Thursday, June 21, 2012

Judge Upholds Waypoint Permit Denial

By Rick Olivo

June 13, 2012

Ashland County Circuit Court Judge Robert Eaton, hearing a Bayfield County case, has ruled that the Bayfield County Board of Adjustment acted within its jurisdiction and according to law when they reversed the granting of a conditional use permit by Bayfield County for the proposed Waypoint fly-in development in northern Bayfield County.

The proposal for a private airport and associated condominium development in the Town of Russell had formerly been known as “Shadow Wood Landing” and proposed to build a 4,000-foot landing strip and hangers on a 380-acre tract of land.

The plan received approval by the County’s Zoning Committee and full county board despite determined opposition by a group of adjacent landowners organized as The Bayfield Committee for Responsible Land Use, which took the matter to the County’s Board of Adjustment.

The Board of Adjustment found that noise, drainage and topographic issues as well as the development’s incompatibility with tourism and orchard operations in the area justified denying the application for a conditional use permit.

Following the decision of the Board of Adjustment last year, the developers, Minneapolis-based CFS LLC, sought a certiorari review of the decision by the Circuit Court.

A certiorari review could have resulted in the records of the case being brought to the court for review, under certain circumstances.

According to Eaton, those circumstances include questions about jurisdictions, whether that body had acted according to law, whether the decision was arbitrary or unreasonable, whether the evidence was such that the board could reasonably make the order in question.

Eaton ordered that the matter was within the jurisdiction of the Board of Appeals, and that the Board had heard both sides of the issue.

“The court is satisfied the Board acted according to law, if the evidence considered was of the nature it could be reasonably relied upon to make a decision,” he wrote in his memorandum opinion and order released on June eighth.

Eaton also ruled that the Board’s action in denying the Conditional use Permit was not arbitrary, oppressive or unreasonable if in fact it was entitled to rely on everything that was said to it.

“The real issue in this case is whether the evidence was such that the Board could reasonably make the order in question. The Board’s decision must be supported by substantial evidence,” Eaton continued, noting that the court does not decide issues of credibility of witnesses or the weight to be given to their testimony.

“This court is required to defer to the decision of the Board unless it is unreasonable or without a rational basis... thus the findings of the board may not be disturbed if any reasonable view of the evidence sustains them,” he said, quoting case law in the matter.

Eaton noted that the Board had relied on the expertise of Robert William Van Sant, a former chief operating officer and director at Cessna Aircraft Company with a BS and MS degree in mechanical engineering, a man with some 30 years of flying experience.

He testified that aircraft taking off and landing at the CFS facility would be very loud and would disrupt the peaceful rural setting of the northern Bayfield Peninsula. He also noted that the board had heard the testimony of Robert J. Krumenaker, Superintendent of the Apostle Islands National Lakeshore, who described the park as a “noise-sensitive area” and expressed concerns about aircraft going in and out of the airstrip planned by CFS. Also testifying about the impact of noise was orchard operator Eric Carlson.

Eaton said Krumenaker’s and Carlson’s testimony was “somewhat speculative” given that they predicted events that had not yet occurred, but said Van Sant’s testimony was not.

“His background, knowledge experience and education give him superior knowledge over an ordinary lay person as to the amount of noise generated by turboprop or jet aircraft,” Eaton wrote. “The Court concludes that (The Board of Appeals) could reasonably rely on the affidavit of Mr. Van Sant to conclude that the proposed runway at the CFS site would generate excessive noise. The board was then able to rely on the statements of Mr. Carlson and Mr. Krumenaker as to the impact of excessive noise on land uses in the surrounding area.”

In discussing the testimony of soil scientist Ulf Gafvert, the court similarly ruled that his knowledge, education, experience and training on the issues of soil, topography, drainage and impact on wetlands were such that the Board could reasonably rely on his judgment about the impacts of the development on the area.

“Clearly there was evidence in the record competing with the affidavits of Mr. Van Sant and Mr. Gafvert on the issues of noise and topography. However the court reiterates that it is not the function of the court to second-guess the Board on issues of credibility and weight of evidence. If there is conflicting evidence on an issue, the Court does not substitute its view for that of the Boards.”

Eaton went on to say that the Board functioned much like a jury in a civil case.

“Findings of fact, decisions on credibility and the weight of evidence is solely the province of the Board,” he wrote.

Eaton concluded that substantial evidence in the record supported the findings of the Board, again noting that the Board acted within it’s jurisdiction, that it acted according to law, that it’s actions were not arbitrary, oppressive or unreasonable.

“Although the evidence is conflicting, the evidence was such that the board might reasonably decide to deny the application of CFS for a conditional use permit,” he wrote.

Friday, July 15, 2011

Battlefield in Bayfield over Waypoint

Heidi Clausen, regional editor of The Country Today, attended the Northwest Wisconsin Lakes Conference in Minong in June and wrote the following excellent review of the presentation concerning the first challenge to Wisconsin's comprehensive planning law, brought by our grass roots organization, Committee for Responsible Land Use.

Township rezoning brings state’s first challenge to law requiring comprehensive planning consistency

By Heidi Clausen
Published in The Country Today

MINONG — The Bayfield County peninsula is ground zero for the first challenge of a consistency requirement in Wisconsin’s comprehensive planning law.

The Bayfield County Board in March 2010 rezoned 380 acres a few miles south of the Apostle Islands National Lakeshore from agricultural/forestry to agricultural/residential-recreation/commercial use.

A citizens’ group formed to fight the proposed development, which would allow the construction of a fly-in resort community and private airfield in the town of Russell.

According to a consistency requirement in the state’s comprehensive planning law that took effect last year, the zoning actions of towns and counties must be consistent with locally created comprehensive plans.

The Bayfield County Committee for Responsible Land Use argues that the project fails to meet the letter or spirit of the town’s comprehensive plan, in which future commercial development was specifically mapped for in and adjacent to the village of Red Cliff.

This is the first zoning decision in the state to be challenged because of a perceived inconsistency with a comprehensive plan.

Although a judge has reaffirmed the rezoning and the citizens’ group won’t appeal, “it’s not over yet,” said Shari Eggleson, who represents the group.

Eggleson moved to northern Wisconsin a couple of years ago after retiring as an attorney with the Wisconsin Department of Justice in Madison. She spoke June 24 at the Northwest Wisconsin Lakes Conference.

The project, known as Waypoint, is being planned by CFS LLC, based in Minneapolis. CFS says the project will bring positive economic benefits to the area.

“I happen to believe that those hopes are fairly ill-founded,” Eggleson said, adding that the benefits would be outweighed by the costs for upgrading roads and various services for the expected 100 to 280 residences.

The citizens’ group argues that the project would have a negative effect on local residents, agribusinesses, tourism, the lakeshore and wildlife.

Eggleson said the battle in Bayfield County began when the developer bought acreage “in the middle of the fruit farms” on which to build a luxury resort community and private jet airport featuring a 4,000-foot asphalt runway.

“Locals thought this was a pretty terrible idea, so a citizens’ group formed to fight it,” she said.

CFS first petitioned the county for a rezone of the property along Compton Road in 2008. Rezoning was recommended at the time by the town board.

Eggleson said testimony was “overwhelmingly” opposed to the proposal, but rezoning was approved. CFS began clear-cutting and grading for a runway.

The citizens’ group filed a complaint in circuit court against the county in 2009 to fight the property rezoning. Also that year, the town voted to recommend rescinding the rezone approval.

Although the project was inconsistent with the local comprehensive plan, that plan was only considered “advisory” at the time, she said.

After the state’s consistency requirement kicked in, she said, the citizens’ complaint was amended to say that the rezoning was inconsistent with the local comprehensive plan.

Earlier this year, a judge ruled that he could not say the rezoning was inconsistent with the plan but “by no means handed down a ringing endorsement of the rezone,” Eggleson said.

The citizens’ group decided not to appeal this ruling.

With no precedent in this case, “it’s difficult to reverse the judge’s decision,” she said. “We had an incredibly uphill battle, and we almost did it. The chances of prevailing on appeal are not good.”

However, Eggleson said, the group did appeal to the Board of Adjustment regarding a conditional-use permit granted for the airport and won that case. With no conditional-use permit, construction cannot proceed, she said.

CFS — which faced charges for state Department of Natural Resources violations on work done at the site — began wetland restoration last year and is appealing the board’s denial of a conditional-use permit for the airport.

“Now the developer has the uphill battle,” Eggleson said.

Rick Stadelman, executive director of the Wisconsin Towns Association, said that as part of the state’s consistency requirement, zoning decisions must either further or not contradict the goals and policies of the local comprehensive plan.

Stadelman said Wisconsin law focuses on planning from the bottom up, not the top down. Although some people say it’s been ineffective, he believes it has benefits.

“We believe the model we have in Wisconsin is based upon the principle of local plans basically enforcing local regulations,” he said. “Those local communities should set the vision.”

Stadelman said a lot of local plans have been “cookie-cutter,” and that’s not what the law intended.

“Over the next 10 years, some more communities will get into it, and (plans) will have to be updated,” he said. “Where we do not have a plan that’s consistent with the regulation … I believe a decision can be challenged.”

Sunday, May 15, 2011

Draft legislation on iron mining debated

By DANIELLE KAEDING Ashland Daily Press, Friday, May 13, 2011

The possibility of an iron mine in northwestern Wisconsin is becoming more real with each passing day for area residents. A bill is currently being drafted by State Sen. Rich Zipperer, R-Pewaukee, and State Rep. Mark Honadel, R-South Milwaukee, to provide a separate piece of legislation regulating iron mining in Wisconsin.

Legislation proponents say laws currently on the books need clarity and definitive timelines as part of the state permitting process. Those more wary of the bill being drafted worry that such legislation may reduce public input or weaken environmental standards. State Rep. Janet Bewley, D-Ashland, said the bill does include fewer opportunities for public comment.

“And fewer requirements for the mining company, a lot of relaxing of (language) — instead of “must,” it’s “will attempt to” or “will strive to” — it’s a horrible, horrible bill,” Bewley said.

One such example is the language used addressing standards for approval of a metallic mining permit. Under current law, the Wisconsin Department of Natural Resources, which regulates mines in the state, must issue a mining permit if it finds the proposed mine “will not endanger public health, safety or welfare.” However, the bill currently being drafted states a project must be permitted if “the proposed iron mining is not likely to result in substantial adverse impacts to public health, safety, or welfare.” The Daily Press obtained a copy of the draft legislation from its news partner Wisconsin Public Radio.

Meanwhile, Bewley contended that development of the bill has been kept secret. The Democratic Assemblywoman felt there was an attempt to “ram” the bill through the legislative process.

“Fortunately, they’re pulling back from that,” Bewley said, noting that a hearing that appeared set for Monday on the bill is no longer taking place. However, a staffer from Zipperer’s office cautioned Thursday that reports of a Monday hearing on the draft legislation were premature, adding the bill is not yet ready for introduction.

At any rate, Bewley said there are differences between the legal requirement and what is good government regarding the manner in which the legislation has been drafted.

“What is happening in this process are the fewest people representing the most powerful companies,” Bewley argued.

Other environmental organizations who have seen the draft legislation have expressed concern and disgust about the bill’s contents. Among them is Dave Blouin, chair of the Wisconsin Mining Committee for the Sierra Club.

“This legislation is a gun to the head of Wisconsin legislators in the guise of economic development,” said Blouin.

He said the draft bill appears to amount to a loss of local control in area municipalities.

“Which is really, I just think, terrible policy,” Blouin said.

Michele Wheeler agreed. She’s executive director of the Bad River Watershed Association, which promotes the healthy interconnection of people and natural communities in the watershed. Wheeler said the draft bill exemplifies a complete disregard for public input. She cited the current law which allows people the opportunity to obtain a contested case hearing if they feel aggrieved of a DNR decision under metallic mining laws. Under draft legislation, citizens wouldn’t be entitled to such a hearing.

The bill also does not provide for citizen suits related to iron mining. Furthermore, Wheeler said the draft bill on mining undermines the state’s existing environmental standards. She said the treatment of water in the bill is “appalling.”

“The bill establishes a new permit for surface water withdrawals — groundwater withdrawals. It outlines some general provisions that need to be met like protecting public health and safety and not degrading water quality or quantity,” Wheeler said. “But, the catch is that mining companies don’t even need to meet those basic requirements. If they can mitigate water usage, they still get a permit.”

Furthermore, she noted existing laws preventing mine waste close to rivers and lakes.

“It’s a good idea not to dump mine waste really close to streams because streams flood,” she said. “When they flood, they pick up materials that are in the floodplain and they drop them off somewhere downstream.”

However, the bill currently being drafted would not prohibit an iron mining waste site within a floodplain, within 300 feet of a river or stream or within 1,000 feet of a lake.

Casey Eggleston of the Nature Conservancy said there appear to be many water protections that have been rolled back in the draft legislation.

“At first blush, it does look like it’s fairly major changes to the mining codes in Wisconsin. It looks like there are pretty significant changes to timelines for doing environmental impact statements, major changes to the protections that the rivers, the lakes, the streams and groundwater all have around the site,” Eggleston said, who is the state government relations coordinator for the Nature Conservancy.

The bill would require the DNR to act on an application for an iron mining permit no more than 300 days after the application is considered to be complete. Gogebic Taconite President Bill Williams said the 300-day timeline outlined for permitting an iron mine doesn’t include all the prior work that must be done.

“It’s not anywhere near that,” Williams said. “It’s still going to be years ahead of time doing the studies, doing the groundwater studies, the surface water studies, the biology studies — even the archaeology. All those studies are still having to take place. From what I understand in the legislation, once we have taken all those chapters while working with the DNR in developing these sections each study becomes a chapter in the EIR, which is the impact report that we generate.”

Williams felt the legislation still being worked on would not weaken laws currently on the books.

“I don’t get that impression,” Williams said. “This is being proposed by and sponsored by several of the elected officials. Although we would strongly support any attempts to separate the mining of the iron away from a sulfide deposit — up to that point, until they actually come out and make their proclamation or statements, I don’t feel comfortable that it’s our place as a mining company to step on any toes.”

The mining company president said Gogebic Taconite has been asked for opinions and how people can help bring their proposed mining operation to fruition. When asked about concerns posed over opportunity for public comment under the new legislation, Williams felt there has been “constant contact” with the public and the DNR throughout the entire process thus far.

State Sen. Bob Jauch, D-Poplar, said the Legislature needs extra time to evaluate the bill prior to it receiving a hearing in the Wisconsin Senate or Assembly. The Democratic senator said it’s clear the Republican-controlled Legislature and administration have the ability to rush any legislation. However, he’s been trying to get his Republican colleagues to “push the pause button” on consideration of the legislation. Jauch said everyone realizes that the proposed iron mine could be an “incredible game-changer” for northwestern Wisconsin’s economy.

“I think there are ways to provide the certainty that the company (GTAC) needs that the (permitting) process will not be never-ending,” Jauch said. “But, I think that all can be done without weakening the standards.”

Attempts to reach DNR officials and legislation sponsors for comment were unsuccessful Thursday.

Monday, May 2, 2011

Rezone Decision Issued

A decision in the case of Bayfield County Committee for Responsible Land Use (CFRLU) vs Bayfield County in the rezone of 380 acres in a forested district in the Town of Russell from Agriculture-1 and Forestry-1, to Residential-Recreation Business, Commercial, and Agriculture-1, was issued on April 28th by Judge Anderson. The Court found in the favor of the defendant, Bayfield County. This decision leaves in place a commercially zoned area of 44.4 acres – twice the size of Miller Hill Mall – in the midst of forest and agricultural lands.

On the issue of whether this rezone is spot zoning, the Court ruled that the “property is simply too large and the scope of the project too entrepreneurial for this to be spot zoning.”

The decision states, on the issue of whether the rezone meets the County Comprehensive Plan, that although the plaintiffs raised valid concerns about the lack of deliberations for or against the rezoning proposal, a not particularly strong, but “reasonable rationale was employed by the county board when it approved the rezoning request.”

The Court cautioned the county board about the questionable conditions placed on the rezone, which were characterized in the decision as “overzealous, confusing, and legally tenuous assertions of its police power.” The decision states that the conditions could “easily be confused with negotiations with a developer to rezone.”

The CFRLU is disappointed with this decision that, it believes, sets a poor precedent for future zoning in Bayfield County. Hundreds of citizens spent thousands of hours crafting and carefully honing comprehensive plans for their towns. The citizenry expects that these plans, as well as the County Comprehensive Plan, will be seriously weighed, considered, and applied in zoning decisions. If not, Bayfield County has made no progress toward correcting the haphazard zoning process that the Comprehensive Plan was designed to remedy.

The Committee for Responsible Land Use is exploring its available options.

Saturday, March 19, 2011

Policy changes proposed to Stewardship Program

By Danielle Kaeding, Ashland Daily Press

Efforts to preserve natural lands in northern Wisconsin may face more administrative hurdles under the Knowles-Nelson Stewardship Program through the Wisconsin Department of Natural Resources (WDNR)...

The Bayfield Regional Conservancy is one nonprofit organization whose work may be negatively impacted under the governor’s budget. Ellen Kwiatkowski, executive director, said the mission of the nonprofit is to protect lands in Douglas, Bayfield, Ashland and Sawyer counties. To date, the conservancy has protected roughly 2,500 acres of land throughout the region.

“We do that in a couple of different ways through outright purchases of the land and through working with private landowners to place conservation easements on their properties to restrict how the land is used,” said Kwiatkowski.

The conservancy has conducted 17 easements and 22 trail easements, as well as at least seven land purchases. She said their work would be most impacted by the elimination of purchasing conservation easements included in the governor’s proposed budget...

Meanwhile, Gathering Waters’ Carlson said conservation easements can be a more cost-effective tool for preserving lands in the state.

“It’s a tool that typically includes purchasing the development rights off of a property, so protecting the property from being developed in the future,” Carlson said. “But, you can also acquire other rights along with the conservation easement, such as public access.”

Kwiatkowski agreed and noted that lands can be preserved at a fraction of the cost of acquiring them through conservation easements.

“It stays on the tax rolls and the DNR doesn’t have to manage it. The landowner manages it so you’re able to get a lot more accomplished with a lot less money,” she said. “You would think that if money is really the issue than conservation easements would be allowed.”

Kwiatkowski said landowners enter into a voluntary agreement to restrict how their property’s used, noting existing pressures to develop near inland lakes in northern Wisconsin.

“Parcelization of inland lakeshore is a really big issue,” she said. Kwiatkowski added rivers, streams and Lake Superior also face the highest pressure for recreational development or second homes.

Local governments face a delicate balancing act in northern Wisconsin, Kwiatkowski said.

“We don’t want to sacrifice the health of our environment for money because I think that our quality of life and our personal health is directly related to our environmental health and environmental quality,” she said.

In addition, she added the region’s economy is dependent on forestry, agriculture and tourism.

“You don’t want to over-develop and lose what it is that people value about the area,” Kwiatkowski said...

While policy changes may move forward, Thiede said the take home message is that the WDNR, communities and organizations have the ability to purchase lands for conservation under the governor’s proposed budget.

[Read more]

Friday, February 25, 2011

Bayfield County Board of Adjustment overturns Waypoint permit

Ashland Daily Press, By RICK OLIVO Published: Thursday, February 24, 2011

WASHBURN — Members of the Bayfield County Board of Adjustment voted 4-1 Thursday to overturn a conditional use permit issued by the Bayfield County Zoning Committee for the Waypoint residential fly-in development proposed for the northern Bayfield County community of Town of Russell.

The decision came after five hours of deliberation of evidence presented at an eight-hour hearing on the matter held last Friday.

Beginning the session, Board Attorney Mike Fauerbach told the panel that they should apply a dozen separate criteria that govern the issuance of conditional use permits. The session was in what is called a de novo review of the record and authorizes the board to substitute its judgment for that of the zoning committee.

Board members painstakingly went through each of the 12 items individually in light of testimony both for and against the project made before the board last week. Board Chairman Randy Matis said he believed that the issues involved in the issuance of the conditional use permit had not been fully explored by the zoning committee.

"There was only one member who even addressed the items on the ordinance, and that was to say that it met the ordinance. There was no discussion or elaboration on any of the items," he said.

Matis said his view was that the permit was in conflict with the county ordinance controlling the issuance of such permits. He said he was also not reassured by the testimony of Waypoint-provided experts who said the site was suitable for the development and that issues like stormwater drainage could be handled without risk to the environment.

"We are looking at the potential for 25 or 100 houses on a spot like that. It makes me uneasy in looking at the nature of the landscape and the uses that exist there," he said.

Matis said his common sense told him that there were already two airports in the region and that the area was "a gem."

"I can't see how it is compatible," he said.

Matis said while he did not question the development's harmony with the Town of Russell's land use plan, he said it conflicted with county ordinances.

Board Secretary Phillip Lupa said he agreed with Matis, and said his biggest concerns had to do with the presence of wetlands on the property.

"I know how stringent we are with wetland use; it's one of the biggest things we do in our job," he said.

He also questioned arrangements for the provision of services like police protection and fire fighting. "There is absolutely no indication where this is going to come from or what it's going to cost or if it is going to be feasible," he said.

"There is so much here that hasn't been answered that I find it impossible to make a decision in favor of it," he said.

Board member Richard Compton said of especial concern to him was a lack of discussion about the 20 additional hangars that were planned for the airstrip.

"The testimony was to me marginal about whether we could make it work, and all we really talked about was an area 4,000 feet long and 60 feet wide. We've got considerably more area than that involved in here," he said.

Compton noted that while building an airstrip in zoning proposed by Waypoint was allowable with a conditional use permit, it was not a matter of right.

"In order to meet that criteria, we have to look at these 12 items, and I cannot find that this proposal meets the required 12 items," he said.

Earlier, Compton said the project was "completely inappropriate" for the location and said it had the potential to adversely affect the agriculture and orchard industry of the area.

The sole member of the board who voted for the conditional use permit was board member Frank Kostka, who noted that the developer bought the land in 2008 in good faith, bringing their plan to the Town of Russell.

"From day one they were discussing the runway," he said. "The township rezoned the property and allowed the project to go on with a 5-0 vote. If the comprehensive planning committee had thought they didn't want a landing strip out there, they should have zoned it to make the property unavailable for a landing strip."

Kostka said the project has also received county approval.

"I struggle with us overturning Russell Township and the zoning office and the zoning committee," he said.

Kostka admitted that if he lived in the area, "I probably wouldn't want an airstrip either."

"But that should have been taken into account a long time ago," he said.

The result, Kostka said, was that the developers have gotten their approvals and invested their money, only to see all that overturned. "

All of a sudden, the money they have invested, is that going to be thrown away?" he asked. "I am concerned with that."

Kostka said objections that the project would require expensive new infrastructure to be built such as roads and bridges could also be applied to existing businesses.

"We are focusing in on this one area with maybe 10 or 15 airplanes, I don't think it's a big thing," he said.

Kostka said one major player in the area with well-known concerns about the environment was the Red Cliff Indian Tribe. He said the fact that they were not actively involved in the debate indicated that they do not consider the matter to be a threat to the environment.

"I am startled by the fact that we don't have any input from the natives, on this issue. I've got friends who are Native American and when it comes to environmental issues they are very, very interested. And yet they are silent," he said.

Kostka then affirmed his support for the project.

"I am suggesting that I am in favor of the project because I support the previous committees that approved it,” he said.

Following the vote, attorney Shari Eggleston, who represented a group of area residents opposing the project, applauded the decision.

"I am delighted with the decision; we feel like, finally, our concerns were heard by thoughtful people who paid attention to them, and we got a good decision," she said.

At the evidence gathering portion of the Board of Adjustments hearing, Waypoint attorney Steve Katkov told board members that if the board's decision went against his clients, they would "be back at the next level," apparently alluding to a potential court challenge of the Board of Adjustment's ruling.

That did not appear to trouble Eggleston.

"It might not be over, but I don't know any better than you do," she said. "We will defend it if there is an appeal.”

Meanwhile, Waypoint developer Annalisa Cariveau declined comment on the ruling by the board and also declined to say if they planned to appeal the decision.

Matis said the hearing had been involved and complex.

"The board worked very hard to make the best decision they could for the citizens of Bayfield County," he said, admitting that it had been a draining process. "I think we're ready to go home."

Saturday, February 19, 2011

Waypoint conditional use permit appeal decision delayed

Marathon board of adjustments meeting will continue
By RICK OLIVO Staff Writer Ashland Daily Press, Friday, February 18, 2011

Members of the Bayfield County Board of Adjustments recessed Friday without reaching a decision on an appeal filed by opponents of the Waypoint residential fly-in development proposed for the northern Bayfield County Town of Russell.

In a session lasting eight hours, supporters and opponents of the project offered in-depth testimony defending and attacking a conditional use permit to construct a 4,000 foot landing strip and 20 private hangers on the 380 acre parcel off Compton Road.

First to speak at the hearing was attorney Shari Eggleson, who represented a number of opponents of the project. Eggleson said the County Zoning Committee, which granted the conditional use permit to construct the airstrip, had failed to fully consider the dozen factors which should have guided them on their decision. Specifically, she said they failed to consider the safety of the operation of the facility or to consider the demand for public services that would arise out of the project. She said there was no evidence that the county had considered whether it was equipped to handle emergencies arising out of the project's operations.

Eggleson said noise from aircraft using the airstrip was a matter of "grave concern." She also cited inadequate attention to issues involving drainage, erosion, water pollution and observed that Pike's Creek was a Class I trout stream.

Eggleson also challenged potential impacts on other existing land uses like tourism and the area's fruit farms and orchards.

Eggleson said the airstrip and the rest of the project represented a threat to the well-being of other residents, adding the assertion that it would fit into surrounding uses was "unsupportable" and that the permit was not in the best interests of area residents.

Speaking on behalf of Bayfield County, attorney Jack Carlson said the decision was based on a recommendation by the Town of Russell Board approving the development and said the board had voted to indicate that the development was consistent with the town's land use plan.

He noted that the action taken to issue the conditional use permit had been made after due consideration of the facts over several meetings.

Attorney Steve Katkov, representing Waypoint, said he had little to add to Carlson's summation. Katkov said the record requires careful consideration of the facts, which he said showed a pattern of behavior on the part of Waypoint developers to dig deep in their efforts to work with the community to bring the project to fruition.

The Board of Adjustment's attorney Michael Fauerbach told the body they had the authority to substitute their judgment for that of the Zoning Committee, noting that the body needed to consider factors controlling the issuance of conditional use permits as well as examining the consistency of the permit with the county's comprehensive plan.

During the testimony portion of the hearing, Department of Natural Resources Water specialist John Spanberg said because the runway could impact wetlands, Waypoint had to submit runoff plans. He noted that the firm had been cited for stormwater permit violations for grading without permits in a wetlands area, which affected about three acres. Spanberg also noted that they were in the process of repairing damage to those areas. Eggleson submitted written statements from a pair of aviation experts, Robert William Van Sant and Robert H. Owen, expressing concerns regarding aviation safety and noise. She also offered an affidavit by soil scientist Ulf Gafvert who conducted a soil survey on the land owned by Waypoint, citing wet conditions on the land posed construction and maintenance concerns and could also impact Pike's Creek.

Eric Carlson, owner of Blue Vista Farm, said he had concerns about the impacts on his and other farms in the area. He said that some 85 percent of his sales depended on direct marketing and that "airplanes are not going to help that experience."

Ann Bowker, who was an alternate member of the committee that helped draw up the comprehensive land use plan for the Town of Russell, said development of a private airport was not a good thing for the area. She maintained that deforestation and moving thousands of yards of soil to construct the landing strip did not fit the criteria of a "light footprint."

County Zoning Administrator Carl Kastroski told the board that construction of an airport was allowed on both the current zoning and on the previous zoning of the way. He asserted that the land use plan had been formulated with development in mind.

"I believe while the plan was being built, it was made with the landowner in mind," he said.

Town of Russell Clerk Dave Good outlined the history of the development and agreed that the plans for the development were "well known" prior to the comprehensive land use plan's creation.

Waypoint developer Annalisa Cariveau said the development had "complied with every county requirement" and had refined the concept of the project over the years, having changed the location of the proposed runway to reduce its environmental impact.

"We have never in the process stopped refining it," she said. "It is the most detailed conditional use permit application ever filed in the county.”

Cariveau introduced several experts who testified about the various aspects of the development.

Professional engineer Randy Van Natta of Becher-Hoppe Engineers and Architects said the runway site was the fourth alternative his firm had examined. He said constructing it would require moving 210,000 yards of soil to construct, but all soil would remain on the site. He said the strip was designed for small private aircraft — not large corporate jets — although small jets could use the facility. He said the airport would have "only a fraction" of the use at either Madeline Island or at Ashland's John F. Kennedy Memorial Airport. He said there would be no fuel facilities or aircraft services.

Soil Scientist Ann Michalski of Chequamegon Bay Engineering said the site proposed for the landing strip held only four acres of wetlands that would be impacted and, with restoration of the illegally altered wetlands, the impact was just .799 of an acre. She said Waypoint planned to create three acres of wetland to replace that, and engineering plans would design the site so as not to degrade water quality.

Speakers from the public who commented after testimony continued to oppose the project, led by attorney Bill Bussey. He said he could not recall an issue with so much opposition or one where opponents were so ignored. He said the zoning change being challenged in court amounted to "spot zoning" and that adverse impacts would affect surrounding communities as well as the Town of Russell.

"If granted, the conditional use permit gives the green light for the entire development," he warned. "This is the camel's nose under the tent. This is the time to consider the development as a whole.”

Area landowner Kevin Westlund said an immediate impact of such development would be the termination of his plans to build a new home in the area.

Kenneth Bro urged the committee to reverse the conditional use permit grant on the basis that the zoning committee had failed to consider erosion potential, the safety of the project or the demand on the community for services.

"Nothing in the zoning committee minutes indicates that they have addressed those issues," he said.

In her concluding statement, Eggleson said the project did not meet requirements of law "by any stretch" and that the conditional use permit "must be reversed."

Carlson said the expertise utilized by Waypoint in the project was "the best of the best" and urged that the Board of Adjustments sustain the conditional use permit.

Katkov also asked that the permit be retained, adding opposition was simply a matter of "not in my backyard." He also warned that if the permit was reversed, "We will be back at the next level."

The board voted 4-1 to delay a decision on the matter until next week at the earliest. Several members urged that the matter come up for a vote at the earliest possibility. Board attorney Fauerbach said he would work out an acceptable date and announce it, perhaps as early as Monday.

Saturday, February 12, 2011

Board of Adjustment Hearing February 18, 9 am

The Board of Adjustment Hearing is scheduled for February 18, 9 am, at the County Courthouse in Washburn.

The hearing is on the matter of a conditional use permit that was approved last fall by the County Planning and Zoning Committee for an airport and 20 hangars on the CFS Compton Road property.

CFRLU believes that the Planning and Zoning Committee erred in not considering or applying the criteria in County Ordinance 13-1-41(b)(4) to the request.

Thursday, February 3, 2011

Judge Seeks More Information In Bayfield County Lawsuit

Ashland Current February 2, 2011 by Andrew Broman

A decision on whether to allow for the rezoning of land in the Town of Russell for the construction of a resort community with a private airfield could take a few more weeks, according to a lawyer representing a group seeking to prevent the rezoning.

A hearing Wednesday resulted in Bayfield County Judge John Anderson requesting more information about the rezoning issue, according to Shari Eggleson, who represents the Bayfield County Committee for Responsible Land Use.

The citizen group's lawsuit takes issue with the Bayfield County Board's decision in March to rezone 380 acres from agricultural and forestry land to agricultural, residential-recreational, and commercial use. The rezoning would accommodate a private, fly-in community called Waypoint, planned by CFS, LLC.

The citizen group says the case is the first time in Wisconsin that a zoning decision has been challenged due to a perceived inconsistency with a comprehensive plan. Wisconsin's comprehensive plan law took effect on Jan. 1, 2010 and declares that zoning actions of towns and counties must be consistent with locally generated comprehensive plans.

Saturday, January 29, 2011

CFRLU vs Bayfield County Hearing February 2nd, 9 am, Bayfield County Courthouse

Reminder: the Bayfield County Committee for Responsible Land Use challenge of the decision by Bayfield County to approve a rezone of the CFS property will be heard in Judge Anderson’s courtroom on February 2, at 9 am. The public is encouraged to attend this hearing.

Also, for Town of Russell residents, the previous caucus results have been voided due to a procedural error, and a new caucus has been scheduled for Friday, February 4, at 7 pm. It’s important that all eligible Town residents turn out and vote. There are a lot of activities planned for that evening, but we ask that everyone come out for this half-hour event. Please check with Scott Fibert at the County (715-373-6100) if you have questions about your residency.