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Minutes 2011 FEB 22 Board of Appeals Hearing


02-26-2011

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Minutes 2011 FEB 22 Board of Appeals Hearing

Minutes of February 22 Board of Appeals Hearing include:

  • Public hearing, called to order at 7:35 pm by Board of Appeals (BOA) acting Chairman Lee Marks upon arrival of Town’s counsel, had  Board members Randy Dorow, Glenn Gradl, Dave Kriesel, and Jerry Lund present; also present, Clerk Andrew Hogan, applicant for the variance Dave Magadanz, counsel for Mr. Magadanz attorney Thomas Johnson, adjacent property owner Chad Karpf, Town Chairman John Jaeckle, Town Supervisor Bob Luedtke, Town’s counsel attorney Rich Carlson, Outagamie County Zoning Administrator Tim Roach, Town’s Building Inspector Jim Emmons and seven others.
  • BOA verified that public notice of hearing was posted at www.townofhortonia.org, Town Hall, Fire Hall, Modern Flooring, and notice given on Town’s answering service 779-9780 as of February 3rd. Agendas were posted 24 hrs ahead of the hearing. Class 2 notice was published in Post Crescent on February 8th and 15th. Property owners within 300 ft radius also mailed written notice on February 2nd.
  • Marks stated purpose of BOA hearing was to consider applicant’s request for variance to property line setback zoning regulations for parcel 120-0283-00 as indicated in BOA’s copies of variance request form and supporting material; read agenda; introduced Board members.
  • Clerk entered two exhibits into evidence: #1 Letter dated 2/16/2011 from Outagamie County Zoning Administrator Timothy P. Roach expressing the County’s support for the setback variance; #2 Letter dated 2/15/2011 from WI DNR Floodplain Zoning Specialist Richard J. Koch expressing State’s conditional support of setback variance, but objecting to reexamination of compliance of property relative to shoreland and floodplain zoning, citing that BOA does not have authority to supersede circuit court in making determination about compliance.
  • Carlson presented background information to BOA including BOA’s jurisdiction in the matter, practical difficulties and unnecessary hardship criteria, history of parcel and structures as being pre-existing, non-conforming relative to changes in zoning regulations, concluding that applicant seeks two variances: side yard setback and front yard setback. After answering BOA’s questions about statements of fact, Carlson sought and received affirmation from Johnson that the statements are undisputed. To help BOA visualize setbacks, Emmons provided a drawing of site plan from binder given by Magadanz in January.
  • Carlson read six conclusions in the affirmative, indicating such are more challenging than conclusions supporting denial; indicated that BOA’s conclusions either approving or denying setback variances would be equally defensible under the circumstances.
  • Magadanz fielded questions from BOA members and provided two site plan drawings to BOA and members of public seated in gallery, indicating proposed relocation of house and highlighting location of proposed concrete retaining walls.
  • BOA heard from Roach, expressing reasons for supporting setback variances; read 3 statutory criteria BOA must consider when determining if variance should be granted or denied. Questions raised in gallery about structure renovation violating 50% of equalized assessed value were answered by both Roach and Carlson citing that circuit court has ruled on the matter.
  • BOA heard from Karpf, voice support for Magadanz’s rights, but expressed concerns alleging that proposed relocation of house including quantity of fill that would be brought in to increase elevation by six feet within 25 feet of property line will have adverse affects on Karpf’s driveway and property including issues with maintenance, snow removal, run-off; stated opposition to setback variance at 25 feet. Roach indicated County would work with property owners to mitigate erosion and storm water issues.
  • Karpf sought insight into impact on well and septic. Regarding well, Roach deferred to DNR, but indicated septic would be replaced by flood-proofed holding tank that could be within 75 ft setback. Emmons indicated it could be serviced by a dry-hydrant type of hookup.
  • Replying to Mark’s question, Carlson stated that if BOA denies variance, Magadanz remaining option would be to restore house to 1991 condition. Roach concurred that two options exist per stipulation agreement: move house 75 away from Wolf River and raise it above 100 year flood water mark, or, restore house. Roach cited that restoration option is neither practical nor feasible.
  • BOA heard from Johnson, requesting BOA rule on variance for house as it exists now, acknowledging DNR’s position. Carlson opined BOA does not have authority to do so because that has already been decided by circuit court.
  • BOA heard from public seated in the gallery voice support for Magadanz’s property rights; support for current ‘grandfathered’ use as pre-existing, non-conforming; question accuracy of 50% rule violation; cite financial hardship if variance is granted; cite hardship through no fault of Mr. Magadanz; question why 1991 building permit was granted in light of consequences; voice opposition to variance facilitating house relocation citing destruction of existing natural habitat and resulting negative impact on property value.
  • Responding to public’s questions Carlson indicated pre-existing, non-conforming uses existed through no fault of Mr. Magadanz; non-conformity was supported up to the point when it was increased; debatable whether Town’s grant of building permit contributed to increase of non-conformity; ‘grandfathering’ was allowed up to the point that circuit court ruled that 50% rule was violated; BOA does not have jurisdiction to over-rule circuit court; Magadanz applied to BOA for variance – collateral effects to Mr. Magadanz if variance is approved were for Mr. Magadanz’s to consider prior to asking BOA for variance.
  • BOA acted on resolution [labeled by clerk as R2011.2.1.BOA] to decide Magadanz’s petition for variance based on roll call vote: Gradl – aye, Dorow – aye, Lund – aye, Kriesel – nay, Marks – nay.
  • Kriesel motioned, seconded by Dorow, to adjourn. Carried – unanimous. Meeting adjourned 8:46pm.

These minutes are unapproved. The BOA’s action is currently under scrutiny due to Town’s zoning ordinance §1.10(3)(b) requiring 4 ayes to grant variance no longer being consistent with State Statutes. Any person aggrieved by BOA’s ruling may appeal to circuit court within 30 days.  Respectfully submitted, Andrew Hogan, Clerk.

Please click the 'Download' button next to the GREEN arrow to download a PDF of the minutes.

Document(s) related to the Agenda:
!! CLICK HERE !! for Hortonia's zoning ordinance
!! CLICK HERE !! for generic variance form/procedure
!! CLICK HERE !! for variance request for 120-0283-00
!! CLICK HERE !! for Exhibit #1 - entered as evidence
!! CLICK HERE !! for Exhibit #2 - entered as evidence
!! CLICK HERE !! for BOA2006.pdf handbook (see p.45 "H")
!! CLICK HERE !! for site plan drawing entered by Emmons
!! CLICK HERE !! for annotated drawings entered by Magadanz
!! CLICK HERE !! for Town's legal opinions on variance approval
!! CLICK HERE !! for the form expressing the authenticated determination