The Door County Board of Adjustments approved a zoning variance for a residential lot in a wetland in Fish Creek at its April 28 meeting. The Gibraltar Plan Commission and Town Board previously did not support the petition. Despite the town’s opposition, the county’s approval granted the variance to the landowner, Michael Jaeckel.
According to James Smith, Jaeckel’s attorney at Pinkert Law Firm, variance applications used to go straight to the Board of Adjustments until about 10 years ago. Municipalities wanted a better grasp on what variances were being granted in their area so plan commissions and town boards began hearing the petitions first. But the Board of Adjustments still has the ultimate authority.
“We have some people here that are looking into an appeal process. But once they say down in Sturgeon Bay that it’s OK, it’s pretty difficult,” said Fish Creek resident David Bultman.
Several residents opposed the variance due to concern for the wetland habitat. At the Gibraltar Plan Commission meeting, Bultman explained that the area is actually a vernal pond.
Vernal ponds are depressions in the land that collect rainwater and snowmelt early in the year to form a pond. By late summer, the water evaporates or flows out and the area becomes dry forest. Given the short-term nature of the pond, many species confidently lay their eggs in these areas without fear of being eaten by fish. The United States Environmental Protection Agency claims this wetland phenomena is a threatened ecosystem.
Gibraltar’s 20-year Comprehensive Plan written in 2004 names the protection of the town’s wetlands as the first objective in preserving nearby natural resources. The commission referenced this plan in their recommendation against the zoning variance.
The county also drafted a comprehensive plan in December of 2014. The plan cited wetland preservation as a primary goal in natural resources protection.
“The work in putting this preservation plan in place is already, four months later, being ignored,” said David Sikora of Fish Creek. “I don’t care that he builds a house but I fear that he’s going to harm the wetland area, so that’s where we’re all coming from.”
Jaeckel sought the variance to build a single-family vacation home on the land he purchased in 2002.
When Jaeckel purchased the land, zoning allowed for construction 10 feet back from a wetland boundary. The lot was rezoned in 2006, then requiring a 35-foot setback from the wetland. Most other properties in the area were built prior to the change in zoning. The rezoning would force Jaeckel to build a 10×15 square foot home without the variance, making it essentially unbuildable.
Jaeckel hired a civil engineer to draft a stormwater runoff plan, which included the installation of rain gardens. Rain gardens are used to catch water runoff so that it does not flow into the wetlands or other properties at lower elevation.
“When Gibraltar rezoned quite a large portion of the township back in 2006, they published a notice in the paper but they did not send a notice to the property owners,” said Attorney Smith.
“He missed the fact that it was changed from a 10-foot to 35-foot variance so he’s claiming ignorance,” said Sikora. “He should have done due diligence back in 2002 and got his building permit then.”
In order to receive a variance, a property owner must prove that the zoning regulations unreasonably deny the owner use of their own property.
The Gibraltar Commission did feel that the wetland setback restrictions placed an unreasonable hardship on Jaeckel since the zoning changed after he purchased the property. Yet the commission found protection of the wetland to be more important and recommended to deny the petition with one commission member opposed. That recommendation went to the Gibraltar Town Board.
At the Gibraltar Town Board meeting on March 2, board members recommended the Board of Adjustments deny the petition on a 3-2 vote.
The Door County Board of Adjustments heard the petition for variance at their April 28 meeting. Forty-seven letters and emails were submitted in opposition.
The board granted the petition on a 3-2 vote. Board members cited an unreasonable hardship on the property owner in their approval.
“Quite frankly, the people on the Board of Adjustments are better trained to make those decisions, because of the legal standards that have to be discussed, than the town commission,” said Smith.
But residents are still surprised at the contrasting decisions.
“I’m baffled by the whole thing. What’s the point of having this big preservation plan in place if it’s not going to be adhered to?” said Sikora.
An appeal process would go through the circuit court and, according to Smith, the decision is rarely overturned unless there is a major fault in the procedures of the Board of Adjustments.