HomeMy WebLinkAbout04.12.2023 MinutesBoard of Appeals Minutes 1 April 12, 2023
BOARD OF APPEALS MINUTES
April 12, 2023
PRESENT: Kathryn Larson, Barbara Schmitz, Dan Carpenter, Jeff Armstrong
EXCUSED: Anna Lautenbach
STAFF: Todd Muehrer, Zoning Administrator; Rachel Anderson, Recording Office Assistant
Dan Carpenter was appointed as temporary Chair for the meeting. Temporary Chairperson Carpenter
called the meeting to order at 3:30 p.m. Roll call was taken and a quorum declared present.
The minutes of November 9, 2022 were approved as presented. (Larson /Schmitz)
ITEM I: 955; 975; 1005; 1015; 1025; 1035; & 1045 John Moore Drive
Sarah & Adam Nelson-applicant/Various-owners, request a variance to permit rear yard fencing to exceed
the maximum height standard in the SR-5 District:
Description Code Section Reference Max Proposed
Max Rear Yard Fence Height 30-192(F)(1)(a)(ii) 6’ 8’
The subject seven properties are zoned Single Family Residential-5 (SR-5) and being used for single-family
residential purposes. They are rectangular in shape and located on the west side of John Moore Drive.
Adjacent land uses include single-family residential in all directions.
Mr. Muehrer presented the item. The subject properties were developed in 2008 and 2009 as part of the 2nd
Addition to Pheasant Creek Farm Residential Subdivision. At that time the westerly adjacent ten acres was
undeveloped farm land. That parcel has since been developed by Evergreen Retirement Community (ages
55+) as the Linden Oak Pocket Neighborhood in 2021. The retirement site contains 41 single family
residential units, community center, and private road/access drive. The Evergreen Retirement
development’s easternmost edge abuts the subject parcels rear yards and is nearly three to five feet higher
in this vicinity according to the approved grading and drainage plan. Subsequently, the rear yards of the
affected subject properties are now increasingly visible from the retirement community and the fence height
variance is being requested for increased privacy (see attached photos).
The properties possess unique physical circumstances and the hardship is being caused by a situation outside of the
applicants’ control. Specifically, once the adjacent retirement development’s grading and drainage plan was
approved the subject property’s ability to obtain privacy while complying with zoning ordinance maximum
fence height standards was compromised due to the significant grade change. While the development has
installed evergreen trees in this location it will take time for them to mature and create a solid buffer. If the
variance request was denied and the properties could only install six-foot-high fencing along the west rear
yard location this would be unnecessarily burdensome as the they would continue to be subject to the elevated
improvements located to the west. Granting the variance will not create any harm to the public interest as the
height and aesthetics will be uniformly applied to the west lot line of the subdivision. Finally, standard
Board of Appeals Minutes 2 April 12, 2023
encroachment agreements between the city and each property owner will be necessary as the fencing will
be located in a public drainage easement servicing the subdivision.
Based on the information provided within this report, approval of the variance is recommended with the
following conditions:
1. The variance shall only apply to the west lot line.
2. Solid white vinyl or solid cedar fencing shall be used by all seven properties to create a uniform
west border.
3. Prior to installation of fencing each property owner shall obtain an encroachment agreement from
the Department of Public Works for placement within the drainage easement.
No site inspections were reported by any of the board members.
Sarah Nelson 1005 John Moore Drive stated the applicants are looking to have more privacy in their back
yard because of constant traffic. There is a road 9 feet from back yards and they can’t enjoy them. Dogs are
constantly barking kids are playing next to the cars going by, and lights from the cars driving by. With the
road being 4 feet higher than their properties if they were going to put in a standard 6-foot fence it wouldn’t
give them much actual privacy or protection. If the variance is not approved nothing could be done to
improve our quality of life at this point.
Zachary Fritschel 975 John Moore Drive said with the added road, his house is on the curve of it and at
night they have to keep black out curtains closed all the time otherwise they get headlights coming in
through our backyard which disrupts their evenings. And if that happens during the day, they have to keep
them closed because people just look in to the sliding glass doors into our house into our kitchen where
they are enjoying lunch or breakfast. They see people walking and waving at them constantly and really
lost all privacy right now.
Barbara Schmitz asked if the 8-foot fence will be high enough to give them the privacy they want.
Zachary Fritschel replied yes, they tested it out with a make shift 8-foot plank in the backyard to make sure
as you walked by it covered up a lot of what they were hoping. When they looked at 6 feet you were still
able to look right down at our property. With the 8 feet tall fence it would give them what we are looking
for.
Jeff Armstrong asked have they had any discussion with the property owners on the end.
Zachary Fritschel replied yes, we have met with them numerous of times and they said they would not do a
fence at all on their property line. All they are willing to do is plant trees and arborvitaes but right now the
size they planted is just not giving them any sense of privacy and there are gaps in-between the arborvitaes
they planted.
Jeff Armstrong asked if they are averse to a fence or are they not willing to pay for a fence.
Zachary Fritschel answered they want it to be a natural looking community and a fence would not do that
on their property.
Board of Appeals Minutes 3 April 12, 2023
Sara Nelson said they want it to be green.
Betsy Wandtke 1025 John Moore Drive said the street comes right into her backyard. Unfortunately for her
when the cars come straight down that road headlights are in her back bedroom, in the kitchen, and dining
room. The 8-foot fence would make a huge difference and the neighborhood has gotten together and they
decided that they would do it consecutively all the way along and there are other neighbors that could not
be here with them today that are right along with them. She stated they are not doing this out of anger they
are doing this out of they really want to protect their families and getting privacy back.
Barbara Schmitz asked if the person on the end as you enter John Moore Drive chose not to be part of this.
Sarah Nelson answered that house is protected by trees and the road does not affect them.
Sandy Zielicke 1035 John Moore Drive said there is no privacy whatsoever. She would like to have the
freedom to relax back there and not have everybody watching them the whole time. They have two roads
so they have to worry about both sides of the house. Same with the lights too as her bedroom is in the back
of the house so the lights all come in the windows and has to double shade in order for the lights not to
come in.
Barbara Schmitz asked if the back lot line has a drainage easement and is this fence going to be put in the
easement or on the edge of the easement.
Sarah Nelson answered the easement is on our property and this is on the property line.
Elaine Wickersham 1020 John Moore Drive said they are all worried about all the little kids and anything
else that could happen with strangers walking into your backyard. A road in the front and a road in the
back just destroys what your home is suppose to be. Your backyard is where you tell your kids to play
because you did not want them in the front by the road. Our main concern is to keep everyone safe and as
you said they spoke to the other people. They want safety for their kids and some privacy in their own
homes.
Kathryn Larson asked if the road got put up that high because it was partial wetlands.
Todd Muehrer answered yes, they were several factors including grading and drainage plan approvals.
Jeff Armstrong asked the city is in favor of approving this.
Todd Muehrer said yes, the City Manager was out there as well as our Community Development Director
has been out there and everybody is in agreement that there needs to be some additional steps.
Motion approved with conditions as stated (Armstrong/Schmitz) 4-0
Findings of facts: This hardship is being caused by a situation outside of the applicants control and it was
compromised due to the significant grade change. Granting the variance will not create any harm to the public as the
Board of Appeals Minutes 4 April 12, 2023
height and aesthetics will be uniformly applied to the west lot line and approval of the variance will ensure the same
property rights other owners enjoy by having a fence that offers privacy.
ITEM II: 322 COURT STREET
Tim Nuebauer, owner, is requesting variances to the City’s Building Code. Per Oshkosh Building Code
Section 7-33, persons may file an appeal to the Board of Zoning Appeals as provided in the City Zoning
Ordinance, Section 30-6(B)(2)(a) if an equally good or better form of construction is proposed. All appeals
shall be accompanied by supporting data.
The applicant, Mr. Nuebauer, has applied to convert an existing commercial building into a single-family
home. This work has already commenced without permits or inspections but the need for the variance came
up at the plan review stage for the new single-family home.
The owner has submitted an application requesting the below variances to the following code sections:
1) SPS 321.04(2) Stairway width. Stairways shall be at least 36” in width.
2) SPS 321.04(4) Landings. Landings shall be at least 3’ x 3’ at the top and bottom of stairways. (This
variance is not required if the stairway width variance is approved. The owner stated that the landing
depth is 36” so the landing would be 34”x36”.)
3) SPS 321.04(2)(c)3. Winder Treads. Winder treads are required to be a minimum of tread depth of 9”
when measured at a distance of 12” from the narrow end of the tread or from the inside face of the wall.
(The owner emailed our office after he had submitted the variance request as I asked for additional
information. The owner stated that tread depth is 10” as it was not shown on the plan submitted. If the
depth of the treads are 10” measured 12” from the narrow end the variance is not required.)
4) SPS 384.20(5)(o)4. Toilet Clearance. A minimum of 15” is required from the center of the toilet to
the pedestal sink or vanity. (This variance is not required as the owner has submitted photos after the
variance was submitted and the measurement to the sink complies with minimum requirements).
The City of Oshkosh adopts the State of Wisconsin Uniform Dwelling Code to apply to all single- and
two-family housing in the City. This code applies to all new 1&2 Family Dwellings built since June 1,
1980. This structure would be considered a new single family as it is a change of use from the commercial
building code to the residential building code.
VARIANCE REQUEST
Allow for the creation of living space within an existing unfinished basement area where the existing
stairway to the basement is 28” wide. Whereas Oshkosh Municipal Code Section 7-34(B)(2) adopting
the State Uniform Dwelling Code Section COMM 21.04 requires a minimum width of 36” for stairway. The
applicant is requesting to be allowed to construct a bedroom and bathroom within an existing unfinished
basement area where the stairway width does not meet the minimum code requirements. The current use
as an unfinished basement area is different from finished living space, as once this area is finished it is
likely to be occupied on a regular basis. A bedroom will also be slept in where as in its current state it is
only used for cold storage and mechanicals.
The code as written is intended to allow for persons to safely exit an occupied area. This is especially
important in the event of an emergency such as in the case of a fire or if someone needs medical assistance.
Board of Appeals Minutes 5 April 12, 2023
When reviewing this variance request you must assess what measures the applicant has proposed to offset
the safety issues addressed by the code. In short, what will be done to make this stairway that is less than
the required 36” in width, equally or more safe than what the code required?
Mr. Neubauer, states the existing stairway to the basement bedroom and bathroom is code compliant
other than the stairway width. He also emailed that the basement wall along the stairway cannot be easily
moved as it’s a bearing wall. Typically there are options for moving bearing walls or relocating stairways
but other proposals were not offered in the variance application.
The reduced width from the stairway would be a potential hindrance for moving objects through the stairs,
for emergency exiting, and if medical assistance was required. The basement finished room does have
compliant egress windows which would provide another exit in an emergency situation.
The Uniform Dwelling Code applies to all homes built since June 1, 1980. The City of Oshkosh adopts this
code with some exceptions to apply to existing housing stock to maintain a level of consistency throughout
the City. In this case the City has adopted an exception to the stairway width requirement for pre 1980
homes where the stairways are existing and already serve habitable areas. The City of Oshkosh municipal
code 7-34(f) allows the stairway width to be reduced from 36” to 30” for these existing habitable
living spaces and basements. In this case the proposal is not for existing area and is less than the reduction
allowed.
RECOMMENDATION
Based upon this information, this office recommends approval of the variance request with the
following conditions:
1. The installation of an interconnected smoke detection system meeting the present-day code
requirements for new construction will be installed in the home. This is required due to the change of
use to a new single-family home.
2. The basement bathroom would be allowed to remain.
3. The basement bedroom would need to be labeled on the plans as finished storage area. This room
could not be utilized as a bedroom since the stairway does not meet the minimum building code
requirements for egress.
Tim Neubauer 322 Court Street said he noticed that it said the basement was unfinished but it was finished
when he purchased the property. So it was used before as a commercial space. It was already finished just
like the bathroom was finished and the hallway was finished. The existing area was already done they just
turned it into a bedroom. It meets all the egress requirements the only thing that obviously it doesn’t meet is
the stairs. After the first level there is a mid-level which is basically down the stairs and then it goes to the
addition they did and it goes down the stairs. He can’t move that wall over because there wouldn’t be
enough head room because you would run into the flooring of the first floor. That’s why it can’t be moved.
He would like it to be considered a bedroom, because that will obliviously affect re-sale. It’s a very unique
property if you ever seen it, it actually looks like a house. A former doctor built the place for his practice
and then later on was just some other commercial properties. It literally looks like a house; it fits a single-
family home footprint.
Kathryn Larson asked is there a re-zoning now to make it a two bedroom.
Board of Appeals Minutes 6 April 12, 2023
Tim Neubauer replied yes, he already rezoned it.
Jeff Armstrong asked was the egress put in by the applicant or was that done prior to the applicant owning
the property.
Tim Neubauer replied they were already there he just put in new windows.
Kathryn Larson said she is confused about why if they are going to give a variance for the stairway, if it has
the egress window, why can’t they consider it a bedroom.
Nicole Krahn answered per the state building code, this was never a single-family house. State building
code requires a 36-inch width for the stairway. The city for any homes that prior to 1980 for any of any our
old housing stock the city then reduces that down to 30. So instead of 36 you can have 30 but then it’s hard
now you want 28 so that’s why they recommend approval but without it being a bedroom, cause you’re
going to have people sleeping down there technically they shouldn’t be having habitable space down there if
it’s less than the 30 inches.
Jeff Armstrong asked is that true with an egress well. He has seen this with an egress well that it makes it
different. You can get out with an egress in an emergency situation that’s the whole purpose.
Nicole Krahn said she does not know the entire reasoning behind it. Some of it is due to emergency crews
getting people up stairways.
Jeff Armstrong said if they approve conditions that it can’t be used as a bedroom how is that enforced.
Nicole Krahn answered it’s not, unless they go to sell the home.
Jeff Armstrong replied so the value of the home may be less due to the fact it’s not considered a bedroom.
Nicole Krahn said the assessor’s department would show that it’s not a bedroom and if something it
happened then it would show that it wasn’t a bedroom.
Jeff Armstrong replied if the owner is currently assessed as a two-bedroom because that’s the type of
bedroom is he able to go back to the city and get that changed.
Nicole Krahn asked Mr. Neubauer if he has two-bedrooms.
Tim Neubauer replied no it is so the basement is a bedroom one.
Nicole Krahn said isn’t that front bedroom when I walked through, are you not using it as a bedroom.
Tim Neubauer replied they have seven children so all the girls got one bedroom and the boys got one
bedroom. They are in our bed just in the living room right now until they finish the home next door they
don’t have a bedroom technically there’s only two including the basement one. If this is denied they would
be down to a one bedroom then according the assessor’s which I just got paperwork saying I got reassessed
it went up a little bit which is fine.
Board of Appeals Minutes 7 April 12, 2023
Nicole Krahn said they probably went off the plans that are not approved yet and were waiting for this
variance to go through before they can issue a building permit for the project.
Tim Neubauer asked can this committee approve or make changes to that.
Dan Carpenter said not now the board already had made a motion to go through that.
Tim Neubauer replied that’s why he brought it up.
Kathryn Larson said she still has problems with the recommendation that it not be labeled. If they are
granting a variance to for it to be something she doesn’t know how state code can deny the right to allow a
stairway that’s going to a particular bedroom. She questioned what would happen if they would just approve
the first two recommendations.
Nicole Krahn replied then the board would be allowing it.
Kathryn Larson said they allow him to mortgage it, sell it as a two bedroom.
Nicole Krahn said if you don’t apply the third recommendation then it is just allowed. Then you’re
allowing somebody to reduce the stairway width even more from 30 to 28. Number 3 says that it is allowed
but it can only be finished storage area. Storage area is different from habitable area.
Kathryn Larson said they’re retrofitting that very old structure with one bedroom which is when it has the
room and the egress windows down in the lower level. I watch Chicago Fire they get people in and out of
those windows very easily. I don’t know why we have to include number three.
Dan Carpenter asked do you want to amend your motion.
Kathryn Larson answered she will yes.
Dan Carpenter replied okay.
Kathryn Larson said she recommend we approve the smoke system as recommended and the basement
bathroom be allowed to remain.
Dan Carpenter asked for a second.
Jeff Armstrong seconded.
Barbara Schmitz said if we eliminate three, you’re saying that he cannot have a bedroom there, right.
Kathryn Larson said he will have a bedroom there.
Barbara Schmitz replied he will have a bedroom there. Is there a case scenario where this could become an
issue in the future because we allowed the 28-width stair instead of the 30. Is it going to come back to bite
us at some point.
Jeff Armstrong questioned for this particular property or this in general and in other situations.
Board of Appeals Minutes 8 April 12, 2023
Barbara Schmitz said in other situations if there will be a similar situation and we said we allowed this for
this property then are we opening the board up for allowing it for future situations.
Kathryn Larson said granting a variance does not mean that we’re going to set a precedent.
Barbara Schmitz responded okay that’s my question.
Dan Carpenter asked who seconded the motion.
Jeff Armstrong answered he did.
Dan Carpenter said and it’s okay with you.
Jeff Armstrong said yes.
Dan Carpenter replied the motion has been amended and seconded.
Barbara Schmitz said she still has concerns about what does the state have any say in this now. Are they
doing something that the state is going to come back on him for having an illegal stairway going down to a
bedroom.
Nicole Krahn said the state sets the codes and then you as the board can override that. So, it would be back
on the board.
Kathryn Larson said she thinks she is going to stick with the approval with the two recommendations and
dropping the third one.
Jeff Armstrong said he thinks what Dan said earlier about the previous case about they look at very unique
situations this is very unique situation. Chances of someone coming back with this exact scenario is very
remote. But it’s also going to be specific to that situation. They don’t have to say yes, you are good
because they approved for the other guys. And the fact that they’ve already made it a two-bedroom house
and now were saying but it can’t be two-bedrooms is a little ironic. The thing that I’m comfortable doing it
is that there’s two egresses if he has his children down there and there’s an issue and he’s going to have the
correct smoke alarms.
Tim Neubauer replied the smoke detectors are already installed and taken care of.
Jeff Armstrong said obviously the applicant loves his children and he doesn’t want to put his children in
danger. With two egresses that’s plenty of emergency escape hatches.
Tim Neubauer replied right now the bunk beds are right below each window so literally its up the bunk
beds, right out because the bunk beds are level with the windows so it’s such an easy out if that ever
happened. They’ve already done drills with the kids already so they understand what to do, they are old
enough.
Motion approved with conditions as amended (Larson/Schmitz) 4-0
Board of Appeals Minutes 9 April 12, 2023
There being no further business, the meeting adjourned at 4:48 p.m. (Larson/Schmitz).
Respectfully submitted,
Todd Muehrer
Zoning Administrator