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BOARD OF APPEALS MINUTES
JANUARY 9, 2008
PRESENT: Dan Carpenter, Robert Cornell, Dennis Penney, Mark Nielsen, Edward Wilusz, Moss
Ruedinger, Cheryl Hentz
STAFF: Todd Muehrer, Associate Planner/Zoning Administrator; John Zarate, Building
Inspector; David Buck, Principal Planner; Allyn Dannhoff, Inspection Services
Director; Lynn Lorenson, City Attorney; Karin Gehrke, Recording Secretary
Chairperson Hentz called the meeting to order at 3:30 p.m. Roll call was taken and a quorum declared
present.
The minutes of December 12, 2007 were approved with the following correction: Page 17, bottom of page
indicates the motion was carried with Ayes-Cornell/Penney/Hentz, which is incorrect. The motion was
carried with Ayes-Cornell/Carpenter/Hentz.
ITEM I: 556 W 5TH AVENUE
Carl Sosnoski-applicant, Dean T. Sosnoski et.al.-owners, request the following variances to permit the
creation of a new off-street parking area:
Required (Section 30-26 (B)(3)) Proposed
I) 25’ front yard setback (north) 0’ front yard setback (parking)
II) 25’ front yard setback (south) 0’ front yard setback (parking)
Required (30-35 (B)(1)(c)) Proposed
III) 19’2” trans. yard east setback (north ½ of lot) 6’ trans. yard east setback (parking)
IV) 19’2” trans. yard west setback (north ½ of lot) 0’ trans. yard west setback (parking)
V) 19’2” trans. yard east setback (south ½ of lot) 4’ trans. yard east setback (parking)
Required (30-35 (I)(2)) Proposed
VI) Solid fence, wall or hedge min. 5’ high Existing fences not on subject property & new
landscaping/shrubs
Mr. Muehrer presented the item.
Mr. Carl Sosnoski, 2475 Knapp St., was present to provide information and answer questions. Mr. Sosnoski
asked the board to consider having a 2’ green space on both the 4th Street (north) end and the 5th Street
(south) end. According to the staff report there is an 8’ wide stall on the north end and a 7’ stall on the south
end. That 15’ can be incorporated into another 9’stall and it would still be enough area for customers to get
in and out of their vehicles. He said he will lose a stall if the setbacks are 2’ instead of the 3’ that staff is
recommending. If the setback is at 2’ then it would give him another 9’ (standard) stall. He went on to say
that even though it is public parking he will be losing parking stalls on Ohio St., so every parking space is
valuable. Mr. Sosnoski thought the 6’ setback on the north end of the east side was approved but now it
isn’t. He would like the 6’ setback to be reconsidered because he needs a place to put snow in winter and
he’d rather have it dumped on concrete as opposed to on the grassy area and bushes. He said he loses 2-3
stalls in winter. He then stated that in regard to the non-compliant stalls on the north and south end of the
Board of Appeals Minutes 1 January 9, 2008
lot, they have served the purpose for fifty years. He said he is losing two stalls at the back of the building
that were the handicapped stalls, and two parallel stalls on the northwest side by the duplex. So he is losing
four spaces in the parking lot and will be losing eight spaces on the street. He feels he has met the city
more than half way by agreeing to put in the storm system, the code compliant parking stalls and the green
space. He said the original 25’ setbacks are unrealistic and any owner would have to come before the board
for a variance.
Ms. Hentz confirmed the request Mr. Sosnoski was putting forth to be as follows: for items #1 & 2, 2’
setback on the north and south ends of the parking lot instead of 3’ and item #3, leave the 6’ setback as
requested.
Mr. Wilusz stated he understood that the east setbacks would be 8’ on the north end of the parking lot and 7’
on the south end of the parking lot.
Mr. Sosnoski re-stated that if the setbacks were decreased to 2’ instead of 3’on each end he could get another
code-compliant parking stall on each end.
Mr. Carpenter asked Mr. Sosnoski if he owned the duplex on the corner.
Mr. Sosnoski said he did not, that he couldn’t afford it and couldn’t afford to turn it into a parking lot. He
said the new parking lot by 6th and Knapp St. cost $190,000 for 19 parking spaces.
Mr. Penney referred to page 24 of the staff report saying that it was his understanding that after the last
meeting it was determined that only item #4 was the hang-up which was to be resolved with the measuring of
the lot. He thought they were in agreement with the other items. He questioned why items 1 and 2 were
even being discussed.
Mr. Muehrer said that is what he recalled as well.
Mr. Cornell referred back to the November ’06 meeting where the setbacks that were approved were 8.5’ on
the north and 7.3’ on the south. Now Mr. Sosnoski is asking for 2’ and 2’ respectively. He felt there was
considerable change from what they thought was actually necessary at that time and that has not been
affected by the certified measurements. The only thing that has been affected as Mr. Penney mentioned, is
item #4 and that has been pretty much resolved and staff has adjusted for that. He felt talking about 1’ on the
north and south ends were miniscule compared to 8.5’ and 7.3’.
Mr. Sosnoski said he was confused about what was agreed on and not agreed on. He said he really didn’t
agree with any of it. He said he never agreed to anything in particular. It was items brought up that needed
clarification. He said the reality is that what was being presented was done by staff. They said they did not
want to take spaces away. He said parking spaces are valuable. He did not mean to sound ungrateful but the
goal is to give a variance so that everyone can live with it. He said no one would be hurt (the neighbors, the
public or the city of Oshkosh) if the setback is 2’of green space instead of 3’. He said two years ago the
storm sewers were the big item. He is agreeing to do that as a safety issue and felt it was reasonable for the
2’ setbacks and 6’ setback to be approved.
Mr. Carpenter brought up the issue of having a big van. He drove through the parking lot several times after
the November meeting and pulled in and out of a parking stall. He said the snow is definitely a problem and
it shortens up the parking stall. He went on to say the only person the board heard from was the neighbor
who wanted the cars off the street. He said he would be in favor of the request.
Board of Appeals Minutes 2 January 9, 2008
Mr. Cornell asked if Mr. Carpenter was referring to the November ’07 meeting, not the November ’06
meeting.
Mr. Carpenter said he was referring to the ’07 meeting.
Ms. Hentz asked if staff had a position on any of the changes Mr. Sosnoski was requesting.
Mr. Muehrer asked the members to compare the current proposed site plan on page 12 to the one on page 30.
These are two site plans submitted a year apart. Specifically he referred to the 6’ versus 7’ setback on the
north half of the lot. On page 30 it shows a 24’ drive aisle with 7’ setback. On page 12 it shows a 25’ wide
drive aisle with a 6’ setback. He went on to say staff’s recommendation was in line with the previous plan to
be approved. He also said the stalls only need to be 18’ deep to be code compliant. It is Mr. Sosnoski’s
choice to have the parking stalls 19’ deep. In regard to the 8’ on the north and 7’ on the south that Mr.
Sosnoski was referring to, each stall is 9’ wide which leaves 6’left over to provide for the 3’ on the north end
and 3’ on the south end. Also on page 30 where the north half of the lot meets the south half of the lot, there
was a proposed landscaped island which is no longer included in the most recent proposal on page 12 so he
is adding a parking space there. If Mr. Sosnoski is concerned with snow removal, Mr. Muehrer did not know
why he wouldn’t want to have increased green space on the north and south ends in order get the snow out of
the way. Staff sees the parking lot as presented to be maxed out.
Mr. Cornell referred to page 4 item #6 and page 3, paragraph 4 which discussed the access drive aisle and
curb cuts. He questioned if these items were a contradiction. He asked Mr. Muehrer what the intent was.
Mr. Muehrer said currently there is no curb and gutter on 4th Street. It is just one large curb cut. When the
construction and the curb and gutter goes in, the curb cut needs to match what the access control ordinance
permits at that time, that being 24’on the north side and 24’ on the south side.
Mr. Cornell said he recalls during the meeting in November that it was more important to have a 25’ curb cut
on the south end because of the trash containers and the radius of the turn for the trucks getting in and out.
Now he understands that the recommendation is that nothing has to be done with the entrances until it’s
required.
Mr. Muehrer said that was correct. Nothing would need to change until the construction work on 4th and 5th
Streets is done.
Mr. Wilusz asked if the code compliant width was set to correspond with egress and ingress of cars. He
understood that the concern was with the spots on the ends being up against bushes.
Mr. Muehrer said a 9’x18’ parking space accounts for the opening of car doors and maneuvering in and out
of the vehicle. He said generally cars are not even 6’ wide. The additional space (at least 1-1/2‘on each
side) accommodates for opening the door.
Mr. Wilusz asked if opening the doors was taken into account when the landscaping requirements were
determined.
Mr. Muehrer said yes. It was the reason why low growing shrubs were designated.
Mr. Sosnoski said there is a difference between a stall in the middle of the parking lot and one on the end.
When someone is parked in a middle parking stall the cars are parked 1-1/2 ft from each other which creates
Board of Appeals Minutes 3 January 9, 2008
a 3’ buffer between the cars. But on the end when a passenger is getting out there will only be 1.5’ because
of the bushes, so there is a loss of space on the end.
Mr. Carpenter said that was why he brought it up at the November ’07 meeting.
Mr. Wilusz asked if there were different standards for stalls next to a building or structure.
Mr. Muehrer said no. The standard is the same regardless of the location of the stall.
Motion by Mr. Cornell to approve the application with conditions as presented.
Seconded by Mr. Wilusz.
Motion carried 4-1. Ayes-Penney/Wilusz/Cornell/Hentz. Nays-Carpenter.
Finding of Facts
:
There is no harm to the public.
It is the least variance necessary.
Based on comments earlier, Mr. Wilusz asked if there was a commitment from staff to work with Mr.
Sosnoski in creating the buffers on each end of the lot.
Mr. Muehrer said yes.
ITEM II: 579 EVANS STREET
Adam Gardner-applicant/owner, requests multiple variances to permit the creation of a new single-family
dwelling with a new two space off-street parking area.
The following requests are related to the proposed new single-family dwelling:
Required (Section 30-19 (B)(3)) Proposed
I) 25’ front yard setback 6’ front yard setbac
II) 25’ rear yard setback 3’ rear yard setback
III) 7½’side yard north setback 3’ side yard setback
IV) 7½’side yard south setback 2’6” side yard setback
The following requests are related to the proposed new two space off street parking area:
Required (Section 30-36 (C)(5)) Proposed
V) 25’ front yard setback 2’ front yard setback
VI) 7½’ side yard south setback 0’ side yard south setback
VII) 12’ maximum driveway width No information supplied
Required (Section 30-35 (I)(2)) Proposed
VIII)Solid fence, solid wall or dense None
hedge/evergreen shrub border at least
5’ high along all lot lines abutting a
residential district, except in the required
front yard setback.
Board of Appeals Minutes 4 January 9, 2008
.
Mr. Muehrer presented the item
Mr. Adam Gardner, 834 W Packard St., Appleton came forward to present information and answer
questions.
Mr. Jacob Mangen, 558 Monroe St., Oshkosh is the previous owner of 579 Evans St. and was present as
well.
Mr. Gardner passed around papers from the insurance company showing a settlement of over $63,000. He
did not know if it would help him or not because the payout is well above the assessed value of $43,000.
He said he had paperwork to prove he has a mortgage on the property, along with the next payment on the
property.
Ms. Hentz asked if he could pass the papers so board members could look at them and Mr. Gardner did so.
Mr. Gardner said he did not know why this fell in his lap since the city is concerned about properties that
don’t fit the new rules. He felt there was time enough for the City to address it before the property was sold.
Mr. Gardner mentioned that at the last meeting Mr. Zarate said the reason the city did not address it earlier
was because they were waiting for the owner and the insurance company to come to some decision as to
what they were going to do with the property. After thinking about it, it didn’t make much sense to Mr.
Gardner because the city should have been involved in that decision. Mr. Gardner said he felt the city
dropped the ball. He felt it was a hardship that he should not have to deal with. He said the city could
purchase the property for $52,000 and do with it what they want. He added that the previous owner, Jake
Mangen, had no knowledge of the problem or he wouldn’t have sold it to him. He went on to say that during
that time period either the title company or the previous owner should have given him some clue there was a
problem with the property. He said the title company and the banker are supposed to protect people from
this kind of thing. That’s what they’re paid for.
Ms. Hentz asked Mr. Mangen if there was anything he wanted to add.
Mr. Mangen said during the review to determine the amount of damage versus the amount it will take to
bring it back to where it was before versus assessed value with the insurance company, the actual value of
the property was determined to be $73,000. Beyond that there was nothing brought up that the building
should be razed or that there was anything necessary in regard to setbacks or making it into a single family.
Ms. Hentz asked if there was anything further Mr. Gardner or Mr. Mangen wanted to add.
Mr. Mangen said there was nothing brought up regarding razing the building or what would have to happen
to the building because of the fire.
Mr. Wilusz commented that he was not present during the first meeting and he questioned whether Mr.
Gardner’s initial intent was to have a two family and get income from the second unit.
Mr. Gardner said he was going to repair it as a two family house and sell it.
Mr. Wilusz asked how much of an issue it would be if it were to be a single-family home.
Mr. Gardner said it’s an added cost to have it changed over but better than to have it razed or told it cannot
be used for anything.
Board of Appeals Minutes 5 January 9, 2008
Mr. Wilusz wanted to be sure he understood what the options are. If the damage is determined to exceed
50% then the current setbacks need to be followed and it can only be a one family house. If less than 50% is
damaged, then there is not an issue with setbacks and nothing to vote on because he can repair it as an
existing structure.
Mr. Cornell asked how much the insurance settlement was.
Mr. Nielsen had the papers and said it was $63,816.50.
Mr. Wilusz commented that the bank note says it needed to be paid off in October ’07.
Mr. Gardner said he needed an extension on the loan for one year.
Mr. Wilusz asked if he had any papers showing the new loan.
Mr. Gardner said he thought it was included with it but perhaps not. He said the payment showing is the
latest payment.
Mr. Wilusz asked what relevance the mortgage is to the discussion.
Mr. John Zarate, City of Oshkosh Building Inspector said the board was told that Mr. Gardner had a $52,000
mortgage and the board was worried about it being money thrown away if we required that he take the house
down, but there was no evidence of it when a title search was done.
Ms. Hentz commented that the note was stamped that it was paid in full.
Mr. Gardner said no, it was not correct. When he got the loan extension the bank paid off the old loan and
then opened the new loan because it gave him one year to get the work done.
Mr. Penney asked what happened to the $63,000.
Mr. Mangen said it was paid to him.
Ms. Hentz asked if he was the owner at the time of the fire.
Mr. Mangen said that was correct.
Ms. Hentz asked if he knew how much damage was done.
Mr. Mangen said damage to the first floor was about 80% and there was a small amount on the second floor.
He said damage to the second floor was mostly cosmetic.
Ms. Hentz asked Mr. Mangen if he knew if the gutting done by the new owner (Mr. Gardner) was because he
wanted to make changes for remodeling or because of the result of the fire.
Mr. Mangen said it was because of the fire damage.
Ms. Hentz asked Mr. Mangen if the damage was more than 50%.
Board of Appeals Minutes 6 January 9, 2008
Mr. Mangen said it was over 50% on the first floor.
Mr. Wilusz asked staff if the proposed new structure would be on the same footprint as the old structure.
Mr. Muehrer said yes.
Mr. Gardner said there was a person prior to him that was interested in purchasing the property and his
intention was to live in the upper apartment while fixing the lower.
Mr. Wilusz asked whether there were legal standards the Board needed to meet when finding above or below
the 50% for an Administrative Ruling.
Mr. David Buck, City of Oshkosh Principal Planner said the guidelines are the same as when the city does an
equation on 50% assessed value, which is cumulative. For example, if there is a small amount of damage
(such as damage to a corner of a house) that would not be 50% but it would go in the file and additional
damage would be added in the future.
Mr. Wilusz verified that the benchmark is the assessed value. He questioned if the amount paid out by the
insurance company counted against the assessed value.
Mr. Buck said the insurance payment could also be paying for belongings inside the building so that is not
necessary good to use. They could be paying for repair costs. He did not know what they use in that
calculation.
Mr. Wilusz asked if what counts against the assessed value are structural repairs.
Mr. Buck said it would be non-maintenance repairs. For example, if a house only had one bathroom,
changing a fixture would be maintenance. If a second bathroom were added it would be considered
structural and non-maintenance.
Mr. Wilusz said they have an assessed value of $43,000. He wondered if the board has received an
accounting of the non-maintenance items that would count against the $43,000.
Mr. Allyn Dannhoff, City of Oshkosh Inspection Services Director said they have not received an adequate
breakdown to make a determination. He said the city keeps asking for information but have not received
anything from the owner to date.
Mr. Zarate advised Mr. Wilusz that the city went to court because the applicant had a restraining order
against the city to raze the house and it was decided in court that the city had met the burden of proof that the
damage was over 50% but the judge gave him the benefit of the doubt to make repairs to the house.
Mr. Wilusz then verified that there was already a court ruling that the damage was over 50%.
Mr. Zarate said yes.
Ms. Hentz asked what the judge used to make her determination.
Mr. Zarate said the judge saw photos from inside the dwelling and prior information.
Board of Appeals Minutes 7 January 9, 2008
Ms. Hentz said she would like to see the pictures and thought it would be more than helpful for the board to
determine if the damage is 50% or more.
Mr. Wilusz said he didn’t feel he had a basis to look at pictures and make a determination.
Mr. Carpenter said he was confused by the report from the insurance company. Normally when you have an
insurance policy there is a listing that includes price of the house, belongings, use of the house, replacement
cost coverage, etc.
Mr. Mangen said part of the amount was for loss of rental income and some was for belongings. He believed
that amount to be $5,000 for loss of rental income.
Mr. Zarate said the $5,000 for loss of rent, reduces the insurance amount to $58,000. The personal property
couldn’t be more than $20,000. The building alone was assessed at $35,000. When the city estimated what
the cost of repairs would be in order to get the raze order, they were pretty close.
Mr. Penney asked if the board needed to take a vote to determine their decision regarding the 50%.
Mr. Muehrer said yes.
Mr. Carpenter asked for verification that the court said the damage was more than 50%.
Mr. Zarate said yes, the court believed the city had proved they issued the raze order correctly.
Mr. Carpenter asked why the court would give him permission to proceed.
Mr. Zarate said the judge felt sorry for him.
Mr. Gardner said he hasn’t seen the transcript from the court but he didn’t see that the judge thought the city
met the burden of proof. He didn’t feel that the court was feeling sorry for him. He felt the court thought it
was reasonable for him to do the work. Everything is going to fall back on whether the damage is 50% or not
because they couldn’t tear it down for other reasons. He said the city originally told him it was ugly and
people were coming in and complaining about it and he wasn’t moving fast enough to get it fixed. Then he
got the raze order. He said he tried to take care of it. He said the city had months to do something about this
property and they did nothing. He felt the city dragged their feet and now it’s his problem. Again he said if
the city wants the property they can buy it and do whatever they want to with it. He said even if he does get
enough votes the city will find some flaw to stop him from going forward.
Mr. Penney asked Mr. Gardner if the planning department made any comments to him when he filed for the
variance.
Mr. Gardner responded that they said they would look at it. They knew the situation because of the fire and
said they would look at it. “He” looked at the plans and initially he said things look good but they did not
want to stop the raze order.
Mr. Cornell asked “who is ‘he’?”
Mr. Gardner said it was Allyn Dannhoff.
Board of Appeals Minutes 8 January 9, 2008
Mr. Penney asked if he did not get a permit.
Mr. Gardner said no he was refused a permit. Now the neighbors are questioning why the work is not being
done. He said neighbors have asked him why he doesn’t just go ahead and start the work but he did not want
to incur any fines.
Ms. Hentz asked staff if they had anything from the court proceedings.
Mr. Zarate said the city was not willing to incur the cost to get a copy of the transcript.
Ms. Hentz said she wasn’t thinking about the transcript necessarily but perhaps a final ruling.
Mr. Dannhoff said the court ruled on this on October 3, 2007. He did not recall a ruling on the 50% issue
but they were given permission to issue the raze order due to the amount of time that had lapsed and the fact
the building was uninhabitable. Also, Mr. Gardner did not make an attempt to get a permit until the end of
the raze order deadline. The judge felt, out of fair play, it was appropriate to give Mr. Gardner time to repair
the structure and gave him until the end of the year.
Mr. Dannhoff went on to say that Mr. Gardner brought in a plan on October 11, 2007 that lacked a
significant amount of information. Mr. Zarate went over the plans with him and took him to the Planning
Office for review. At that point in time the zoning review brought up the 50% rule. He went on to explain it
is not the policy of the Inspections Department to go in right after a fire and add insult to injury and tell
people they have to tear down a building or start making repairs. They typically let people come to them
until they find out nothing is transpiring. Mr. Gardner purchased the building 3-4 months after the fire.
The Inspections Department first got involved when they found out there was work being done without a
permit. Mr. Dannhoff commented that Mr. Gardner claims to be a contractor and should know he needs a
permit. He met with Mr. Zarate who told him to get a building permit and issued an order for such. At that
point in time the Inspections Department heard nothing back from him. Mr. Zarate reissued the order in May
2007. Again, there was no response, so in July 2007 the raze order was prepared and sent to him in August.
Again, the city did not hear from him until days before it would expire and a contractor would have been
hired to raze the building. Another part of the judge’s ruling is Mr. Gardner was to demonstrate proof of
financial responsibility. Mr. Dannhoff added that at this point in time the attorney for the city has not
received it. As the staff report points out, the city continued to request information and there has been no
cooperation to get that information.
In regard to the $63,000, Mr. Dannhoff questioned what it might have covered. Was it all damage? What
kind of insurance was it? Did it only cover repair? Was there a limit to the policy? If $63,000 was the cost
to repair the structure as it sat, then the $63,000 stands on its own. It is over 50% of the assessed value. He
went on to say for clarification that the 50% is 50% of the cost to make the repairs, not if the building is
damaged by 50%. Mr. Dannhoff said they feel bad for Mr. Gardner. He said he could not imagine how the
Inspections Office would be painted if days after a fire the city sent out nasty-grams asking when the owner
is going to get the damage fixed. Typically owners will contact the city informing them of the fire. Rarely
does the city have to seek an owner out to find out what their plans are.
Mr. Cornell referred back to the 50% guideline to get clarification. He questioned if the following was
correct: If a property is valued at $50,000 but the replacement cost is $75,000, the 50% then would be
$37,500, not $25,000?
Mr. Dannhoff said it is based on the present assessed value at the time of the event so in his example the 50%
would be $25,000. It is just the value of the building, not the building and the land.
Board of Appeals Minutes 9 January 9, 2008
Mr. Penney asked how the board could consider a variance when there was no legal building permit.
Mr. Muehrer said they need to get the variance first in order to get a permit.
Ms. Hentz commented that is the standard way it’s been done.
Mr. Carpenter wanted to affirm that there was a $52,000 mortgage taken out but that nothing was happening
at the property because no permit was granted. He questioned where the $52,000 is at this point.
Mr. Gardner said there are materials sitting on the property that he purchased already.
Mr. Carpenter asked if he couldn’t take the materials back.
Mr. Gardner said he’s had the materials for over a year and didn’t think they would be accepted.
Mr. Carpenter asked if he spent all of the $52,000.
Mr. Gardner said he has been paying the mortgage every month, utilities and taxes. He said it doesn’t come
to the full $52,000 but that is what the loan is for.
Mr. Penney asked if there were pictures showing what work was done.
Mr. Gardner said no work has been done. He said coming from the restoration business it is not uncommon
for things to be torn out before a permit is gotten. His idea of a permit is for when something is being built.
He said the raze order was sent to the previous owner. When he got the raze order he didn’t even know what
it was. He said the only notice he got was that he only had 30 days to make something happen.
Ms. Hentz asked if someone has to have a building permit to tear something out or gut something.
Mr. Dannhoff said according to Municipal Codes Section 7-8, yes.
Mr. Gardner said he did not know he had to get a permit until he was ready to rebuild it.
Mr. Wilusz asked Mr. Gardner if he typically works in Oshkosh.
Mr. Gardner said no.
Ms. Hentz commented that it was a lot to take in. She asked Mr. Gardner if there was anything else he
wanted the board to consider.
Mr. Gardner said no.
Ms. Becky Fitzhenry, 651 Evans St., approached to make a statement. She said she has lived in the
neighborhood for 10 years and she goes past the property almost every day. She said the fire was in June
2006. There has been a dumpster sitting on the property since Fall 2006. She finally decided to do
something about the unsightliness so she went to the City Council in August 21007. There were broken
windows and a rank odor coming from the building. It had been 19 months and nothing had happened at the
property site. The snow has not been shoveled and it is still in disrepair. Her understanding was that the
current owner purchased it after the fire and therefore, felt that he should have known what he was getting
Board of Appeals Minutes 10 January 9, 2008
himself into. She is asking for the variance to be denied. She said supporting the request is allowing an eye-
sore of a property to continue. She said the owner hasn’t done anything in the last year to improve the site.
Ms. Fitzhenry had copies of two letters from other neighbors.
The first letter was from Ms. Sarah Anderson, 627 Evans St. The letter stated she was concerned about the
burned property. There has been no visible attempt to repair the property and the owner has done nothing to
keep up the landscaping of the property. Sidewalks have not once been shoveled and the lawn has not been
mowed in the summer and now it has turned to weeds. It is a terrible blemish in the neighborhood. I go by
the property everyday and nothing has been done for over a year. The property to the south sustained heavy
damage and this house was repaired almost immediately. The owner has had ample time to raze or repair the
building and he has chosen not to do so and instead has chosen to waste the city’s time in the form of raze
restraints and appeals. The best predictor of future behavior is past behavior and Mr. Gardner’s past
behavior speaks volumes to the fact that he has no intention whatsoever to make improvements to this
property. Approving this appeal will only lead to more delays and continued procrastination. I urge you to
deny the appeal and mandate the razing or repair of the property.
The second letter is from Darren Anderson, 627 Evans St. The letter stated he was unable to attend the
meeting but wanted to submit his opinion for consideration. The owner of this rental property has been
given ample time to either repair the property or sell it. The owner has ignored due diligence in maintaining
the property with snow or debris removal, and in securing the building from attracting vagrants and vandals.
This building is blight on this neighborhood and the owner who doesn’t even live within 10 miles of it
should be ashamed to have neglected this property. He heard the City of Oshkosh claim that they are trying
to help clean up the east side of crime and make it a safe and desirable place to live. He implored the board
not to give the owner additional time to ignore this problem and require that it be cleaned up immediately.
Mr. Carpenter questioned whether there was a problem with the letters being presented since the writer was
not present. He mentioned it had been a problem in the past.
Ms. Hentz said she did not see it as a problem.
Ms. Anderson passed photos around showing the dumpster in front of the property. She said Council
Member Bain walked through the neighborhood with her and was shocked at the sight.
Mr. Gardner said the dumpster was empty when it was delivered and neighbors decided it was for anyone to
use. He said he had nothing to do with it. He didn’t put anything in the dumpster.
Ms. Hentz asked that the comments be stopped. She said the board could not consider it one way or another.
She asked Mr. Gardner why he did not shovel the walks or mow the lawn. She said they were not an
enforcement body in this regard but that she felt it speaks about behavior.
Mr. Gardner first stated that the stuff on the side of the house belonged to the house next door. He said there
was a large tree on the boulevard that had to be removed and the ground was soft for months so he couldn’t
do anything with it. He said there really isn’t a yard there to speak of. Technically the side yard belongs to
the neighbor.
Ms. Hentz asked why the sidewalks weren’t shoveled.
Mr. Gardner said he did not check on the shoveling and it was a matter of out of sight out of mind. He
apologized for not getting it done.
Board of Appeals Minutes 11 January 9, 2008
Ms. Hentz then asked Mr. Dannhoff to review the timeline of events for her.
Mr. Dannhoff provided the following: The fire was in June 2006. The property was purchased in October
2006. A correction notice was sent to the owner November 1, 2006 after complaints were received. On the
same day a letter was sent to the owner to respond within 10-days and the owner at that time was Fox Valley
Housing, LLC. There is a time delay between the Register of Deeds Office and the Assessor’s Office. The
letter did not come back, therefore the previous owner who received the notice either disregarded it or
forwarded the notice on. Mr. Zarate verified the ownership and reissued the correction notice to Mr. Gardner
at 834 Packard St., Appleton on May 15, 2007. There was no response to the notice. A report for raze
action was prepared on June 29, 2007 because no contact was received. A neighbor, Andrew Graf, filed a
complaint with the council on July 30, 2007. The raze order was issued to Mr. Gardner by the Sheriff’s
Department on August 14, 2007. Neighbors attended the City of Oshkosh Common Council meeting on
August 28, 2007 and voiced their complaints. An application for permit was completed on September 11,
2007. At that time Mr. Gardner was told the building would need to be inspected to determine the structural
integrity of the building. Mr. Gardner gave his permission and the lock box code to Mr. Zarate. The
inspection was completed and photos were taken. Mr. Zarate discussed the situation with Mr. Dannhoff and
it was determined that the owner would have to obtain a restraining order to stop the raze order that was
issued. The court date was October 3, 2007 at which time the judge said the city was within their rights to
issue the raze order and to go in and tear it down However, he thought there was sympathy for Mr. Gardner
so she gave him until the end of the year to do the work. During that court session it was brought up that
there was a potential for zoning code issues due to the extent of damage. On October 11, 2007 Mr. Gardner
attempted to get a permit but his plan was lacking the detail necessary to issue it. Mr. Zarate went over it
with him and gave him a checklist of things that needed to be included on the next set of plans and then he
was referred to the Planning Department to have it reviewed. At that point in time, the Planning Department
thought the 50% rule would also come into play and rendered that determination. Inspections and Planning
did not hear from Mr. Gardner so a letter was sent November 7, 2007 reminding him that additional
information was needed and that he may have to apply for a variance. Mr. Gardner came in one day before
the deadline and got the variance procedure going.
Ms. Hentz restated the details that Mr. Gardner applied for a permit on September 11, 2007 and October 11,
2007 and that the correction notice was originally sent in November 2006 to Fox Valley Housing and it went
to Mr. Gardner on May 15, 2007.
Mr. Wilusz referred to the fact that they needed to make two decisions and he wanted to get things moving
without dinging Mr.Gardner for thousands of dollars of penalties, in effect. He thought one way to get there
was to say the damage is over 50% and then to grant the variance. Mr. Wilusz did not feel Mr. Gardner
would be favorably received if he came back in six months needing another variance. He did not know if
there was enough information to determine if the damage was 50% or more. He felt comfortable on a prima
facia basis saying it is greater than 50% based on the rough numbers. It only has to be $15,000 and it seems
reasonable to assume that more than 50% of the check was used for non-maintenance. He did not feel they
had enough based on the court. He did not know what the court said about it. There is no itemization. He
went on to say the board could say they don’t have enough information and set it aside but he felt it needed
to get going. If the board granted the variance for a single family property then Mr. Gardner has to get going
on it.
Mr. Penney said if they apply the prudent person rule he felt very comfortable that the damage was more
than 50%. Mr. Penney questioned if they could put conditions on the approval indicating work must
progress within a certain amount of time, or if Mr. Gardner would have six months to get his permit.
Board of Appeals Minutes 12 January 9, 2008
Ms. Hentz questioned if, from a legal standpoint, he could be required to begin work in less than six months
or if they granted it would he have the full six months.
Mr. Dannhoff said in regard to the time, he needs to schedule a meeting with the judge. The court gave Mr.
Gardner three months to complete the work and he would think the court would keep that timeline.
City of Oshkosh Attorney Lynn Lorenson said she would have to look at the statutes. If it is a statutory six
months they would not be able to change that.
Mr. Dannhoff said regardless of the outcome he believed they would need to reschedule with the court to let
them know things have been worked out. Initially the court gave three moths. He liked to think the court
will give him the three months.
Mr. Nielsen asked if that three month clock started ticking.
Atty. Lorenson commented that the order said the repairs needed to be substantially completed by December
31, 2007 but provided a provision that if the repairs are due to delays in the permitting process by the
defendant (the city), the time would be extended. She thought the intention was that if there was a zoning
issue that needed to be worked out they wouldn’t need to go back into court.
Mr. Nielsen said the conclusion then is the judge would give him three months.
Atty. Lorenson said she would interpret it to be so.
Ms. Hentz said from the city’s perspective she understood their desire to clean up the neighborhood. She
also didn’t want to see the applicant taking a loss of thousands of dollars. She questioned the best way to
mediate the situation and include keeping the property on the tax roles and protecting the neighborhood and
neighbors who have had to look at it for a 1-1/2 years already.
Mr. Buck recommended that the board refer to the staff report and not wander outside the board’s powers.
He went on to say the 50% ruling was not in Mr. Gardner’s original request, but was for setback variances.
Also, they cannot take into consideration any economic hardship. He reminded them to remember what the
rules are that they are suppose to follow and that they are not policy makers. They need to be judging the
code and the hardship to that code by the applicant. If the applicant has a hardship due to setbacks where he
cannot have reasonable use of the property then a setback can be granted. They need to remember the Board
of Appeals guidelines, the staff recommendation, and what is requested. Their duty is to be a judge on the
request based on the property. Staff is always looking for the least variance necessary.
Atty. Lorenson echoed Mr. Buck’s comments that the issue is the request for variances. She questioned how
the 50% damage came up in the first place.
Ms. Hentz said it was referenced in the staff report during the first consideration.
Mr. Carpenter moved for approval.
Mr. Wilusz asked what was being approved.
Mr. Buck said they first needed to vote on the 50% damage issue then vote on the setback requests.
Board of Appeals Minutes 13 January 9, 2008
Mr. Penney said if they vote yes it would mean they feel the damage is more than 50%. If they vote no it
means the damage is less than 50%.
Mr. Penney moved to agree that the damage was more than 50%.
Seconded by Mr. Wilusz.
Motion carried 5-0. Ayes-Penney/Wilusz/Carpenter/Cornell/Hentz. Nayes-None.
Mr. Wilusz asked what the size of the footprint would be without variances.
Mr. Muehrer said very small.
Mr. Wilusz said they need to determine hardship and the lot is so small that you could hardly put an outhouse
on it. He felt comfortable that there was a hardship due to the size of the lot based on actions of the board in
the past.
Mr. Carpenter commented that the size of the lot was 45’ x 50’.
Mr. Cornell said if the board determines there is a hardship then there can only be a single-family dwelling
on the property.
Ms. Hentz asked if the applicant is aware that if the setback requests are approved, it will be for a single-
family dwelling.
Mr. Gardner said yes, he understood.
Ms. Hentz added that as Mr. Dannhoff had mentioned it will need to go back before the judge and she [the
judge] will put the time frame on it. Furthermore, what the Board of Appeals approves normally has a six
month life span, but in this case the judge will determine the time frame and it may be less than six months.
Mr. Gardner said he understood.
Mr. Dannhoff said once the permit issues are straightened out then the three-month clock would start that the
court sets.
Ms. Hentz said she wanted to make sure Mr. Gardner understood exactly what was going to happen.
Mr. Wilusz asked what Mr. Gardner would have to due within six months.
Mr. Muehrer said he would have to obtain a building permit within that time under normal circumstances.
However, he understood that the courts wanted substantial completion within three months
Mr. Dannhoff said the time set by the court on October 3, 2007 was that he needed to meet substantial
completion by December 31, 2007. If the variances are approved, then starting tomorrow, Mr. Dannhoff
understood that he would have the same amount of time.
Mr. Wilusz questioned if there was a delay in getting the building permit then he would have three months
from that date.
Mr. Dannhoff said that is only for permit delays cause by the city (sorting out the zoning code issues).
Board of Appeals Minutes 14 January 9, 2008
Mr. Wilusz asked if the city was confident that they can take actions through letters and dealing with the
court to not allow extended delays on obtaining the permit.
Mr. Dannhoff said if Mr. Gardner came in with acceptable plans tomorrow (Thursday), a permit could be
issued by Friday.
Mr. Gardner said it is impossible for him to get back to Oshkosh tomorrow to take care of it. He questioned
how long he had to get the permit.
Mr. Dannhoff said that has to do with the court-allowed timeframe. The Board of Appeals has nothing to do
with that part.
Again Mr. Gardner asked how long he has to get the permit
Ms. Hentz said only the judge can answer that question.
Motion by Mr. Carpenter to approve the request.
Seconded by Mr. Penney.
Motion carried 3-2. Ayes-Penney/Wilusz/Hentz. Nayes-Carpenter/Cornell
Findings of Fact:
Setbacks render conformity with the letter of the law unnecessarily burdensome.
Physical limitations because of the size of the lot.
Hardship exists – purchased in good faith.
Mr. Moss Ruedinger left the meeting at this time (5:20 p.m.)
ITEM III: S. OAKWOOD ROAD (VACANT LOT)
Kelly Claflin, Development Services-applicant, D & F Investments LLP-owner, request a variance to reduce
the building structure setback standard from the Ordinary High Water Mark to 50’. Section 17.20 (3)(a)(1)(a)
of the Winnebago County Town/County Zoning Ordinance: Shoreland District (Overlay) requires a 75’
building structure setback from the Ordinary High Water Mark of Navigable Waters.
Mr. Kelly Claflin, 810 S. Lansing, Sturgeon Bay, petitioner and Mr. Dennis Schwab, 601 Oregon St., owner
came forward to answer questions.
Mr. Claflin began by saying he agreed with the city’s recommendations and was willing to make the
concession to one single family dwelling instead of two. He said the house is very small and only a small
portion will be within the 75’ setback. He said page 4 shows the house size and location. He reiterated that
the DNR did not object to the setback being reduced to 50’ and said he did not feel there would be additional
impact to the environment.
Mr. Nielsen asked what they will be voting on.
Mr. Muehrer said the only variance requested was the 75’ setback.
Ms. Delores Malo, 1042 S. Oakwood Rd. came forth to speak on the item. She read a letter from “a
neighbor” saying that before the condos were built, they met with Mr. Schwab and he stated their building
Board of Appeals Minutes 15 January 9, 2008
and one just north of them were the only ones to be built. The letter went on to say there had been severe
flooding on the property in question and there is a reason for a 75’ setback. They have seen flooding three
times since they moved there in 2001. There is definitely a reason why the 75’ setback has been required.
Ms. Hentz asked who the letter was from.
Ms. Malo said it was from John and Carol Schiessl, 1030 S. Oakwood Rd.
Ms. Malo then added that there had been flooding in the past couple days and the banks are flooded over
onto the property in question. She felt it would affect where the deck is being proposed on the site plan. She
questioned if a walkway would be used to get on and off the golf course and commented that there is nothing
on the map showing the wetland. She believes there is a unique limit to the property and the development
would intrude on wildlife, wetland and flowers. She is also concerned that the value of the condos will
decrease and they may have to sell at a lower price. She questioned what the limits are to protecting
wetland areas. A contractor could go in to clear the land and they could take out the trees and bushes as well
without realizing the damage being done. She questioned if the whole parcel was being used for one house
so that it won’t come up later. She commented that she wished they had gotten it in black and white that
nothing would be built.
Mr. Penney asked Mr. Schwab if promises were made not to build on that land.
Mr. Schwab said he didn’t recall.
Mr. Cornell questioned if it was relevant at this point.
Mr. Carpenter agreed that it was not relevant.
Motion by Mr. Cornell moved to approve the item as requested.
Seconded by Mr. Carpenter.
Motion carried 5-0. Ayes-Penney/Wilusz/Carpenter/Cornell/Hentz. Nayes-none.
Finding of Fact
The land has physical limitations.
DNR has no objection to the 50’ setback.
ITEM IV: 544 JEFFERSON STREET
Attorney Charles Williams-applicant, Kelly J. & Elizabeth L. Burnett-owners, request a variance to permit
the creation of an asphalt driveway with a 0’ setback. Section 30-36 (C)(5)(f) of the Oshkosh Municipal
Code: Off-Street Parking and Loading Facilities requires a driveway to be a minimum of 6” from a side lot
line.
Atty. Charles Williams, 128 State St. Oshkosh, petitioner was present. He asked the board members to
follow the staff recommendation.
Mr. Carpenter asked if the driveway was in non-compliance.
Mr. Muehrer said it had been since March 2003.
Atty. Williams said the current owner, Kelly Burnett was not aware of the previous owners’ non-compliance.
Board of Appeals Minutes 16 January 9, 2008
Motion by Mr. Wilusz to approve the item as requested.
Seconded by Mr. Cornell.
Motion carried 5-0. Ayes-Penney/Wilusz/Carpenter/Cornell/Hentz. Nayes-none.
Finding of Fact
There is a special hardship due to the size of the lot.
There is no harm to the general public.
ITEM V: 919 MERRITT AVENUE
Maureen A. Muldoon-applicant/owner, requests a variance to permit the creation of an asphalt driveway with
a 0’ setback. Section 30-36 (C)(5)(f) of the Oshkosh Municipal Code: Off-Street Parking and Loading
Facilities requires a driveway to be a minimum of 6” from a side lot line.
Ms. Maureen Muldoon, 919 Merritt Ave. Oshkosh, petitioner and owner was present to answer questions.
She began by saying she thought the board should approve the request. She explained that there are two
driveways side-by-side and her driveway goes 6-8’ into the neighbor’s driveway. She said there is no other
place to put the driveway. It has been treated as a driveway for fifty years.
Mr. Carpenter commented that this is the second driveway in the last few months where the contractor failed
to pull permits. He questioned if the city could do something to notify contractors that they need a permit for
this type of work.
Mr. Muehrer said staff was conceptualizing a pamphlet for contractors that will explain when permits are
needed.
Ms. Muldoon said she had talked with her neighbor who was told by a city staff person that they didn’t need
one.
Ms. Hentz suggested a mailing and an ad in the paper would be good.
Mr. Wilusz referenced work done on a patio and the contractor said they didn’t need one.
Mr. Muehrer questioned where a mailing list would start and stop.
Motion by Mr. Wilusz to approve the item as requested.
Seconded by Mr. Penney.
Motion carried 5-0. Ayes-Penney/Wilusz/Carpenter/Cornell/Hentz. Nayes-none.
Finding of Fact
There is unique hardship with the property.
There is no harm to the general public.
There is no adverse impact.
This is the least amount of variance required.
There being no further business, the meeting adjourned at 5:55 p.m. Cornell/Carpenter 5-0.
Respectfully submitted,
Board of Appeals Minutes 17 January 9, 2008
Todd Muehrer
Associate Planner/Zoning Administrator
Board of Appeals Minutes 18 January 9, 2008