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BOARD OF APPEALS MINUTES FEBRUARY 11, 2004 PRESENT: Robert Cornell, Thomas Feavel, Cheryl Hentz, Larry Lang, Edward Wilusz and John Schorse, Chairman STAFF: Matt Tucker, Associate Planner;
and Vickie Rand, Recording Secretary The meeting was called to order by Chairman Schorse. Roll call was taken and a quorum declared present. Minutes of the January 28, 2004 meeting were
approved as amended. Hentz/Lang. Unanimous. I: 520 & 560 W. LINWOOD AVENUE Holly Anderson of Signs Now, applicant, and Dale R. King, owner, are requesting a variance to construct a second
identification sign on a multi-family property that will have 0 foot side yard setbacks and a 13 foot front yard setback, whereas Section 30-37(F)(1) of the City of Oshkosh Zoning Ordinance
requires one identification sign per multi-family property and Section 30-21(B)(5) requires a 10 foot side yard setback and a 25 foot front yard setback for a ground sign. Mr. Tucker
introduced the item and passed around pictures that showed the location of the signs as requested and where they could be located without a variance. Mr. Lang asked for clarification
of the setback requirements. Mr. Tucker explained the setback requirements as they related to the proposed signage. Holly Anderson, 17800 W. Bluemound Road, Brookfield, WI, stated there
has been a sign on the property since the buildings were constructed and it hasn’t been very visible due to landscaping blocking the view. She stated they would like the sign to be moved
closer to the road where it would be more visible. She stated they want to put a sign perpendicular and keep it centered between the two buildings rather than 10 feet from the property
line. Ms. Anderson stated the buildings are setback 27 – 30 feet and the ordinance requires signage to be 25’ from the front property line. She stated this would result in a cluttered
look, therefore, if they were allowed to move the sign it would serve the purpose it was designed for. Mr. Lang questioned the distance between the buildings at 520 & 560 Linwood Avenue.
Craig Winkel, 817 Viola Avenue, stated he has been the manager of the property for 24 years and noted the distance between the buildings is approximately 30 feet. Mr. Winkel stated the
sign would be off center, tucked in between two buildings and disproportionate to the landscaping on the property if it were located in compliance with the Zoning Ordinance. Ms. Anderson
stated since this new sign was a big investment for the property owners they would like it to be more visible and aesthetically pleasing to the neighborhood. Mr. Winkel stated he has
taken care of the property for 24 years and he strives to keep the property looking nice and running smoothly to be competitive in offering people a nice place to live, therefore, he
would like the sign located in an aesthetically pleasing and highly visible area.
Board of Appeals Minutes -2 -February 11, 2004 Mr. Cornell stated he understands the sign currently doesn’t serve its purpose and suggested two signs be placed in compliance, one at
the southeast corner and one at the southwest corner of each parcel. He stated he has driven by the property several times in the past three days and doesn’t see the need for a variance.
Ms. Anderson stated Mr. Cornell had a good suggestion but she feared the sign wouldn’t be seen from the corner as it would be setback too far. Mr. Cornell explained that it was his opinion
that there was no need for a variance in this case since a sign located on each corner would have more exposure that what has been proposed. Ms. Anderson stated they were looking for
high visibility to protect their investment and would be willing to look into Mr. Cornell’s suggestion. Mr. Winkel questioned if the sign wouldn’t be located to far back if it were located
in compliance, 25 feet off of the corner. Mr. Tucker explained the sign could be located near the intersection of W. Linwood Avenue and Wisconsin Street, and this sign would be very
visible because of the four way stop at that corner. Mr. Winkel stated as long as there is no obstruction to the sign it seemed like it would work. Ms. Anderson again stated that she
would need to look at the property to determine if a variance would still be needed, considering Mr. Cornell’s suggestion. Mr. Lang asked the petitioners if they would like this issue
to be resolved or laid over until they had a chance to look over the property for other alternatives. Ms. Anderson stated she originally wanted what was proposed, but would like to have
an opportunity to verify with the owner and the manager that the alternative mentioned would be satisfactory. Ms. Hentz asked for clarification that they wanted approval today of the
variance, but would still check out another option. Ms. Anderson replied she was interested in obtaining the requested variances. Mr. Winkel stated he had a lot of pride in the property
and was not not a slum landlord. He stated his goal was to keep the apartments filled with good tenants. Ms. Hentz questioned if Mr. Winkel thought there would be a financial hardship
without the variance. Mr. Winkel stated proper signage was a key factor in keeping the apartments leased and a financial loss could be considered a direct hardship of not having proper
signage in place. Ms. Hentz stated financial hardship couldn’t be considered when granting a variance, and she also stated she was fearful of setting a precedence if this variance was
granted. Ms. Anderson stated again that the owners didn’t want to waste their investment in new signage if it didn’t serve the purpose, and stated if someone else had the same problems
she would hope the Board would grant variances for them also. Mr. Winkel stated he has seen temporary signage that has been quite shabby that he would be ashamed to put on his property,
and the signage they are proposing would be very aesthetically pleasing.
Board of Appeals Minutes -3 -February 11, 2004 Mr. Wilusz stated he agrees with the value of signage, and it appeared that one sign for each building can be done without a variance,
therefore, they would be better off with this than what they have now. Ms. Anderson stated she would like the Board to approve the variance, but also have a chance to come back if the
alternative Mr. Cornell had suggested was satisfactory with all parties. Mr. Tucker read a letter from Dale King at this time, owner of the property, (on file in the Department of Community
Development) which stated he has experienced occupancy rates of 95% every year up until last year. The letter also stated the rates for the apartments have not been raised for four to
five years even with the rising cost of utilities. Mr. King stated in his letter that there is a surplus of rental units in Oshkosh, therefore he hired a consultant to look into the
rental situation and the first recommendation was for better signage, as studies show 34-37% of all rentals are the result of on-site signs. Mr. King noted in his letter that he had
looked at many apartment complexes to find the best looking signs and felt the signs he has chosen would be pleasant to look at. He also stated in his letter that his property is next
to a commercial area with a lot of signs, and would not have a negative impact on the neighborhood. Mr. Tucker shared statistics with the Board at this time regarding the population
growth in the City for the past three years, compared with the number of dwelling units constructed. He explained that a number of rental units have been built in the City, but the population
has not grown accordingly to meet the demand for all of these additional units. He talked about how the low interest rates are making buying a home more affordable, therefore minimizing
the number of people available to rent apartments. Mr. Tucker stated the ability to attract renters to a property involves much more than just providing attractive signage. Ms. Anderson
stated that that Mr. Tucker’s statistics have been helpful at identifying problems in the rental market, but because of the in-depth problem they need to do all they can. She stated
the consultant had recommended to have better signage and therefore they are requesting a variance to have their signage be as visible as possible. Mr. Feavel stated he would not support
the variance. Mr. Lang stated he hasn’t heard anything that would justify the variance and would not support the request. Ms. Hentz agreed with Mr. Lang and stated she appreciated Mr.
Tucker’s analysis and Mr. King’s letter but felt if the apartments can’t be rented out with printed advertising done in the “Northwestern” and “Rent Now” publications, the proposed signs
wouldn’t make that much of a difference either. She stated she wouldn’t support the variance. Motion by Feavel for approval of a variance to construct a second identification sign on
a multi-family property that will have 0 foot side yard setbacks and a 13 foot front yard setback. Seconded by Lang. Motion denied 0-5.
Board of Appeals Minutes -4 -February 11, 2004 II: 1100 W. SMITH AVENUE The Oshkosh Area School District, petitioner/owner, is requesting a variance to construct a tennis court and associated
10 foot tall fence with a 10’8” setback to a rear lot line, whereas Section 30-35 (B)(1)(c) of the City of Oshkosh Zoning Ordinance requires a 25 foot setback for a tennis court and
section 30-35 (E)(4) requires fences greater than 6 feet tall be located with a 25 foot setback. Matt Tucker introduced the item and circulated pictures of the site. Craig Lieder, 3369
Jones Court, introduced Bill VanLiescout, the North High Tennis Coach, and Ron Aubrey, with the Oshkosh Area School District. Mr. Lieder stated they have been trying to get two more
tennis courts on site for the last two years or more. He stated money has been raised through the booster club and allocated through the school district at this time to make the addition
of one court possible. Mr. Lieder discussed the schools original plans to build two tennis courts on the north side of North High School, which is not possible because of storm sewer
and the nature park in this area. He stated they also wouldn’t be able to afford the construction in this area because of the amount of fill needed and the drainage situation. He stated
the next option they looked at was to construct two tennis courts to the west, and found out that couldn’t be done because of a storm sewer located in that area and a fire lane needed
to be maintained at a width of 20’ from the building. He stated the only viable option was to construct the tennis courts east of the school, as proposed. He stated they have until June
30th to use the money from the school board or they will lose it. Mr. VanLiescout stated most schools have eight courts for the number of players involved in a tournament. He stated
another court would enable them to take up to 2 hours less time for the matches, which would enable the players more free time for studies or employment. He also discussed tournament
play that would also take much shorter time and be formatted more efficiently with the addition of at least one more court. Mr. VanLiescout stated tennis was basically a quiet game that
shouldn’t have a negative impact on the neighboring properties. He stated that this seems to be the only possible solution as far as the location for an additional tennis court, which
they have been trying to add for the last five years. Mr. Cornell questioned if they were going to install lights for the tennis courts because he was concerned with the impact they
might have on the new neighborhoods on Weatherstone and Heartherstone Drives. Mr. Van Liescout stated they were not considering lights at the present time and couldn’t foresee any future
plans for lights. He stated they wouldn’t need to play into the night with another court available. Ms. Hentz questioned if North High and West High held tournaments at the same time.
Mr. VanLiescout stated they did hold tournaments at the same time and the two schools have shared West High tennis courts for quarterfinals during tournament play. Ms. Hentz questioned
if there were any other hardships if this variance wouldn’t be approved. Mr. VanLiescout stated safety is another factor to be considered due to the number of students involved in the
sport. He stated 24 players are a safe number, and they have 30-35 players on the teams. He stated they do not like to cut kids from the sport just because there isn’t room to play.
He stated the older
Board of Appeals Minutes -5 -February 11, 2004 students have the ability to drive to use other courts in town, but the freshman students don’t drive. He stated a level playing field
and the time factor are also concerns. Ms. Hentz stated she would like to add another condition for no lights to be added at anytime to the tennis courts. Mr. Lang questioned the fencing
for the tennis courts, and noted the current screening is not pleasant to look at. Mr. VanLiescout stated there was a solid plywood wall in place now that would be torn down and replaced
with shrubs. Mr. Lieder stated the planting would most likely be a project for the Agriculture Department. Mr. VanLiescout stated there would be noise if someone hit the ball against
that wall but that will be replaced and he is agreeable with the condition in the staff report. Mr. Wilusz questioned if two tennis courts could be constructed to the north, perpendicular
to the other six courts. Mr. VanLiescout stated the sun was a problem with constructing courts to lie east-west, as it would be in the player’s eyes at the time of play, which is why
tennis courts are constructed with a north-south orientation. He also stated the land is quite swampy in that area and to put in proper drainage would triple the cost for courts designed
to face the wrong way. Mr. Aubrey also stated there is a sewer in place in that area which creates a problem for them to build over. Mr. Tucker referred to the lighting issue stating
an ordinance is in place for lights not to have a negative impact on the neighboring properties. He stated they could include a condition regarding the lighting but it was not necessary.
Ms. Hentz stated that even though the City has ordinances in place, sometimes people don’t know about it and eventually end up here for a variance. She stated she would be more comfortable
including such a condition. Motion by Lang to approve a variance to construct a tennis court and associated 10 foot tall fence subject to the following conditions: 1. The court and associated
fence be installed at the minimum necessary setback from the property line to the east. 2. The tennis court area be screened from the adjacent properties to the east by a minimum 5’
tall 4-seasons hedge. 3. Any future plans for lighting would need further Board review. Seconded by Hentz. Motion by Hentz to amend Lang’s motion, regarding the third condition to state
no lighting fixtures installed at any time and no backboard structure be constructed at any time to screen adjacent properties. Seconded by Wilusz. Amendment to original Motion carried
3-2. Nays: Feavel and Lang.
Board of Appeals Minutes -6 -February 11, 2004 Original Motion by Lang, as amended by Hentz, to include the amended condition number three. 3. No lighting fixtures installed at any time
and no backboards constructed at any time to screen adjacent properties. Motion carried 4-1. Nay: Feavel OTHER BUSINESS Chairman Schorse stated he had visited the City Attorney, Warren
Kraft, regarding a vote of abstention. He stated Attorney Kraft stated the Common Council uses the same rules as the Board of Appeals with special by-laws pertaining to each Board, and
they would need to go to Mr. Kraft’s office to see that information. Ms. Hentz questioned if the material couldn’t be photo copied and included in the Board’s packet of information.
Mr. Tucker stated he has a copy of the document the Common Council uses and hasn’t found anything useful in this document relating to dealing with an abstention vote. He stated according
to Attorney Kraft and the Wisconsin Statutes, four affirmative votes are needed for a variance to to be approved, and according to the rules the City’s Boards and Commissions operate
under, the only time an abstention can be made is when there is a financial conflict of interest, which the board member with the conflict must identify during board discussion. The
Board member with the conflict may then vote present or abstain, or an alternate may vote in place of the member with the conflict. The abstention or present vote will not be counted,
but four affirmative votes are still required to approve a variance. Mr. Tucker also noted that if a board member feels as though they do not have enough information to make an appropriate
decision, and are unable to successfully lay over an item until more information may be presented, that board member should vote “no” when the roll is called. Ms. Hentz stated they didn’t
have this information when Mr. Lang abstained because of the lack of information, therefore it should never have been counted in the majority. She stated now the Board knows they can’t
abstain for lack of information, therefore this issue should be cleared up. Mr. Lang stated it clears up the point of when and how a member can abstain, and mentioned you can’t count
an illegal abstention. Mr. Tucker stated he was provided information relating to a Supreme Court case in 1982, which upheld the need of four (4) affirmative votes to approve a variance.
Mr. Lang stated he would not be able to attend the Board of Appeals meeting on March 10, or April 28. Mr. Cornell stated he would not be able to attend the Board of Appeals meeting on
March 10. There being no further business, the meeting adjourned at 4:37 p.m. Hentz/Wilusz. Unanimous. Respectfully submitted, Matt Tucker Associate Planner MT/vlr