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.