proposed improvements are less
than 500 of such value. As noted above, if Mrs. Kennedy's existing structure
were destroyed by fire, she could replace totally the structure as it now
exists, without regard to any bluffline setback.
The March 24, 1981 Decision of the St. Croix County Board of Adjustment
is contrary to the law, and contrary to the preponderance of the evidence upon
which the decision of the Board was based. Under such circumstances, it is
appropriate for this reviewing Court to reverse the decision of the Board of
Adjustment and to order the issuance of the Special Exception Use Permit as
requested.
Res i`ubmitted,
William J. RadoslKich
Attorney for Petitioner
Wm. J. n,Idosevich Post Office Address:
ATTOW&Y AT LAW 502 Second Street
P.O. Box s Hudson, Wisconsin 54016
Tulgren Square
502 second St. (715) 386-8234
Hudson, Wis.
54016
715386 8234
1
ST. ' CRO1 X COUNTY
W I S C O N S I N
OFFICE OF DISTRICT ATTORNEY
wcit ,l 386-5581 Ex.41 &51
w COURTHOUSE HUDSON 54016
6 &
c9
July 7, 1983
'C o
�� 83
z z
Honorable John G. Bartholomew
Circuit Court-Branch I
St. Croix County Courthouse
Hudson, Wisconsin
RE: Letter Brief of Defendant-Respondent: State of Wisconsin, ex rel
Joan G. Kennedy, Realtor vs St. Croix County Board of Adjustment,
St. Croix County, Wisconsin
Dear Judge Bartholomew:
The St. Croix County Board of Adjustment, as represented by Eric J. Lundell,
District Attorney for St. Croix County, responds to the Brief of the Petitioner,
Joan G. Kennedy, as follows:
The facts as recited by William Radosevich, Attorney for Joan Kennedy, are
basically agreed to insofar as they are factually appropriate to the deter-
mination of this issue and are not the opinions of Attorney Radosevich.
However, the Court must review the entire Return to the Writ of Certiorari
in order to fully understand all of the necessary factual information for
the determination of the issue in this matter. For example, the Court must
review the various Affidavits submitted by each of the three members of the
Board of Adjustment, as it was comprised in March of 1981. Additionally,
the Court should review the entire transcript of the testimony taken at the
March 24, 1981 hearing. -
It is the contention of the St. Croix County Board of Adjustment that said
Board, sitting in a quasi-judicial capacity during its review of the applica-
tion of Joan G. Kennedy for a special use permit, did not abuse its discretion
in denying said permit. Specifically, the Board of Adjustment contends that
for each of the four reasons set forth in the written denial of said permit,
sufficient evidence was garnered by said Board, both during the March 24, 1981
hearing on the matter at hand and, in addition, during the on-site visual in-
spection by the Board that same date. In order for the Court to overturn or
modify the decision made by the Board of Adjustment for St. Croix County, said
Board must have first abused its discretion in denying said permit request.
It is further clear that the Board of Adjustment need not have any particular
number of reasons for denying a particular request for such a permit, and in
fact, needs only one valid.reason for denial. In this particular case, should
even three of the Board's reasons for the denial of the Kennedy request fall
because of an abuse of discretion on the part of the Board, and if there remains
Page 2
John G. Bartholomew
July 7, 1983
one valid reason for this denial, the Court must affirm the decision of the
said Board.
Attorney Radosevich has continously misconstrued the authority for St. Croix
County's adoption of the St. Croix River Valley District Zoning Provisions
found in the St. Croix County Zoning Ordinance Section 3.12 et seq. The
authority for such adoption is not contained in Section 59.97 of the Wisconsin
Statutes, but instead, was done pursuant to Section 30.27 of the Wisconsin
Statutes. Consequently, this Ordinance is not subject to the non-conforming
use provision contained in Section 59.97(10) of the Wisconsin Statutes. The
Ordinance is, however, subject to the variance procedures established in NR
118 of the Wisconsin Administrative Code and the County's St. Croix River Valley
District Zoning Provisions. Therefore, no special exception use permit can be
issued by the Board of Adjustment without first complying with the St. Croix
County Zoning Ordinance Articles 3.12 D.7.b. (2), 3.12 E.3.d., 3.12 F.2.c.,
3.12 H.l., and 9.4 A.2 and 3. Furthermore, no special exception use permits
or variances can be issued over the Department of Natural Resource's objection.
Joan Kennedy has requested from the Board of Adjustment that she be allowed to
construct an addition to her existing residence. Joan Kennedy has not submitted
any architectural plans or any exact cost for said proposed addition, but in-
stead relies on a rather vague description of the proposed addition. It is
clear, however, that said proposed addition would be much less than 40 feet
from the bluff line of the St. Croix River. The Board of Adjustment lacks the
authority to grant any reduction from a 40 foot setback from the bluff line.
You must understand that ordinarily a 100 foot setback is required from the
bluff line of the St. Croix River. Only in the case of a pre-existing parcel,
which Joan Kennedy's parcel is, may the Board of Adjustment consider a reduction
from the 100 foot setback requirement to a minimum of a 40 foot setback require-
ment. Any reduction from the 100 foot setback requirement requires a showing
that the proposed building addition would not be visually conspicuous from the
water level in the channel of the St. Croix River under summer vegetative conditions.
The contention of the Board of Adjustment is that Joan Kennedy has failed to show
that her proposed addition would not be visually conspicuous from the channel
of the St. Croix River. In addition, the Court certainly may use its own observa-
tion of the property in question during the Court's stipulated on-site inspection
of the premises. Furthermore, the Board of Adjustment, in its on-site inspection
of the premises in question on March 24, 1981 observed and felt that any proposed
addition would be visually conspicuous from said channel. The Court must under-
stand, however, that a showing of such a proposed addition being visually in-
conspicuous from said channel is required to reduce the usual 100 foot setback
to the minimum 40 foot setback. Nowhere in the St. Croix County Zoning Ordinance
or in NR 118 of the Wisconsin Administrative Code is there any authority for the
Board of Adjustment to grant a reduction from the minimum 40 foot setback from
the bluff line. If you assume that Attorney Radosevich's position on the 40 foot
setback is correct, the Board of Adjustment contends that it still would have
the discretion to act on any proposed reduction from that particular setback.
Page 3
John G. Bartholomew
July 7, 1983
Concerning the second and third reasons for the Board of Adjustment's denial
of Joan Kennedy's request, Attorney Radosevich neglects to mention that the
Board of Adjustment has an obligation to make an on-site inspection of the
premises in question after hearing testimony at the hearing on the matter.
During such on-site inspection, the Board of Adjustment certainly may, and
pursuant to St. Croix County Zoning Ordinance Article 3.12 F.2.c. , must consider
matters such as the prevention and .control of water pollution including
sedimentation, soil erosion based upon consideration of slopes, soil types
and vegetative coverage, and the adequacy of waste disposal systems. In
Joan Kennedy's own testimony she indicated that her waste disposal system
was located on her driveway. Further testimony revealed that Tom Nelson,
the Assistant Zoning Administrator, made a determination that such system
may be failing. It was necessary that the Board consider these items
when making their decision on whether or not to approve of her proposed
addition. The Board felt and reasoned that there was an inadequate area
for the proposed structure on less than a 12 per cent slope without excavating
the slope area. They then reasoned that such an excavation could cause an
erosion problem. Further, the Board felt that there was an inadequate area
for waste disposal. Thus, both in the testimony heard at the hearing and
in the Board's own on-site inspection of the premises, the Board had to
consider these factors and had to reason that these problems existed in the
Joan Kennedy proposal. The Court, in its own observation of the premises
in question, certainly must have viewed these same problems just as the Board
of Adjustment did previous to.'that.
The Wisconsin Department of Natural Resources has veto power over the St. Croix
County Board of Adjustment in their decisions along the St. Croix River Valley
District. That is to say that no matter what the Board of Adjustment may have
done on March 24, 1981, the Department of Natural Resources could have dis-
approved of Joan Kennedy's proposal, thus, terminating the matter at that
point. The Court should note in Attachment T to the Return of the Writ of
Certiorari, James Lissack, the District Director of the Department of Natural
Resources, confirmed that it was the Department's position that the Board of
Adjustment's denial of the Joan Kennedy special exception permit was proper.
Even had the Board of Adjustment granted such a permit, the Department of
Natural Resources would have vetoed said permit.
In conclusion, the Board of Adjustment must sit as a quasi-judicial body and
decide variance and special exception brought before them. In doing so
P� P cases g
the Board of Adjustment may not abuse their discretion. However, in the present
case, it is the position of the Board of Adjustment that it did not abuse its
discretion in the Joan Kennedy matter since clear evidence existed that the
unique property owned by. Joan Kennedy should not be expanded, as proposed, for
the reasons stated in the Board's denial of the special exception permit to her.
Although the Board contends that only one reason for denial is sufficient, in
the present case it lists four separate and distinct, valid reasons existing for
such a denial. The Board of Adjustment hopes that the Court will take into
consideration the Return to the Writ of Certiorari, along with all the various
Page 4
John G. Bartholomew
July 7, 1983
attachments attached thereto, testimony adduced at the hearing on March 24,
1981, the Board of Adjustment on-site inspection of the property that same
date, and also the Courts own viewing of the premises, subsequent to the denial
of the special exception permit by said Board.
The Board of Adjustment respectfully requests that the Court affirm the Board's
decision to deny the Joan Kennedy special exception permit.
Yours truly,
ERIC J. LUNDELL
District Attorney
St. Croix County
EJL/ds
CC: William Radosevich
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OCT. 2 , 1979
ELEV. = 35.7' +