Co. Zoning Denies Fence Variance, DNR & DOT Ok.Issue Date: September 26, 2019
Thomas Buelteman will apparently have to remove the tall white fence that shields his property from traffic at N5924 Hwy. 180 in the Town of Porterfield. The Marinette County Zoning Board of Appeals reached that conclusion when it denied his appeal for a zoning variance after visiting the property and conducting a public hearing on Wednesday, Sept. 18.
That decision came despite the fact that no neighbors objected, money to pay for the fence was included in the agreement Buelteman reached with the Wisconsin Department of Transportation in 2015 during negotiations to sell them a portion of his front yard for improvements to Hwy. 180, Town of Porterfield Building Inspector Leo Krivickas had issued a building permit for the fence on March 15, 2017 (before it was built); and Dale Rezabek, Shoreland Specialist with the Wisconsin DNR, had sent a letter to the Appeals Board on Sept. 12 of this year stating that the department was not opposed to having a variance issued for this case. According to Buelteman, the DOT also paid the $2,250 fee for his after the fact variance appeal.
Marinette County Administrator John LeFebvre, who had been Zoning Administrator for the county for many years and was in charge when the county's current Shoreland Wetland Zoning Ordinance was written and adopted, was present for the hearing along with current Zoning Administrator Greg Cleereman.
LeFebvre said after the hearing that Buelteman can appeal the decision through the court system. He also suggested he could deed the DOT an additional two feet of his Hwy. 180 frontage so the fence would be on the state right of way, in which case it would be legal.
In discussions leading up to their decision, Appeals Board members Harry Sokol, Wayne Gerondale and Paul Wilton had informally agreed that Buelteman could plant a row of trees to replace the fence, which is set back two feet from the current Hwy. 180 right of way. The DOT had removed Buelteman's cedar tree buffer line when it did the work on Hwy. 180 and in negotiations with Buelteman prior to that had approved the fence as replacement.
Ultimately, despite expressions of regret, Gerondale and Wilton moved and seconded a motion to deny the permit and Sokol acquiesced to their decision. Main reasons mentioned for the denial involved belief that approval would set a precedent for other other property owners to expect similar permissions.
During testimony prior to the decision, Jenny Staidl, who shares the Buelteman residence, said trees would grow and obstruct the view that allows them to safely exit their driveway onto Hwy. 180. She also said without the fence she cannot safely allow her granddaughter or the family dog to play in the front yard.
In his variance appeal and in his verbal address to the Appeals Board, Buelteman said there were no practical alternatives available that comply with existing standards. The DOT needed to remove our existing tree line to accommodate the agency's road improvement project. Fencing or barriers are a common practice used by Wisconsin DOT to insure privacy and noise control. After discussions about what would be best, it was mutually agreed upon that fence would make the most sense.
Buelteman said this was not a self-imposed hardship. The DOT needed the right of way and they wanted the highway improvements to be made. He said constructing the fence along the new right of way replaced the previous tree line to provide safety and road noise reduction. Conformance with the 75-foot setback creates an unnecessary hardship because the lot is only approximately 83 feet wide on the residence side of the creek and approximately 103 feet wide on north side of the creek.
He stressed that prior to erecting the fence they secured written approval from the WI DOT and an approved building permit from the Town of Porterfield.
He noted the home was built in the 1950's. prior to the Shoreland Zoning Laws now in place, and is on a relatively small parcel of property only 71 feet from the road's edge. The creek running down the side boundary of the lot is a unique property limitation not shared by other properties in the area. Given the lot width and considering the unique limitation of the creek, application of the setback prevents compliance.
He said the fence presents no impact on public health, safety or welfare. It generates little impervious surface so it will not result in pollution entering the stream. The perpendicular construction will not negatively impact fish or other aquatic habitat and wildlife movement and access to the stream isn't obstructed. Further, the perpendicular fence does not result in shading of the stream, public use of the stream is not obstructed by the fence and the natural scenic beauty is not impacted due to the perpendicular placement.
He said the fence was installed in consultation with WI DOT on the property owners' side of the right of way. On the North portion it was installed two feet inside of the right of way to provide a better line of sight as Hwy. 180 bends to the east limiting the view of oncoming traffic. A new tree line would eventually intrude into this line of sight, but he also commented that he does not have 10 to 20 years to wait for a tree line to grow enough to provide the privacy and security he lost when his former trees were removed.
Buelteman referred to the Sept. 12 letter from the DNR and Cleereman said he had been planning to read it. Later in the hearing, in response to comments from State Rep. Jeff Mursau, Cleereman said he had submitted a Freedom of Information request in connection with the DNR letter.
In the letter Rezabek said the DNR had received notice of the Sept. 18 public hearing concerning the Buelteman property variance request for a fence that has been constructed 14 feet from the ordinary high water mark of a tributary creek to the Menominee River. The Marinette County Shoreland ordinance requires accessory structures to be 75 feet from the ordinary high water mark of navigable waterways.
The letter continued:
"As the Board reviews these variance requests, please keep in mind that the applicant has the burden of proving that their application meets all of the statutory requirements for the granting of a variance for each variance request. That is, the applicant must prove that they will suffer unnecessary hardship if the provisions in the county's shoreland zoning ordinance are literally enforced. The Wisconsin Supreme Court has made it clear that proof of unnecessary hardship by itself does not entitle an applicant to a variance. All of the statutory variance criteria must be satisfied in order to grant a variance. They are:
"Unique physical limitations: The applicant must demonstrate that unique physical limitations (wetlands, steep slopes, streams, rock outcroppings) or special conditions of the property exist that prevent compliance with ordinance regulations. The physical limitations must be unique to the property in question and not generally shared by other properties in the area. When determining if compliance is prevented, the whole parcel must be considered. In that the property is bounded by the Menominee River and also the creek, that means there is a 75 foot setback from the OHWM from both the River and the creek. The creek divides the lot and few lots along the river share this restriction of having multiple 75-foot setbacks and a creek that divides the property.
"No harm to public interests: The applicant must demonstrate that the variance will not result in harm or be contrary to public interests. The Board must consider the impacts of the proposed project as well as the cumulative impacts of similar projects on the interests of the neighbors, the community, and the general public. These interests are listed in the purpose statement of the ordinance and, for shoreland zoning, include protection of public health, safety and welfare, maintenance of clean water, protection of fish and wildlife habitat, and preservation of natural scenic beauty. This fence does not prohibit migration of wildlife along the waterway. There does not appear to be much watercraft travel in this creek. The fence has been built on the road side of the property, and is not on the main navigable portion of the Menominee River, so the impact to natural scenic beauty is minimal.
"Unnecessary hardship: The applicant must demonstrate that if the variance is not granted, an unnecessary hardship exists. The applicant may not claim unnecessary hardship because of conditions which are self-imposed or created by a prior owner (for example, building a home in compliance and then subsequently constructing a deck without a permit). Courts have also determined that economic or financial hardship does not justify a variance. When determining whether unnecessary hardship exists, the Board must consider the property as a whole, rather than just a portion of the parcel. The conditions that this property experiences by having a creek divide the lot and having two water setbacks is not a condition that has been self-created and also makes strict conformity with the setbacks unnecessarily burdensome.
"It is the responsibility of the Board of Adjustment to assure that the statutory standards for the granting of a variance are met. The standards help to ensure protection of the public interest, including the preservation of water quality and fish and wildlife habitat along lakes and rivers. Wisconsin's navigable waterways are held in trust for all people to enjoy. The shoreland setback is important to protect the water quality, natural scenic beauty and the fish and wildlife habitat of Wisconsin's waterways," and concludes:
"The Department would not be opposed to a variance issued for this case. The Department appreciates your commitment to Marinette County's water resources and protection of public interests for future generations."
Buelteman had apparently neglected to fill in one of the squares on his building permit application for the fence, and leFebvre asked if he had not seen it. Buelteman said he felt it was to be filled out by the issuer, and added, "It is hard for any private citizen to know all the laws."
Cleereman commented the town permit did mention Shoreland Zoning. "We think there are alternatives to the fence," he added. "There used to be trees and they could be planted gain to provide privacy." He said the fence is 8 feet high and the county ordinance allows fences only to 6 feet. This property is largely in the flood plain and he said the high fence blocks views of the Menominee River.
Sokol suggested they could have Buelteman remove sections of the fence closest to the creek and allow the rest to remain.
LeFebvre noted Buelteman said the fence was purchased and installed with DOT money and permission, and commented, "I find it interesting that the DNR has come out with a letter that they have no opposition to this." He said in all his years as Zoning Administrator he had never before seen anything like this. He said sometimes the DNR has sent an e-mail stating they would not object, but never a letter like this. He added he was looking for the DNR letter to say the fence meets all statutory requirements for granting the variance, but it did not, and added, "I understand the difference between the letter they wrote and the letter they could have written on behalf of the applicant."
State Rep. Jeff Mursau was present for the hearing, and said he had become involved at Buelteman's request.
Cleereman commented the county has had Shoreland Wetland Zoning in place for 50 years, and said not only did the town not follow county rules in issuing its permit for the fence, it had not followed its own rules.
A spokesman for he DOT testified that when the Hwy. 180 shoulder was widened in front of the Buelteman property they had to remove a line of Arbor Vitaes and Blue Spruce. Negotiations had taken place between Aug. 14, 2014 and June 22, 2015. He said the DOT did not necessarily tell Buelteman to put in the fence, but agreed when he said it was needed. The initial DOT offer was $8,000 to compensate for the property and $4,408 for the trees. There also had been discussion on the cost of relocating the trees. They had gotten quotes for the fence Buelteman felt was necessary, and eventually paid $20,000 to make Buelteman whole for the loss of trees and property. He said Buelteman did not have to put up the fence, he was free to do what he wanted with the money. The DOT did send a letter to the contractor so they would know what things were agreed to in the real estate process, but the DOT has no authority beyond its right of way line. As to Shoreland Zoning, he said his office works in 11 counties in northern Wisconsin and the Shoreland Wetland Zoning ordinance in each of them is slightly different, "so we never provide guidance on Shoreland Zoning or any other building restrictions."
Buelteman again mentioned how hard it is for a general citizen to know all the laws. He said he had the agreement with Mr. Sovick of the DOT, and the agreement was signed by the DOT project manager as well. He felt the DOT must have needed to get permits for all the work they have done in shoreland wetland areas.
Gerondale said he has worked closely with Krivickas in the Town of Peshtigo and expressed surprise that he had just run the permit through. Cleereman said no town tells his department about potential zoning problems.
LeFebvre said he has worked very hard with towns to make sure they get something on their building permits cautioning about compliance with county Shoreland Wetland Zoning requirements, and advising them to check with the county. He said on all the county permits they put on that they should check with the local building inspector. He agreed there is nothing requiring towns to notify the county about potential zoning issues, and added it is not the DOT's responsibility to warn land owners about local regulations. He felt neither the the town permit nor the DOT agreement were reasons for the Zoning Board of Appeals to grant the variance.
In response to some questions from the board, Buelteman said they had a quote from Parthie Landscaping that it would cost $19,000 to plant a new line of grown trees, but he and Staidl said in their new location the trees once branched out would have prevented them from safely pulling out of their driveway.
Mursau told the board he had gotten involved after being contacted by Buelteman in 2018 and had written legislation to correct the problem. He was told by the DNR that it was not good to write legislation whenever there is a problem, and had not submitted his proposed new law. He also had been told if the DOT would purchase that two feet setback from Buelteman, or if Buelteman deed it to them, the fence would be okay.
Mursau agreed the county is charged with upholding state laws, but added the fact is the DNR letter went through the three points needed for variance approval. He said another DNR representative had told him a the fence clearly meets the variance requirements. He noted the DOT paid the $2,250 fee for the after the fact variance request because they had created the problem.
"The DNR says the three requirements are met," Mursau repeated, and added, "Their department has attorneys that look over every thing they do."
"I hope after this we can still be friends," Mursau went on, and then commented on the open records request from Marinette County asking how often the DNR sends this kind of letter.
"I find it very clear that the variance they asked for should be granted,"Mursau concluded.
After the Board's decision to deny the variance, a visibly angry Mursau questioned how they could feel they knew the law better than the Madison attorneys who wrote most of the law and work with it every day.
Prior to that decision, neighbor Mary Herman testified she had no objections to the fence, and another friend present said he also had no objections.
Cleereman advised Appeals Board members that his final recommendation was for them to deny the variance, "I don't think the requirements are met."
LeFebvre said he had asked for a copy of the letter from the DNR, and declared,"In my 27 years as Zoning Administrator the only communications I have seen from the DNR is a brief e-mail saying they have no objections." He said he found the DNR letter "unique" and added,"If this is what we need to meet the requirements for fences, I think we can get a fence for everybody in the county...If this is what the criteria is, we need to know that, so we're not steering people wrong!"
Buelteman declared he was not there to solve a state political issue, he was there to get his fence approved. He said he had asked Mursau to get involved because he had two state agencies telling him the fence was okay, and the county said it is not. Gerondale observed that the county ordinances on Shoreland Wetland Zoning cannot be stricter than those of the state.
"I think Tom (Buelteman) has been unfortunately misled," Wilton commented, and added he felt he had been denied some guidance as well, "but if we approve this we're violating state law and I don't see how we can do that."
Gerondale first said he would have no problem if Buelteman would take the two fence sections down that Sokol had suggested.
Sokol said he did not see an unnecessary hardship if the fence were removed, but said he would like to come to some sort of compromise, as he did see there were safety issues in view of the small size of the yard. However, he did not feel the problems were unique, and he later said he did not think the public welfare would be affected if they granted the variance, but he was concerned they would be opening a Pandora's box by doing so.
Gerondale commented he has a 50-foot cedar hedge and if the DOT came and took it down he would want a fence too. He said private property owners are not required to maintain their property so the public can see a river or stream.
In the end, motion to deny the variance was made by Wilton and seconded by Gerondale.
Sokol said he would vote to modify the fence by removing the section going down to the Menominee River, but that he would instead go along with the decision of Gerondale and Wilton and the motion was two to one to deny.
In a brief heated discussion following the decision Mursau exploded that Madison was very upset with the conduct of this person, apparently referring to Cleereman, and declared to him, "You won!"
After the hearing formally adjourned Sokol said the Appeals Board has to obey the law and there is an inherent danger in variances. Buelteman commented the Shoreland Wetland Zoning regulations are a state law and the state had said it was okay with state law. Earlier during the hearing LeFebvre had suggested hat since the DOT and DNR are both state agencies, the DNR letter on behalf of the DOT action was perhaps a conflict of interest.
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