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Court upholds action; family may build on St. Croix lot

WAUSAU: Neighbors of a couple who got permission to build a house along the St. Croix River lost their case last week when the Wisconsin Court of Appeals concluded the St. Croix County Board of Adjustment acted properly in granting zoning variances.

The case involves a civil lawsuit filed by David and Mary Hense, 282 Cove Road, Hudson, and Robert and Marjorie Fleming, 284 Cove Road, Hudson, against the St. Croix County Board of Adjustment. The case also involved Donald and Geraldine Swenson, who owned a half-acre lot along the river, and Paul and Sandra Rosso, who wanted to buy the lot and build a house on it.

The property was platted as a residential lot in 1957 and purchased by the Swensons in 1965, before the St. Croix Riverway Zoning Ordinance was adopted. Because of the lot's size and slope, it is not buildable under the new law.

In 2002 the Rossos agreed to buy the lot if they could get a building permit and the variances necessary to build a house.

They applied for variances and special exceptions in May 2002. It took until November 2003 for the Rossos' builder to develop and get approval for plans that met conditions set by the Wisconsin Department of Natural Resources and the Board of Adjustment.

The revised plans reduced the main floor by a third and cut the proposed size of the garage in half. The board approved a 100-foot variance from the ordinary high-water-mark setback and a variance to build and excavate on slopes of greater than 12 percent. The builder also agreed to use a construction technique that would minimize disruption of soil and vegetation.

In December 2003, the Henses and Flemings asked a county judge to override the variances. Judge Eric Lundell instead upheld the Board of Adjustment's decision.

The Henses and Flemings argued that because the riverway ordinance applies to all shoreland property, the Swensons and Rossos couldn't demonstrate "unique hardship" and therefore didn't qualify for a variance.

"However," wrote the appeals court, "taken to its logical conclusion, their argument would mean no one could ever obtain a zoning variance.

"By definition, zoning applies equally to all parcels in a defined area and, thus, the hardship of zoning itself is shared equally by all parcels in the zoned area."

In this case, according to the opinion, the lot is platted residential but the ordinance prevents the owners from building a house.

"This hardship is not shared by the neighboring lots," wrote the court. "Indeed, the Henses and Flemings each have homes on their adjoining lots."

The decision also said the record shows the erosion and run-off control plans were designed by professional engineers and approved by the appropriate agencies. Also, the board rejected the original house plan, requiring a smaller house that was farther from the river.