Date:      5/9/06

To:          Town Planning Commission Members

From:     Department of Community Development Staff

RE:          Agenda Item 3 Variance – Handevidt – 1801 W. Butte des Morts Beach Rd.


Russ Handevidt is requesting a variance for a deck on the lake side of his home.  The applicant states he is requesting a variance to repair an existing deck with the dimensions of 38’ x 7’ and add 3 additional feet to the deck to make it 10’ wide.  The applicant further states that adding 3 feet to the width of the deck will allow the placement of a table and chairs on the deck so that it can be used as it was intended.  The applicant also states in the application that the floor joists are rotting and making the deck unsafe. 

The applicant states that a variance is needed to allow a setback of less than 50 feet from the required 50’ averaged shore yard setback. On the sketch of the application the applicant shows the setback of the deck to be 53’ at its closest point. 

Staff is having difficulty understanding this application.  It appears from the application that if setback averaging allowed a 50’ setback that the proposed deck would meet the required setback.  Staff also understands from a discussion with Winnebago County Staff that setback averaging will not allow a reduction in setbacks so the variance would be from the required 75’ setback from the high water mark.  Based on a 75’ setback requirement, a variance of 22 feet would be necessary. 

Staff has attached aerial photos showing what we believe to be a new deck constructed during 2003.  Aerial photos from 2000 do not seem to show a deck.  Staff also has photos of the existing deck which appears to be 10’ wide.  Property records cards from the Assessors’ office from the 1985 and 1996 town wide reassessment show that a deck did not exist.  These property records cards are based on actual viewing of the property that occurred during the two reassessments.  Additional records from Winnebago County show a violation notice for this deck due to the lack of a zoning permit.

The applicant is actually asking to retain an already constructed deck with the dimensions of 38’ long and 10’ wide.  Staff has no permits on file for the construction of this existing deck.  Staff also does not understand the statement by the applicant that the floor joists are rotting making the deck unsafe.  Staff sees no evidence of that, but if that is true, then the existing deck will need to be removed or reconstructed to address the floor joist problem. Staff would like further clarification of this issue.


Findings of Fact

Variance Justifications:

Variances can be granted if they are found to meet the following facts and conditions:


1. Exceptional Circumstances -- There must be exceptional, extraordinary or unusual circumstances or conditions applying to the lot or parcel, structure, use, or intended use that do not apply generally to other properties or uses in the same district and the granting of the variance would not be of so general or recurrent nature as to suggest that the Zoning Ordinance should be changed.


The existing home is closer than 75 feet of the high water mark of Little Lake Butte des Morts.  Other homes are also closer than 75 feet.  Staff does not find that there is any evidence of exceptional circumstances.  


2. Preservation of Property Rights -- That such variance is necessary for the preservation and enjoyment of substantial property rights possessed by other properties in the same district and same vicinity. 


A deck for property fronting on a lake is typical on lake front homes but it is not necessary for the preservation and enjoyment of substantial property rights possessed by other properties.


3. Absence of Detriment -- That the variance will not create substantial detriment to adjacent property and will not materially impair or be contrary to the purpose and spirit of this Ordinance or the public interest.


Construction of a deck would not create substantial detriment to adjacent property.

Staff Recommendation                            

Staff recommends denial of the variance.  Based on photographic evidence, any deck that may have originally been installed on the house had been removed a number of years ago.  A new deck was then installed without a permit sometime in the last 3 to 4 years. Variances can only be justified if they meet the above three criteria.  The applicant can only meet one of the criteria.  In addition, the need for the variance was created by the owner by constructing the deck without a permit.

                                                                         2000 Aerial

























                                                        2003 Aerial



                                                                       2005 Aerial
                                           May 10, 2006 Photos of Deck