Grant Variance For Garage Near Ditch On Elinor DriveIssue Date: May 26, 2022 Following a site visit and a public hearing on Thursday, May 5, the Marinette County Board of Adjustment voted without dissent to grant a variance, with some restrictions, that allows Steven and Barbara Dilling to construct a storage building on their 25.9 acre property at W6573 Elinor Drive in the Town of Middle Inlet.
Technically, the building will be closer than the 75-foot setback from a navigable waterway that is required by the Marinette County Shoreland/Wetland Zoning ordinance, but Board members agreed that the property is worthless without the variance, and the "stream" that now is considered a navigable waterway is in fact a man-made drainage ditch that did not exist when the property was created. The proposed building will be constructed near the road, and far in excess of the required 75-feet from the shores of Lake Noquebay at the far end of the lot.
The 1 p.m. public hearing at the Middle Inlet Town Hall was preceded by an 11 a.m. visit to the site by the Appeals Board.
The Board of Adjustment meeting was called to order by Land Information Director Tim Oestreich, and the first business was election of officers. It was the first time the Board had been convened since December of 2019.
Members present were Peter McCabe, Kelly Barnes, Mike Cassidy, Paul Wilting and Mark Van Der Zee. Wilting and Van Der Zee are alternate members, eligible to vote but not eligible for the position of chair. Barnes was nominated for chair, and was elected with no opposing votes. McCabe was elected vice chair and Cassidy was elected secretary, again with no other nominees and unanimous vote.
The board was advised that they have no authority to amend or repeal any ordinance or part of an ordinance, but functions like a court, with witnesses sworn in.
Barnes read the appeal, in which Dilling asked for a 35' setback from the stream that borders the vacant lot attached to his other property there. It was explained that if the variance is denied, no structure can be built on the property, since it is bordered by water on two sides. Dilling said runoff structures will be constructed to minimize impact on the water. The lot is 72 feet wide, so it cannot meet a 75' setback requirement from the waterway. There is ample distance from Lake Noquebay, since the garage is to be built near the roadway, and lots in that area all have about 280 feet between the road and the lake.
Dilling's request for a building permit had been denied in August because the DNR defined the waterway bordering the property on one side as a navigable waterway.
McCabe noted that at their 11 a.m. on-site inspection they had viewed the meandering waterway, and he felt it was perhaps a drainage ditch that had been man-made.
Barnes said the plat Oestreich had from 1964 did not show the "stream" as a waterway, which meant to him also that it was man-made and not a natural waterway.
The Dillings were accompanied at the hearing by their builder. Dilling said they had bought the vacant lot with the intention of putting a garage and only a garage on it, and he felt the 35' setback would be a suitable distance. They were seeking to build a 40' X 80' garage to use as storage for their recreational vehicles, but he was willing to modify the building envelope if necessary, and to vary building materials, foundation, etc. "We are willing to work with any variance that is aesthetically pleasing and willing to work with whatever setbacks and variances that comply with the zoning requirements."
Barnes commented that variances for garages are common, so the Board would not be setting a precedent by granting the request.
He also noted that the dillings own three lots, and suggested if they combined two of them they would not need the variance. Dilling said they had thought about that, but may want to sell the other lot some day. "I want to make the lot as attractive as possible," he added, and suggested having his equipment inside a garage rather than outside would improve the exterior appearance of the lot. "If it can't be as big as we want it to be, so be it," he added.
To a question from McCabe, Dilling said he had bought the first two lots on the east at the same time, and the lot they were talking about now was purchased at the same time - 30 years ago - but from a different owner.
It will have suitable setbacks from the road and from the adjoining lot on the other side.
The only member of the public to express concern about the proposed variance was Jeff Oestreich, who explained that he lives on Birch Hill Road, north of the proposed building site. He said when there is heavy rain that ditch is full, and parts of the lot Dilling wants to build on are under water. "If that 100-year rain comes, that garage could be under water."
Barnes countered that the land is flat, so if that lot is under water the cottage on the other lot would also be under water.
Dilling said if the variance is granted they could build up the garage site and put it on concrete, and they are not going to run electricity there.
Tim Oestreich said the side lot setbacks were put in place to prevent shoreline erosion and encroachment by structures. This lot meets the definition of a "sub standard lot." The lot was created in 1964 and the ordinance was not adopted until 1965. It was created as a "buildable" lot, and was never re-configured or combined with another lot, and there was never another structure on it. He said the DNR's designation of the ditch as a navigable waterway was recent.
Barnes agreed. He said since the meander of the ditch was not mentioned in the legal description he was ණ percent sure" it was man made.
The board ultimately granted the variance allowing it to be built within 35 feet of the stream/ditch, with the conditions suggested by Oestreich. It is to have a 10-foot natural buffer area starting at least 20 feet past the building overhang. Oestreich said the natural buffer can be achieved by simply not mowing there, but they could enhance it with plantings of native vegetation if they want to. Dilling indicated he may eventually want to gravel his driveway, and was told that will not be a problem, particularly since they are already collecting and diverting runoff on the property.
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