Ex 9 - Diehm Letter - St. Croix County Board

WINTHROP
ATTORNEYS
AND
COLINSELORS
AT
LAW
June 24,2014
Tammera R. Diehm
Direct Dial: (612) 604-6658
Direct Fax: (612) 604-6958
[email protected]
St. Croix County Board of Adjustment
st. Croix County Government Center
1101 Carmichael Road
Hudson, WI 54016
RE:
Blide/Hanke Variance Request
Dear Members of the Board:
Our office has been retained to represent Doug and Ann McMillan (collectively, the "McMillans")
who own property on Salishan Drive in the Town of Troy, st. Croix County. We have been asked to
review the variance application that was submitted by Ann Blide and Ben Hanke (collectively, the
"Applicants") for the construction of a new single family home on Salishan Drive. The Applicants are
seeking a variance to construct a home 44 feet from the ordinary high water mark on property
("Property") that is located in the Lower st. Croix Riverway Overlay District. Because the Applicants
have failed to demonstrate a hardship and because granting the proposed variance would not only
significantly and detrimentally affect the public interest, but also have a negative impact on the
surrounding properties, the McMillans respectfully request that the Board deny the variance request.
Code Requirements and Authority for Variance
The St. Croix County Code of Ordinances ("Code") establishes development standards for property
located in the Lower St. Croix Riverway Overlay District. 1 These standards were developed to protect
the scenic character of the riverway and include specific rules including a prohibition against building
a structure less than 200 feet from the ordinary high water mark (OHWM).2
Both Wisconsin Statutes and the Code give the Board of Adjustment ("Board") the authority to
consider variance requests when property owners have a justified reason for wanting to deviate from
the requirements of the Code.3 Importantly, in reviewing a request for a variance, the Board must
complete a two-step analysis:
1. The Board must first determine that the applicant has demonstrated that there is an
"unnecessary hardship" which prevents the property owner from complying with the Code
requirements; and
1
See St. Croix County, Wis. Ord. § 17.36.
2
St. Croix County, Wis. Ord. § 17.36(G)(5).
3
Wis. Stat. Ann. 59.694(1); St. Croix County, Wis. Ord. § 17.70(5)(c)(3).
CAPELLA10WER
I
Suite 3500
I
225 South Sixth Street
I
Minneapolis,
MN 55+02-4-629
I
MAIN: (612) 604--MOO
I
FAX: (612) 604-6800
I
wwwwinthrop.com
I
A Pr~jession(ll Association
St. Croix County Board of Adjustment
June 24,2014
Page 2
2. The Board must determine that the relief requested by the property owner is consistent with the
public interest and will not subvert the underlying purpose of the zoning restrictions."
The Applicants have failed to demonstrate an unnecessary hardship
In the present case, the Applicants have failed to demonstrate an unnecessary hardship and therefore,
the request does not satisfy the first prong of the Board's analysis. The Applicants claim that the basis
for their hardship is that the parcel was created prior to the effective date of the ordinance in question.
Because of the relationship of the Property to the floodplain, the Property cannot meet the required
setbacks and therefore, a hardship exists. We disagree.
The mere fact that a single family home cannot be constructed on the Property while complying with
the required setbacks does not, in and of itself, justify a variance. The Applicants acquired the
property as a vacant lot. The Applicants have used, and will continue to have feasible use of their
property for recreational purposes. This has been, and will continue to be, a valuable use of the
Property.
The Applicants' proposed variance significantly and detrimentally affects the public interest
The second prong of the analysis - evaluating the impact of the variance on the purpose of the
restriction and the public interest - also prevents the Board from granting the variance. Under
Wisconsin law, in considering the variance, the Board must evaluate whether the spirit of the Code can
be preserved if the variance is granted.' The Board is charged with weighing the purpose of the zoning
restriction with the effect on not only the Property but also on the neighborhood and the larger public
interest.6 If the Board determines that the purpose of the zoning restrictions would be subverted in
granting the variance, the requested variance must be denied.i
In this case, the Applicants propose to build a structure within 44 feet of the OHWM.8 This is not a
minor deviation from the Code requirements, but rather, it reflects a 78% reduction in the otherwise
required setbacks. In addition, in order to facilitate construction on this site, the Applicants will have
no choice but to bring in a significant amount of fill and alter the natural bluff line of the Property. By
allowing a variance from the Code requirements, the Board would be facilitating development that
subverts the clear goals that are enumerated in the Code.
The St. Croix Riverway Zoning Ordinance ("NR 118") states the following purposes for the restrictive
zoning requirements in the scenic riverway area:
1. Reduce the adverse effects of poorly planned shoreland and bluff area development;
4
Wis. Stat. Ann. 59.694(7)(c); St. Croix County, Wis Ord. § 17.70(5)(c)(3); see State ex rel. Ziervogel v. Washington Cnty.
Bd. of Adjustment, 676 N.W.2d 401,406 (Wis. 2004).
5
See Wis. Stat. Ann. 59.694(1); St. Croix County, Wis. Ord. § 17.70(5)(c)(3)).
6
See State ex rel. Ziervogel, 676 N.W.2d 401.
7
8
.
Id. at 411.
Blide/Hanke Variance Application, previously marked Exhibit 2.
St. Croix County Board of Adjustment
June 24,2014
Page 3
2.
3.
4.
5.
6.
Prevent pollution and contamination of surfaces and groundwaters and soil erosion;
Provide sufficient space on lots for sanitary facilities;
Minimize flood damage;
Maintain property values; and
Preserve and maintain the exceptional scenic and natural characteristics of the water and related
land of the Lower st. Croix River Valley in a manner consistent with the National Wild and
Scenic River Act, Federal Lower st. Croix River Act and the Wisconsin Lower St. Croix River
Act. 9
Counties, cities, villages and towns that are located within the Lower st. Croix national scenic
riverway boundaries are required to adopt zoning ordinances that are consistent with NR 118.
Importantly, local zoning authorities have the ability to be more restrictive than the requirements set
forth in NR 118 but they are not permitted to be less restrictive. 10 If the proposed variance is granted,
several of the stated goals ofNR 118 will be subverted and therefore, the variance should be denied.
First, allowing construction within the established setback will increase - not reduce - the adverse
effects of development in the bluff area. As noted at the February 27,2014 Board meeting, in order to
construct a house on this site, the Applicants will need to bring in a substantial amount of fill and
eliminate trees and vegetation. Not only will this affect the scenic nature of the property and the
riverway, but it is likely to result in an increased risk of flooding and erosion due to the loss of natural
cover. The intrusive process involved in building a home with such a limited setback also greatly
increases the likelihood of contamination of the riverway through the nearby sloughlbackwater. While
Board staff suggested that these issues could be resolved through a permitting process, the Board
cannot wholly separate these issues and must consider the overall impact to the riverway that will be
the natural result of granting the variance.
In addition, allowing the Applicants to construct a home within the bluff setback area may result in
additional applications and the overdevelopment of the Lower st. Croix Riverway. This concern was
raised by Mr. McMillan at the February Board meeting. Similar concerns were addressed in Door
County in State ex ref Kandl, where the Court noted the legitimate concern of a Board member that to
grant a variance placing a home 47 ft. from the normal high water mark "might be too precedentsetting for others to build in areas of that nature."" To allow such a drastic variance is a slippery slope
that could permanently change the face of the Lower St. Croix Riverway which would clearly subvert
the stated purpose of preserving and maintaining the exceptional scenic and natural characteristics of
the Lower St. Croix River Valley.
9
St. Croix County, Wis. Ord. § l7.36(B)(1); Wis. Stat. NR 118.01.
10Id.
II State ex rel Kandl v. Board of Adjustment, 337 N.W.2d 856, at *2 (Wis. Ct. App. 1983) (unpublished) (finding that the
Board appropriately denied a 47 ft. setback from the normal high-water mark in Door County citing the need to "preserve
shorecover and natural beauth.").
St. Croix County Board of Adjustment
June 24, 2014
Page 4
Construction
118
of a house on the Property
will not be visually inconspicuous
as required
by NR
In an effort to protect the scenic riverway and bluff area, NR 118 imposes certain requirements on all
development within the Lower st. Croix area. Importantly, the law requires that all structures be
constructed in such a way that they are visually inconspicuous which is defined to mean "difficult to
see, or not readily noticeable, in summer months as viewed from at or near the mid-line of the Lower
st. Croix River.12 The construction of a home within 44 feet from the OHWM, along with the
proposed tree removal and re-grading that will occur, will result in the structure being visually
conspicuous from the river. Such construction would be inconsistent with the underlying purposes and
goals of the laws protecting the scenic riverway and, for this reason alone, the variance should be
denied.
Granting
the Variance will damage the rights and property values of other persons in the area
Importantly, the Board is also charged with considering the effect that the proposed variance would
have on the rights of other property owners as well as on property values in the surrounding
neighborhood. The requested variance should be denied because granting the variance and allowing
the Applicants to build a house will (a) impede the rights of neighboring property owners and (b)
negatively impact property values in this area.
The proposed site plan that was submitted by the Applicants ("Site Plan") depicts an existing road
easement ("Easement") that benefits other property owners along Salishan Drive and provides access
extending from the existing roadway to the unnamed pond. The Site Plan notes the intent of the
Applicants to construct a retaining wall in the Easement area, presumably to address the erosion
concerns which have been raised. Importantly, the retaining wall will impede the rights of the other
parties that are benefitted by the Easement by completely denying the Easement holders from the
access that they are legally entitled to. While the individual property owners can seek to enforce their
rights under the Easement, it would be irresponsible and unacceptable for the BOA to grant a variance
that suggests the Board's approval or consent to the illegal blocking of this Easement. Because the
Applicants have proposed to construct improvements in the Easement area that will damage the rights
of others, the variance must be denied.
In addition, the proposed home will negatively impact surrounding property values. At the February
Board meeting, Wendy Odegard Walker testified that, in her professional opinion as an appraiser, the
neighboring home of Richard Marzolf would see a reduction in value of more than $100,000 if this
variance is granted and the Applicants are allowed to build a home as proposed. It is difficult to
imagine that Mr. Marzolf's home would be the only home impacted in this way. The Board should
deny the variance in order to protect the property values in the surrounding neighborhood.
The requested variance will have a negative impact on the neighborhood
and the public interest
Finally, the requested variance will have a significant and negative impact on the neighborhood and the
public interest as a whole. The proposed home will not only sit a mere 44 ft. from the OHWM, but
12 Wis.
Stat. NR 118.03(50).
St. Croix County Board of Adjustment
June 24,2014
Page 5
construction will result in a loss of tree cover and vegetation as well as altering the natural wildlife
habitat.
In the creation of the ordinance, preserving the untouched nature of the riverway is shown as
paramount to any variance consideration. This is demonstrated in Section 17.36(J)(2)(b)(2)(a) of the
Code which requires that applicants provide a written explanation addressing "[t]he scenic and
recreational qualities of the Riverway District, especially in regard to the view from and use of the
river." The importance of maintaining the scenic nature of the Lower st. Croix River is further
exemplified in Section 30.27(1) of the Wisconsin Annotated Statutes, titled Lower st. Croix River
Preservation, which states that "[t]he preservation of the unique scenic and recreational asset is in the
public interest." Wisconsin has a long history of protecting its water resources, its lakes, rivers, and
streams.i' It falls to the Board, as it is its "responsibility to protect the shorelands, preserve their
natural beauty, and to control building sites along the shorelands.,,14 Given the underlying purpose of
the ordinance, and the Board's responsibility to protect the shoreland, the Board has no choice but to
deny the variance.
Denial of the Variance is Consistent with Other Decisions
Denying the requested variance would be consistent with other decisions of the Board. In the early
1990s, the former owner of the Property, Mr. Richard Mueller, along with the owner of an adjacent
property, Mr. Buzz Marzolf, sought variances to construct single family homes less than one hundred
feet (100 ft.) from the OHWM of the St. Croix River. These variance requests for the exact same
property upon which the Applicants now propose to build. While the Board of Adjustment was
sympathetic to Mr. Mueller and Mr. Marzolf's desire to construct single family homes, a ruling by the
Wisconsin District Court in 1993 determined that the proposed variances were improper because of
concerns raised by the DNR.15 The DNR expressed concern that "neither site could be built without
creating a significant visual change in the appearance of the shoreline.,,16 In the present case, the DNR
has expressed similar concerns. Specifically, in an email dated February 19, 2014, Michael Wenholz
of the Wisconsin DNR outlines several potential issues with not only the proposed setbacks, but also
with respect to building in the floodplain and the impact of the anticipated fill on erosion control and
disturbance of wetlands. Importantly, Mr. Wenholz questions whether the Applicants can meet the
standards necessary for the Board to grant a variance and further notes that "[u]nless the BOA finds ...
[that] the proposal represents the minimum relief necessary, the requested variance should be
denied."l?
Zealy v. City a/Waukesha, 548 N.W.2d 528,535 (Wis. 1996).
13
14
Sate ex rel Kandl, 337 N.W.2d at *2.
15 Decision
16Id.
17
of Judge Eric J. Lundell dated December 7, 1993.
at p.2.
See Email correspondence from Michael Wenholz dated February 19,2014, exhibit 9 to County BOA application packet.
St. Croix County Board of Adjustment
June 24,2014
Page 6
Denying the requested variance would also be consistent with decisions of other boards of adjustments
throughout Wisconsin. IS In Hense v. St. Croix Cnty. Ed. of Adjustment, the DNR and the Board of
Adjustment raised concerns over the affect the proposed home would have on the river view.19 The
variance was only approved after the applicants agreed to 100 ft. setback rather than the initial 75 ft.
setback.i'' Significantly, the opinion states that "[t]he Board rejected the original house plan, requiring
that the house be smaller and further from the river." Id. In the present case, Applicants are proposing
not only a larger house than in Hense (1,500 sq. ft. as opposed to 1,385 sq. ft.) but also that the house
be more than twice as close to the river's OHWM, with only a 44 ft. setback.
Summary
In summary, the requested variance must be denied because (1) the Applicants have not demonstrated
a unique hardship and (2) the requested variance is not in keeping with the intent and spirit of the
Code. Any house constructed within 44 feet of the OHWM, as proposed by the Applicants, will be
visually conspicuous from the riverway and will not be consistent with the stated goals of protecting
the scenic riverway. The Board is charged with enforcing these protections not only for the benefit of
the adjoining property owners, but the general public. If the Board were to grant a 78% reduction in
the established set back standards, the Board would be subverting the underlying purpose of the Code
and effectively approving building activities that will necessarily negatively impact not only the
riverway but also surrounding properties and the public as a whole.
Based on all of this, the McMillans respectfully request that the Board deny the request for a variance.
For your convenience, we have prepared draft findings of fact that are enclosed with this letter. We
encourage you to adopt these findings as part of your formal Board action. Should you have any
questions, please feel free to contact us.
Very truly yours,
WINTHROP & WEINSTINE, P.A.
,
~
/~4i2bL
Tammera R. Diehm
cc:
Town of Troy Plan Commission
See State ex reI Kandl, 337 N.W.2d at *2; Paulson v. St. Croix Cnty. Bd. of Adjustment, 582 N.W.2d 504 (Wis. Ct. App.
1998) (finding that the Board appropriately denied a variance of 95% of the bluff setback.); Block v. Waupaca Cnty. Bd. of
Zoning Adjustment, 738 N.W.2d 132 (Wis. Ct. App. 2007) (affirming Board of adjustment's denial of a variance from the
50 ft. required setback in part due to the ordinance's goal of "protecting the public's interest in navigable waters, including
promoting safe and healthful water conditions, controlling pollution, and protecting fish life and natural beauty."); State v.
Winnebago Cnty., 540 N.W.2d 6, 11 (Wis. Ct. App. 1995) (reversing Board's decision to grant a variance from shoreland
setback requirements in part due to the fact that it "overlook]ed] the significance of the state legislature's findings which are
the foundation of these shoreland ordinances and affirming that the State of Wisconsin has determined that protecting
navigable waters is in the public interest.").
18
19705
20
N.W.2d 906 (Wis. Ct. App. 2005) (unpublished).
Id. at *4.
PROPOSED
FINDINGS
OF FACT AND CONCLUSIONS
OF LA W
VARIANCE REQUEST: Blide / Hanke
Motion by
following Findings of Fact:
, Second by
to DENY the requested variance based on the
1.
The applicants are Ann Blide / Ben Hanke / Calda Donna, LLC (collectively, the
"Owner"), along with agents Bruce Lenzen and Jon Sonnetag (collectively, the "Applicants").
2.
The site is located in Section 13, T28N, R20W in the Town of Troy, with a future
address off of Salishan Drive ("Property").
3.
The Owner desires to build a house that will be 44 feet from the ordinary high water
mark which requires a variance from the requirements of the St. Croix County Zoning Code
("Code").
4.
State statutes and the Code prohibit the Board from granting a variance to the
enforcement of the Code unless the property owner has demonstrated an "unnecessary hardship."
(Wis. Stat. Ann. 59.694(7)(c); St. Croix County, Wis. Ord. §17.70(5)(c)(3)).
5.
The Owner has not demonstrated that there is an undue hardship that is unique to the
Property which would be sufficient to deviate from the established setback requirements within the
St. Croix Riverway .
6.
In evaluating a request for a variance, the Board is charged with considering the
purpose of the zoning restriction in question, its effect on the property, and the effect that the.
proposed variance will have on the neighborhood and the larger public interest. (State ex ref.
Ziervogel v. Washington County Ed. Of Adj., 676 N.W.2d 401 (Wis. 2004)).
7.
The Code establishes the following purposes for the 200 foot setback requirement:
a. Reduce the adverse effects of poorly planned shoreland and bluff area development;
b. Prevent pollution and contamination of surfaces and groundwaters and soil erosion;
c. Provide sufficient space on lots for sanitary facilities;
d. Minimize flood damage;
e. Maintain property values; and
f.
Preserve and maintain the exceptional scenic and natural characteristics of the water
and related land of the Lower St. Croix River Valley in a manner consistent with the
National Wild and Scenic River Act, Federal Lower St. Croix River Act and the
Wisconsin Lower St. Croix River Act. (St. Croix County, Wis. Ord. § 17.36(B)(1)).
8.
The preservation of the Lower St. Croix River's scenic beauty and recreational use is
a public interest. (Wis. Stat. Ann. 30.27(1) (noting that "[t]he preservation of the unique scenic and
recreational asset is in the public interest")).
9.
The requested variance - from 200 feet to 44 feet - constitutes a 78% reduction in the
applicable setback from the ordinary high water mark (OHWM).
10.
Granting a variance to allow construction of a home within 44 feet of the OHWM
would be effectively subverting the underlying purpose of the setback requirements included in the
Zoning Code.
11.
Granting a variance with such a limited setback will necessarily result in a building
process that increases the risk of contamination of the riverway and backwaters because of the
proximity of building to the OHWM and the potential for erosion.
12.
There is a reasonable chance that granting a variance within the setback area will
exasperate existing flooding conditions and lead to further erosion.
13.
Granting a variance to allow construction of a home within 44 feet of the OHWM
will have a negative impact on the surrounding properties and the overall scenic and natural
characteristics of the area because the construction of the home in this location also creates a need for
significant fill and tree removal. (State ex rel Kandl, 337 N.W. 2d at *2; Paulson v. St. Croix Cnty
Bd. Of Adjustments, 528 N.W.2d 504 (Wis. Ct. App. 1998; Block v. Waupaca Cnty Bd. Of Zoning
Adjustment, 738 N.W.2d 132 (Wis. Ct. App. 2007); State v. Winnebago Cnty., 540 N.W.2d 6, 11
(Wis. Ct. App. 1995).
14.
The variance does not represent the minimum relief necessary.
15.
The Applicants have not demonstrated that the proposed home will be able to be
screened from the St. Croix River.
16.
The proposed variance will result in the construction of a house that will be visually
conspicuous from the river in violation of requirements for the Lower St. Croix Riverway.
17.
The proposed variance will impede the rights of other property owners in the area by
interfering with the existing easement agreement and denying legal access to the other parties
benefitted by the easement.
18.
The Board has heard testimony from an appraiser that granting the proposed variance
will negatively impact the property values in the surrounding neighborhood.
19.
The granting of the variance will be contrary to the public interest of protecting the
Lower St. Croix Valley.
On the basis of the above Findings of Fact and the record herein, the Board of Adjustment
DENIES the requested variance.
-2-