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HomeMy WebLinkAbout11-09-2022 BOA MinutesBoard of Appeals Minutes 1 November 9th, 2022 BOARD OF APPEALS MINUTES November 9, 2022 PRESENT: Robert Krasniewski, Kathryn Larson, Wesley Kottke, Barbara Schmitz, Anna Lautenbach, Jeff Armstrong EXCUSED: Dan Carpenter STAFF: Todd Muehrer, Zoning Administrator; Rachel Anderson, Recording Secretary Chairperson Krasniewski called the meeting to order at 3:30 p.m. Roll call was taken and a quorum declared present. The minutes of October 12, 2022 were approved as presented. (Larson /Armstrong) ITEM I: 619 W New York Avenue Mark A. Madison-applicant/owner, requests a dimensional variance from the City of Oshkosh Zoning Ordinance to permit a detached garage less than 5’ from a principal residential dwelling: Description Code Reference Required Proposed Accessory structure 30-22(A)(6) 5’ or more 4’6” detached Mr. Muehrer presented the item. The subject property is .14 acre (approximately 6,120 square feet) in size and zoned Single Family Residential-5 (SR-5). It is rectangular in shape and located on the south side of W. New York Avenue between Cherry Street and Wisconsin Street. The principal structure is a two-story, farmhouse style home built in 1920. Two accessory garages are located south of the home in the rear yard. The northernmost garage is accessed via a curb cut on W. New York Avenue while the southernmost garage is accessed via an alley. Adjacent land uses include single-family residential in all directions except the north, which is Institutional (i.e. a church). Facts pertaining to the request include the following: The property owner obtained a building permit on October 5th, 2001 to raze an existing 12’x18’ garage and to construct a new 20’x20’ detached garage with new driveway access via the alley south of the home (see attached copy of permit number 0090120). In addition to razing the 12’x18’ garage the plan submitted by the owner included removal of the driveway leading to W. New York Avenue and converting the razed garage foundation to a rear yard patio. During a neighborhood review by the Assessor’s Division in April 2022 it was discovered the 12’x18’ garage was never razed and the driveway access to W. New York Avenue was never removed as required. A correction notice was issued to the property owner May 26th, 2022 advising of the need to make the necessary corrections with a compliance date of June 27th, 2022. Re-inspections occurred July 18th, 2022 (second letter issued July 20th, 2022); August 9th, 2022 (third letter issued August 16th, 2022 Board of Appeals Minutes 2 November 9th, 2022 with a $100.00 service fee); and September 13th, 2022 (fourth letter issued September 14th, 2022 with a $200.00 service fee). The property owner and the property owner’s daughter made contact with the enforcement officer September 19th and September 20th, 2022 to discuss solutions and alternatives. The property owner has elected to apply for a dimensional variance instead of making the permitted improvements and enforcement actions have been suspended until the variance application is heard. A variance is requested to permit the 12’x18’ garage to remain 4’6” away from the principal structure instead of the required 5’ or more minimum. The property owner’s daughter field verified the 4’6” distance and communicated it to the code enforcement officer September 19th, 2022 (see attached email). Since the property owner did not raze the 12’x18’ northernmost garage as required by the original building permit there is only 4’6” of distance between the principal structure and the nearest accessory structure. This violates Section 30-22(A)(6) of the current zoning ordinance. Likewise, this violated the zoning ordinance standards in 2001 under Section 30-19 (B)(4)(b)(vii) that required “any detached garage closer than 5 feet to a principal structure shall adhere to or exceed all required minimum setbacks of the principal structure”. Since the distance is less than 5’ the garages are attached dimensionally for zoning and setback purposes as defined in Section 30-22. Therefore, the house and two garages become one principal structure and do not meet the required 25’ rear yard setback (Section 30-38 (G) & Section 30-22(5) for principal structures. The image below illustrates where the required 25’ rear yard setback is (green line) versus the required 10’ rear yard setback (red line) for a code compliant detached garage in an alley yard. The application cannot be approved for the following reasons. There is nothing unique about the property. The parcel is dimensionally consistent with the other properties developed on the block and there are no easements, floodplain or other property obstacles restricting improvements. No variance is needed. The owner demonstrated with the original permit issued in 2001 that code compliance is attainable by-right. The hardship is self-imposed. The circumstances and request presented to the board have been created by the property owner’s neglect and ignorance of the law. None of these circumstances are grounds for granting a variance as the Board of Appeals Guides & Standards for a Zoning Variance clearly outlines in Article VII 1. Structural modifications and alternatives exist. There is nothing preventing the owner from making structural alterations to the 12’x18’ garage to make it code compliant. Granting the variance would result in harm to the public interest. If approved the decision would be arbitrary and set a precedent for future requests that would run contrary to the zoning ordinance’s intent to maintain a 5’ minimum distance between principal and accessory structures as required by Section 30-22(A)(6). Based on the information provided within this report and its attachments, staff recommends denial of the applicant’s request. No site inspections were done. Board of Appeals Minutes 3 November 9th, 2022 Mr. Krasniewski swore in Mr. Madison Mr. Madison stated 21 years ago he built a garage and his understanding was that he would be notified after it was erected if there were issues that did require the old garage to be taken down. He let the zoning department know that he completed the garage and was told it would be evaluated and someone would come out. Mr. Madison never saw anyone come out and presumed that it was good to go. Now 21 years later he is told otherwise and does not remember writing down the old garage was 5 feet away from the house 21 years ago. Mr. Madison stated he did not know about the 5 foot requirement until his daughter talked to someone in zoning and she went out with her tape measure and that’s when we learned it was 4’ 6”. The city had an obligation to inform him about this before and assumed after 21 years that everything was good to go. Mr. Madison stated that if he is going to be required to take down the garage and take out the driveway he has two estimates for $4,400.00. He stated 21 years ago the contractor would have charged $1,200.00. Mr. Madison repeated that someone from the city should have come and check in before 21 years. Once he found out about the violation he responded quickly. Mr. Madison called around out of curiosity to about a half dozen different cities anonymously and wondered if other cities brought permits to be held accountable 21 years later. He stated he was a public employee for 33 years and when tax time comes or crunch time comes public employees always get the short end of the stick. Mr. Madison believes he spoke to someone named Jeff 20 years ago in Planning but is really guessing on that. Mr. Kottke wanted to clarify with Mr. Madison the basis of Mr. Madison’s argument is that it’s a fairness argument, that Mr. Madison think it’s unfair. Mr. Madison replied yes. Mr. Kottke asked if Mr. Madison has any statutes or case law examples that would support the board to take into consideration. Mr. Madison replied he does not. Mr. Kottke stated Mr. Madison obtained the building permit back in 2001 and questioned Mr. Madison if he recalls did the original building permit call for the garage to be demolished or to stay on the property. Mr. Madison replied he does not remember but was told it says that the old garage had to be razed. He stated he also remembers there was going to be an inspection of the property after the new garage was built. Mr. Kottke stated based on the paperwork that Mr. Madison has seen the garage was supposed to be razed at the time of the original building permit back in 2001. Mr. Madison replied it would be if it did not meet the specifications up until September when my daughter spoke with Brandon in Planning, but Mr. Madison wasn’t there. Mr. Madison’s daughter used her tape measure because no one ever measured that distance before from the city. He does not recall measuring it when he went and applied for the original permit. All he remembers is there was going to be an inspection. Mr. Kottke stated Mr. Madison was under the belief that someone from the city was going to come and look at it and make a determination that the building would have to be razed. Board of Appeals Minutes 4 November 9th, 2022 Mr. Madison replied yes. Mr. Kottke asked Mr. Madison since the measurement never happened it is Mr. Madison’s position it shouldn’t have to happen. Mr. Madison replied that it’s my position if it happens 21 years later that there’s some responsibility on the city side as well as mine. Especially when now it will cost me over $3,000.00 more than it would of at the time. Ms. Larson questioned if the original permit confirmed the garage was to be removed. Mr. Muehrer replied yes and directed the board members to page 21 of the packet. Ms. Larson responded to Mr. Madison that he could have saved a lot of money if he had done it at the time that the permit was issued. Ms. Larson also said Mr. Madison claims to have responded quickly when he found out about the violation but the city had to send three violation notices, two of which he did not respond to. Mr. Madison responded that he spends a lot of time at his cabin out of town and had quite a bit of mail redirected out there. His daughter lives in the home and she doesn’t believe in checking the mail. All her bills are paid electronically. Mr. Madison stated sometimes the slot for the mail in his front porch is so backed up the mail can’t even get in there. This summer she took the responsibility to notify the post office to send mail to his cabin. There was a period of time when the mail was being redirected or was it being held at the post office. Mr. Madison state he never saw anything in May and when he got the mail in September that was the first he knew of the issue. Ms. Larson stated there is nothing under the ordinance or variance guidelines that would give us a reason to grant this variance. Mr. Kottke agreed and stated he does not think there is any way we can grant this variance. He stated he wants to grant it as a member of the community because it has been 21 years and wants to be able to help this individual out but a strict reading of the law which is why we’re here he does not see anything that gives this board the power to go down that path. He continued the board has an obligation to the community to look at the laws, look at what was approved and interpret. They are not a legislative body. Mr. Kottke concluded nothing presented today by Mr. Madison would be appropriate to grant a variance at this point for all the reasons laid out in the staff report. Mr. Armstrong asked why it took 21 years for this to come up. Mr. Muehrer replied, after speaking with the Inspections Division, it is his understanding when Mr. Madison applied for the permit and was granted the permit in October 2001 the property owner is responsible to call and schedule an inspection when the contractor is ready during construction. If the inspection is not called in the city does not go out and actually physically do an inspection. In this case Mr. Madison did not call for an inspection during construction and it was not inspected. He feels for Mr. Madison but from a board of appeals standpoint since it was never inspected the issue still remains. Once the city is made aware of the issue we are obligated to follow-up. Mr. Muehrer stated the first thing he asked the city attorney’s office was since this has happened 21 years ago is there anything from preventing us from following up on this from a Board of Appeals standpoint because we don’t want to waste anyone’s Board of Appeals Minutes 5 November 9th, 2022 time or money. He was advised that is not the case and we are still obligated to follow through with enforcement. Ms. Larson stated she read the house has been up for sale. Mr. Muehrer said he believes that is why the Assessor’s Division might have been reviewing the property recently. Ms. Larson said from Mr. Madison’s position anyone who is interested in buying it, once they see there is a violation on the property you could loose a sale over something like that and they would want it corrected before a purchase was made. So it’s probably good that it has been caught and can be taken care of. Mr. Muehrer said the city does its best to rectify issues or give them alternatives. Mr. Krasniewski said if the owner were to hypothetically remove one foot of the old garage with a permit the problem would be solved. Mr. Muehrer answered yes. Since the house and garage are within less than the required 5 feet a modification can be made to the rear entrance of the home or to the garage to achieve compliance. Mr. Kottke motioned to approve the variance as requested. Seconded by Ms. Larson Denied 0-6 Findings of facts: There is nothing unique about the property. The hardship presented has been self-created through the owners own neglect and ignorance of the law. Structural modifications and other alternatives are present for the owner to consider. Harm to the public interest would occur as granting the variance would be arbitrary. There being no further business, the meeting adjourned at 4:12 p.m. (Kottke/Schmitz). Respectfully submitted, Todd Muehrer Zoning Administrator