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HomeMy WebLinkAboutMinutes Board of Appeals Minutes 1 April 11, 2007 BOARD OF APPEALS MINUTES APRIL 11, 2007 PRESENT: Robert Cornell, Larry Lang, Dennis Penney, Edward Wilusz, Cheryl Hentz EXCUSED: Dan Carpenter, Moss Ruedinger STAFF: Todd Muehrer, Associate Planner/Zoning Administrator; Karin Gehrke, Recording Secretary The meeting was called to order at 3:30 p.m. by Chairperson Hentz. Roll call was taken and a quorum declared present. The minutes of March 14, 2007 as mailed were noted to have text missing and corrected minutes were distributed. The corrected minutes were approved. Cornell/Penney 5-0. I. 657 W 4TH AVENUE Timothy J. Rusch-applicant/owner, requests a variance to permit the creation of a 1,200 square foot detached garage. Section 30-19 (B)(4)(b)(vi) of the Oshkosh Municipal Code: R-2 Two Family Residence District limits detached garages to no greater than 800 square feet. The subject 0.58 acre (approx. 25,500 sq. ft.) property is zoned R-2 Two-Family Residence District and is being used as a single-family dwelling. The The parcel is bordered by single-family homes in all directions and the general area can be characterized as a low-density residential neighborhood. Mr. Muehrer presented the item. Mr. Timothy Rusch, 657 W 4th Ave, explained that an attached garage would block the view of the backyard and would make the property more difficult to sell. Also, an attached garage would cover the entire back of the house, blocking the neighbor’s view. It also limits the ability to get into the garage, as it would only have 9’ to make the swing. He explained that an attached garage would also create more storm run off to the properties to the west who already have flooding problems. Mr. Rusch passed pictures showing a “lake” (standing water) in the yard of his neighbor three properties to the west. The current garage is 24’ x 24’ and he wants to create a new 40’ x 30’ (1,200 sq. ft. garage). Mr. Lang asked if the neighbors’ land was lower than the rest of the area. Mr. Rusch said yes. Mr. Lang asked the age of the house. Mr. Rusch said it was 100+ years old. Board of Appeals Minutes 2 April 11, 2007 Mr. Rusch said the foundation of the current garage is busting out, the roof is sagging and the walls are moved out. Mr. Penney asked why he wanted the garage to be 1,200 square ft. Mr. Rusch said he wanted to maximize the ability of the yard. He also said the neighbor at 653 W 4th Ave indicated he was not opposed to the new proposed garage size and he would even help Mr. Rusch build the unattached garage. Mr. Wilusz asked why the code allows only up to 800 sq. ft. for a detached garage. Mr. Muehrer said it was a maximum of 800 sq. ft. for a detached garage and 1,200 sq. ft for an attached. Mr. Wilusz questioned why there was difference for sizes between attached and detached garages. Mr. Muehrer explained that it was his understanding that the code was composed in this manner to prevent large garages for boat storage. Also, the owner could build two (2) garages to achieve the desired space. Mr. Penney asked why it would be okay to have two (2) 600 sq. ft garages and not one 1,200 sq. ft garage. Mr. Muehrer said the most current change to the code was in 1996 but the standards were the same with the previous version. Mr. Cornell asked if no variance would be needed if the applicant would build an 800 sq. ft. and a 400 sq. ft. garage. Mr. Muehrer confirmed yes. Mr. Wilusz asked Mr. Rusch if he was open to building two structures. Mr. Rusch said yes, he would be. He thought if he built two garages one would still have to be attached. He then asked if he could have two (2) 600 sq. ft. garages. Mr. Muehrer said yes. Mr. Lang asked how the city defines “detached.” Mr. Muehrer said there needed to be a minimum separation of 5’ between the walls of one structure and the wall of the other. Mr. Rusch then noted that it would require a larger paved area in order to access both garages. Mr. Lang asked what the minimum development area of a lot needs to be to accommodate two garages of 600 sq. ft. each. Board of Appeals Minutes 3 April 11, 2007 Mr. Muehrer indicated 7,200 sq. ft. Mr. Rusch said his property is 24,187 sq. ft. Mr. Lang noted the property is three times the minimum required. Ms. Hentz asked if Mr. Rusch had any information from realtors regarding resale value of the house. Mr. Rusch said no; the house was 2,500 sq. ft and suitable for a larger family. He also said he felt the attached garage would be a detriment because vision to the backyard would be blocked and therefore children playing in the backyard would not be able to be seen. Mr. Cornell asked if Mr. Rusch was open to having two 600 sq. ft garages. Mr. Rusch said it would be difficult but that he could make it work. Mr. Wilusz said he has a problem because Mr. Rusch has not demonstrated any hardship. He also thought the ordinance needs to be revisited. He asked Mr. Rusch if there is a hardship with an 800 sq. ft garage. Mr. Rusch replied that because of the size of the yard he wanted to go the maximum size possible, as it would be of of benefit when selling the house. Mr. Lang asked Mr. Mueher if the code didn’t provide any logic for the way it was written. Mr. Muehrer indicated that the applicant could meet the guidelines as set forth by the code because of the size of the lot; he did not have any other knowledge of why the ordinance was written as it was, other than what he mentioned earlier. Mr. Penney said in this case it would be ridiculous for two garages to have to be built and therefore felt obligated to side with the citizen. Mr. Lang said he thought the code was discriminating against older parts of the city where property lots were larger, and to require a 1,200 sq. ft garage to be attached to meet the code wasn’t logical. He would support the citizen. Mr. Cornell said his main concern is that there is no hardship; that the applicant can achieve what he wants and meet the code requirement. Further, Mr. Cornell indicated one problem with a 1,200 sq. ft. garage is that it could be changed into living space. Due to these issues he could not support the request. Ms. Hentz said that to require the applicant to build two structures with additional land in between to be paved is an unnecessary burden and she supports the applicant. Mr. Wilusz said the ordinance is not the best but it is the ordinance we have. Further, he did not hear anything regarding why an 800 sq. ft garage would not be okay. Therefore he would agree with staff. Motion by Lang to approve the request to create a 1,200 square foot detached garage. Board of Appeals Minutes 4 April 11, 2007 Seconded by Penney. Motion approved 3-2. Ayes-Lang/Pnney/Hentz. Nays-Wilusz/Cornell. Finding of Facts: Hardship would exist with additional cost. Sale of house more difficult with an attached garage. Minority Finding of Facts: Self-inflicted hardship. II. 1256 HARNEY AVENUE Jeff Wicinsky-applicant, Harold Bidwell-owner, requested a variance to permit the creation of a driveway with a 0’ side yard setback. Section 30-36 (C)(5)(f) of the Oshkosh Municipal Code: Off-Street Parking and Loading Facilities requires driveways to be at least 6 inches from a side lot line. The subject 0.11 acre (approx. 4,949 sq. ft.) property is zoned R-2 two-family Residence District and is being used as a singe-family dwelling. The parcel is bordered by single-family homes to the west and east, while a two-family dwelling exists to the north. The general area can be characterized as a lowdensity residential neighborhood. Mr. Muehrer presented the item. Mr. Jeff Wicinsky, 6529 Lasley Shore Shore Dr, Winneconne, told the board that the owner Mr. Harold Bidwell was moving from 1256 Harney Avenue. Mr. Bidwell hasn’t made many repairs to the property due to the fact that there is no driveway. He also said residents need to get special permission to park on the street. Also, a driveway would make it more feasible to do repairs to the property. Ms. Hentz asked if there was parking on Harney St. Mr. Wicinsky said yes but not without a permit. Ms. Hentz asked if there was parking on both sides of the street. Mr. Wicinsky didn’t know. Mr. Lang said there would have to be parking on both sides in order to get a permit. Mr. Cornell asked if Mr. Bidwell was selling the house then. Mr. Wicinsky said yes, that he was going to purchase it. Mr. Cornell asked if he was planning on renting it out. Mr. Wicinsky said he might fix it up and resell it. Board of Appeals Minutes 5 April 11, 2007 Mr. Cornell said that a 0’ setback would create a snow removal problem. Mr. Wicinsky said he owns 85 rental units in Oshkosh and plows them himself so he would be able to plow the driveway straight to the back. He said he could not say that it wouldn’t be a rental. He will be replacing the roof, siding, windows, etc. Mr. Penney referred to page 4 and asked if Mr. Wicinsky was planning to put a parking lot area behind the house. Mr. Wicinsky said yes, it would be blacktop. He also explained that the lot goes 40’ to 50’ beyond the parking space indicated. Mr. Cornell asked if he planned to add a garage. Mr. Wicinsky said no. Mr. Penney asked how much area there was between the neighbor. Mr. Wicinsky said about 50’ of separation. Mr. Lang asked how old the house was. Mr. Wicinsky said it was constructed in 1946. Motion by Cornell to approve the request to permit the creation of a driveway with a 0’ side yard setback. Seconded by Penney. Motion carried 5-0. Ayes-Wilusz/Cornell/Lang/Penney/Hentz . Nays-none Finding of Facts: Unusual physical issues of the property. Area will be enhanced with upgrades. III. 1331 WASHINGTON AVENUE Maureen Sturm-applicant, Lois R. Roeder-owner, request a variance to permit the creation of an 8’ high fence with a 1’side yard (west) setback a 0’ rear yard setback. Section 30-35 (E)(4) of the Oshkosh Municipal Code: Additional Standards and Exceptions requires fences greater than 6’ in height to meet the setback requirements for areas of the principal structure (R-2 Two Family Residence District requires a 7 ½’ side yard setback and a 25’ rear yard setback). The subject 0.19 acre (approx. 8,451 sq. ft.) property is zoned R-2 two-family Residence District and is being used as a single-family dwelling. The parcel is bordered by single-family homes in all directions and the general area can be characterized as a low-density residential neighborhood. Board of Appeals Minutes 6 April 11, 2007 Mr. Muehrer presented the item. He then distributed additional information provided by the applicant that included the IEP (Individualized Education Program) for Estelle, the child involved. He also read a letter submitted by Mrs. Gladys Harvey (1337 Washington Ave) voicing her conditional approval of the fence. Mr. Lang referred to page 6 and asked if a 6’ fence would not need setbacks. Mr. Muehrer said that was correct. Mr. Wilusz determined that if the fence was 7.5’ in from each side and the lot is 50’ wide that the area enclosed would be 35’ long. In order to do an 8’ fence it would need to be 25 feet in from the rear lot line. To do an 8’ fence without variances the space created would be approximately 25 x 35. Mrs. Maureen Sturm, E6285 Pine Lane, Manawa and Mr. Earl Luaders, New London (maternal grandparents), presented information that if the standard setbacks were used it would render a space of 19’ x 30’. The child’s swing set alone is 20’ x 12’. Mrs. Sturm presented a letter from Estelle’s teacher at Doty Memorial School. Ms. Hentz referred to the letter from Mrs. Harvey indicating she was okay with the 8’ fence if there was a 3’ side yard setback. Mrs. Sturm said she was agreeable to Mrs. Harvey’s request. Mr. Luaders referred to the staff report, page 1 paragraph 3 that references the safety needs of the child being a special condition, and page 2, paragraph 2, “a public entity must reasonably modify its policies, practices, or procedures to avoid discrimination…” He felt a “reasonable “ modification is to eliminate the setback requirement and that by not doing so would be discriminating against Estelle. Mr. Luaders felt the staff was incorrect in their estimation that the “lot has ample rear and side yard area to construct a sizeable protective area with an 8’ tall fence.” He also felt staff should not be looking to justify a denial of the request. Mr. Luaders then referred to the letter expressing the concerns of Mrs. Virginia Fox (1325 Washington Ave) saying she cannot see the lake from her sun porch and a fence would not hurt the light or air quality. Mr. Penney asked why the family did not know an 8’ fence would be a problem. Mrs. Sturm said it was not a problem in Vermont so it didn’t occur to her that it would be here. Mrs. Sturm passed out examples of fence styles that they are considering and said they want it to compliment the house. It would not be a “stockade” fence. Mr. Wilusz asked if the child isn’t supervised when she is outside. Mr. Luaders affirmed that she is supervised at all times. Mrs. Sturm said it is important that the side door be enclosed by the fence to provide the most normal life possible for Estelle. Board of Appeals Minutes 7 April 11, 2007 Mr. Wilusz asked how it is determined how much space Estelle needs. The letter from the school only references “large spaces.” Mr. Luaders said they could not give a number but that the area on Washington St. is much smaller than the home in Vermont. Mr. Lang asked the size of the space in Vermont. Mr. Lauders said it is 1.5 acres. Mr. Wilusz referred to page 2 of the staff report regarding standard criteria for granting variance. Mr. Muehrer affirmed that the legal criteria require that the hardship must be related to the property, not the owner. Mr. Wilusz stated the guideline is troubling when there is a child with special needs. Mr. Muehrer referenced a past issue with handicap access ramps constantly being requested due to ADA requirements and said the ordinance was changed because of it. Staff felt, however, with this application it was not an ADA issue necessarily but more of a quality of life issue. The overall goal in this situation is to provide an outside outside protective area and the question is how large an area is reasonable. Mr. Wilusz questioned if the issue had been run past the legal department; was the board on firm ground to deny the variance. Mr. Muehrer indicated it had been reviewed by corporate counsel and they were comfortable with the staff report. Mrs. Sturm referred to the site plan, explaining that the house has three doors; one door would be totally blocked off, leaving two doors that would need to be inside the fence. Mr. Wilusz questioned how much more effective an 8’ fence would be to restrain Estelle. As she grows a larger fence would not remain effective. Mrs. Sturm said the house in Vermont had a 6’ fence to begin with but that Estelle had gotten out and they then added 2’ to the top. Mr. Penney asked if the board would be voting on the request as it was submitted or would it be modified to include the 3’ setback requested by Mrs. Harvey. Ms. Hentz affirmed that it would be included. Ms. Hentz asked if Estelle moves things to the fence and then climbs over. Was it possible to restrict what was in the yard? Mr. Luaders said the ADA law does not require the child to modify their behavior. Board of Appeals Minutes 8 April 11, 2007 Mr. Jim Sturm (E6285 Pine Lane, Manawa) asked to be heard and said the objects in the yard are typical children’s toys, such as a wagon; there were not ladders or such things that the child had access to. Mr. Dan Posanski, Dempsey Law Firm (1 Pearl Ave) then presented the concerns of Mrs. Virginia Fox. He explained that Mrs. Fox spends most of her time in a small room at the front of the house. She is empathetic to the issue but is opposed to the fence without the standard setbacks for the following reasons: 1. It would block her window; 2. It would reduce the value of her house, 3. The air and light would be affected by the fence, preventing airflow and blocking the light from her window. Mr. Posanski re-iterated the fact that the hardship is self-created and the variance should not be considered on that basis alone. The hardship needs to be unique to the property itself. He also said there is no evidence that an 8’ fence is needed. Mr. Wilusz asked if it would help if the fence was pulled back slightly. Mr. Posanski said yes, if the fence did not block the sun porch that would be better; however, he added that Ms. Fox would prefer that the fence begin at the end of her house. Mr. Cornell said this is more reason why the backyard should just be squared off with the fence. Mr. Lang agreed that the fence should be set back to the end of the house. Mr. Lang then wanted confirmation that Mrs. Harvey was okay with the 8’ fence as long as there was a 3’ side-yard setback next to her driveway. Ms. Hentz confirmed yes. Mr. Luaders/Mrs. Sturm asked to comment on the proposed modifications. Mrs. Sturm insisted that the side door must be protected. Mrs. Sturm passed pictures showing the view from Mrs. Fox’s sun porch window is of the side door of 1331 Washington Ave. and in fact she did not have any view of the lake. Mr. Luaders said the ADA requirements should lead to approval of the variance request and that the request was reasonable. Mr. Penney asked why they chose this house. Mrs. Sturm said she even though the lot is small they considered the area in general to be more open, especially with the park near by and the relative lack of neighbors. She said it was also affordable. She was raised in the area and had an appreciation for the Washington Street area even though the house is probably the smallest on the block. Ms. Hentz questioned the side door and asked if they couldn’t keep it locked if it was outside the fence. Mr. Cornell questioned if the child needs to be confined, isn’t there a concern with taking her to the park; how do they assure her safety then. Mrs. Sturm said they use a child leash. Board of Appeals Minutes 9 April 11, 2007 Mr. Penney asked if the request is denied will they be okay with ADA (Americans for Disabilities Act). Mr. Lang said the board needed to do what needed to be done. Mr. Penney thought the request needed to be modified to include the 3’ side yard setback on the east side and have the fence start far enough back so it doesn’t block Mrs. Fox’s sun porch window. Mr. Penney could not support the request as presented. Mr. Lang said he was not comfortable with approving modifications for Mrs. Fox and wanted to table the item so the applicant could provide an alternative option. Ms. Hentz asked the applicant if she was willing to modify her request. Mr. Sturm said that Mrs. Fox could only see the driveway from her sun porch window. Ms. Hentz said she could not take for granted that the pictures provided were accurate and would need to see a modification on the west (Mrs. Fox’s) side. Mr. Luaders said they would move the gate between 1325 & 1331 to the end of the house. Mr. Posanski then asked if they would also allow a 3’ side yard setback on Mrs. Fox’ side. Mrs. Sturm said they could not as it would cut into the side of the driveway. Mr. Wilusz said he was uncomfortable with the legal position of the board. If the board adheres to the ordinance, ADA could sue; if the board approves variance then others could sue. Mr. Lang said he still believed the fence could fit into the lot without a variance; he is inclined to move it as submitted and let if rise or fall as it may. He will not support it. Mr. Cornell said he couldn’t accept the request as it stands. Ms. Hentz asked Mr. Posanski if Mrs. Fox would be agreeable to starting the fence more toward the rear of the house. Mr. Posanski stated Mrs. Fox preferred it to be completely to the rear of her house, but as a compromise they could accept the proposed rendition. Mr. Luaders said they would be okay with the setback as determined on the driveway side (Mrs. Fox). Ms. Hentz moved to approve the request with the following conditions: (a) A 3’ side-yard setback on the east side. (b) Commencement of fence to begin 19’ further south where the house juts out along the driveway. Seconded by Mr. Penney. Board of Appeals Minutes 10 April 11, 2007 Motion approved 4-1. Ayes-Wilusz/Cornell/Penney/Hentz. Nays-Lang. Findings of Facts: Safety of child is addressed. Rights of neighbors were protected. Extremely unique circumstances. Minority Finds: Owner induced hardship. Safety could have been addressed within variance guidelines. Rights of west neighbor (Mrs. Fox) were not protected. OTHER BUSINESS Board members requested staff to look into the historical reason why the code was written related to attached/unattached garages. Mr. Wilusz asked if the ADA guidelines couldn’t be added to the code for fencing so that the board doesn’t have to deal with a possible legal dilemma. Mr. Lang requested that board members be notified if additional information is received for a request so that they have time to review it before hand. Mr. Cornell reminded board members that a reorganization meeting is to take place in June. There being no further business, the meeting adjourned at 5:45 p.m. Wilusz/Cornell 5-0. Respectfully submitted, Todd Muehrer Associate Planner/Zoning Administrator