Shoreline Rights Contested

January 25, 2007

MATTHEW DeFOUR mdefour@madison.com- Wisconsin State Journal

Terry and Debbie Nelson thought they had found the perfect place to build their retirement home: a small lot on Lake Waubesa with a ramshackle house fit for demolition. They were worried, however, when Dane County last year proposed amending its zoning ordinance to limit building on substandard lots in shoreland districts.

For decades, zoning administrators have interpreted a section of the law as a "grandfather clause" for smaller lots that existed before the shoreland zoning law took effect in 1970. In October, the Nelsons along with dozens of other property owners voiced their opposition at a public hearing, after which the sponsors of the ordinance amendment agreed to withdraw their proposal.

But on Nov. 29, the Board of Adjustment, the county's quasi- judicial zoning appeals panel, voted 3-2 to overturn the zoning administrator's interpretation of the "grandfather clause" in the case of a developer who wants to build two houses on substandard lots in the UW- Arboretum. On Wednesday, zoning officials confirmed they "will treat all new applications for development of substandard sized lots in the shoreland district in a manner consistent with the Dane County Board of Adjustment decision."Assistant zoning administrator Kris Schutte didn't know how many properties in unincorporated parts of the county will be affected, but a senior planner found during the ordinance amendment debate that about 2,000 parcels would have been affected by that proposal.

But that doesn't include property owners like the Nelsons, who want to knock down an existing house and build a new one.

Because of the increased number of property owners affected, one County Board member has described the Board of Adjustment decision as the "ordinance amendment on steroids." The Board of Adjustment decision requires hundreds, if not thousands, of property owners within 1,000 feet of lakefronts to jump through another hoop and could jeopardize their investment.

In order for the Nelsons to build on their lot, which is 50 feet wide, they will need to file for a variance, which costs $350. Previously, they only needed a building permit from the town and a zoning permit from the county. And even if they pay the fee, the Board of Adjustment could still decide to reject the request.

"If I can't build, I'm going to raise holy hell," Terry Nelson said. "I'm going to sue some people."
Nelson wouldn't be the first to consider taking the issue to court.

Darren Kittleson, who for the last year has squared off against the Arboretum Neighborhood Association over the two proposed houses near Lake Wingra, is asking the Board of Adjustment tonight for variances from the zoning law as it is now interpreted.

If the panel rejects the variance requests, Kittleson would have a month to file a lawsuit in Dane County Circuit Court to overturn the board's November decision. It's an option he's seriously considering, especially because he expects the variance to be denied.

"I'm not optimistic," Kittleson said.When the Board of Adjustment made its decision in November, zoning officials were unsure about the ramifications, mostly because the panel did not officially state its reasons for voting the way it did.

Last week, after meeting with an attorney, the panel filed its reasons. They included the fact that the "grandfather clause" only exempts properties for area and "frontage," but not lot width or density. Also, "because the ordinance is ambiguous," it must be interpreted within the context of the intentions of shoreland zoning regulations, the panel ruled.

Other reasons relate to the environmental impact of denser housing, something Ronald Kalil, one of the Arboretum Neighborhood Association leaders, has argued all along. The extra houses will decrease absorption of water into the ground and, as a result, more pollutants will run into the environmentally sensitive areas nearby, Kalil said.

Kalil said he expects to attend tonight's Board of Adjustment meeting to register his opposition to the variance. He was glad the panel was able to clear up a long-standing misinterpretation of the zoning law. "It seems that the fine print in the grandfathering clause has never been carefully studied," Kalil said.

Critics of the panel's decision, such as Phil Salkin, government affairs director for the Wisconsin Realtors Association, aren't so sure the decision will stand up in court. "This is basically three people doing what the legislative branch refused to do," Salkin said. "That's, in a sense, what is so galling about this."


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