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BOARD OF APPEALS MINUTES DECEMBER 10, 2003 PRESENT: Robert Cornell, Thomas Feavel, Cheryl Hentz, Larry Lang, John Schorse, Ed Wilusz EXCUSED: None STAFF: Matt Tucker, Associate Planner;
Warren Kraft, City Attorney; Mary Lou Degner, Recording Secretary The meeting was called to order by Chairman Schorse. Roll call was taken and a quorum declared present. Mr. Feavel asked
for the minutes of November 12, 2003 to reflect Mr. Tucker’s explanation to Mr. Feavel’s question “if the three variance test questions were applicable to this item”. Mr. Lang suggested
that the order of business be altered for this meeting due to the discussion that could ensue regarding approval of the minutes. Motion by Lang to move the Reading and Approval of the
previous minutes to follow New Business. Seconded by Hentz. Motion approved. Unanimous. I: 491 S. WASHBURN STREET A E C Architects, applicant, and Dumke Associates, owner, are requesting
variance to allow for partial screening of rooftop mechanical units, whereas Section 30-35(I)(5) of the City of Oshkosh Zoning Ordinance requires rooftop mechanical equipment be fully
screened from view of any street or residential zoning district. Matt Tucker introduced the item, circulated photos, and presented the property file for interested Board members. Bill
Aubrey, Project Manager for AEC, presented photos of the subject property and a property on Jackson Street (Domino’s Pizza). He questioned if the property on Jackson Street was in compliance
with the Ordinance. Mr. Tucker responded that it was in compliance. Mr. Aubrey stated that there is residential property to the west and all other properties in the vicinity are commercial
and fall within the Highway 41 Corridor. He said they are aware of the screening requirements and explained that the original design of the facility included internal furnace/heating
systems. He said at the onset there was only one tenant, Virchow Krause, whose unit is located in a stair enclosure. Mr. Aubrey said that as additional tenants came on line they requested
rooftop systems, contingent upon their occupancy, and that is why the rooftop units were not included in the original submittal. He added that because the structure was not designed
for rooftop units they made an evaluation and determined that the structure could hold the load of rooftop units. Mr. Aubrey stated his position that if solid screening is added, per
the Ordinance, it would add to the risk of structural failure. He said, in his professional opinion, if a completely solid wall is provided to fully screen all parts of the equipment,
it would create a condition that would trap snow and obstruct the operation of the rooftop units and possibly add snow loads that the roof area is not designed for. He said that the
existing slatted screening allows air movement to minimize snow loads for the structure. Mr. Aubrey said that, in his
Board of Appeals Minutes -2 -December 10, 2003 opinion, the property on Jackson Street, which he had made reference to, does not meet the intent of the Ordinance, which is to try to
improve the aesthetic appearance of rooftop equipment and stated his belief that the screen as installed, on the subject property, addresses the screening Ordinance. He added that the
purpose of the existing screening is to satisfy both the Ordinance and the conditions that exist on the property. Mr. Aubrey said the hardship is the desire to minimize any of the risks
of potential problems that could develop, because the rooftop units were tenant driven after the fact. Bob Albright, contractor for the building, said their intent was to make the subject
property aesthetically pleasing, to meet the screening code of the rooftop units in an acceptable method, and to make the building one of the nicest looking in the 41 Corridor in the
Oshkosh area. Mr. Lang asked when the permits were first issued for the building and questioned if the Zoning Ordinance went into effect in 1996. Mr. Tucker replied that the Zoning Ordinance
provisions went into effect in 1996 and the building permit for the subject property was issued on December 6, 2001. Mr. Lang commented that the hardship was self-created because the
building was originally engineered to have the units inside the building and a decision was made to move the units to the roof. He noted that at the time the firm was aware of the Zoning
Ordinance. Ms. Hentz asked for clarification on why the units were not fully screened when the building was first erected. Mr. Albright explained that the units were not in place at
that time, they were added as tenants occupied the building. Mr. Aubrey explained that he was the original designer of the facility and noted that he did not design the individual tenant
spaces. He added that he was averse to putting screening in place with any kind of material on the roof because it was not designed for this purpose. He said his recommendation to the
owners of the building, if they were going to do this, was to allow air movement to minimize the amount of potential trapped material. Chairman Schorse asked why they chose not to use
louvered panels on the screening panels, or something equivalent that would break the visual view, but still allow for the required air movement. Mr. Aubrey again commented that it was
his belief that any screening would put the facility at some kind of risk. Mr. Lang questioned how much of a snow load the roof could withstand. Mr. Aubrey answered that it would depend
on the water content of the snow. He stated that the subject roof was designed to hold 30 pounds per sq. ft. for snow load. He added that drifted snow load is 90 pounds per sq. ft. He
said that the accumulated additional loads are adding to the potential for a problem. He indicated that he felt the existing screening is in character with trying to meet the intent
of the Ordinance.
Board of Appeals Minutes -3 -December 10, 2003 During Board discussion Mr. Feavel commented that an item recently came before the Board in regard to a lack of screening on a flat roof
and it was denied, however after examination of the current request, he said he would be comfortable supporting the variance request if the units were painted. His reasons are 1. They
are not on top of a completely flat roof and there is partial screening of the units from the building itself, 2. The owners have gone to considerable expense in building such an attractive
building and they are satisfied with the look of the screening, and thus Mr. Feavel is also. Ms. Hentz said she would not support the variance request. She said that she appreciated
the fact that tenants have been occupying the building since construction, however she does not understand why a flat roof would be constructed in Wisconsin considering the probable
snow loads. Ms. Hentz stated that although the applicant tried to meet the intent of the Ordinance, in her opinion, the Ordinance has not been met and the hardship was self-created.
Mr. Lang said he would not support the variance request because there is nothing under the by-laws of the committee that would support the request. He stated that the request has no
justification and added that the hardship was self-inflicted. Motion by Hentz to approve a variance to allow for partial screening of rooftop mechanical units. Seconded by Feavel. Motion
denied 1-4. Aye; Feavel. Nay; Hentz, Lang, Schorse, Wilusz. Mr. Lang said he had some observations he would like to share and distributed a list of “Corrections” To Minutes of 11/12/2003
Meeting”. (On file in the Department of Community Development, attached as part of these minutes). He stated his source of the observations was Robert’s Rules of Order. He cited the
six items on the list and made the following comments on each: 1) Reasons do not have to be stated when one chooses to abstain and Mr. Kraft’s interpretation that the abstaining vote
was out of selfinterest, or whatever else he proclaimed, was totally invalid. 2) Only the Committee has the right to assess how votes are counted. Mr. Kraft and Mr. Tucker do not have
authority on this issue. 3) The purpose of the Roll Call Vote is to identify each member and their vote. The original minutes noted votes of 3 ayes-1 nay-1 abstain and only members of
the committee can judge whether the vote was appropriate. 4) Only members of the Committee can change minutes. Mr. Tucker is not a voting member and he can not suggest changes. 5) The
Committee has been informed that they do not operate under Robert’s Rules and yet the memo from Mr. Tucker stated that Robert’s Rules interpreted the vote for the Cumberland Court variance
request as 4-1, per discussion with Mr. Kraft. It is inappropriate for Robert’s Rules to be cited for this one instance. 6) It was understood, through conversations with Mayor Hintz
and Councilwoman Maddox, that all City Committees operate under Robert’s Rules. Mr. Lang said based on these points the vote was 3-1-1 and if Mr. Kraft or Mr. Tucker want to interpret
the vote in a certain way that is their prerogative, however the minutes will reflect the actual vote of 3-1-1. Chairman Schorse said that the minutes do state a vote of 3-1-1. Mr. Tucker
said that the wording he had added to the minutes would be deleted. Mr. Feavel noted that he had previously expressed a concern with a possible vote of 3-1-1. He said when he raised
that question he was told that the one abstaining vote would be ruled as no vote. Mr. Feavel said the Board has been operating under those circumstances and, in his opinion, it can not
be changed. Mr. Tucker explained that there was no change made to the voting. He stated that after the meeting he consulted with Warren Kraft, City Attorney, to further discuss voting
procedures and how abstentions are considered when tallying the votes.
Board of Appeals Minutes -4 -December 10, 2003 There was discussion on the fact that a member, who had voted in the majority, could bring the item (1000-1240 Cumberland Trail) back for
reconsideration. Mr. Feavel said that because of his position on the item he would be willing to sit out and not vote. Ms. Hentz asked if the Housing Authority has proceeded with the
project. She stated that even though she voted in the majority to approve the reduction in parking, if the project has moved forward based on Mr. Tucker’s conversation with Attorney
Kraft, she is in total disagreement with that decision. She commented that she agrees with Mr. Lang that the minutes can not be changed by someone outside of the committee. Ms. Hentz
said she also wished to raise the point that, in her opinion, Mr. Tucker showed preferential treatment in lobbying for approval of the item for Cumberland Trail. She said she believes
that Mr. Tucker’s interjections, comments, and dialogue were out of line and they made her uncomfortable. uncomfortable. Ms. Hentz commented that Chairman Schorse should have taken control
of the meeting, because, in her opinion, people were out of order and it was not her place to direct people in how to direct their comments. There was further discussion on the proceedings
at the meeting of November 12, 2003. Mr. Tucker answered that the Housing Authority is waiting upon approval of the minutes. He added that he personally, and the City Staff believe that
the burden has been established and met. Mr. Tucker said he was passionate about the issue because it was not an issue in which, he wanted the City to be sued. He stated that there were
issues presented at the meeting and he wanted to ensure that the Board understood the variance request. There was discussion on the memo from Mr. Tucker in which he stated that “the
minutes have been altered”. Chairman Schorse said he did not believe that the minutes were altered Mr. Tucker simply added the verbiage in parenthesis. Mr. Lang stated that editorial
comments do not belong in the minutes. Chairman Schorse said he did not believe the verbiage was an editorial comment. Mr. Tucker again reiterated that the verbiage in parenthesis would
be eliminated. Attorney Kraft arrived. Chairman Schorse called upon Attorney Kraft to explain how an abstention is counted as a majority vote. Attorney Kraft explained that Robert’s
Rules is not intended for the government and the Board does not operate under it. He said according to his training, abstention votes are counted with the majority. Ms. Hentz stated
that the Board has been told time and time again that they do not operate under Robert’s Rules, however the memo from Mr. Tucker refers to Robert’s Rules. Chairman Schorse asked the
difference between parliamentary procedure and Robert’s Rules. Attorney Kraft explained that Robert’s Rules was established by Colonel Roberts for the purpose of running a church assembly.
Since that time his work has been modified by others. He cited examples such as the legislature, noting that the two houses of Congress have their own separate rules of procedure based
on principles of parliamentary procedure. Attorney Kraft stated that parliamentary procedure is an umbrella and Robert’s Rules is a part of that umbrella. He added that if Mr. Tucker
used the term Robert’s Rules, he could have been referring to the general umbrella of parliamentary procedure. Chairman Schorse stated that the Board has their by-laws and has received
clarification on the abstention vote from the City Attorney, whose interpretation is that an abstention vote is counted as a majority vote.
Board of Appeals Minutes -5 -December 10, 2003 Ms. Hentz said she believes that Mr. Lang abstained because he thought he needed more information and he did not know his abstention vote
would be counted in the majority. She said she believed Mr. Lang did not intend for his vote to be considered an affirmative vote. She asked Mr. Lang what his vote would be today, now
knowing that his vote would be considered in the majority vote. Mr. Lang replied that he did not intend to vote in the majority. He said, in his opinion, that makes an abstention a meaningless
vote. Mr. Schorse commented that if Mr. Lang felt he required additional information, an appropriate vote would have been a no vote. He additionally commented that the Board has learned
from this experience. Mr. Tucker suggested that Mr. Lang could have made a motion to layover the item until more information could be provided. Mr. Cornell said it has now been established
that the Board does not operate under Robert’s Rules. He recapped that the minutes must reflect the material that was presented at the meeting and the minutes can not be changed without
a Board member bringing a motion to the table and having the approval of the majority. Mr. Cornell questioned an abstention vote in the case of a conflict of interest. Attorney Kraft
stated that when a conflict of interest is involved there is an obligation to abstain. He added that the code of ethics that the Board has to follow is not concerned with how parliamentary
procedure interprets the abstention. Mr. Lang moved for approval of the minutes as originally written, striking the material in the parenthesis, and with Mr. Feavel’s addition. Mr. Lang
and Ms. Hentz asked that their comments from today also be included in the minutes of November 12, 2003. After further discussion it was concluded that the comments from the current
meeting would be included in the minutes of the meeting of December 10, 2003. Seconded by Hentz. Unanimous. Ms. Hentz made a motion to reconsider Item I from the November 12, 2003 meeting,
1000-1240 Cumberland Trail. Seconded by Lang. Motion approved 5-1. Nay; Schorse. Ms. Hentz made a motion to lay over Item I from the November 12, 2003 meeting, 1000-1240 Cumberland Trail,
to the next scheduled meeting. Seconded by Lang. Motion approved. 5-1. Nay; Schorse. It was noted the next scheduled meeting would be Tuesday, December 23, 2003. OTHER BUSINESS Mr. Feavel
commented on an article in the Oshkosh Northwestern that referred to the City of Oshkosh Inspections Department and “nitpicking”. He questioned if the Board was not “nitpicking” in regard
to the denial of the item at today’s meeting. Chairman Schorse mentioned another item that was presented to the Board after a five year time frame and commented that the variance request
from today was new construction and the applicant was aware of the requirement and chose not to meet the Ordinance. Mr. Feavel suggested that Staff should not make recommendations for
approval or denial in the Staff Reports. There was further discussion on the recommendations. Ms. Hentz commented that advisory City Committees provide information to the City Council
and Chairman Schorse stated that he looks to Staff for direction and appreciates their input. Chairman Schorse stated that the Board has made some positive advancement with the rewriting
of the by-laws and he encouraged the Board to keep things in
Board of Appeals Minutes -6-December 10, 2003 perspective. Ms. Hentz asked for a copy of parliamentary procedure. Attorney Kraft said he would supply the Board with a generalized chart.
There being no further business, the meeting adjourned at 4:30. Respectfully submitted, Matt Tucker Associate Planner MT/mld