Oconto County family takes fight to preserve memorial waterfall to court

An Oconto County family filed a court appeal Wednesday in an effort to save a personal memorial waterfall they built at a cottage in the Town of Townsend.

The construction, which David and Lori Magnin of Oconto Falls, along with their son, Collin, dubbed Trisha Ruth Falls, pumps water from Reservoir Pond, and flows it back down over a series of rocks along the sloping shoreline into the 409-acre body of water connected to McCaslin Brook.

The family constructed the waterfall, which is about 7 feet wide and extends about 20 feet back from the shoreline, as a remembrance of their daughter and sister, Trisha Magnin-Stolpa of Green Bay, who died unexpectedly on Feb. 3, 2021, following a decade-long battle with alcohol addiction, according to her obituary.

The project at 17559 Mallard Lane was a labor of love in which Collin said he and his dad put in more than 100 hours of lifting and moving heavy rocks to create something that would memorialize his sister for many years to come.

However, this past summer, both the Oconto County Planning, Zoning and Solid Waste Department and the Wisconsin Department of Natural Resources said it violates their statutes and needs to be dismantled.

The Magnins appealed the county's order, but the Board of Adjustments unanimously denied a variance request to alter the 75-foot setback to just 6 inches from the ordinary high watermark on Dec. 27 after an 80-minute hearing.

The court appeal is an attempt to get a judge to allow the county to reconsider its order.

"We’re hoping if we go back to the DNR and come up with a solution that works for them, we’re hoping in that situation we can go back to the table (with county officials) and discuss things again with that information," Collin said. "We’re hoping we can arrive at a better solution."

What needs to be done to satisfy the DNR?

The DNR says in order for the structure to be in compliance, the portion that is below the ordinary high watermark needs to be removed. This would include the stone wall, the splash pad and the water intake.

Collin said the family does have "a modification in mind that we can make that would significantly bring it up above their high watermark" by up to 15 feet. It would incorporate a retention pond below the middle falls and recycle the water independently from the reservoir.

Creating time for any adjustments to be made, though, is part of the headaches, Collin said.

"We didn’t hire anyone, we didn’t hire a landscaper to do this," he said. "I did most of the work myself and I did it at a time when I was actually in between when I was finishing grad school and applying for jobs. I was home. The resource of time was plentiful in my case, and now I live in California. It’s just not possible."

Other factors include the frozen ground hampering work from happening now, then the state has in-water work restrictions from March 1 through June 15 to minimize impacts on fish movement, spawning, and egg incubation.

What is ordinary high watermark?

Wisconsin statutes define the ordinary high watermark as "the point on the bank or shore up to which the presence and action of water is so continuous as to leave a distinct mark either by erosion, destruction of terrestrial vegetation or other easily recognized characteristic."

The waterfall memorial has been in place for two years and the water in the Reservoir Pond has never been higher than the constructed falls, Collin said, arguing that makes the ordinary high watermark a little subjective.

"According to the Wisconsin DNR definition, the ordinary high watermark is determined by characteristic of the shoreline, such as vegetation and actual residue marks, and because the body of water that we are on is actually a reservoir from a dam, the fluctuation for the ordinary high watermark is a lot less because the water height is controlled," he said.

The DNR's deadline for the Magnins to be compliant is on hold for now. They reached an agreement to wait until the Magnins exhaust the variance process as long as they shut off the waterflow on the waterfall.

Erin Carviou, a water management specialist with the DNR, said the reason was to allow one final design that meets both the county ordinance and state statute requirements without having to disturb the bank or nearshore area more than once.

What happened during the appeals hearing?

Collin said he is hopeful if a design solution can be reached with the DNR, then the county would be more amenable on its 75-foot setback rule. The cottage itself is only 35 feet off the shoreline, he said.

The DNR has jurisdiction on the areas below the ordinary high watermark, while the county is focused on the area above the high watermark.

Dave Behrend, a member of the Board of Adjustment, suggested during the board's deliberation that its decision be postponed until after the DNR's enforcement actions are finished, however without additional support from his fellow board he subsequently rescinded his motion.

Berend, Dave Christianson, Carol Heise, Elmer Ragen and Alan Sleeter then proceeded to vote to deny the variance request.

"For a while, a couple members were talking about tabling the matter until a later date because they felt that it could use more nuance and they needed more information regarding the DNR, but then they quickly made a second motion to deny it and they did," Collin said. "So we feel there is reason to go back and hopefully look at it another time."

About 40 people attended the hearing, with around 10 people speaking in favor of the structure, while one person was opposed, citing a lack of conditions to grant a variance, and that it would set a precedence that could affect previously denied projects and degrade lake quality. Correspondence from staff and the DNR also was read opposing the approval.

"It seemed very disappointing in that most of the people on board seemed to have their mind made up before we even got there, and it just kind was like a waste of the community’s money and time, too," Collin said.

The fight continues

Collin said it has been difficult emotionally the past seven months as the effort to reverse the rulings have continued.

"It puts you in a situation where it's just complete dread and it takes over your life, and we’re hoping that if nothing else it highlights some of these issues and we hope that in the future that the department can act with a little more nuance and more empathy when handling these situations," Collin said.

"Because Oconto County is obviously a small community and it just seems tragic that they’re acting with such coldness. And the county is pretty small and they have to live here … and it seems weird that they don’t want to act neighborly."

If the effort to keep the memorial waterfall doesn't succeed, then the family will come up with another way to honor their daughter and sister, he said.

"But right now we are focused on memorializing her life to this fight," he said. "This is what we are focused on right now."

Contact Kevin Dittman at 920-431-8416 or kdittman@gannett.com.

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This article originally appeared on Green Bay Press-Gazette: Oconto Falls family takes fight to keep memorial waterfall to court