The Purpose of this Report

This is the second in a series of research reports discussing Governor Thompson's political control over the Wisconsin Department of Natural Resources (DNR).

The Governor has now appointed all seven of the citizen members of the Natural Resources Board which sets policy for the DNR.  In the 1995 state Biennial Budget decision, the Governor also made the DNR Secretary a political appointment of the Governor, making the DNR the subject of serious political influence.

In the same Budget, the Governor eliminated the Wisconsin Public Intervenor Office, which advocated for public rights in natural resources and served as watchdog over the DNR and other government agencies.  Subsequent to the Governor gaining this control in 1995, many negative changes have occurred in the DNR.

Each report in this series will explore a specific example of these negative changes.

Project Members

Citizens for a Better Environment, Clean Water Action Council, ECCOLA (Environmentally Concerned Citizens of the Lakeland Area), Northern Thunder,  Sierra Club - John Muir Chapter, Wisconsin's Environmental Decade.  Brown County Conservation Alliance, Door Property Owners, Twin City Rod & Gun Club, Wisconsin B.A.S.S. Federation, Wisconsin Wildlife Federation, Wolf Watershed Alliance.

Report #2 was written by, Joshua Simenstad of  Wisconsin's Environmental Decade, 122 State Street, Suite 200, Madison, WI  53703.  Mr. Simenstad can be reached at 608-251-7020.
 

This report analyzes the case of "The Harry House" in Brown County and the sudden reversal of DNR's shoreland zoning enforcement.  From a state-wide perspective, this DNR transgression by itself has little impact, unlike the Fox River PCBs described in Report No. 1.  Nonetheless, the performance of the DNR is similar.

Instead of making a fair decision based on the law and sound science, the highest powers within the DNR circumvented proper procedures on the basis of political pressure.  Thus, a double standard exists within this administration:  if you have money and influence, you are excused from standards applied to everyone else.
 

Introduction

The Brown County Board of Adjustment recently granted a variance from its 75-foot shoreland setback requirement, authorizing construction of a 10,000-square-foot home on a large waterfront property owned by John and Anne Harry in the town of Suamico.  The property borders Green Bay on one side and on another is separated from a navigable lagoon by a narrow strip of property not owned by the Harry's.

The Harry's property is subject to the 75-foot setback requirements established under sec.22.14(2)(a) of the Brown County Shoreland Zoning Ordinance.  The proposed design is non-conforming because one wing of the residence would extend to approximately 50 feet from the ordinary high water mark of the lagoon rather than the 75 feet required by the ordinance.(1)

The variance permits construction 50 feet from the high water mark of the lagoon, which is connected to Green Bay.  This is a clear violation of both the Brown County Shoreland Zoning Ordinance, and the DNR's responsibilities under state laws.  DNR staff at first opposed the variance but after a visit to the site by Secretary George Meyer and intervention by Assembly Representative John Gard of Peshtigo, the Department of Justice (DOJ) dropped the case.  DNR staff have indicated that this was a clear case of the law not being enforced due to political influence at the DNR.
 

Timeline
 

• March 4, 1997 --- John and Anne Harry apply for land-use permit to Brown County and it is denied.(1)

• May 12, 1997 --- The Harry's appeal the County's denial of their land-use permit to the Brown County Board of Adjustment and are granted a variance to reduce the setback from Green Bay to 50 feet, instead of 75 feet.(1)

• May 16, 1997 --- Michael Russo, DNR Waste Management Specialist, opposes the variance granted.  He writes a letter to the Brown County Board of Adjustment asking them to reconsider their decision.  He states that legally the board should deny the variance as well as the Harry's request, as it is a clear violation of the law.(2)

• June 9, 1997 --- Following DNR's referral of the case for enforcement, the Wisconsin Department of Justice (DOJ) files papers to initiate legal action in Circuit Court Branch 2 in Brown County --- State of Wisconsin vs. Brown Co. Board of Adjustment,  Case 97-CV-768.

• Oct. 10, 1997 --- Assembly Representative  John Gard makes a call to DNR attorney Linda Meyer, stating that he wants the DOJ to drop the case.(3)

• Jan. 21, 1998 --- Secretary George Meyer sends out an email to selected DNR staff stating that he talked with Rep. Gard regarding the Harry House and that the DNR would not withdraw opposition to the variance granted by the Brown County Board of Adjustment.(4)

• Jan. 28, 1998 --- Rep. John Gard sends a letter to Secretary Meyer stating his stance in support of John and Anne Harry's request of a variance and their home proposal on Green Bay.(5)

• Feb. 6, 1998 --- DNR Attorney Linda Meyer sends an email to Secretary Meyer responding to the inaccuracies of Rep. Gard's earlier letter.(3)

• March 17,1998 --- Secretary Meyer visits the Harry House site personally.

• March 19, 1998 --- Secretary Meyer sends a letter to Attorney General, James Doyle requesting that the state take no further action in the case.(6)

• April, 1998 --- Case dismissed.

• June, 1998 --- Gov. Thompson proclaims June 28 through July 4, 1998 as Lakes Awareness Week in which he calls attention to the value of Wisconsin's shorelands and the need to protect them.

Discussion

The County denied the Harry's original land-use permit application because the proposed house encroached upon the 75-foot setback established under both local ordinances and state DNR codes.  The Harry's then appealed to the Brown County Board of Adjustment.

Following a hearing on May 12, 1997, the board approved the variance "based on two adjacent property owners supporting the project and nobody objecting."  (May 12, 1997 Board Minutes)

The DNR subsequently requested that the board reconsider the variance decision due to the absence of unnecessary hardship, the Harry's ability to otherwise make reasonable use of the property through minor design modifications and an absence of uniqueness (Russo letter, May 16,1997).

When the board met again to reconsider, the DNR presented evidence that the Harry's proposal was in violation of the law and did not meet the statutory requirements of unnecessary hardship, uniqueness and public interest necessary for a variance.

DNR staff testified that the Harry's could easily alter their building design so it would not violate the Brown County Shoreland Zoning laws by making minor changes, such as rotating the house or moving the garage.  The DNR also presented aerial photographs and the original government survey which demonstrated that the lagoon was naturally part of the bay and the area had actually been filled during development, not created by excavation, as claimed by the Harry's.

At the conclusion of the hearing, the Board took a short recess, and unanimously reaffirmed its earlier decision to grant the variance.

The DNR then referred the case to the State of Wisconsin Department of Justice for enforcement, and DOJ then filed suit against the Brown County Board of Adjustment as well as John and Anne Harry.  It was the position of the DOJ that the board's decision conflicted with the county ordinance and applicable statutory and case law and was unsupported by the factual record before it.

Because the Harry's failed to meet their burden of proof regarding the existence of the basic prerequisites for a variance, the Brown County Board of Adjustment's decision should have been reversed,(1) but it was not.  On the contrary, the case was dismissed shortly after the state took it on.  The question is why?

The following sections of this report discuss why and other key details:

Political Involvement
Why Protect Shorelands and Shoreland Facts
Conclusion and Recommendations
Methods and References