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HomeMy WebLinkAbout2007-Letter Variance Approval ,/ . OJHKOfH ON mE WAfER City of Oshkosh Dept. of Community Development Planning Services Division 215 Church Ave., PO Box 1130 Oshkosh, WI 54903-1130 (920) 236-5059 (920) 236-5053 FAX http://www.ci.oshkosh.wi.us Jackson R. Kinney Director Dept. of Community Development Darryn Burich Director Planning Services Division April 13, 2007 Ms. Maureen Sturm E6285 Pine Lane Manawa, VVI54949 Re: 1331 VVashington Avenue Dear Ms. Sturm: On April 11, 2007 the Board of Appeals approved a variance to permit the creation of an 8' high fence with aI' side yard (west) setback and a 0' rear yard setback with the following conditions: (a) A 3' side yard setback on the east side; (b) Commencement of fence to begin 19' further south where the house juts out along the driveway. The decision of the Board was filed in the Planning Services Division Office of the Department of Community Development on April 12, 2007. Per Section 30-6(C)(3) and (4) of the City of Oshkosh Zoning Ordinance, your variance will expire on October 12, 2007 unless you have started construction for the activity allowed by the variance. If you fail to begin construction by this date, you must reapply for a variance if you intend to go ahead with the activity allowed by the variance. Please be advised that any person or persons aggrieved by any decision of the Board of Appeals may commence action in Circuit Court within thirty (30) days after the filing of the decision. Permits may be issued on approval of the Board, but you should be aware that further action could take place until as much as 30 days after the date of the decision. Building permits may be applied for from the Inspection Services Division in Room 205 at the Oshkosh City Hall between 7:30 - 8:30 AM and 12:30 - 1 :30 PM, Monday through Friday, or call (920) 236-5050 for an appointment. Please bring all required building plans and information necessary for review when obtaining your building permit. . " If you have any questions, feel free to call me at (920) 236-5057. Resp~ Todd Muehrer Associate Planner/Zoning Administrator TMlkjg CC: Inspection Services Division, City Hall Lois R Roeder, 1331 Washington Ave, Oshkosh .'" ~ITl!J . -',;0W>S'~~<~'. '%..j!;;;'w~ OJHKOfH City of Oshkosh Planning Services Division 215 Church Ave., PO Box 1130 Oshkosh, WI 54903-1130 (920) 236-5059 (920) 236-5053 FAX http://www.ci.oshkosh.wi.us Jackson R. Kinney Director Dept. of Community Development Darryn Burich Director Planning Services Division BOARD OF APPEALS AGENDA April 11, 2007 3:30 PM To Whom It May Concern: Please note the City of Oshkosh Board of Appeals will meet on WEDNESDAY, APRIL 11, 2007 at 3:30 PM in Room 404 at the Oshkosh City Hall to consider the following agenda. ROLL CALL APPROVAL OF MARCH 14, 2007 MINUTES I. 657 W 4TH AVENUE Timothy J. Rusch-applicant/owner, requests a variance to permit the creation of a 1,200 square foot detached garage. Section 30-19 (B)(4)(b)(vi) of the Oshkosh Municipal Code: R-2 Two Family Residence District limits detached garages to no greater than 800 square feet. II. 1256 HARNEY A VENUE Jeff Wicinsky-applicant, Harold Bidwell-owner, request a variance to permit the creation of a driveway with a 0' side yard setback. Section 30-36 (C)(5)(f) of the Oshkosh Municipal Code: Off-Street Parking and Loading Facilities requires driveways to be at least 6 inches from a side lot line. III. 1331 WASHINGTON AVENUE Maureen Sturm-applicant, Lois R. Roeder-owner, request a variance to permit the creation of an 8' high fence with a 1 'side yard (west) setback a 0' rear yard setback. Section 30-35 (E)( 4) of the Oshkosh Municipal Code: Additional Standards and Exceptions requires fences greater than 6' in height to meet the setback requirements for areas of the principal structure (R-2 Two Family Residence District requires a 7 Y2' side yard setback and a 25' rear yard setback). OTHER BUSINESS Discussion of BOA procedures ADJOURNMENT IF YOU HAVE ANY QUESTIONS, PLEASE CALL THE PLANNING SERVICES DIVISION AT (920) 236-5059, BETWEEN 8 AM- 4:30 PM, MONDAY THRU FRIDAY STAFF REPORT BOARD OF APPEALS APRIL 11,2007 ITEM III: 1331 WASHINGTON A VENUE GENERAL DESCRIPTION AND BACKGROUND Maureen Sturm-applicant, Lois R. Roeder-owner, request a variance to permit the creation of an 8' high fence with a 1 'side yard (west) setback a 0' rear yard setback. Section 30-35 (E)(4) of the Oshkosh Municipal Code: Additional Standards and Exceptions requires fences greater than 6' in height to meet the setback requirements for areas of the principal structure (R-2 Two Family Residence District requires a 7 ~' side yard setback and a 25' rear yard setback). The subject 0.19 acre (approx. 8,451 sq. ft.) property is zoned R-2 Two-Family Residence District and is being used as a single-family dwelling. The parcel is bordered by single-family homes in all directions and the general area can be characterized as a low-density residential neighborhood. ANALYSIS AND RECOMMENDATION In reviewing a variance request, the following questions should be addressed: When considering an area variance, the question of whether unnecessary hardship or practical difficulty exists is best explained as "whether compliance with the strict letter of the restrictions governing area, set backs, frontage, height, bulk or density would unreasonably prevent the owner from using the property for a permitted purpose or would render conformity with such restrictions unnecessarily burdensome." Are there any unusual or unique physical limitations of the property which create a hardship? Will granting of a variance result in harm to the public interest? The applicant is requesting a variance to construct an 8' tall privacy fence that would run along portions of the west and east property lines as well as the entire south property Iodine (see site plan). According to the applicant, the height of the fence is needed specifically for protection and safety purposes fora prospective six-year old female tenant with autism who has demonstrated that she can scale 6' fences. According to the applicant, the fence would commence from the side door(west side of the house), continue around to the back yard and wrap around to the opposite side of the house. Although no formal plans on fence style were submitted, the applicant states they are considering a style that would compliment the house. The applicant feels the variance would nothave an adverse effect on surrounding properties because it would act as an aesthetically pleasing visual barrier that would compliment the neighborhood design. The applicant feels the special condition that is applicable to the subject lot is the safety needs for the autistic child that will be residing on the property in the future. The only fence currently on the property is a 4' high chain link that runs along the south property line. The abutting property to the south apparently has un-kenneled dogs that the petitioner feels could scale the existing fence and intrude on her property and endanger the child. In the applicant's opinion, the hardship that would exist if the variance were not granted is the child's safety would be compromised. Apparently the child is unable to communicate with others and has no fear of being hit by vehicles, no reluctance toward strangers, and no fear of nearby water. The applicant states the child would continue to run until hit by a car, abducted by a stranger, or drown. 1 STAFF REPORT ITEM ill -2- BOARD OF APPEALS APRIL 11, 2007 Under normal circumstances, the subject application does not appear to meet the standard criteria for granting a variance due to the hardships being unique to the property owner and not the property itself. However, the applicant is arguing in this case that there appears to be a degree of conflict with the City Zoning Ordinance and the Americans with Disabilities Act (ADA). While the entire ADA is far too intensive to adequately cover in this staff report, Title II is the section that is most applicable to local government practices. According to the Title II Technical Assistance Manual (see 11-3.6000 Reasonable modifications), "a public entity must reasonably modifY its policies, practices, or procedures to avoid discrimination. If the public entity can demonstrate, however, that the modifications would fundamentally alter the nature of its service, program, or activity, it is not required to make the modification." Essentially, the Board of Appeals in this specific application needs to determine what is a "reasonable modification" to the code. Although the applicant has stated the child with autism can scale 6' fences, it is reasonable to request that a medical professional submit documentation (or some other form of testimony) indicating her abilities and need for a heightened fence. Another pertinent question that needs to be addressed/discussed is, if the child is able to scale a 6' fence at six years old, how tall ofa fence will be required when the child is even more physically matured (e.g. in her teens). The matter of specific fence style and materials should also be addressed as these often present safety advantages or disadvantages in terms of scalability. Also, the board must consider ifthis request is the least variance needed to provide practical relief. For instance, it is apparent the overall goal of establishing this fence is to create an outdoor protective area for the child. However, consideration will need to be paid to how large of a protective area is reasonable to provide. An argument can easily be made that the subject lot has ample rear and side yard area to construct a sizeable protective area with an 8' tall fence that would meet setback requirements and not interfere with driveway or garage accessibility. Staff has received correspondence (see attachment) from an attorney representing Gladys Harvey (property owner of 1337 Washington Avenue) regarding the subject application. The correspondence indicates Gladys' strong opposition to the proposal of an 8' tall fence within the required setbacks. The letter corrects a statement made by the petitioner in her application that stated Mrs. Harvey had no problem with the proposal. Also, staff has received correspondence (see attachment) from an attorney representing Virginia Fox (property owner of 1325 Washington Avenue) regarding the subject application. According to the letter, Virginia also strongly objects to the fence and current proposal. RECOMMENDATION ~ased on the information provided within this report, staff recommends denial of the variance request. 2 Mar. 15. 2007 2:24PM c i tv 0 f oshkosn No. 1848 P. 3 Please Type or Print ill BLACK INK e OfH<QfH ClIIIk--' Return to: Department of Commuity Development 215 Chnn:h Ave. p.o. ]lox 1'[30 Oshkosh, WI 54903-1136 CITY OF OSHKOSH APPLICATION FOR VARIANCE Please submit a complete reproducible site plan (maximum size II" x 17~'). (A complete site plan includes, but is not Hmited to, aU structures, lot lines and SL"'eets with distances to each.) Please refer to the fee schedule for appropriate fee. FE.E IS 1'JOf~-REFt..fI\1DA":..BLE. The fe~ is payabl!; to the City of O'shko-sn and due at the time the. appHcaHc;.n is subrnitted, Addr"", 0' P..<<l AI,..tal; /3:3/ 41ft ,J; V-io f1 Petitioner: _C/t,L1Dltd ~~ Petitioner's Addresr,:.t:./r;2f,'2_&~~k.e" /IJ" IJfvil1tf:./ <:";f'''~'''';'"" D""~",,,,,,,-.:J. /' .I/-,,,,/. A / ~~ I ""l;"'", ~,- <~-'i"" "d. uf t/i1~'{' j' ;'i 0 (j// /7Y ./ Q....nti {if .Hit p~titkH:;ei): /dd./Y7f e) I IJl/eJ {)s);RlJsA IJr Home Phone:.!lJi2 5C;i, /!i/ g' O_~ Work Phone: Date: 3-19-(}7 Ro-me Phulle: Owner's Address: Wurk Phone; Signature Reqnired~ Date: In order to be granted a variance, each applicant ml!st be able to prove that an unnecessary hardship would be created if the variance is not granted The burden of proving ~n unnecessary hardship rests upon the applicant. The anache.d sheet provides i.'1formlltion on what conlltitu1.es. a hardshIp. (Attach additional sheets, if nece5~ary, to provide the informsticm .,..~,_.....~._~..,~~A ,'t, ..,,.:J:4-;,..,......,..,! ~.,....,.f"......_..,.......'t~^_ _4'H 'k~ ....~i""l~~~<!"'to.,~ ,P\,.{" '!".,Q...:;...4Q-A: \ . IfW\.fUW':H.l;tU.. nUu.~s.J:VLlaL n,L1V1U,U...W.VU UJ,Q) v.... ........~I.4w..::i,,'-..... ~ u............,,~u...J 1. Explain your proposed pians and why you ue requesting u variance: 3 ~~ Mar. 15. 2007 2:24PM city of oshkosh No. 1848 P. 4 2. Describe bow tbe variance would not have au adverse effect on so 3. Describe thc special conditions that apply to you!' lot or structure tbat do not apply to 1>'lH'rounding lots or strudures: . Gt:' P-Rt.-LT"" cJ : Th~ L h {u. n I; n k. +~-(\C e... b d D i"j 5> tc -the p ~c peP. 0.{ .I: !ksl.:rihe the ~~!'dsh!p that w(Hrld rem!t if y<m:r vgrhm.ce w/?!,,€ !!.ot gr;;.nted:' (111\ b /..l.\.1 in f) > 4. 4 ~ StIPuH- &62K5 "'Ute -!ue ftJ60 ~, 1Ut 54949 Department of Community Development 215 Church Avenue P.O. Box 1130 Oshkosh, WI 54903-1130 C>~?t~15 ;23/ ; 7 Gentlemen: " . Enclosed please find an application for a variance concerning the height and setback of a fence I need to construct on the property I am purch!lsing at 1331 Washington Ave. in the city of Oshkosh. As the application states, I am asking permission to const~ct an'S' high fence for the protection of my 6 year old special ~eeds grand daughter who will be living at the residence. Reasons specific to her case are stated in the application. I am enclosing a site plan drawn to scale. By explanation,. tJle fence I want to put up will start just outside the side door which is approximately 37' from the inside of the front sidewalk. The fence, which would feature an open/close gate so the car could be driven to the garage, would go across the driveway to within a foot of the property line. At that point it would extend back approximately 98 ' and be attached to the NW corner of the garage. It would resume attached to the SW corner of the garage and run back against an approximately 4' chain link fence the property owns now. I do not intend to remove the chain link fence as tbe back neighbors have unkenneled dogs running in their yard. The fence would continue to the opposite property line corner and then extend along the property line and make a 90 degree turn to attach to the bouse. In reading your brochure, I note that fences higher than 6' must be setback 7.5' from the side yards. If this were done, the fence would start in the middle of the driveway, splitting it in balf and making tbe garage not useful for car parking. The side door will be tbe entry and exit point for the family. To have it be outside a gated area is risky in our case as my granddaughter could, in a minute, open it and exit. I bave spoken witb the next door neighbor at 1337 Washington, and she bas no problem with this fence running along the property line. I have tried to call the neighbor at 1325 Washington, but have been unsuccessful in reaching her. I will try again before handing in this application. I am keenly aware of the aesthetic priorities of this area of Washington Avenue. The fence I would put up would be selected to add to the curb appeal of the neighborhood. I am considering buying a pvc plastic type in white. A see thru opening along the top 6" to 1 ' is my plan, depending on availability. It would be professionally installed.I can be no more specific than that until after your decision is made. ,Sincerel~~ ,!J C,4:1/tUl.{d;('/ Maureen Sturmv /",,/ \-{J (./ fJitt:}?') SUBMITI"ED BY APPLICANT 5 1321 50.0' 50. i.. \I '0 'Jut} ~ /O~ \ - ?(I~~"V \ 1325 \ b r- eo -c- 100. 100. ' eo -c- \10.4- ^ wI 0,\1331 I . L.() eo <.0 -c- to eo <.0 -c- 1IJt' .'t/ .../OtJdd'J ox '" c.'-.\ . / 0'1('- 'y,'d (l'<5 '"I ASHI > 1337 .0' 50.0' 13L L.() eo to -c- )> ~ ~ ~~ ...f'o.:l ...:>.... " ~ ~ 0.0' 100. / 09 ?.7U? 00.0' 50.0' ~:19 V U 1 \ -." , ~ 1331 Washington Ave OJHKOJH DISCLAIMER This map is neither a legally recorded map nor a su.rvey an.d it ,is not intended to be used as one. This drawmg IS a compilation of records data and information located in various city c'ounty and state offices and other sources affecting the area shown and it is to be used for reference purposes only. The City of Oshkosh is not re- sponsible for any inaccuracies herein contained If discrepencies are found, please contact the' City of Oshkosh. Created by - kjg Scale: 1" = 30' ON THE WATER City of Oshkosh Department of Community Development SUBMITTED BY APPUCANT 6 March 20, 2007 CORNER LOT Fences Located in the Side or Rear Yard: Fences 6 ft. high or less may be erected on those parts of a lot that are as far back or farther back from a property line than the principal structure. Fences 6 ft. high or less may be installed on any part of the lot that is at least 25 ft. from the front lot line. If a house is closer than 25 ft. to the front lot line, then a 6 ft. high fence may be installed on any part of the lot that is as far back from the front lot line as the fr 1: Ferir;es less tl\\ln 30" hi9h aild less than 30% solid may be.lnstaKecI ili thiS area lIOR "LOT Solid Fences Iessthan 61 high may be installed In this area - ------SOi~ fente$.lessthar\4' bigh---~~" " matbe 1ilstaUed in this area .._-------,--,--_._------~-----' . Fences less tban 41 blghand less than SQo/Osolkl may be installed inlhis area Fences greater than 6 ft. in height may be erected if they meet the setbaclc requirements of the prin- cipal structure which are (25 ft, setback for the front/street and rear yard, and a. 7.5 ft. setback for the side yards). Fences 6 ft. in height may be constructed in the front yard on the long side of comer lots provided they have a setback equal to that of the existing. principal structure, or what would be required for new construction of a principal structure based on the lot dimensions, whichever is greater. I Please note that the height of a fence shall be meaS- ured from the established grade. Fences Used for Kennels: .6uJ.y kennel that is unattached to the principal strUcttU'e (house) must comply with the minimum rear and side yard setbacks of 2.5 ft. NOTE: Unattached means that there is at least 5 ft. between the primary residence and the dog kennel. Any kennel that is attached to the principal struc- ture (house) mUst comply with the minimum rear and side yard setbacks. The side yard setbacks must comply with a m;n;mum setback of 7.5 ft. The rear yard setbacks must comply with the minimum setback of25 ft. SUBMmED BY APPLICANT 7 JAMES J. WILLIAMSON TIMOTHY M. DEMPSEY JOHN M. KELLY CHARLES J. HERTEL BRIAN D. HAMILL PETER J. CULP DEMPSEY, WILLIAMSON, KELLY & HERTEL, LLP A WISCONSIN LIMITED LIABILITY PAR TNERSlliP ATTORNEYS AT LAW SINCE 1849 u.s. BANK PLAZA P.O. BOX 886 OSHKOSH, WISCONSIN 54903-0886 ASSOCIATES: ELIZABETH A. HARTMAN JASON J. lliRSCHBERG DANIEL J. POSANSKI TODD A. SLAGTER Apri12,2007 i t APR 0 2 Z007 ! I ~MMUNlTY DEV[:~C'~\:~!iT I OSHKOSH 920/235-7300 RIPON 920/748-5415 FAX 920-235-2011 www.dempseylaw.com City of Oshkosh Department of Community Development Planning Services Division P.O. Box 1130 Oshkosh, WI 54903-1130 Re: Variance Request: 1331 Washington Avenue Date of Hearing: April 11, 2007, at 3:30 p.m. To Whom It May Concern: Please be advised that I represent Virginia Fox who is the owner and occupant ofthe real property located at 1325 Washington Avenue in Oshkosh. My client has provided me with a copy of a Notice of Public Hearing regarding a request by Maureen Sturm for a variance to permit the creation of an 8' high fence with aI' side yard (on the west) setback and a 0' rear yard setback. The purpose of this letter is to advise that Ms. Fox vigorously objects to the construction of this fence. Ms. Fox is 91 years old and finds it difficult to get out ofthe house. Thus, her main source of entertainment is looking out of her windows and enjoying the park and lake. The location ofthe proposed fence would certainly prevent Ms. Fox from doing what she enjoys. Further, due to the size of the lots in this area, air and light quality would be substantially harmed and could cause harm to neighboring lawns and vegetation. My client is certainly understanding of Ms. Sturm's personal need for this variance. However, under Wisconsin law, self-created hardships are not grounds for a variance. Hardships created by the zoning requirement must be unique to the particular property and not something shared by other property owners in the area. Obviously, with many ofthe lots in this area being around fifty feet, the hardship is something not just shared by Ms. Sturm. Also, Wisconsin law requires a look at the effect the variance would have on the neighborhood and overall public interest. In this instance, any fence on W ashington Avenue would create a precedence for other property owners to construct similar fences; th~s causing a potential harm to the aesthetic and economic values of the entire neighborhood. .""'8" GABE BOUCK, 1849-1904 . JOHN F. KLUWIN, 1893-1931 . GEORGE lliLTON, 1885-1942 . WILLIAM C. BOUCK., 1895-1955 · EDWARD J. DEMPSEY, 1906-1956 . RAY C. DEMPSEY, 1932-1960 . JOSEPH F. DEMPSEY, 1936-1972 . JOHN E. DEMPSEY, 1935-1995 NICHOLAS J. MEEUWSEN, 1970-1996 .. LEWIS C. MAGNUSEN, 1946-1998 City of Oshkosh Department of Community Development Planning Services Division April 2, 2007 Page 2 Based upon the foregoing, my client respectfully requests that the City Planning Services Division not recommend this variance for approval, and that the Board of Appeals deny the request. Thank you for your attention to this matter. DJP:new cc: Virginia Fox Very truly yours, N, KELLY & HERTEL, LLP Daniel J. P SaDflU 9 .REFF BAIVIER BERMINGHAM Q _LIM, S.C. AITORNEYS AT LAW (X:INCE 1858 Russell J. Reff Jeanne E. Baivier John E. Bermingham Michael Lim Daniel M. Muza R. Samuel Sundet March 29, 2007 .":~__'W<""""""""'~-'-'-" I , I ! i COMfi:!J'.ilTY DcVC:LO~ii.::iH i ., , ~,-,--~"--=,_...;---.............."..,,,--~ MAR 3 0 2007 R City of Oshkosh Dept. of Community Development Planning Services Division PO Box 1130 Oshkosh, Wl54903-1130 Re: Variance Request: Lois R. Roeder, Owner/Maureen Sturm, Requestor Date ofhea.ring: April 11,2007 3:30 p.m. Please be advised that we represent Gladys Harvey who is the owner and occupant ofthe real estate located at 1337 Washington Avenue in Oshkosh. Our client has provided us with a copy of a Notice of Public Hearing relative to the above. The application made by Maureen Sturm indicates that our client has stated that she has "no problem with this fence running along the property line." The purpose of this letter is to correct the record. At no time has Mrs. Harvey ever agreed that an eight (8) foot fence located on the applicant's property running along the contiguous property line between the applicant's home and our client's home is acceptable. In fact, Mrs. Harvey strenuously objects to the construction of any fence in what formerly had been an open area. However, Mrs. Harvey understands that a six foot fence can be erected on the applicant's property along the contiguous property line. The construction of an eight foot fence requires a 7.5 foot setback for good reason. The reason is exasperated with respect to the subject property since the properties are long and narrow and eight foot fences will do nothing but create a canyon effect in the backyards of these residences. As such, my client respectfully requests the Court of Appeals deny the request and suggest to the applicant that there are other ways to prevent a child from climbing a fence. JEB :jas cc: Gladys Harvey 217 CeapeAvenue, P.O. Box 1190, Oshkosh, WI 54903-1190 Oshkosh: 920-2?I-8380 Fox Cities: 920-725-3103 FAX: 920-231-0035 10 I (0 I q;; I ~ L -I 1324 1317 1321 1325 to cri <0 o c:l l.{) .,..... DISCLAIMER This map is neither a legally recorded map nor a su.rvey an.d it .is not intended to be used as one. ThIs draWing IS a compilation of records data and information located In various city, c~unty and state offices and other sources affecting the area shown and It is to be used for reference purposes only. The City of Oshkosh is not re- spon~ible for any inaccuracies herein contained. If dlscrepencies are found, please contact the City of Oshkosh. Created by - kjg WASHINGTO~ 1331 1337 1343 to cri <0 cri <0 .,..... .,..... 1331 Washington Ave Scale: 1" = 50' 11 1347 CD .,..... to cri <0 .,..... I 5.0' 60.0' to co CD .,..... OJHKOJH ON THE WATER City of Oshkosh Department of Community Development 3/26/07 UJ o z - ..J 1380 139.m.75- . C/) b ci " T"" N V ~ b % 1318 1324 82.5' WASHINGTON AVE. 90.0' 1355 1361 1369 '" oj ~ ao.O's.o' 500' 00.0' 60.0' 75.0' WINNEBAGO AVE. 50.0' 50.0' 50.0' 52.3' DISCLAIMER This map Is neither a legally recorded map nor a sU,rvey an,d It ,Is not intended to be used as one. ThiS. drawmg IS a compilation of records, data and mformatlon located in various city, county and state offices and other sources affecting the area shown and it is to be used for reference purp~ses only. The City of Oshkosh is not re- spon~lble for any inaccuracies herein contained. If dlscrepencles are found, please contact the City of Oshkosh, 1331 Washington Ave OJHKOJH ON THE WATER Scale: 1" = 1 00' City of Oshkosh Department of Community Development Created by - kjg 3/26/07 12 DISCLAIMER 1331 Washington Ave This map is neither a legally recorded map nor a survey and it is not intended to be used as one. This drawing is a compilation of records, data and Information located in various city, county and state offices and other sources affecting the area shown and it is to be used for reference purposes only. The City of Oshkosh is not re- sponsible for any inaccuracies herein contained. If discrepencies are found, please contact the City of Oshkosh. Scale: 1" = 50' OJHKOfH ON THE WATER City of Oshkosh Department of Community Development Created by - kjg 3/26/07 13 ~Apr 04 07 04:07a p.2 Maureen Sturm E628S Pine Lane po160 Manawa, WI 54949 ~3, I/)7 Todd Muehrer Dept. of Community Development Oshkosh, WI 54902 Dear Todd, I am faxing you the material that was requested of me concerning the child with special needs who will be living on the property I have purchased at 1331 Washington St. Her name is Estelle Luaders, and as you probably know, she is also my grand daughter. The document I am faxing is her IEP (Individualized Education Program) which is a federal legal document. It is the document the Oshkosh School system is working with in preparing for Estelle's inclusion in the Oshkosh school system. Every disabled student has an IEP that mandates what they need and what the school provides. There is certainly a degree of privacy to be adhered to on behalf of Estelle, so I have'\~hited"Out information that I do not think absolutely necessary in this case. The hi-lited information I think will give you a flavor of who Estelle is and support her need for a higher fence than is currently allowed in our situation. I would like you to know that I have tried very hard to explain my situation to the neighbors on each side of 1331, but have been .IDet with resistan(.:e.AsI s~eit, Gladys Harvey at 1337 is becoming somewhat empathetic to the situation and is trying to adapt to the idea as best she can. In a meeting my husband and I had with her on March 31, I asked her where she would like me to put the fence in relation to the lot line but she did not say. I noted she had a two car garage and a large turn around area. She said she does have friends coming over often. Gladys suggested we all go over and talk with Virginia Vogel-Fox. I was hesitant as I had spoken with Mrs. Fox on the phone a few days earlier and as soon as I gave her my name she yelled,"I have turned all the papers over to my attorney!" I ig.nored that at the time and proceeded to explain my Rec e i v e d Tim e A p r. 4. 1 : 1 2 AM Rpr 04 07 04:07a p.3 t grand daughter's need. She listened- for a short while and then~ referring to my grand daughter and her family, said, "Perhaps they should go live somewhere else." I felt so surprised and hurt: by that comment that I could say nothing in return. I thanked her for her time and hung up. The face to face meeting Mrs. Harvey and my husband and I had with Mrs. Vogel fared no better. No matter how many times I explained and pleaded with her to understand the seriousness of the need, she would only say "l will not stand for a fence.1I My husband and I realize that Mrs. Vogel-Fox is- very elderly and accorded her the respect she deserves. She again suggested we should move elsewhere and even- told us to look at the house on the end of the street. We explained that we bad, but it was more expensive, in poor shape, and had a postage stamp size yard. I re-explainedthat there would- be at least a 6 foot fence and Mrs. Vogel Fox suggested it be attached to the back corner of the house going straight back. I noted that would leave the side door unprotected, and it too would have to be sealed like the front doors. That leaves the family only one exit. She just shook her head and said, II no fence". Asking her how she would feel if my grand daughter were to get on the road and be hit or killed in front of her house, there was a long silence to which she finally shook her head and said, "1 am an old lady and I have lived here for many years. I will not stand for a fence. II Noting that she herself had a fence in her hack yard, she replied, "It is my fence, I put it up, I like it~ and I don't care what others think.!" At that we politely thanked her for her time ~nq.left. This is a new experience for me. Often visiting my grand daughter in Vermont, I have yet to encounter anyone who would voice negatively concerning Estelle's disability. It is my sincere pray-er that the situation we face here with our neighbor, concerning the fence, will be the first and last such discrimination due to Estelle's disability, we face in Wisconsin. Sincerely, {/~~ Maureen Sturm R e c e i v e d Tim e A p r. 4. 1 : 1 2 AM , Apr 04 07 04: OBa p.4 I~ ~~ i,C~%#'l r- tJ a. ~1kW ~ /r~"/u1t;1 IEP Meeting Date: 11/21/06 Student Name: Estelle Luaders Individualized Education Program Present Levels of Educational/Functio~al Performance Identify the stlJdent's present levels of educational perfOrmance including the stlJdent's functional perfOrmance, abilities, acquired skills and strengths; and how the disabilitY affectS the student's involvement and progress In the general curriculum. For presChool children, identify how the disability affects the child's participation in activities appropriate for the child. Estelle Is an energetic, happy kindergartner at Ooty Memorial school who absolutely loves to be outside and take walks In the woods. . . . .... .. (Medical Estelle has a medical diagnosis of Tuberous Sclerosis and associated seizure disorder and exhibits cha.-acteristlCS ~nsistent with Autism Spectrum disorder. She Is on antl-seizure medication. Estelle underwent brain sO,.gerY in the fall of .2003 to remove tubors from her left temPoral lobe: Since her \ ~urgery, she has begun to' display a right-handed dominance and significant gains in social, play, self -",help, motor and language skills. . . .- ~ '. ~Vo( SPe;flk..im pel-5fl'IJ bul SOU/ldS AutIsm CollaboratIve v! . Esrelle participates in a Oiscrete Trial Learning (OTL) program that is offered through the Center Vermont Autism Collaborative through Washington County Mental Health. She continues to make . significant progress utilizing a pECS system consisting of many symbols with the OTL approach. .f!>'- . Estelle this re uires a i 'vl ual trained OTL Instructor with her at all times throughout the da . The . OTL program takes place for part of the time in the kindergarten and prase 00 classroom with typically developing peers, and part of the time in her own quiet work and sensory rooms.- She also follows this program at lunch an.d recess time. Not onl Ii- ical or Estelle to have her O:rL instru - for communication .od i ional urposes but also sa ety reason. telle ha a tendency to do behaviors that are unsafe such as put non e I e Ie- an 01 ut ofthe room or s ace t at she is m~ Please note that Este e s program hours and other services in this IE? are presently very necessa as they are listed, and all w for Estelle to make progress in her educational program and t, esafe within the school environment. --. She eat lunch with typically dei/eloping peers on a rotating basis, one peer a day in her own space. due to ,the fact that the lunch room at this time is overwhelming for her. . _' The use of verbal redirectlon has not been oarticularty helpful, and in fact resuits in escalation of escape behaviors. She . R e c e i v e d Tim e A p r'- 4. 1 :' 1"2 AM .. . - . -. . Apr 04 07 04:08a p.5 ;Lr Student Name: Estelle Luaders IEP Meeting Date: 11/21/0G She is also able to spontaneously use or imitate signs for circle (morning meeting), all done, more, eat, music, book, cookie, water, again, Swing, work, popcorn. . . can imitate the si.gned sequence "no + book" and she is rnntinuing to work on learning "I + want" . . . ':;he laughs when she is happy, vocalizes unhappily when she doesn't like something, and ~lIe is able to match.musical notes with her voice. The sounds that Estelle is able to produce include the long vowels a, e, i, 0, u, as well as the short vowel u (as in hut). She can produce the following consonants: p, b, rn, h, w, n, d, k, I, s. stelle is co , Self-care Estelle .participates in managing personal care of herself and her belongings. Her initiative, follow- through, and completion of these activities are inconsistent, necessitating encouragement, supervision, visual support, and at times physical assistance. Functional skills include: Puts on and removes jacket; assistance with fasteners; resists wearing hat and mittens Able to don socks and shoes; prefers bare feet, so often reqpires support to replace them Familiar with carrying backpack; able to zip it; place and retrieve objects Initiates toileting, verbally stating "potty"'; request is usually accurate and usually productive Manages the toileting sequence with minimal assistance, depending on clothing and the day Follows directions to wash her hands most often; accepting this as almost routine now Eats a variety of foods, preferring to use fingers, but able to scoop with a spoon; may use left or right hand for the utensil Manages drinking independently, using straw, water bottle or open cup May initiate using a tissue to wipe nose Makes requests _ vocally, through locating a picture symbol, and/or gesturally '. .:,.-~::.;..:-::::~..,.::-:. - _. ----- ..:.; Is tolerant of some touch and texture - handles differing materials (e.g., toys, texture books, piaydoh, hand lotion, variety of foods), gravitates toward rough V5. soft (sandpaper V5. fur), less tolerant of sticky textures (ooblick, silly putty) and mittens on hands; seeks more information by taking items (inedible) to her mouth, e.g., squeeze balls, crayon. Note: this developmental tendency, learned behavior, and history of pica all interfere with her exploration and learning and further warrants her need for a constan - n-o Seeks deep touch pressure and vibration - acce tin of firm hugs, leans into others, intrigued by R e c e i ve d Tim e A p r. 4. 1 : 12 AM Student Name: Estelle Luaders p.6 IEP Meeting Date: 11/21/06 Apr 04 07 04:0Sa , . Tends to _~ Inp". In ~pr musr'p< "nd jnint; (pmprlncPpl-;.p inp"t) - enjoy" ",nnipg, iUIDPiDj and pulling a cart. . ... . .. .. -.:.,,: '''''''~ -- .. ----- . Often challenges her balance and initiates positional changes (vestibular processing), unconcerned about her relationship to gravity, e.g., feet up or down, head up or down; often chooses to lie down with feet up; likes swinging; seeks acceleration, as on scooter board. ttends to auditory input - alerting to voices and to noises out of sight, choosing noise making toys, placing them on her face and ears; likes music; imitates musical tones accurately and sings. phrases. Utilizes visual input purposefully and relies on visual information - t' ! I attention is more focused if items not in .l;:ic are out ~ Ji'~-. May be overwhelmed by sensory stimulation in a busy, loud, unpredictable environment le. ., cafeteria), and is more successful accomplishing a task (e.g., eating lunch) in a less congested an stimulatin . Is more able to focus her attention in a small group, e.g., eating with an adult and a peer in a room smaller than the cafeteria. uses both left and right body sides without evidence of neglect. Hand preference does not appear consistent at this point. . . . .' On nf R e c e i ve d Tim e A p r, 4. 1 : 12 AM A r- 04 07 04: 09a ....-. -"'::1'''' '/lULlJl dClJOns related to objects as verbally directed, e.g., open the P weage, crawl through the tunnel, put it in, or pull Jt out of the bag, - having learned these Spetific routine actions. p.7 ~ .' often. oriefty approacnes centers within the classroom, handling Jtems at housekeeping area most ~ -.- . ~ T ' A 4 1 : 1 2 AM Received Ime pro . Mr. Cornell said that a 0 tback would create a snow removal problem. Mr. Wicinsky said he owns 85 tal units in Oshkosh and plows them himself so he would be able to plow the driveway straight to the k. He said he could not say that it wouldn't be a rental. He will be replacing the roof, siding, windows, Mr. Penney referred to page 4 and asked i r. Wicinsky was planning to put a parking lot area behind the house. Mr. Wicinsky said yes, it would be blacktop. explained that the lot goes 40' to 50' beyond the parking space indicated. Seconded by Penney. with a 0 ' side yard Mr. Cornell asked if he planned to add a garage. Mr. Wicinsky said no. Mr. Penney asked how much area there was between the neighbor. Mr. Wicinsky said about 50' of separation. Mr. Lang asked how old the house was. Mr. Wicinsky said it was constructed in 1946. Motion by Cornell to approve the request to permit the creation of a drive setback. Motion carried 5-0. Ayes-Wilusz/Cornell/Lang/Penney/Hentz. Nays-none Finding of Facts: Unusual physical issues of the property. Area will be enhanced with upgrades. III. 1331 WASHINGTON AVENUE Maureen Sturm-applicant, Lois R. Roeder-owner, request a variance to permit the creation of an 8' high fence with a l'side yard (west) setback a 0' rear yard setback. Section 30-35 (E)( 4) of the Oshkosh Municipal Code: Additional Standards and Exceptions requires fences greater than 6' in height to meet the setback requirements for areas of the principal structure (R-2 Two Family Residence District requires a 7 ~' side yard setback and a 25' rear yard setback). The subject 0.19 acre (approx. 8,451 sq. ft.) property is zoned R-2 two-family Residence District and is being used as a single-family dwelling. The parcel is bordered by single-family homes in all directions and the general area can be characterized as a low-density residential neighborhood. Board of Appeals Minutes 5 April 11, 2007 f!, Mr. Muehrer presented the item. He then distributed additional information provided by the applicant that included the IEP (Individualized Education Program) for Estelle, the child involved. He also read a letter submitted by Mrs. Gladys Harvey (1337 Washington Ave) voicing her conditional approval of the fence. Mr. Lang referred to page 6 and asked if a 6' fence would not need setbacks. Mr. Muehrer said that was correct. Mr. Wilusz determined that if the fence was 7.5' in from each side and the lot is 50' wide that the area enclosed would be 35' long. In order to do an 8' fence it would need to be 25 feet in from the rear lot line. To do an 8' fence without variances the space created would be approximately 25 x 35. Mrs. Maureen Sturm, E6285 Pine Lane, Manawa and Mr. Earl Luaders, New London (maternal grandparents), presented information that if the standard setbacks were used it would render a space of 19' x 30'. The child's swing set alone is 20' x 12'. Mrs. Sturm presented a letter from Estelle's teacher at Doty Memorial School. Ms. Hentz referred to the letter from Mrs. Harvey indicating she was okay with the. 8' fence if there was a 3' side yard setback. Mrs. Sturm said she was agreeable to Mrs. Harvey's request. Mr. Luaders referred to the staff report, page 1 paragraph 3 that references the safety needs of the child being a special condition, and page 2, paragraph 2, "a public entity must reasonably modify its policies, practices, or procedures to avoid discrimination..." He felt a "reasonable" modification is to eliminate the setback requirement and that by not doing so would be discriminating against Estelle. Mr. Luaders felt the staff was incorrect in 1heir estimation that the "lot has ample rear and side yard area to construct a sizeable protective area with an 8' tall fence." He also felt staff should not be looking to justify a denial of the request. Mr. Luaders then referred to the letter expressing the concerns of Mrs. Virginia Fox (1325 Washington Ave) saying she cannot see the lake from her sun porch and a fence would not hurt the light or air quality. Mr. Penney asked why the family did not know an 8' fence would be a problem. Mrs. Sturm said it was not a problem in Vermont so it didn't occur to her that it would be here. Mrs. Sturm passed out examples of fence styles that they are considering and said they want it to compliment the house. It would not be a "stockade" fence. Mr. Wilusz asked if the child isn't supervised when she is outside. Mr. Luaders affirmed that she is supervised at all times. Mrs. Sturm said it is important that the side door be enclosed by the fence to provide the most normal life possible for Estelle. Board of Appeals Minutes 6 April II, 2007 Mr. Wilusz asked how it is determined how much space Estelle needs. The letter from the school only references "large spaces." Mr. Luaders said they could not give a number but that the area on Washington St. is much smaller than the home in Vermont. Mr. Lang asked the size of the space in Vermont. Mr. Lauders said it is 1.5 acres. Mr. Wilusz referred to page 2 of the staff report regarding standard criteria for granting variance. Mr. Muehrer affirmed that the legal criteria require that the hardship must be related to the property, not the owner. Mr. Wilusz stated the guideline is troubling when there is a child with special needs. Mr. Muehrer referenced a past issue with handicap access ramps constantly being requested due to ADA requirements and said the ordinance was changed because of it. Staff felt, however, with this application it was not an ADA issue necessarily but more of a quality of life issue. The overall goal in this situation is to provide an outside protective area and the question is how large an area is reasonable. Mr. Wilusz questioned if the issue had been run past the legal department; was the board on firm ground to deny the variance. Mr. Muehrer indicated it had been reviewed by corporate counsel and they were comfortable with the staff report. Mrs. Sturm referred to the site plan, explaining that the house has three doors; one door would be totally blocked off, leaving two doors that would need to be inside the fence. Mr. Wilusz questioned how much more effective an 8' fence would be to restrain Estelle. As she grows a larger fence would not remain effective. Mrs. Sturm said the house in Vermont had a 6' fence to begin with but that Estelle had gotten out and they then added 2' to the top. Mr. Penney asked ifthe board would be voting on the request as it was submitted or would it be modified to include the 3' setback requested by Mrs. Harvey. Ms. Hentz affirmed that it would be included. Ms. Hentz asked if Estelle moves things to the fence and then climbs over. Was it possible to restrict what was in the yard? Mr. Luaders said the ADA law does not require the child to modify their behavior. Board of Appeals Minutes 7 April 11, 2007 Mr. Jim Sturm (E6285 Pine Lane, Manawa) asked to be heard and said the objects in the yard are typical children's toys, such as a wagon; there were not ladders or such things that the child had access to. Mr. Dan Posanski, Dempsey Law Firm (1 Pearl Ave) then presented the concerns of Mrs. Virginia Fox. He explained that Mrs. Fox spends most of her time in a small room at the front of the house. She is empathetic to the issue but is opposed to the fence without the standard setbacks for the following reasons: 1. It would block her window; 2. It would reduce the value of her house, 3. The air and light would be affected by the fence, preventing airflow and blocking the light from her window. Mr. Posanski re-iterated the fact that the hardship is self-created and the variance should not be considered on that basis alone. The hardship needs to be unique to the property itself. He also said there is no evidence that an 8' fence is needed. Mr. Wilusz asked ifit would help if the fence was pulled back slightly. Mr. Posanski said yes, if the fence did not block the sun porch that would be better; however, he added that Ms. Fox would prefer that the fence begin at the end of her house. Mr. Cornell said this is more reason why the backyard should just be squared off with the fence. Mr. Lang agreed that the fence should be set back to the end of the house. Mr. Lang then wanted confirmation that Mrs. Harvey was okay with the 8' fence as long as there was a 3' side-yard setback next to her driveway. Ms. Hentz confirmed yes. Mr. Luadersl Mrs. Sturm asked to comment on the proposed modifications. Mrs. Sturm insisted that the side door must be protected. Mrs. Sturm passed pictures showing the view from Mrs. Fox's sun porch window is of the side door of 13 31 Washington Ave. and in fact she did not have any view of the lake. Mr. Luaders said the ADA requirements should lead to approval of the variance request and that the request was reasonable. Mr. Penney asked why they chose this house. Mrs. Sturm said she even though the lot is small they considered the area in general to be more open, especially with the park near by and the relative lack of neighbors. She said it was also affordable. She was raised in the area and had an appreciation for the Washington Street area even though the house is probably the smallest on the block. Ms. Hentz questioned the side door and asked ifthey couldn't keep it locked if it was outside the fence. Mr. Cornell questioned if the child needs to be confined, isn't there a concern with taking her to the park; how do they assure her safety then. Mrs. Sturm said they use a child leash. Board of Appeals Minutes 8 April 11, 2007 Mr. Penney asked if the request is denied will they be okay with ADA (Americans for Disabilities Act). Mr. Lang said the board needed to db what needed to be done. . Mr. Penney thought the request needed to be modified to include the 3' side yard setback on the east side and have the fence start far enough back so it doesn't block Mrs. Fox's sun porch window. Mr. Penney could not support the request as presented. Mr. Lang said he was not comfortable with approving modifications for Mrs. Fox and wanted to table the item so the applicant could provide an alternative option. Ms. Hentz asked the applicant if she was willing to modify her request. Mr. Sturm said that Mrs. Fox could only see the driveway from her sun porch window. Ms. Hentz said she could not take for granted that the pictures provided were accurate and would need to see a modification on the west (Mrs. Fox's) side. Mr. Luaders said they would move the gate between 1325 & 1331 to the end of the house. Mr. Posanski then asked if they would also allow a 3' side yard setback on Mrs. Fox' side. Mrs. Sturm said they could not as it would cut into the side of the driveway. Mr. Wilusz said he was uncomfortable with the legal position of the board. If the board adheres to the ordinance, ADA could sue; if the board approves variance then others could sue. Mr. Lang said he still believed the fence could fit into the lot without a variance; he is inclined to move it as submitted and let if rise or fall as it may. He will not support it. Mr. Cornell said he couldn't accept the request as it stands. Ms. Hentz asked Mr. Posanski if Mrs. Fox would be agreeable to starting the fence more toward the rear of the house. Mr. Posanski stated Mrs. Fox preferred it to be completely to the rear of her house, but as a compromise they could accept the proposed rendition. Mr. Luaders said they would be okay with the setback as determined on the driveway side (Mrs. Fox). Ms. Hentz moved to approve the request with the following conditions: (a) A 3' side-yard setback on the east side. (b) Commencement offence to begin 19 'further south where the house juts out along the driveway. Seconded by Mr. Penney. Board of Appeals Minutes 9 April 11, 2007 Motion approved 4-1. Ayes-Wilusz/Cornell/Penney/Hentz. Nays-Lang. Findings of Facts: Safety of child is addressed. Rights of neighbors were protected Extremely unique circumstances. Minority Finds: Owner induced hardship. I Safety could have been addressed within variance guidelines. Rights of west neighbor (Mrs. Fox) were not protected OTHER BUSINESS Board members requested staff to look into the historical reason why the code was written related to attached/unattached garages. Mr. Wilusz asked if the ADA guidelines couldn't be added to the code for fencing so that the board doesn't have to deal with a possible legal dilemma. Mr. Lang requested that board members be notified if additional information is received for a request so that they have time to review it before hand. Mr. Cornell reminded board members that a reorganization meeting is to take place in June. There being no further business, the meeting adjourned at 5 :45 p.m. Wilusz/Cornell 5-0. Respectfully submitted, Todd Muehrer Associate Planner/Zoning Administrator Board of Appeals Minutes 10 April 11, 2007