A vote to allow a kitchen in a Chain O’ Lakes cottage has resulted in litigation.
On June 12, the Waupaca County Board of Adjustment voted 3-2 to grant a zoning variance to Archie and Margaret Overby.
The Overbys petitioned the board to modify a condition of a 1984 variance that restricted them from installing a kitchen in a second cottage located on the parcel.
On July 11, Waupaca County and Ryan Brown, the county zoning director, filed a lawsuit against the Board of Adjustment.
The suit seeks to overturn the board’s decision and deny the variance.
“I feel it is important to protect the integrity of the ordinance,” Brown told the Waupaca County Post. “We do not allow human habitation in accessory structures.”
“It made no sense any more to impose that restriction and that’s why we asked them to lift it,” according to Tom Maroney, the Overbys attorney.
A cottage without a kitchen
The parcel in question is located on Miner Lake in Dayton. There are two cottages on the parcel, which is under one acre in size and has about 95 feet of water frontage.
In 1984, Gerhard Geiger and James Mauel jointly owned the property and their families used the cottages. Because the parcel was zoned single-family residential, the second cottage was a nonconforming structure. In order to improve the second cottage, they had to apply for a variance.
In its 1984 decision granting a variance, the Board of Adjustment noted, “This cottage must never be sold off separately as a separate dwelling unit, it is to be considered a guest house without kitchen facilities.”
The variance specifically prohibited kitchen facilities in the structure.
In June 2001, Richard and Sylvia Thoe purchased the property.
Maroney said that when the Thoes purchased the property, the two cottages had been divided into three rental units.
“The Thoes were not told of the restriction on a full kitchen,” Maroney said.
While the Thoes owned the two cottages, the Waupaca County sanitarian, Don Wick, inspected the three units each year. He even made suggestions for improving the premises, including a suggestion to replace a hot plate with a cook top burner in the second cottage.
The Thoes advertised that they had three units with full kitchens. The two cottages have separate street addresses and were assessed sewer fees for three units. Tax assessment property records indicate the second cottage has a kitchen.
The Thoes also worked with the Zoning Department on a rip-rap project along the property’s shoreline in 2002.
Maroney said there are no records of the no-kitchen restriction with the county register of deeds office.
“From 1987 to 2013, Waupaca County did not enforce this restriction,” Maroney said. “Waupaca County knew there were kitchen facilities in the cottage. They did nothing.”
The Overbys purchased the property in May 2010.
They paid $11,688 in real estate taxes on the property in 2013.
A matter of enforcement
In the summer of 2013, the Waupaca County Zoning Department received an anonymous phone call complaining about the number of rental units on the Overbys property.
Jeff Henneman, a county zoning enforcement officer, contacted the Overbys. At that time, the county first informed the Overbys of the no-kitchen restriction.
“The second cottage is not meant to be a dwelling unit,” Brown said. “The kitchen is what creates a dwelling unit.”
“When I became aware of this decision, I told the manager of this property, Ben Lyons, to pull out the stove,” Maroney said.
On Jan. 20, Maroney filed a petition for a variance with the Waupaca County Board of Adjustment.
The petition noted that the owners, working with Henneman, had agreed to reduce the number of rental units from three to two.
Maroney argued that removing the no-kitchen restriction would not harm the public interest and was causing unnecessary hardship on the owners.
“Unnecessary restrictions on kitchen facilities will negatively impact vacationers from renting the applicants’ property and reduce the property’s market value,” Maroney wrote in the petition.
Maroney said there are no other cottages on the Chain with the same restriction.
“The limitation on applicants’ guest house, which does not apply to any other property owner on the Chain, puts applicants at a distinct market disadvantage,” Maroney said.
The Board of Adjustment agreed with Maroney’s assessment of the situation, noting in its findings of fact that vacation rentals were a common practice in the Chain O’ Lakes area.
The board also said that an unnecessary hardship was placed on the present owners since they did not know the conditions of the original variance.
The board granted the variance with the condition that the lot must never be split and must remain one parcel. That condition must also be recorded with the register of deeds office.
Brown said his office is responsible for enforcing the county’s zoning ordinances, which includes a restriction on the number of dwellings allowed on a single, residential parcel.
He said his office sends out multiple letters to property owners when they have converted secondary structures into additional living space, either for relatives or to rent.
“It’s an ongoing, enforcement problem for us, especially on the Chain,” Brown said. “It’s an illegal human habitation that’s a source of extra income.”