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Board of Appeals Minutes 1 December 12, 2007 BOARD OF APPEALS MINUTES DECEMBER 12, 2007 PRESENT: Dan Carpenter, Robert Cornell, Dennis Penney, Mark Nielsen, Cheryl Hentz EXCUSED: Moss
Ruedinger, Edward Wilusz STAFF: Todd Muehrer, Associate Planner/Zoning Administrator; John Zarate, Building Inspector 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 November 12, 2007 were approved with the following correction: Page 2, paragraph 4 was corrected
to reflect that board member Mark Nielsen (not Dan Carpenter) arrived after the meeting began. ITEM I: 579 EVANS STREET GENERAL DESCRIPTION AND BACKGROUND 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. Mr. Muehrer presented the item.
Board of Appeals Minutes 2 December 12, 2007 Ms. Hentz began by indicating she had been confused with information in the staff report. Specifically, page 1, paragraph 2 refers to the
applicant requesting variances to develop a single-family dwelling but in paragraph 3 it indicates the applicant submitted layouts for a two-family dwelling. She also asked where the
copies of the two-family layout were as it would be helpful for the board members to see them. Mr. Muehrer explained that it was the owner’s understanding that since it was a two-family
dwelling before, that he could automatically be qualified to have a two-family dwelling on that lot. Mr. Muehrer referred to page 2, at the top of the page, to Section 30-35 (B)(4)(b)
where it explains the requirement to meet current regulations and pointed out that the Board of Appeals does not have authority to grant “a use variance” to permit a two-family dwelling
at this property. Ms. Hentz said she was still confused since the staff report indicates he is requesting multiple variances for a two-family dwelling. Mr. Muehrer said the only way
he can have any type of structure on that site is if it is a single-family dwelling. Ms. Hentz pointed out that the applicant is not asking for variances for a single-family dwelling.
He wants a two-family unit. Ms. Hentz said she had read the report several times and it was still confusing to her. Mr. Muehrer apologized for the confusion and explained that his intent
was to delineate that even though the applicant applied for approval of a two-family unit, the board does not have the authority to grant such a request. Ms. Hentz said she understood
that part of the report. It just has conflicting information. She asked if there were copies of the floor plans. Mr. Muehrer passed around the copies from the file. Adam Gardner, 834
W Packard St. Appleton came forward to present information and answer questions. Mr. Gardner said the property had been empty for six months. He said neither the title company nor any
one else involved in the transfer of the property made him aware that it would be a problem with him rehabilitating it into a two-family home. It was not until this past August that
he received something informing him that there was a problem. He said the City of Oshkosh Inspections Department indicated they had sent something to the previous owner. He said he had
recently talked with the previous owner and he said he knew nothing about these problems with the property. He questioned why this did not come up right after the fire if it was such
an issue. He said in regard to the amount of damage, it is minimum compared to what the city is saying. He went on to explain the house was gutted by his choice because it had been remodeled
so many times. He felt it would be easier to start from scratch inside rather than work with what was there. He said the city is trying to say this is a new structure but it isn’t. He
stated that this is an existing structure that’s been there at least fifty years and people have been dealing with the snow removal and water drainage right along. Ms. Hentz asked if
he had anything from the fire department or the insurance company indicating how much of the structure was damaged. Mr. Gardner said he did not because he did not own it at the time
of the fire. He did not know if the previous owner had any paperwork either. He said the previous owner told him that when the City of Oshkosh
Board of Appeals Minutes 3 December 12, 2007 Inspections department looked at the building they did not indicate that it would have to be torn down or that it was condemned or that it
could not be rehabilitated. Mr. Penney asked what the assessed value of the property was before the fire. Mr. Gardner said he thought it was around $43,000. Mr. Penney asked Mr. Gardner
if he would keep it for rental income or was he planning to sell it if the variance was granted. Mr. Gardner said he prefers to sell it. Ms. Hentz asked if there was anything further
he wanted to share. Mr. Gardner added that there were no “red flags” when he purchased the property that there would be a problem. He has a $52,000 loan out for purchase and improvements.
The building is useless unless he is able to do the improvements on it. Ms. Hentz asked when the fire took place. Mr. Gardner said it was June 2006. He questioned why something wasn’t
done because of the fire before he purchased it October 23, 2006. Mr. Carpenter asked if he purchased it through a realtor or the owner. Mr. Gardner said he purchased it directly from
the owner. Ms. Hentz indicated that the time span between the fire and the purchase was 4 months, not 6 months as the applicant had indicated. Mr. Penney commented that staff is saying
it is an unbuildable lot (because it is substandard) but there have been other variances granted for similar situations because failure to grant the variance would make the property
un-useable for the purpose that it was intended. In this case we’re saying it cannot be built on for that reason (that it is substandard). He asked staff to explain why this is different.
Mr. Muehrer asked the board to keep in mind that the intent behind the zoning ordinance minimum standards of lot width and lot depth, etc. is so that when events like this occur to a
property that is substandard, it is a rare opportunity to bring the property into compliance with the current code. This is very similar to the circumstances with Mr. Kargus’ property.
That lot was 54x42 and this parcel is around 45x50. You can tell from looking at the maps what the original intent was (in regard to lot sizes in the neighborhood). Mr. Carpenter commented
that it is really unknown how much was damaged by the fire. We’re calling it a new building because of the amount of damage that was done. Mr. Carpenter questioned how much damage needed
to be done in order for it to be considered a new building. Mr. Muehrer said more than 50%. In this case it exceeded that amount, so any type of new dwelling established on the lot is
considered a new structure even though the outside shell is still there.
Board of Appeals Minutes 4 December 12, 2007 Mr. John Zarate, City of Oshkosh Building Inspector informed the board members that there was a raze order issued by the city for this property
and the current owner has a temporary restraining order against the city for the raze order. A judge issued the restraining order in October ‘07, which gave the owner the benefit of
the doubt to get the property repaired if he could get approval from the Board of Appeals. The City had all of the burden of proof met with the judge in regard to the 50% rule and had
every right to issue the raze notice but the judge wanted to be a good Samaritan and give the owner an opportunity to rehab the property even though the damage exceeded more than 50%
of the value. Mr. Carpenter asked if gutting the building had already begun. Mr. Zarate said yes. It was completely gutted. Mr. Carpenter then asked if the construction had begun already.
Mr. Zarate responded that this would be considered the demo part of the work (not construction). construction). Typically when there is a fire there will be some amount of gutting done
to determine how much actual damage was done. Sometimes people think that if it is a small fire, the damage is minimal, but as they open up walls they find that there is more wrong then
they had planned. In this case they were probably doing the right thing by taking the interior apart to see what was there. Mr. Carpenter asked at what point does it become the responsibility
of the previous owner since they had insurance at the time of the fire. Mr. Zarate said he thought that would depend on how the property was sold. He thought it was sold as salvage as
the sale price was around $16,000. He could not imagine it was sold as a habitable dwelling. Ms. Hentz asked for clarification that the current mortgage is $52,000. Mr. Gardner mentioned
that there had been another person interested in the property and had plans to live upstairs while working on the downstairs. He felt this indicated that the damage is not as extensive
as staff is indicating. If you see the pictures of the house, you can see there is no damage to three sides of the house. The only damage that is noticeable from the exterior is a little
bit on the back and why there are no pictures of that he did not know. Mr. Cornell questioned if the current structure was to be removed, could another house be built on the lot with
more defined variances for setbacks to make it a useful property. Mr. Zarate said yes, if the variances were approved. Mr. Muehrer stated it was similar to the situation on Wisconsin
St. (908). Mr. Penny asked if there was any paperwork that shows the actual estimate of damage. He felt that was a key point and did not feel comfortable voting on the item one way or
the other until that question was answered. He said it needed to be proven to him that the damage was over 50% since they were getting conflicting information from the applicant and
city staff. Ms. Hentz agreed that it was important. In regard to the items the board is expected to address, there are clear unusual and physical limitations of the property, obviously
because of size, and if he is not allowed to
Board of Appeals Minutes 5 December 12, 2007 do something it does impact his ability to use the property for the purpose he bought it for. The burden has been met that those two items
are crucial. Mr. Zarate said the building permit application indicates $34,200 for the building and $10,000 for mechanicals, which includes the plumbing, electric and heating for a total
$44, 200. Mr. Penney said that was true but the applicant claims he just gutted the property which was not part of the fire damage. Mr. Penney said he was having a problem with how much
was damaged by fire. Mr. Carpenter commented that he understood no money in essence had gone into the property yet other than the original $16,000 for purchase. The remainder of the
loan is sitting somewhere waiting for construction. If he stops here the house can be razed and the lot sold off. So he can recoup part of that $16,000. Ms. Hentz said there is still
the issue of the mortgage. Mr. Nielsen asked who gutted the building. Mr. Zarate did not know. Mr. Gardner said he hired it out. He said he has already invested money in the project
with removal costs, and a mortgage payment every month. He said equipment and materials have been purchased for doing the project. It is almost the full amount of materials ready to
go. He has attempted to move forward on the project but had been stopped all along the way by the City. He stopped the raze order but then he had to make it a single family home. Then
when he tried to get it worked out for a single family home he finds out he has to get variances. The issue did not even come up until after the raze order was stopped. Now the city
is recommending that the variances not be approved. He questioned why this was not dealt with way before he purchased the property. It should have been the previous owner’s problem to
deal with. Ms. Hentz asked what was happening to the property between June when the fire occurred and October when the property was sold. Mr. Zarate said nothing was happening. The windows
were boarded up on the areas where the fire was, and it was just sitting until something was worked out with the insurance company or the owner figured out what he was going to do with
it. Now it is on the third owner. Mr. Gardner said he was not the third owner. He purchased it from the individual who owned it when the fire occurred. Ms. Hentz referred to page 2,
last paragraph of the staff report where it states that even though the lot is unbuildable it still possesses value. She said it only possesses value if it can be used for something
or sold to another owner. There is no guarantee that an abutting property owner would be interested in acquiring the land or be able to afford to purchase it. Therefore if that doesn’t
happen the land is rendered useless to the property owner who is Mr. Gardner. Mr. Nielsen asked who received the raze order. Mr. Zarate said the raze order was issued to Mr. Gardner.
Board of Appeals Minutes 6 December 12, 2007 Mr. Nielsen questioned if it was the burden of the board to make sure Mr. Gardner gets his investment back. The previous owner had no guarantee
that someone would come along and buy the property, even for $16,000 until Mr. Gardner did. If the board approves the single family dwelling that still does not guarantee he gets his
money back. Is that what we’re here for? Ms. Hentz said they could not guarantee Mr. Gardner can get his investment back but it is not in the board’s purview to intentionally keep someone
from using their property. To tear down a building and hope that someone who lives near by is going to buy it is a crapshoot. Mr. Nielsen agreed. Mr. Cornell stated that if the building
were razed, a single-family building could still be approved and he could potentially get his investment back. Mr. Penney stated that if the damage was not 50% of the value then the
building could be repaired as a twofamily dwelling. Mr. Zarate asked Mr. Penney if he was questioning whether the damage was more than 50%. Mr. Penney said yes, he was questioning if
the fire specifically caused 50% of the damage. Mr. Zarate said that is the way the property is being looked at. It is not habitable and the fire is what created the situation where
he gutted the building to see what was there. Now the cost to repair the building due to the fire and taking the interior down to the studs made this building need repairs that cost
more than 50% of the assessed value. Mr. Penney said he was not trying to be argumentative but he was trying to help Mr. Gardner if he could. He understood Mr. Gardener to claim he gutted
it because it was an old building and to remodel it properly. He didn’t gut it due to the fire as exploratory to see what needed to be done. Mr. Carpenter asked what the assessed value
of the property was before the fire. Mr. Zarate said it was $35,800 for the building only. Ms. Hentz asked if the item was laid over until the January 9, 2008 meeting, would there be
enough time to to contact the previous owner to get documentation regarding the fire damage, either from his own records or from the insurance company. Mr. Gardner said yes. He added
it bothered him that the city keeps saying the work that needs to be done is greater than 50% of what the property was worth. He said by the time the work is done the assessed value
will be far beyond what it was before. The home will be virtually new and should be worth twice its previous value. If you put something into a property it will automatically bring the
value back up. Ms. Hentz said she could not say which way things will go, whether a one family or two family but she is inclined to have it laid over to potentially resolve the situation
where both the applicant and the city will be happy. Mr. Cornell asked if the building was in the Near East Neighborhood.
Board of Appeals Minutes 7 December 12, 2007 Mr. Muehrer said it was not. Mr. Cornell asked if anything that pertains to the Near East Neighborhood would also pertain to this situation.
Logically, because of the non-conforming standpoint it should. Mr. Muehrer said yes, a non-conforming situation is looked at in the same way regardless of where it is in the city. Mr.
Carpenter verified that the value of the house before the fire was $35, 800 and it was sold for $16,000. He went on to question if the 50% damage refers to the financial amount of damage
or physical amount of damage. Mr. Zarate clarified that the 50% amount is the cost to make the building habitable again. Ms. Hentz said in this case they are looking at $44, 200 to do
what he wants to do but he is saying that not all of that is fire related. A lot of it is improvement that he is choosing to do. Mr. Penney voiced his opinion that more information was
needed. Mr. Cornell asked for clarification. His understanding is that if the item was laid over, when it comes back the board is still not in a position to consider this as a two-family
unless it is considered a repair. Ms. Hentz confirmed this was correct. Mr. Cornell went on to say if the building was torn down and the board granted variances for a single family (which
would obviously be a very small structure), the parking for a two family would not be needed and the amount of impervious surface would be reduced and solve some of the circumstances
that surround the problem. Ms. Hentz said that is her understanding. She asked staff to confirm they were on the right track. Mr. Muehrer said essentially it is correct. Mr. Cornell
said he did not want to lay it over if in fact they were going to have other snags they were not aware of. Motion by Ms. Hentz to lay the item over for the January 9, 2008 meeting. Seconded
by Carpenter. Motion carried 5-0. Ayes-Cornell/Nielsen/Penney/Carpenter/Hentz. Nays-None. Mr. Gardner asked if he needed to bring the previous owner with him. Ms. Hentz said yes, that
would would be helpful but also it would be important to bring some written documentation. Something from the insurance company or something notarized would be acceptable. It cannot
be something scratched out on a piece of paper or generated from a computer that someone has to swear to. If there is no written documentation then the previous owner needs to be present
so that board members can ask him questions.
Board of Appeals Minutes 8 December 12, 2007 After further discussion it was decided that Mr. Gardner will need to provide official documentation from the original insurance company
involved with the fire in June 2006 that clearly indicates the dollar amount and extent of damage at the subject property. Mr. Cornell asked if the information could be provided to the
city early enough so that it is included in the January packet for board members. Mr. Muehrer advised Mr. Gardner that the documentation needed to be received at the Community Development
Department no later than noon on December 21, 2007, as that is the official cutoff for the January meeting. Mr. Gardner left the meeting at this point. Mr. Nielsen asked if the city
could get verification as to whether Mr. Gardner was the second or third buyer after the fire. Mr. Zarate said yes. He then mentioned to the board members that when the raze order was
done, a title search had been completed and there was no lien on the property or other interested parties listed for a loan of any kind. He indicated he would search again to verify
the status of possible liens. ITEM II: 920 BISMARCK AVENUE Luanne Pupeter-applicant, Paula A. Pupeter-owner, request a variance to permit an attached garage with a 4’ side yard setback.
Section 30-19 (B)(3)(b) of the Oshkosh Municipal Code: Two Family Residence District requires a 7 ½’ minimum side yard setback for an attached garage. Mr. Muehrer presented the item.
Ms. Luanne Pupeter, 610 W. 4th Avenue, petitioner, and Jim Pupeter-Troiber, 904 Brookwood Ct., owner were present to provide information and answer questions. Mr. Pupeter-Troiber explained
that he and his wife were the current owners of the property and they were selling it to Luanne Pupeter. There is an existing porch on the back of the house and they want to extend it
by 8 ft. They have already had a contractor view the site and everything is set with him. He went on to say the neighbors would not even be able to see the addition. Mr. Penney asked
if this was the same property that had the problem with the tree in the back yard. Ms. Hentz said no, it was the same applicant but a different property. Mr. Cornell asked if this was
a common situation where an addition would result in a garage being considered attached. Mr. Muehrer said it was fairly common on smaller lot sizes in the city. Mr. Cornell asked if
there were any fire hazard issues with the garage now being so close to the house. Mr. Muehrer said no.
Board of Appeals Minutes 9 December 12, 2007 Motion by Mr. Cornell moved to approve the item as requested. Seconded by Carpenter. Motion carried 5-0. Ayes-Cornell/Nielsen/Penney/Carpenter/Hentz.
Nayes-none. Finding of Facts: It is the least variance necessary. There is no harm to the neighbors. 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. Muehrer presented
the item. He then read a letter received 12/12/07 from Mr. And Mrs. Clark Tadych Sr. that expressed they were against the approval of the request (said letter on file at Planning Services).
Kelly Claflin, 810 Lansing, Sturgeon Bay, WI, petitioner was present to provide information and answer questions. Mr. Claflin began by saying he felt there is a hardship due to the unique
characteristics of the lot. He said there were going to be drainage improvements done to the golf course. There were questions whether or not it was a navigable stream. The DNR representative
did come out to the site and determine that it was. We discussed the setback being reduced from 75 to 50’. Mr. Russo said if the city granted a variance he would not object. Mr. Claflin
said any fill would be from the existing flood plain, which is permitted. They will not be bringing fill in from off-site. Mr. Dennis Schwab, 601 B Oregon St, owner and Oshkosh and Mr.
Robert Stauffer, 3750 Pau-Ko-Tuk Ln., Oshkosh, owner of the golf course came forward by Ms. Hentz’ invitation to assist in answering questions. Ms. Hentz asked what drainage improvements
were going to be made. Mr. Stauffer began by saying there is a long history involved with the golf course. He said the golf course was built 38 years ago. At that time Sawyer Creek was
considered to be non-navigable. They were allowed to put a dam in there to create a lake by the 16th fairway. The DNR then changed the rules and said the creek was navigable so the dam
needed to be moved. In time that lake area would become a marsh. There was a new lake dug on the 13th fairway and a new well and pump house and in time, Sawyer Creek would make a lake
in there. Last year the county decided they wanted to restore Sawyer Creek naturally. So they brought rocks in, which had to be approved, to restore the natural condition. There is a
small swamp behind the property in question now that will be drained because right now it’s held up to the level because of the height of Sawyer Creek. When Sawyer Creek drops because
they will remove the standpipe, it will later become a marsh. When Sawyer Creek drops the County hopes they will redo it. When the City built the open road they put a storm sewer outlet
to this creek, to the south of this property. It was not a storm sewer; it was just dumped in there. The County expects the city to fill in from the road to the creek, which means there
will no longer be any kind of slump to it at all. When they do the restoration to Sawyer Creek and do the excavation on this property they are allowed to change the flood plain level
or the high water mark in some areas. They had hoped to fill in the whole lot and make it buildable and it still can be done that way except that they are in a hurry and Mr. Stauffer
can’t move that fast because the DNR says there might be some blandings turtles in the area. They haven’t seen turtles yet in the area because they come from Canada to nest either between
Memorial Day or after the 4th of July. The work could not be done last year because the
Board of Appeals Minutes 10 December 12, 2007 DNR missed the window. Looks like in May they can destroy the creek and they’ll add extra fill. When the lot was sold to Dennis (Schwab)
and his partner, they thought the whole lot was buildable. It turned out the south part was not buildable. Eventually the south side of the lot and the east side of the lot will enhance
the golf course. Right now there are dead trees and mosquito nests back there so Mr. Stauffer is all for the changes. Ms. Hentz asked Mr. Schwab if he had anything to add. Mr. Schwab
said they concur with the city to have a single lot developed. He went on to say he met with two or three people from the condo association and at that time they did not seem to oppose
a single family home there. He added that one of the condo owners is currently using that land for a garden and had concerns about the garden “going away.” Ms. Hentz asked what he meant
when he said he met with the condo association. Mr. Schwab said he did not meet with the association. He met with a couple of the condo owners who belong to the association. Mr. Stauffer
said a couple of owners saw him and Mr. Schwab talking with a couple of DNR people and came over to them. He said the DNR is “all for” the project. Mr. Schwab said he thought it would
enhance the area because currently it is unsightly. There really aren’t any trees. It’s more brush. Ms. Hentz asked if the conditions listed in the staff report were amenable to the
petitioner and owner. Mr. Schwab said sure. Mr. Cornell said in the letter there was a statement that a lady that lives at the far south condo paid additional cost to have that view.
He asked if that was a fact. He said he did not want to get into a “he said she said” situation. Mr. Schwab said that condos do command a higher price sometimes because it has more natural
light or more exposure but he did not know that it was because of the vacant land that is actually unsightly. Mr. Stauffer said all views are toward the golf course. Mr. Schwab said
yes, all condos condos are oriented towards the golf course. That is the view that you’re really looking at. Mr. Claflin stated the taxes were based on a buildable lot. He didn’t know
when he purchased her lot but they’ve been paying taxes on that property. Mr. Schwab said he was also paying a street assessment, which was substantial. Mr. Nielsen said he lives ½ mile
west of the area and goes by the site every day. He understood that no matter what, they were going to make improvements to Sawyer Creek and the golf course. With that, they are going
to have dirt they are digging up and need a place to put it. So it is going on this property to raise it. He commented that there are a lot of dead trees that will need to be moved in
order to clean it up.
Board of Appeals Minutes 11 December 12, 2007 Mr. Stauffer said the lot they are talking about is on the flood plain and by being raised it will be taken off the flood plain. The dead
trees will be removed then also. Right now we can’t go near it because of the cattails and according
to the DNR we can’t go near them. Mr. Penney commented that he lives on Kirkwood Dr and also goes by the site everyday. He always thought it would be a good place to build a house. Mr.
Nielsen said he expected there would be more condos built there. Mr. Stauffer said that was the original plan. Mr. Schwab said the reason more condos weren’t being build was because
of the floodplain. He commented that they are not allowed to bring in dirt for fill from off-site. Now they will have dirt from inside the area for fill needs. Mr. Cornell referred to
the letter read earlier by Mr. Muehrer that made reference to not changing the zoning. He questioned if in fact a zone change was necessary. Mr. Muehrer said no zoning change is required.
He thought it was a misunderstanding. Mr. John Hazer, 1101 S Oakwood Rd., Oshkosh came forward to present information. He said he had a handout but after he received the staff report
he realized some of what he had was duplicated. The planning staff report talks about preserving the shoreline and wildlife. There is also a letter from Mike Russo who is the DNR representative
who says the same thing. He said he wanted to verify what the applicant was trying to attain. His understanding was that the lot was technically unbuildable due to the high water mark
so they are asking for a variance because it is a hardship and the owner should be able to use the land for its intended use. Is this correct? Mr. Muehrer confirmed that this was correct
but added they would not be allowed to divide the lot. Mr. Hazer then asked if he was correct that the request was for a setback of 50’ instead of 75’. Mr. Muehrer confirmed that was
correct. Mr. Hazer then asked if it was correct that the property could not be divided or put in a second building because it would be a self-created hardship. Mr. Muehrer confirmed
that it was correct. Mr. Carpenter questioned which area of the lot would be built on. Mr. Muehrer said with the way the floodplain is he assumed it would be more north. The southwest
area is where the floodplain is.. Mr. Carpenter said it would make sense for them to build on the north end. Mr. Hazer provided a handout to the board members (said copy on file at Planning
Services). Mr. Hazer’s primary point was that the lot currently under discussion was part of the adjacent lot that has had a
Board of Appeals Minutes 12 December 12, 2007 condominium built on it and it was determined at the time that condo was approved that the rest of the lot could not be developed due to
the floodplain. He shared that the property was sold in 1999 to D&F development. At that time they were required to accept the parcels “as is” with wetlands. The first condos were built.
When the second condos were built they needed to get a variance to put in the basement. At that time they were told that the rest of the land was not buildable and would not be able
to be developed. This area was then at some point split from the original and made into it’s own parcel. This is the parcel that is now being considered for development. The developers
agreed to this condition. This land was part of the parcel where the second condo was built. The area is a wetland and is regulated by both the DNR and the Army Corps of Engineers. Mr.
Hazer referred to page 3 of his handout and indicated where the pond is located (behind the lot in discussion) and said the pond goes to the lake. He said the culvert that goes under
the road was always there. Water from the north comes in to a definite drainage spot. Mr. Hazer did not know why anyone would allow the area to be filled in as it is a wetland and is
protected. Mr. Hazer referred to the letter from Bobbi Jo Reiser of the DNR. The State and the DNR worked hard not to fill in the pond/wetlands area when the road was improved. Mr. Hazer
said he talked with Ms. Rogers and Mr. Russo of the DNR and they knew nothing about the plans with the golf course and DNR to have the land filled in. He explained that all run off goes
to the culvert and the area. Mr. Hazer provided an alternative suggestion that the city acquire the property and set it aside as a small nature park as part of the Sawyer Creek Bicycle
Trail. This way the current owners would no longer have to pay property taxes on the lot. Mr. Hazer felt the applicant’s letter implied there was no problem with moving the structure
closer than 75 ft. because of it being drained, but he would not want to see that happen. The Golf Course owner called it unsightly, but others have a different view. There are a lot
of trees and animals in the area. Ms. Marion Possin, 2721 W 9th Avenue, Oshkosh (Oakwood Greens Condo) then came forward to speak. Ms. Possin provided a handout of the information she
wanted to share (said copy on file at Planning Services). In brief, she is not opposed to the development providing a) the lot is not divided and b) the shoreline buffer of trees, shrubs
and other plantings remains intact to protect the shoreline from erosion. She suggested that the variance be conditional to preserve the buffer. She also requested that the variance
application be held over so that effective wording can be organized and included in the approval. Ms. Possin said she did not realize there was a floodplain in the area being considered.
Mr. Muehrer said yes, the south end of the lot was a floodplain. Ms. Possin said she thought the structure would need to be located on the north end then. Mr. Cornell asked Ms. Possin
if she was in favor of the variance. Ms. Possin stated she was not opposed as long as the buffer would be protected. She then stated she felt the condo association should have purchased
the land when they had the chance and made it into a park. Mr. Robert Sanders, 1008 S Oakwood Rd., Oshkosh came forward to speak. Mr. Sanders said he is not for or against the variance
request. He did however, have questions and needed to clarify some information. He said Mr. Schwab did not meet with the condo association as he had stated. Mr. Sanders and another member
of the association had seen Mr. Schwab and others on the property and they approached the group to ask questions. He then asked if the lot was going to be filled, is the 50’ setback
no longer an issue. Mr. Muehrer said there is still a shore land setback for the building structure. The shore land requirements have nothing to do with the floodplain requirement.
Board of Appeals Minutes 13 December 12, 2007 Mr. Sanders then asked if this lot were filled does it change the 50’ setback in any regard. Will any of that be filled so that the 50’
setback no longer meanders that close to the front of the lot. Mr. Muehrer said no, it is still the shore land setback for the building structure. It doesn’t have anything to do with
the flood plain. Mr. Sanders then asked if the 50’ ft. setback would always meander as it is shown on the map. Mr. Muehrer said that was correct. Mr. Sanders then stated it would necessitate
that the single family home be built on the north end or the south end of the lot. He questioned if he understood correctly that it would be on the north end. Mr. Muehrer said that was
more than likely, but the current proposal needs to be revised because it shows two structures on it. There are more floodplain issues at the south end of the lot so it would be more
advantageous of them to build on the north end of the lot but he did not know that for sure. Mr. Sanders asked what the size of the house would be. Mr. Muehrer said it would depend on
whether it was a single family home or a multi-family structure. Mr. Sanders said he understood it to be a single-family home. Mr. Muehrer explained that the variance was for a single
structure, which could in fact be a multi-family building. Mr. Claflin said it would be a single-family home as there is not enough room to do a duplex or triplex. It would not be part
of the condo association. He went on to say it would be built on the north end of the property. Ms. Hentz asked if anyone else was present who wanted to speak. Ms. Delores Malo, 1042
S Oakwood Rd., Oshkosh then came forward to provide information. She explained that her condo is the one that abuts the lot in question. She said that from the time she signed the papers
committing to purchase her condominium the price of her condo was increased twice. She said the price was increased because of “the view.” Ms. Malo passed a handout around showing the
cost of the condos. She said she was the first person to sign a purchase agreement on the property even though her unit was the last to be completed. Ms. Malo then referred to the remark
that “people were approached and said they were okay with the parcel being developed.” She asked the president (Mr. Waller) of the condo association at their Christmas party if this
was so and he said “no.” No vote was brought before the condo association. Ms. Hentz said she had clarified with Mr. Schwab that he did not meet with the association and asked him to
verify that. Mr. Schwab said that was correct. There were two people that came down to talk with him and others when they were on the property. They were not representing the condo association.
Board of Appeals Minutes 14 December 12, 2007 Ms. Malo said her condo is on the south end and stated again that she paid more for her condo because of “the view.” There is wildlife and
beautiful flowers that bloom in spring on the lot in question. She encouraged the board to consider this a wildlife area. She then said there was discussion regarding putting up garages
on that property but was told they could not do so because it was wetlands. In 2006 Mr. Schwab gave a presentation to the board to sell the land to them for $15,000. The board declined
the opportunity but the condo owners were not made aware of this proposal. She went on to say the 2004 Christmas party was cancelled because of flooding and said there was an article
in the local paper saying the flooding “has caused closure of 9th Ave between Oakwood Rd and Westhaven Dr. until further notice. Some blame for flooding is being placed on new Westside
construction with runoff causing the flooding.” The article went on to say “Mr. Wollangk said engineers will have to investigate. All of the new construction has to meet our storm water
drainage requirement.” Ms. Malo stated that the water rose half way up the retaining wall, which is 5 ft. high. She went on to say that this past spring there was flooding and the pond
on the golf course overflowed. It was just a one-day rain. Ms. Malo said she hoped the board will consider the proposal again taking into account the wetlands, the flowers and wildlife.
Mr. Nielsen questioned the price of the condos that Ms. Malo had shared because there were some that were considerably more money. Ms. Malo explained those condos were two-story, three
bedroom condos located in the middle of the building. Mr. Chester Possin, 2721 W 9th Ave. Oshkosh, then asked for clarification as to whether the building was a single family or a single
structure. He felt it needed to be in writing. Mr. Schwab agreed to a single-family dwelling. Ms. Malo then made a proposal. Since Mr. Schwab had offered the property for $15,000 a year
ago, perhaps he would want to donate the property to the condo association. She understood this was not likely but thought with Christmas coming one can always hope. Mr. Possin wanted
to add that it is ridiculous to tear out a buffer that has been there longer than most of us have been alive and it you allow cutting and rotting before long you’ll be asking the DNR
for thousands of dollars to repair the damage done. The buffer is there. It should stay there. Mr. Penney said he is sympathetic to the neighbors but the question to the board is whether
we will do a variance for the setback. Promises made by Mr. Schwab have no bearing on the decision the board needs to consider. Mr. Nielsen said Mr. Russo’s name had been brought up
many times but that Mr. Russo’s most recent letter (included in the staff report), indicates that if the board of appeals approves the request they can go ahead with the development.
Mr. Muehrer responded that he had been in contact with both Mr. Russo and Ms. Kristy Rogers and they wanted to to be very clear about what specific lot was in question. At no point in
time did the DNR recognize any wetlands on the subject lot. He said they were very clear about what they were dealing with and if the developers run into any stream issues once they
begin construction, it is a Chapter 30 issue and they would
Board of Appeals Minutes 15 December 12, 2007 need to deal with the DNR, not the city. Mr. Russo of the DNR indicated there is nothing precluding the building as long as the variance
request is approved by the city. Mr. Muehrer said he was also sympathetic to neighbors. He said there were many questions relating to DNR issues, e.g. the wetlands, waterways, etc. The
city has no authority to handle those issues. They need to be addressed with the DNR. The Board of Appeals and the City have no authority to deal with those concerns. Mr. Penney said
he would like to see the resolution added to the approval that the structure will be a singlefamily home at the north end of the property. Mr. Muehrer said that Mr. Russo’s letter indicated
he wanted to limit the intensity of the use of the property. He thought it was appropriate for it to be added as a condition to the approval. Mr. Schwab has already verbally agreed to
a single-family home, which would be the least intense residential use. Ms. Hentz said she has concerns when people have paid more for their property because of “the view” that was being
provided. She then referred to Mr. Hazer’s handout, item #1 which indicates the lot was part of a the lots with the condominiums on them and was not to be built on. She asked staff if
they had any further information on this issue. Mr. Muehrer said he was not sure at what point the lot became separate but it is a stand-alone lot at this point in time. He said Mr.
Schwab could attest to paying separate taxes on this land. Mr. Schwab said he has been paying taxes on this property right along. Mr. Carpenter said he wished there was something in
writing that says what “the view” is that was being paid for. If it is the view of the golf course then it is not being hindered. Mr. Penney announced that he had a previously scheduled
meeting in Neenah at 6:00 and needed to depart. He left the meeting at 5:30 for another engagement. Mr. Nielsen stated he had a family commitment and would need to leave soon as well.
Mr. Hazer said he wanted to briefly question the logic that once you build a house then you can try to subdivide the property. If you are not allowed to build on the separated lot then
you have a hardship. What if once this new house is built the land is separated again and will create another hardship. Why are they allowed to have a hardship now when they didn’t before.
He thought they pulled a fast one. Mr. Muehrer stated no one has pulled a fast one. Mr. Hazer said he understood the rule to be that you have a hardship if you can’t build something.
They bought the property and knew what they could develop. They got a variance so they could build the second condo. They were told at that time they could not build any more in that
area. They then subdivided the property so they have a hardship. Mr. Hazer commented again that the land was all one lot when the condos were built. He questioned how the previous determination
that the land could not be developed could be disregarded and now that the land is separated from the original lot it is now considered a hardship. Mr. Muehrer said he did not know what
the map was that Mr. Hazer provided the board with but under the current situation it is considered a legal lot of record.
Board of Appeals Minutes 16 December 12, 2007 Mr. Hazer reiterated that it was not a separate lot at the time the condos were built. Mr. Muehrer said it is currently a legal lot of record
and that is all he can deal with. Mr. Hazer questioned how they could claim a hardship when they made their own hardship. Until recently it was not a separate lot. Ms. Hentz questioned
Mr. Schwab as to when the lot was separated off. Mr. Schwab said they bought the property in two different phases but he did not recall when the last lot was broken off. He then addressed
the issue of Ms. Malo’s unit being more expensive then the others. He said that even though she was one of the first to sign papers for a unit, her building was the last to be built
and construction materials were more expensive then. In regard to the current lot in question, Mr. Schwab said it is a valid lot that he has been paying taxes and street assessment on.
It is a very old lot. If the city wants to buy it, it certainly is available. Mr. Sanders then then stood and commented that after Oakwood improvements were approved, (street, sidewalk,
etc.), the condo association received billing for this original parcel including the 110’ and they negotiated with Mr. Schwab to break it off into a separate lot. Ms. Possin stood and
asked that since they did not have a quorum would they not be voting on the item. Ms. Hentz said there still was a quorum. Ms. Possin then said she felt that she hadn’t been heard. Ms.
Hentz said they did listen to her and that people were given plenty of opportunity to speak. Ms. Possin said she understood that but she knew the board did not have to deal with shoreline
issues very much and it was a part of her life for 15 years and it is possible to add a condition that the shoreline buffer cannot be removed. She said $25,000 a year is now being put
into Big Green Lake to restore the shoreline vegetation. They now have an ordinance that 35’ back from the shore nothing can be cut, only pruned. She went on to say she opposes the development
if nothing is stated as a condition that the vegetation cannot be removed. Ms. Hentz thanked Ms. Possin and asked if the shoreline vegetation can be preserved and the land still be built
on. Mr. Claflin said the building itself is not going to be in the vegetative area. He went on to comment that the issues the residents have are with the DNR. Mr. Cornell said he has
been a condo owner for 24 years and he has a hard time realizing what the effect of this has on the condo association if it is a separate piece of property. He didn’t see how it is relevant
to the decision the board is being called on to make. Mr. Nielsen departed the meeting at 5:40 for a previously scheduled engagement. Mr. Carpenter agreed with Mr. Cornell but said what
bothered him was how the lot came to be. If the board decides Mr. Schwab can build on the north end of the lot and not the south end for instance, they don’t know
Board of Appeals Minutes 17 December 12, 2007 how the stipulation will be enforced five to ten years down the road. He questioned if that was how the current situation came to be: that
there was an agreement made when it was one lot and somehow, (and Todd doesn’t know how this came to be either), all of a sudden it became two lots. Mr. Schwab said the way it became
a separate lot is because it was offered to the condo association but they turned it down so he took it back. It was offered to them for $15,000, but they turned it down. Mr. Carpenter
said he would like more guidance from the DNR. There is one page telling the board what their duties are. Mr. Cornell questioned if a layover would be in the best interest of the board
in order to get more information from the DNR and settle some of the questions that some of the members have in order to know what direction to go. Mr. Muehrer said the DNR letter sums
it up. Their only concern was that if the variance is granted there can only be one building on the the lot. Mr. Carpenter said he understood the property was offered to the condo association
and was turned down so he understood how it became a lot. He wished there was something in writing saying the parcels on the south end paid more because they have a view looking south
or if it is for the view of the golf course. Mr. Carpenter said he has a condo up north and he knows they do pay more for the view of the golf course. He pays more because he has a view
of the lake. He then commented they need to make the stipulation that the house is built on the north end of the lot. Ms. Hentz asked Mr. Cornell if he was okay with continuing with
the vote with two members now gone. Mr. Cornell said he was concerned that five people listened to the testimony but now only three were present to vote. Mr. Carpenter agreed. Ms. Hentz
said she thought they would end up with a majority voting one way but she was inclined to lay the item over. Mr. Cornell thought it was only fair to the applicant and the neighbors to
have all all five members vote on the item. Ms. Hentz asked that a third condition be included that the building be located on the north end of the property. She felt this should be
included in the staff report when it is presented for the vote at the January meeting. Motion by Mr. Cornell to lay the item over for the January 9, 2008 meeting. Seconded by Hentz.
Motion carried 3-0. Ayes-Cornell/Carpenter//Hentz. Nays-None. Ms. Hentz then informed the interested parties that the item is laid over until the January 9, 2008 meeting and that it
would include the extra condition that the single-family home be located on the north end of the lot.
Board of Appeals Minutes 18 December 12, 2007 Mr. Muehrer said it will not be anywhere near 3:30 when the item is addressed. There are two items prior to this one and the first one will
likely involve a lengthy discussion. Ms. Hentz asked if there was anything else before dismissing the board. Mr. Muehrer asked members if there was anything else other than the language
for the third condition to be included in the staff report that was expected to happen for this item. He wanted to be clear that the item would just be reopened and the vote taken. He
wanted to make sure there would not be another roadblock because of information missing that would require the item to be laid over into February. Ms. Hentz said that was her intent.
Mr. Carpenter said he did not think the other issues were going to take that much more time. Ms. Hentz verified that the 1. The Oakwood Rd. request would just be re-opened and then voted
on. 2. The Evans St. request requires Mr. Gardner to produce evidence from the insurance/title information that documents the amount of damage was affected by the fire. Mr. Muehrer informed
the board the he sent a letter to Mr. Carl Sosnoski reminding him the he needed to provide a platted survey map by a licensed certified surveyor. He wanted the board to know that Mr.
Sosnoski called saying he thought it was totally absurd that he had to provide that kind of map. Mr. Muehrer said it was a totally abrasive conversation. Mr. Muehrer said he had not
received the surveyed map yet but he had given Mr. Sosnoski the end date of noon on December 21, 2008 to get it to him. Ms. Hentz questioned why he would be upset as it was very clear
before the meeting ended what the city needed to consider his request, and he was agreeable to it at the time. Mr. Muehrer said it was in the minutes that Ms. Hentz clearly delineated
that it needed to be certified survey. Ms. Hentz said her point was that if he wasn’t going to agree to that they would not have made the motion to lay it over. Mr. Muehrer said Mr.
Sosnoski’s logic was that didn’t feel he should have to spend $2000 when he can determine where the lot line is. Mr. Carpenter said he did not recall that it needed to be done by a certified
surveyor but just by someone who could certify where the lot lines were such as a construction person. He did not need to have a survey done. Ms. Hentz said he needed to have something
certified. She went on to say Mr. Sosnoski’s map differed from the city map and that is why he needed to provide an official map that was certified. Ms. Hentz said if she had known he
was going to respond this way she would not have laid the item over. She commented that this was not the first time Mr. Sosnoski has pulled something like that. Mr. Muehrer said that
was his whole point in getting something on a certified map so there would be no question. It would be black and white and not just someone’s opinion. Ms. Hentz questioned where Mr.
Sosnoski was when it was agreed upon that he needed the certified map.
Board of Appeals Minutes 19 December 12, 2007 Mr. Cornell requested that there be an addendum in the next packet for the next BOA meeting saying it is necessary to be at the entire meeting.
He felt that the situation with the last item put the board in a very bad light. Ms. Hentz thought the situation was partly due to the time of year. Mr. Muehrer agreed that it is important
that all members be present because the laid over items will be covered first and the new items will be after that. The people with new items will be sitting for possibly three hours
before their request is addressed so it is important that everyone can stay through to the end. Ms. Hentz suggested that a specific note be made to Mr. Penney and Mr. Nielsen that they
are needed to be present in order to vote on the Oakwood Rd. request. She went on to say the minutes don’t accurately reflect everything. Mr. Cornell said the minutes are just a summary
and it is impossible for them to include everything. Ms. Hentz agreed. Mr. Cornell asked if they have received everything they need for the items that will be brought back in January.
Mr. Muehrer said his intention is to provide exactly what they had before. In addition, for Mr. Sosnoski they will receive the platted survey; for Evans St it will be the title or whatever
the owner is going to provide and the plans, and for Oakwood Rd. it will just be the amended conditions and will reflect that the board was not comfortable taking a vote with two members
missing. There being no further business, the meeting adjourned at 5:50 p.m. Hentz/Cornell 3-0. Respectfully submitted, Todd Muehrer Associate Planner/Zoning Administrator