Waupaca County Board denies Krueger variance for home inside shoreland setback

The Waupaca County Board of Adjustment denied a variance request from Robert and Jane Krueger to construct a dwelling within the required shoreland setback on a 0.89-acre lot along County Road H in the Town of Fremont. The board voted 5-0 to deny the petition at the board’s Aug. 3 meeting after on-site inspection, testimony and a staff report.

The Kruegers appeared in person and were sworn to testify. Robert Krueger said he purchased the lot two years ago and planned to build “my dream house,” but the lot’s wedge shape and setback rules limit the buildable area. He told the board the back corner of the proposed house is at an elevation of about 772 feet while, he said, the Ordinary High Water Mark is 762 feet. He argued the ditch behind the parcel is a manmade farm drain and “I do not believe the waterway is navigable.”

Candace Bauer, Land Use/Code Enforcement Specialist for Waupaca County, told the board the county determines navigability using USGS quad maps and the DNR Surface Water Data Viewer and concluded the ditch is navigable. Bauer told the board that the shoreland setback is a DNR regulation and that the county ordinance refers to a defined bed and bank and reoccurring flow; she also said setback averaging did not apply because an adjacent lot is vacant. The clerk read an exchange with DNR staffer Kathi Kramasz in which Kramasz stated the ditch is navigable, and an email from Ryan Miller stating no concerns with the request was also read into the record.

The Planning and Zoning staff report recommended denial, saying the applicant did not satisfy the legal criteria for a variance. The report stated the lot could accommodate a dwelling while meeting the required setbacks, that the asserted need for a two-story or uniquely shaped house was a self-created hardship given covenants in place when the property was purchased, and that granting a variance would undermine the ordinance’s dimensional standards.

During deliberations the board applied the three statutory variance tests. Members found that strict compliance was not an unreasonable bar to using the property for a permitted purpose but that designing a conforming house on the lot would be “unnecessarily burdensome” (criteria 1.B) because of limited building area. The board also found unique physical limitations related to the parcel shape and rear slope (criteria 2). On the public-interest test, a majority concluded that permitting a dwelling within the shoreland setback without mitigation would undermine the purposes of the ordinance and would be harmful to the public interest.

M. Strebe moved, and Vice-Chair D. Johnson seconded, a motion to deny the variance request. The roll-call vote was Chair A. Richardson — yes; Vice-Chair D. Johnson — yes; Secretary J. Fulcher — yes; M. Strebe — yes; G. Marx — yes. The board closed the public hearing and moved on to the next agenda item.

The variance denial leaves the Kruegers able to pursue a dwelling design that conforms to the county and DNR setback requirements or to seek other remedies. The board record notes the Kruegers offered to accept conditions or a reduced setback but the board did not adopt a conditional approval.