HomeMy WebLinkAboutMinutes
Board of Zoning Appeals Minutes 1 June 13, 2007 BOARD OF APPEALS MINUTES JUNE 13, 2007 PRESENT: Dan Carpenter, Robert Cornell, Mark Nielsen, Dennis Penney, Cheryl Hentz EXCUSED: Moss
Ruedinger, Edward Wilusz STAFF: Todd Muehrer, Associate Planner/Zoning Administrator; 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 May 9, 2007 were approved as distributed. Cornell/Carpenter 4-0 (Mark Nielsen absent from vote) REORGANIZATION-ELECTION OF
OFFICERS The first order of business was to elect officers. Mr. Cornell nominated Cheryl Hentz for Chairperson. Dennis Penney seconded the motion. There were no other nominations. Ms.
Hentz was elected Chairperson. Carried 3-0. Ayes-Cornell/Penney/Carpenter Nayes-None. Ms. Hentz opened the floor for nominations for Vice Chairperson. Mr. Penney nominated Robert Cornell.
Mr. Carpenter seconded the motion. Carried 3-0. Ayes-Penney/Carpenter/Hentz. Ms. Hentz then introduced discussion regarding the Minority Finding of Facts Memorandum that was presented
to the Board of Appeals members at the May 2007 meeting. Board members questioned why the memorandum had not been presented in 2005 when it was first written and wanted more clarification
regarding the content of the memo. Mr. David Buck, City of Oshkosh Planner spoke regarding the time lapse, as he was the City Staff Planner for the Board of Appeals at that time. He
explained that the item was on the agenda for September 14, 2005 but the meeting was adjourned before the item was discussed. It was then filed away and did not come up until questions
arose recently again in regard to the issue. Mr. Cornell questioned how the minority finding of facts began in the first place at the meeting. Mr. Buck said Larry Lang requested that
the minority findings be listed. Mr. Buck also mentioned that it was in the Board Procedures and Regulations. Warren Kraft, City Attorney then was asked to provide further explanation
about the information in the memo. Atty. Kraft reminded the board that they are acting as a Court. The rules require that all the decision-making, the evidence, exhibits and information
given must occur at the meeting. Further that everyone involved in a petition has a right to be heard and to hear what others have to say. The majority rules and state law says the majority
must state their findings. The reason for that is, if the variance isn’t granted the petitioner has a right to go to court and have a judge review what the board did. The judge looks
for the reason why the board made the decision that was arrived at. The judge looks in the record for evidence that supports the majority finding of fact. The minority viewpoint is important
during discussion because it shows that the board was a deliberative board. A judge likes to see that the “right things” were considered before a decision was reached and that board
members were not just putting in their own opinion. In reality there are attorneys who will try to use the descent and even the descenting board members’ discussion to persuade a judge
that the board made a wrong decision. The challenge to that attorney is the way the law 62.23 is setup to review how the board came to its decision. Even though another group of people
may come to a different conclusion, the ones that heard the evidence and
Board of Zoning Appeals Minutes 2 June 13, 2007 determined the believability of witnesses made the decision. That’s why the memo concluded that it is not required to list the minority
finding of facts. The discussion reflects the minority thinking. Ms. Hentz asked for comment regarding paragraph 2, last sentence: “This past July, the Wisconsin Supreme Court reiterated
that obligation when it said, ‘we expect the board to express on the record its reasoning why an application does or does not meet the statutory criteria’ not just that the application
does not meet the criteria.” Mr. Lang (previous board member) thought this sentence was a reason to state minority criteria. Atty. Kraft explained that the statement is because the case
in question was dealing with a board that denied an application by simply stating it did not meet the statutory criteria. There was no comment about a hardship being self-created or
that the hardship was financial or that the owner was not being deprived of full use of his land (for instance). The Supreme Court had no idea why the owner failed to meet the criteria
needed to have his request approved. Again the minority does not have any legal bearing when a case goes to court. Ms. Hentz asked if the board needed to remove the reference in the
bylaws that say the minority finding of fact should be stated. Atty. Kraft said he would defer to the board to decide. It doesn’t matter if it is removed or not because it does not have
any legal effect. It is however good to have lots of vigorous minority discussion and in fact it is encouraged. It helps demonstrate that the board does listen to the evidence and uses
sound reasoning to reach its decision. Before parting Atty. Kraft thanked the board and staff for their work. He remarked that he does follow the activities of the board and they are
very competent. He has received comments regularly from out-of-town attorneys that they wish boards in other towns were as professional. They find Oshkosh boards to be very respectful,
they listen and and debate courteously. Ms. Hentz welcomed Mark Nielsen to the Board. Ms. Hentz moved that the balance of the discussion of Board reorganization and procedures be moved
to the end of the meeting. Mr. Carpenter seconded the motion Motion approved 5-0. Ayes-Cornell/Nielsen/Penney/Carpenter/Hentz. Nayes-None. I. 3139 CUTTER CT Sandra Nabbefeld-applicant/owner,
requests variances to permit the creation of a new unscreened off street parking area located in the front/side street yard. Section 30-36 C(5)(a)(ii) of the Oshkosh Municipal Code:
Off-Street Parking and Loading Facilities states in addition to the driveway parking area, one uncovered parking space is permitted alongside an attached garage when such space is not
located between the building and the street. Additionally, Section 30-35(I)(1) of the Oshkosh Municipal Code: Additional Standards and Exceptions requires any off-street parking area
to provide a minimum 5’ green area in the front yard setback for screening purposes and Section 30-35 (E)(2) states fences and hedges less than 4’ high may be located within the required
front yard, except fences that are more than 50% solid shall not be permitted within 15’ of a front lot line. Mr. Muehrer presented the item. Mr. Muehrer than read the following for
the record: “Please be advised that I received a phone call from an anonymous citizen who voiced their opposition to the variance application at 3139 Cutter Court. The phone caller said
several neighbors in the area are not pleased with the appearance of the proposed parking area and are afraid this will lead to future storage/junk problems at the property.”
Board of Zoning Appeals Minutes 3 June 13, 2007 Ms. Hentz said that since the comments were anonymous she did not feel it held any weight. Mssrs. Penney, Cornell and Carpenter agreed.
Mr. Muehrer stated that it is part of the City policy to acknowledge all complaints that come in even though they may be anonymous so he felt it necessary to bring it to the board’s
attention. Ms. Hentz thought it would be appropriate to consider the complaint from the caller as legitimate but the portion of the statement that references “several neighbors” should
not be considered at all. Mr. Neilsen felt it was reaching to consider it as well. Mr. Cornell said all are welcome to come to the meeting to voice their concerns. Neighbors are sent
a notice of meetings so they are aware they can come to express themselves. Ms. Sandra Nabbefeld, 3139 Cutter Ct., applicant explained that the parking space was created because they
own a camper and needed a place to put it. Ms. Nabbefeld then passed photos around. She stated that if she had to stay within the 24 ft. guideline the camper would be in front of the
house which she felt would look ridiculous. It is more tucked out of the way if it is along the side of the garage. If the camper were parked in the driveway other vehicles and/or access
to the garage would be blocked. The primary reason for the request is to keep the camper on site. She had asked the contractor specifically if a permit was needed. The contractor told
her she did not need a permit and that he had done these in the past without one. Ms. Nabbefeld said she understood the guideline regarding frontage but did not think of the side of
her yard as being considered frontage as well. She said they considered putting up a hedge but could put up a fence depending on the setback requirement for it. There is no other place
to go on the property with the camper. Ms. Nabbefeld said she has found that being on a corner lot has many drawbacks. She pays more taxes because of it and road repair is also more
expensive and yet she is unable to do what she would like to do on the property. Ms. Hentz asked who the contractor is. Ms. Nabbefelt said Randy Stafford. Ms. Hentz disclosed to the
board that she believes Mr. Stafford told Ms. Nabbefeld she didn’t need a permit because Ms. Hentz had a similar incident with him on a rental property when she needed to replace a driveway.
Fortunately, Ms. Hentz called City Hall and found out differently. Ms. Hentz asked if Mr. Stafford was aware of her current dilemma because of it. Ms. Nabbefeld said yes. Ms. Nabbefeld
wrote him a letter and also told him she was not going to pay the balance of the bill. Mr. Stafford implied he would take her to court if she didn’t pay it. Ms. Nabbefeld went on to
say that she understands how it is the responsibility of the owner to get a permit but thought that since she had specifically asked the contractor if she needed one that he could have
at least directed her to check with City Hall. She felt she should be able to rely on a contractor to give her reliable answers. Ms. Hentz asked where the screening would go in relation
to the paved area. Ms. Nabbefeld said between the sidewalk and the parking space. Referring to paragraph 2 of the staff report, Ms. Hentz asked staff what would need to be done for Ms.
Nabbefeld to create a covered parking space. Mr. Muehrer said the only way it could become a covered parking space would be for it to become an extension of the garage and would also
need to go through a variance request. Mr. Cornell asked what the consequence would be of denying the request.
Board of Zoning Appeals Minutes 4 June 13, 2007 Mr. Muehrer said the paved area would have to be removed. Mr. Carpenter commented that it looks like two sections were put in. Ms. Nabbefeld
said there was an original slab for a shed, but she found out it was not in compliance so the shed was moved and the slab was left. Mr. Neilsen asked when that section was installed.
Ms. Nabbefeld said two years ago. Mr. Neilsen then asked when the parking area was installed. Ms. Nabbefeld said in spring ‘07. Mr. Penney questioned staff regarding the comment in the
staff report regarding the excessive size. Mr. Muehrer stated that 9x18 is standard but would still be outside the code because it explicitly states that there can be no off-street parking
between the buildings and the street. Mr. Nielsen asked would she still not be able to park there if it was grass. Mr. Muehrer said correct. Ms Hentz asked if gravel would be okay. Mr.
Muehrer said no. Any parking surface in the city needs to be either asphalt or concrete. He He also said the driveway could not be wider than the garage. Mr. Nielsen asked if they could
add onto the garage. Mr. Muehrer said he would need to review a full site plan but thought she would run into set back issues with an addition. Ms. Hentz asked if she could cover it/expand
the garage and come back to the board for a variance on that setback issue and some issues would then be eliminated. Mr. Muehrer said it would still constitute a self-created hardship.
She still is a single family home with two compliant parking spots. In staff’s point of view there is ample parking relative to the home without the space. Ms. Hentz asked if a carport
is an option. Mr. Muehrer said it would need to be attached to the house and would still have setback issues. Ms. Nabbefeld said the only place on her lot to create a space is where
it is. Ms. Nabbefeld questioned what the difference was if she parked the camper on the driveway or by the side of the garage, which was basically, parallel to the driveway. The camper
would be less obvious if it were parked on the side of the garage. If it has to be parked in the driveway it will be at the end of the driveway and then would really be an eyesore. Currently
the pine tree blocks its view until you get around the corner. Ms. Hentz asked how much time there was between installing the pad and then the parking area. Ms. Nabbefeld said the pad
was installed in Aug ’05 and the “addition” to it was in May ’07. Mr. Nielsen asked how long she had lived there.
Board of Zoning Appeals Minutes 5 June 13, 2007 Ms. Nabbefeld said 12 years. Mr. Cornell asked where the camper was parked previously. Ms Nabbefeld said it was stored at her brother’s
house but that was no longer an option. She also said she was willing to remove the extension and leave the minimum space. She would also install fencing or plantings. Mr. Cornell said
he had visited the site and understood why there would be objections. He thought it an unfortunate situation that she relied on a contractor that gave misinformation. He also talked
with a different contractor about the situation who said he would never do work without first checking with the City for a permit. He saw the sight with nothing parked on it and could
see that it would be a distraction with it facing Bellfield Dr. He thought the hardship was self created and could not approve the request. Mr. Penney asked staff if there is no acceptable
variance, i.e. reducing the size of the space. Mr. Muehrer said no. The first section was poured illegally as well. If it were reduced to 9 x 18 it would still not meet the variance
requirements. Mr. Penney said he is very sympathetic to the situation. He owns three vehicles and does have to store one elsewhere so he knows there are other options available for parking
the camper other than on their property. He could not support the request either. Ms. Hentz asked if they could park the camper in their driveway. Mr. Muehrer said yes. Ms. Hentz commented
that they have motorcycles as well but perhaps it would be easier to find storage space for them. Mr. Cornell said he also considered what the difference would be if the camper were
parked in the driveway versus the side area and concluded that parking it in the driveway is not the board’s issue since it is legal. Motion by Mr. Cornell to approve the request Seconded
by Penney. Motion denied 0-5. Ayes-none. Nays-Cornell/Nielsen/Penney/Carpenter/Hentz Ms. Hentz commented to Ms. Nabbefled that she appreciated he willingness to work with the city and
personally would have liked to approve her request because of her (Ms. Hentz’) dealings with the contractor. However, because of the guidelines the Board is required to follow they would
have had to really stretch to justify approving her request. She also suggested that Ms. Nabbefeld might want to contact a lawyer to see if she can recover her costs from the contractor.
Finding of Facts Ms. Hentz asked Mr. Muehrer if the city could send information to the contractor in regard to required permits and codes since this contractor is doing business in Oshkosh
and there seems to be an ongoing problem with him. Mr. Muehrer said he would coordinate with Allyn Dannhoff, Director of Inspection Services. He thought Allyn was aware of this contractor.
Mr. Carpenter asked if contractors were licensed by the city.
Board of Zoning Appeals Minutes 6 June 13, 2007 Mr. Muehrer said he thought they were but would check with Mr. Dannhoff. II. 1506 SPRUCE ST Matthew S. Pemble-applicant/owner, requests
a variance to permit the creation of a detached garage with a 0.5’side yard setback. Section 30-19 (B)(4)(b)(v) of the Oshkosh Municipal Code: R-2 Two Family Residence District requires
a 2.5’ side yard setback. Mr. Muehrer presented the item. Mr. Matthew Pemble, 1506 Spruce St, applicant passed photos to the Board that showed how difficult the approach would be if
he met the required setbacks. On viewing the photos Mr. Penney asked if there was a fence on the property. Mr. Pemble said yes, 1215 Bent has the chain link fence. The garage would be
built within 1/2 foot of the fence. The footings for the garage would be 1-1/2 feet from the lot line. The overhang on the garage will reduce it to ½ foot.4 Mr. Penney asked if the owners
had issued any kind of statement in regard to the request. Mr. Pemble said he talked with the owners (Eric and Annmarie Johnson) and their only concern was regarding water displacement.
Mr. Pemble had agreed to install gutters so that water would run off away from the rear corner of Mr. Johnson’s property. Mr. Penney asked if he had anything in writing to that effect.
Mr. Pemble did not. Mr. Carpenter asked what Mr. Pemble was going to put in the 1-1/2 feet between the garage and the neighbor. Mr. Pemble said just soil. Currently there are weeds that
grow between the garage and the neighbor and he just cuts them down with a weed wacker. Ms. Hentz said to ease Mr. Penney’s concern regarding the water runoff that there could be a condition
to the approval that gutters be installed. She asked Mr. Pemble if he would have a problem with that. Mr. Pemble said he would not. Mr. Cornell asked how long Mr. Pemble has owned the
home. Mr. Pemble said since February ’99. Ms. Hentz said she will support the request because it is an improvement aesthetically and also from a safety issue. Mr. Penney asked if Ms.
Hentz supports it with the stipulation that gutters be added. Ms. Hentz said yes. Mr. Carpenter said he saw the size of the lot and the placement of the house does create a hardship
to make the turn into the garage. He also would support the request.
Board of Zoning Appeals Minutes 7 June 13, 2007 Mr. Cornell said he had visited the site and had no doubt that removal of the old garage and the location of the new garage will be a
definite improvement and enhancement to the property and could see no adverse effect to the neighborhood. Ms. Hentz asked which neighbor had the water issue. Mr. Pemble said 1215 W Bent
Ave, Eric Johnson. Mr. Nielsen mentioned that if the variance weren’t approved the current garage would continue to deteriorate. There could be a storage issue and things having to be
left outside if the garage were removed without rebuilding. The variance will allow the area to look a lot more attractive. Mr. Cornell mentioned that the placement of the garage would
alleviate any safety issue when/if there would be any children at this location. Motion by Ms. Hentz to approve the request for the creation of a detached garage with a 0.5’ side yard
setback with the following conditions: a. Gutters are to be installed to prevent water runoff to the properties of 1215 and 1221 W. Bent Ave. Seconded by Cornell. Motion carried 5-0.
Ayes-Cornell/Nielson/Penney/Carpenter/Hentz. Nayes-None. Findings of Facts: Removal of the old garage will eliminate any safety issues. No adverse effect to the neighborhood. Position
of house would make it difficult to get into the garage with the standard setback. III. 601 W 6th Ave It should be noted this is the second hearing for this application. The original
hearing occurred on May 9, 2007 and was denied 0-5. Charles Showers-applicant has altered his proposal and is requesting the second hearing. Charles Showers-applicant, Kelly J. Burnett-owner,
request the following variances to permit the creation of a new single-story office building with off-street parking: Required (Section 30-35 (B)(1)(c)) Proposed I) 25’ transitional
yard setback (north) 14’ transitional yard setback II) 19’3” transitional yard setback (west) 4’10” transitional yard setback III) 19’3” transitional yard setback (south) 10’ transitional
yard setback setback Required (Section 30-36 C(3)(e)) Proposed IV) 18’ parking space depth 16’ parking space depth Mr. Muehrer presented the item. Mr. Charles Showers, 619 W. 19th Ave.,
applicant said the previous drawing for the building was torn up. He had met with Todd Muehrer and David Buck, Planners with the City of Oshkosh and together they had created something
even better than what had been previously proposed. All the asphalt that was not going to be used for driveway/parking was eliminated and turned into grass. He feels they addressed all
the concerns that the board had. Mr. Carpenter asked if Mr. Showers was now the owner.
Board of Zoning Appeals Minutes 8 June 13, 2007 Mr. Showers said his son Mark, is actually the owner. Mr. Muehrer asked if Kelly Burnett was still the owner. Mr. Showers said, no, they
closed on the property the previous Friday because they were concerned that Mr. Burnett would decide to increase the price. Mr. Penney asked what is the existing property’s use. Mr.
Showers said it is an old building. Someone used to live upstairs but there was no business downstairs due to the lack of plumbing on the first floor. A renovator did take a look at
the building but he said it could not be saved. A meeting with an architect is scheduled for next week to create the actual plans. Mr. Nielsen reviewed the old design versus the new
design. He commented that moving the garage to the backside improved the view by adding more green space. The office space is now 66’ x 24’, making it longer than the previously submitted
plan of 26’ x 52’ and the garage was 26’x32’ but is now 26’x 30’. It fits into the area well. The Ohio Street area needs revitalization and this would be a good kick-start. It is laid
out very well. Mr. Cornell commented that the area is definitely improved with the added green space on all four corners. It is always better to be able to get away from asphalt. Mr.
Carpenter agreed that the result is greatly improved. He was pleased that Mr. Showers worked with City staff to create something that could be recommended to them. He asked staff if
there was a reason why one side has 4’8” setback and Ohio Street has none. Mr. Muehrer said there is no setback requirement on Ohio St. Mr. Carpenter said he is always concerned about
blind corners. Mr. Muehrer explained that the corner is a controlled intersection so there is not a problem with vision for drivers. If it were not a controlled intersection there would
be an issue. Mr. Carpenter commented that he could see that it is better to have grass on other sides than on Ohio St. Mr. Muehrer said reducing the number of variance requests was a
major concern. Since there is no setback requirement on the Ohio Street side it was decided to move the building closest to Ohio St. so that more green space could be on the west side
of the building. Mr. Nielsen asked if Mr. Showers was only planning on one door. Mr. Showers said there will only be one door for business traffic but there will be a second door coming
out of the office in the back. Mr. Penney asked if there would be an entry on Ohio St. Mr. Showers said no. He commented further that there will be construction to widen Ohio St and
the sidewalk size will be reduced. Sixth St will also be under construction up to 30 feet from the corner. We know we will be in a bad spot because of the construction but we want that
corner. Ms. Hentz said she will support the request and thanked the applicant for his persistence to get the project approved and for working closely with city staff. Ms. Hentz thanked
staff as well for putting in the time with the applicant necessary to have a positive result. Often, people are turned down by the board and leave disgruntled and don’t pursue solving
the issues as Mr. Showers did.
Board of Zoning Appeals Minutes 9 June 13, 2007 Mr. Showers said he was very impressed with Todd Muehrer and David Buck for their hard work and commented on how they had worked through
their lunch hour. He extended a personal thanks to them. Mr. Penney moved to approve the request as presented. Seconded by Mr. Carpenter. Motion approved 5-0. Ayes-Cornell/Nielson/Penney/Carpenter/He
ntz. Nays-None. Findings of Fact: Removing dangerous building. There will be increased tax base. With no plumbing the building is useless. No adverse effect to the area. The least number
of variances were used to accomplish the goal. OTHER BUSINESS Board members continued to discuss Board of Appeals procedures. As a follow up to the meeting, Ms. Hentz asked that when
there is a second or third review of an item that the previous submissions and results be included in the staff report so that the history of the request can be reviewed along with the
new submission. Mr. Muehrer said it would be implemented immediately. Ms. Hentz then suggested the board members review the “Procedures and Regulations for the Board of Appeals” section
by section to determine if any changes were appropriate. Mr. Carpenter noted that there seems to be two titles for the board: Board of Appeals (BOA) and Board of Zoning Appeals (BZA).
He thought this could be confusing to people and suggested that the name officially be Board of Zoning Appeals. Ms. Hentz said she also had seen it both ways and it is listed as BZA
meeting on the agenda posted downstairs by the elevator. She has experienced people getting the Board of Appeals confused with the Board of Review. She agreed that changing the name
to Board of Zoning Appeals would be less confusing to the general public. Mr. Cornell asked if the change needed to be made in the form of a motion or could just be by general agreement
of the members. All members verbally agreed. Mr. Nielsen thought it made it much more user friendly. Ms. Hentz stated the name would officially be the City of Oshkosh Board of Zoning
Appeals. Mr. Cornell asked if it would be amended as of that day. Ms. Hentz said yes. She also stated the new title should be reflected throughout the document. Ms. Hentz brought up
the issue of the simple majority vote. It is sometimes confusing if an alternate member is able to vote, and Ms. Hentz was not sure if Mr. Nielsen (for instance) was able to vote at
today’s meeting. Ms. Hentz asked Ms. Gehrke when the alternates vote. If there are four regular members present and both alternates present if the first alternate would vote.
Board of Zoning Appeals Minutes 10 June 13, 2007 Ms. Gehrke confirmed that this is correct. The Procedures and Regulations state the board consists of five members with two alternate
members. Mr. Nielsen is the 2nd alternate. Mr. Nielsen would only vote if there were less than five members were present the first alternate was not present as well. Mr. Cornell said
when he was an alternate he came to the meetings regardless of whether he would be able to vote or not. He felt the exposure to the proceedings was very valuable in making him more effective
when he became a full time member. Also he mentioned that he was still able to take part in the discussion and voice his thoughts and opinions. To him this was the important part of
being there even without being able to (potentially) vote. He encouraged Mr. Nielsen to attend meetings regardless of whether his vote would be needed. Mr. Penney opened discussion regarding
the 2nd meeting of the month. The current procedure is as follows: up to five (5) requests are reviewed at the first meeting and if there are additional requests submitted a second meeting
is scheduled for the 4th Wednesday of the month. Mr. Penney questioned if the applications were split evenly between the two meetings when there are more than five or if the first five
are reviewed at the first meeting and any others go to the second meeting. Mr. Muehrer responded that the first five would be reviewed at the first meeting and any others would carry
over to the second meeting. Ms. Hentz asked if everyone was comfortable with the current method. Mr. Penney also voiced his understanding that if only three members showed up, that they
could hear appeals and if the vote was two yeas and one nay that it would pass. Mr. Cornell mentioned that the guideline for scheduling a second meeting was changed last year. Ms. Hentz
said the change came about because of legislation in Madison. Mr. Muehrer said it had to do with
allowing people to get due process. Ms. Hentz said the board was trying to be as expeditious as possible. Also there was no way of knowing how much application would be coming in for
the next meeting. All members agreed to keep the guidelines as stated. Ms. Hentz then turned discussion to Article III #3 Order of Business. Currently the Agenda does not reflect the
order of business as it is listed in the Procedures and Regulations. Either the agenda should be changed or the Procedures and Regulations should be changed so that they coincide with
each other. She thought the reason the agenda was changed is because Atty. Kraft had concerns about proper notice not being issued on items that would be discussed. Not a problem with
communications and miscellaneous things that weren’t being voted on. If there were an item that was being voted on then proper notice would need to be issued for a future meeting. Under
the general item of “Discussion of BOA procedures” we frequently have talked about items e.g. three signs in front of Choice Bank, --do we want to become more specific in the agenda
rather than have the catch all category. If we are going with how it is on page 2 then we have to be diligent that we don’t take action on things that need public notice. Mr. Carpenter
thought it would be better to have a catchall section so that we don’t run into problems covering things under Unfinished Business. Mr. Cornell said he did not remember ever having any
Unfinished Business. Ms. Hentz suggested that Unfinished Business be deleted completely. She thought New Business could be eliminated as well.
Board of Zoning Appeals Minutes 11 June 13, 2007 Mr. Carpenter said having discussion under Old Business or New Business could get one in hot water. Mr. Nielsen asked if the “Miscellaneous”
listing is actually the “Discussion of BOA Procedures.” Mr. Cornell thought it made more sense to remove the “Miscellaneous” category and replace it with “Discussion of BZA Procedures.”
Mr. Muehrer asked for verification that the changes to #3 then were to delete Old Business and New Business, and change Miscellaneous to “Discussion of BZA Procedures.” Ms. Hentz concurred.
She said Communications could be left in to cover any correspondence or memos that might be received. Mr. Muehrer then verified that the Agenda should follow the list for Order of Business
as changed at this meeting. Ms. Hentz thought the Reading of Minutes could be eliminated and changed to just “Approval of Previous Minutes.” Discussion then turned to Article IV #5,
specifically the last sentence “Each minority member may state the findings of fact and reasons, which support the vote of the minority.” Mr. Penney said he was uncomfortable just removing
this from the guidelines as he thought it important that minority findings be noted. Mr. Nielsen mentioned that a member could state their minority thoughts during discussion so it would
be reflected in the record. Mr. Muehrer stated that Atty. Kraft alluded to this idea during his discussion on the memo regarding Minority Finding of Facts. Ms. Hentz said the State requires
Findings of Majority Findings of Fact so that the Judge has guidance from the Board in case it Mr. Penney thought the last sentence should be removed. Ms. Hentz agreed. Mr. Cornell concurred.
Mr. Nielsen said leaving the sentence in could leave the door open for boards in the future to bring it back again and begin stating Minority Findings. It is better to take it out. Mr.
Penney then brought up the sentence “Other members who voted in the majority may either concur wholly with the statement of facts and reasons presented or may state exceptions.” He wanted
clarification regarding the reference to “exceptions.” Mr. Cornell said it meant that a member could agree with all the statements except one (for instance) and could state that for
the record. Mr. Nielsen agreed that he thought this was what it meant. Mr. Muehrer said he thought it gave them an opportunity to add a condition. Ms. Hentz pointed out that this is
after the vote so conditions would already have had to be stated.
Board of Zoning Appeals Minutes 12 June 13, 2007 Ms. Hentz thought it provided an opportunity for members to voice their concerns even though they voted in the majority. In regard to
Article IV #1, Mr. Carpenter asked if he was correct that appeals go to the Director of Community Development and the last step then is to the courts. Mr. Muehrer said it is referring
to the application process. When someone comes into the Community Development office asking if they can do a particular thing and the zoning ordinance does not allow it, then the application
process starts as described in the rest of the Article. Ms. Hentz said there is a difference between applications and appeals. They heard application requests for variances today, for
instance. There have been appeals in the past. It is when there has been a decision made previously by someone else and then there is an appeal to this board. Ms. Hentz said the Players
situation might have been an appeal. Mr. Muehrer read the definition In regard to #4 Ms. Hentz Hentz asked that the wording in #4 be changed from “No appeal requesting a variance…” be
changed to read “No appeal or application requesting a variance…” In regard to ArticleV1. Ms. Hentz said she would like the wording of the last sentence be changed from “…regarding a
zoning appeal” to “….regarding a zoning appeal or application for a variance.” Mr. Penney asked for clarification of Article VII 1.c “The board is bound to accept the zoning ordinance
and map as correct.” Ms. Hentz said discussion of the request and the decision reached must be based on the zoning information and maps provided by staff, even though one might disagree
that the information is correct. In regard to Article VII 1.e. Ms. Hentz referenced the fact that other properties have been compared when considering a variance request. The Article
states “The hardship justifying a variance must apply to individual petitioners’ parcel or structure and not generally to other properties in the same district. Mr. Cornell thought it
should be left in, as it is a reminder that we should not consider other properties. He did not see how it affected staff as the guideline is for the board members to follow. Ms. Hentz
questioned if the information should even be in the staff report to be considered as it sends a mixed message. Mr. Cornell asked if Ms. Hentz thinks the staff should not have any comparisons
in the staff report so that they are in line with the guideline. Mr. Carpenter thought it could affect other applicants if they see that there was a comparison in one situation, but
they could not reference one in theirs. Ms. Hentz referenced the many times people have brought in pictures of comparable properties but then were told they cannot be considered. It
is a concern that there is a double message sent. Mr. Muehrer stated he would no longer include comparisons. Ms. Hentz then referred to Article VIII 1. “The Board shall render its decision
within thirty (30) days after the final hearing and shall transmit a signed copy of the Board’s decision to to the petitioner and Director of Community Development.” Ms. Hentz questioned
why it is referencing “within thirty (30) days.
Board of Zoning Appeals Minutes 13 June 13, 2007 Mr. Muehrer thought it might refer to the minutes of the meeting being delivered within the 30 days. Mr. Cornell thought there needed
to be clarification on the Article. Ms. Hentz thought it may refer to a hearing based on an appeal as opposed to a variance request but also thought that clarification was needed by
the next meeting. In next months packet we will need a revised copy of the rules so that we can refer back and tweak it if need be. Mr. Cornell was excused from the meeting at 5:45 p.m.due
to another obligation. Discussion then took place regarding the procedure for verifying attendance. Ms. Hentz explained to the members that currently there are members that are called
by staff and others who don’t want to be called and contact the staff if they will not be. Mr. Nielsen suggested that it be accepted that members will be present unless they call staff
to say they will not. Ms. Hentz questioned if Mr. Ruedinger calls in to see if he is needed. Ms. Gehrke said he does not call. She contacts him only if he is needed. Ms. Hentz referenced
back to a previous meeting when email was considered as possible means of communication. Mr. Carpenter said sometimes he is out of the office and would possibly not read his email on
time. Ms. Gehrke offered to email all members on the Monday of the meeting. Mr. Penney thought it would be cumbersome to use email since alternates aren’t required to attend unless they
are needed. Ms. Hentz voiced concerns also regarding the use of email as a way to communicate as she had experienced a failure that day receiving a response back from staff via email.
All members present agreed that there was no need for staff to contact them for the meeting. Board members will contact staff if they are unable to attend. The first alternate will continue
to be called if needed; likewise the second alternate if the first alternate is not available. Ms. Hentz suggested a Notice be included with the minutes so that all members are aware
of the change. Ms. Hentz then asked staff if the Choice Bank issue had been resolved. Mr. Muehrer said he checked the site that day and they were code compliant. There is one entrance
sign and the large sign that was approved by variance. There being no further business, the meeting adjourned at 5:55 p.m. Carpenter/Penney 4-0. Respectfully submitted, Todd Muehrer
Associate Planner/Zoning Administrator