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HomeMy WebLinkAboutMinutes BOARD OF APPEALS MINUTES SEPTEMBER 24, 2003 PRESENT: Thomas Feavel, Cheryl Hentz, Larry Lang, John Schorse, Ed Wilusz EXCUSED: Ron Montgomery STAFF: Matt Tucker, Associate Planner; Mary Lou Degner, Recording Secretary The meeting was called to order by Chairman Schorse. Roll call was taken and a quorum declared present. Mr. Lang commented that it was his understanding that the workshop of September 10, 2003 was more or less a general discussion and he did not realize that it would be recorded as minutes. Ms. Hentz questioned if the minutes from the workshop should be more inclusive. There was further discussion on approval of the minutes. Chairman Schorse commented that approval of the minutes would not reflect as approval for the draft of the Procedures and Regulations-City of Oshkosh Board of Zoning Appeals. The minutes of August 27, 2003 & September 10, 2003 were approved as mailed. (Hentz /Feavel) Unanimous. Ms. Hentz made a motion to move further discussion of the Procedures and Regulations to Other Business, due to the full agenda of the meeting. Seconded by Feavel. Motion carried 5-0. Unanimous. I: 1235, 1319, & 1331 HIGH AVENUE Paul Phillips, R. A. Smith & Associates, Inc., applicant, and River Valley Church, owner, are requesting a variance to construct an off-street parking lot that will have a 4 foot front yard setback and a 7.19 foot rear yard setback, whereas Section 30-21(B)(2) of the City of Oshkosh Zoning Ordinance requires a 25 foot front yard and rear yard setback for an off-street parking lot. Matt Tucker introduced the item. Ms. Hentz noted that the ordinance requirement was not stated in the staff report. Staff apologized for the error and clarified that the City of Oshkosh Zoning Ordinance requires 25 foot front yard and rear yard setbacks for an off-street parking lot at the subject property. Paul Phillips, representative from R. A. Smith & Associates, and Michael Smith, Pastor of River Valley Church, introduced themselves. Mr. Phillips explained that currently an existing house separates the main parking lot from the church and the intent of the Church is to remove the house and expand the parking lot. Mr. Phillips stated that the Church has a mutual agreement with the Oshkosh Public Museum, which is located across the street, in respect to the utilization of the parking lots. He further added that the request would allow the Church more on-site parking availability and it would address the safety issue of people having to cross the street (High Avenue) for parking. Mr. Phillips stated that if the required setbacks were met they would not gain many parking spaces. Board of Appeals Minutes -2 -September 24, 2003 Mr. Lang asked if the applicants were aware of the setbacks for other parking lots in the area. The applicants responded that they did not have that information. Mr. Lang said that he had measured the areas, and in his opinion, the museum and some townhouses in the area do comply with City Ordinances. Pastor Smith explained that they are trying to unify the parking lots, make the area more presentable, address the issue of water run off, and create safer parking areas. He stated that the museum also uses the Church’s parking lot when needed. He said their desire is to expand two parking lots, which are divided by a house. Mr. Feavel said that upon inspection of the site he found that there is presently no setback and the house is in disrepair with broken windows so, in his opinion, anything done would be an improvement. Ms. Hentz inquired about the church membership and questioned how many total stalls the request would allow. Pastor Smith replied that membership is between 135 – 150 and the request would give them a total of 60 parking stalls. He added that they presently have about 30 parking stalls and by complying with the required setbacks they would have one single driveway with parking on both sides, which would total only a few more parking stalls than what currently exists. Pastor Smith noted that would not help the parking situation. Ms. Hentz asked the applicants if they were agreeable to the conditions recommended by staff. Mr. Phillips said they were fine. During board discussion Mr. Feavel said he would support the variance request with the recommended conditions and commented that the parking lot is probably empty 50% of the time or more. Chairman Schorse noted the Church has been there for a long time and they do not have any land available to acquire, which would allow them to meet the required setbacks to accomplish the desired parking. He further added that although the Museum has also been established for a long time, the projects down the street are newer so they were able to meet the zoning requirements when constructed. Mr. Lang stated he would not support the variance request. He said, there would be a negative impact on the neighborhood, and commented that the applicants made no attempt to include a landscaping plan. Mr. Lang said that he lives in the neighborhood and noted that other properties in the neighborhood have complied with the required setbacks and, in his opinion, there are no hardships. He added that he is less concerned about the rear setback, but people who use High Avenue should not have to look at a parking lot that has a setback of 4’ with nothing more than a grass barrier between the sidewalk and parking lot. Ms. Hentz questioned if there was street parking available on High Avenue. There was discussion that parking was not available immediately in front of the main parking lot on the Church property. Motion by Feavel to approve a variance to construct an off-street parking lot that will have a 4 foot front yard setback and a 7.19 foot rear yard setback with the following conditions: 1) A landscape plan be submitted and approved by the Department of Community Development prior to issuance of a building permit. Landscape plan is to include more intensive landscaping in areas where setback variances are requested. 2) A curb stop be installed where the parking lot abuts High Avenue. Board of Appeals Minutes -3 -September 24, 2003 Seconded by Wilusz. Motion denied 3-2. Aye; Feavel, Schorse, Wilusz. Nay; Hentz, Lang. II: 1215 BAY SHORE DRIVE J. Peter Jungbacker, applicant, and Stoughton Plaza LLC, owner, are requesting a variance to construct a 6’ tall solid fence in a front yard area, whereas Section 30-35(e) of the City of Oshkosh Zoning Ordinance requires 6’ tall solid fences be placed at the setback of the principal structure. Matt Tucker introduced the item and presented pictures. Peter Jungbacker, 1215 Bay Shore Drive, said the request is to replace a fence, which was erected in the 1960’s and destroyed in a windstorm in 2001. He said the fence is located in what most people would characterize as the side yard of the property. He said the front door and the driveway of the residence face Bay Shore Drive. Mr. Jungbacker sated that the width of the lot is 150-160’ and the depth of the lot is approximately 300’. He explained that Frankfort Street is an unimproved street, which sees occasional use by bicycles and is not used as a public right-of-way with any great frequency. Mr. Jungbacker stated that the fence would run up to about 4’ of the lake, which was the same footprint as the original fence. Margaret Perrie, 1208 Bay Shore Drive, asked for clarification of the front yard versus the side yard. She also questioned if the City had abandoned Frankfort Street. Mr. Tucker explained that by definition any portion of a lot, which abuts a public right-of -way is considered a front yard. He stated that the City has no intent to abandon or vacate the right-of-way of Frankfort Street. During board discussion Ms. Hentz asked for the records to reflect that the applicant’s submittal stated the windstorm was in 2002, and it was actually in 2001. Mr. Lang requested that all future diagrams sent to him be drawn to scale and noted as such. Mr. Tucker explained that all applicant’s submittals are not presented the same and commented that when copies are reduced to a smaller size they no longer maintain the original scale. He further explained that the maps prepared by staff, in the staff report, are to scale. Mr. Tucker stated that he has the original submittals available for viewing. Mr. Lang commented that as long as things remain proportional, when reduced, he would be satisfied. Motion by Lang to approve a variance to construct a 6’ tall solid fence in a front yard area. Seconded by Hentz. Motion approved 5-0. Unanimous. Finding of the fact: It was concluded that there would be no adverse impact on neighboring properties, it replaces a fence that was already existing, it would be an improvement, and the fence in its current condition was probably a safety hazard. III: 1312 ALGOMA BOULEVARD Ken and Susan Haidlinger, applicants and owners, are requesting a variance to construct a two-story detached garage that will be 21 feet in height and 1216 square feet in area, whereas Section 30-18(B)(4)(a) of the City of Oshkosh Zoning Ordinance requires detached garages be single story structures, no taller than 18 feet and no greater than 800 square feet in area. Board of Appeals Minutes -4 -September 24, 2003 Matt Tucker introduced the item with photos. He noted that the item had been presented had the meeting of August 27, 2003 and the applicants have now submitted an alternative plan. Ken Haidlinger, 1312 Algoma Boulevard, stated that the 1216 square foot garage they are requesting is to replace an existing dilapidated structure, which presently has more square footage. He said the original structure includes a garage, a shed, and a green house, which were all existing when they purchased the property. Mr. Haidlinger stated that the proposed height was lowered approximately 5’ from the first application request to comply with the code. He noted that they require a 3’ higher door to facilitate their wheel chair van. Mr. Haidlinger noted that it is important to have the correct roof pitch to compliment the house for aesthetic value in the historic district. Sue Haidlinger, 1312 Algoma Boulevard, stated the new proposal is for 1216 square feet, which would be replacing the current structure of 1252 square feet. She explained that the shed, which is also 2 stories high, is attached to the present garage and it was noted that all the present structures are under one roof, and they would all be removed with the erection of the proposed garage. Mr. Lang questioned the area depicted on the applicant’s submitted diagram, in regard to the placement of vehicles. Mr. Haidlinger responded that besides the vehicles to be housed in the garage they also have lawn equipment, medical equipment, and toys to be stored. Mr. Feavel questioned how long throughout the year the 35’ motor home is parked in the driveway. Mr. Haidlinger responded that the motor home is currently parked there yearlong and added that he believes it is legally parked in the driveway. He further explained that the original proposal included storage for the motor home, however with the new proposal it will be stored off-site. Mr. Feavel stated that after further review of the request he did not find the original request for 28’ in height to be out of line. He compared the residence and garage at 1304 Algoma Boulevard to the applicant’s site. Mr. Tucker stated that it is important for the Board to review the current request and not consider other structures in the area. The issue of nonconforming structures on other properties is an unknown. There was discussion on the existing buildings and their square footage. Mr. Feavel noted that there is a play structure located in the rear yard. Mr. Haidlinger stated that the playhouse is removable and again reiterated that the existing shed and greenhouse would be removed, and as a result the total square footage would be in the proposed garage. Mr. Tucker noted that the playhouse would be considered recreational equipment and not a shed. There was further discussion on the total allowable square footage for structures. Bonnie Marousek, 1304 Algoma Boulevard, stated her support for the variance request. She said, in her opinion, the structure would be compatible with the residence and she felt it was a good compromise from the original request. Rick Schroeder, 581 N. Main Street, identified himself as the architect for the project. He commented that if the applicants were to attach the garage they could have 1200 square feet but because the request Board of Appeals Minutes -5 -September 24, 2003 is for a detached garage they are only allowed 800 square feet for the structure and added that they could build a very large dwelling on the lot. He stated that the current zoning regulations do not take into consideration the size of the lot, which is ¾ of an acre. Mr. Schroeder added that their intent is to keep the character of the historic structure. Emily Richeson, 1301 Algoma Boulevard, stated support for the requested variance. She said her husband and her feel it is necessary to have a large garage to be in proportion to the house. She stated it is also important to maintain the character of the historic district. Mrs. Richeson said she had preferred the previous proposal for 28’ because the additional height would have allowed for more architectural features, which would have allowed the structure to blend better in the area. During board discussion Mr. Tucker shared a letter in support of the variance, (on file in the Department of Community Development)) which was received from Mr. & Mrs. Richeson the day after the previous meeting. Mr. Lang said he was not in attendance at the last meeting and asked what the action was at that time. It was explained that the vote was 1-3. The variance was denied. Mr. Feavel asked about the possibility of the requested height being adjusted to the original proposal of 28’. Mr. Tucker explained that the Board has the power to affirm, modify, or change, the submitted request. Mr. Tucker pointed out that the original proposal in height for the garage would have resulted in the peak height being about 2’ below the peak height of the house. He reminded the Board that there was a neighbor at the previous meeting who voiced a concern about the proposed height of the structure at that time. Chairman Schorse said he would prefer to focus on the item as presented at this time. He said, in his opinion, if the applicants had felt strongly about the previously proposed height they could have brought that request forward again. Chairman Schorse voiced his approval for the proposed request stating that, in his opinion, the request is reasonable and that the applicants have addressed some of the concerns that were raised with the last proposal. Mr. Tucker commented that if the Board is inclined to grant the variance in regards to the square footage size, then he would suggest that there be a condition attached to restrict the allowance of other storage structures on site. Ms. Hentz questioned if an item had to change for the appeal to be brought before the Board again. Mr. Tucker quoted the pertinent section from the City Ordinance, stating “should a change in circumstances occur within said twelve (12) month period, which in appellant’s opinion, changes the character of the appeal, then the appellant shall, in that event…” There was further discussion on the procedure. There were questions on how the Board would vote on the item since staff had recommended approval for part of the variance and denial for the other part. Mr. Tucker stated that they could vote on approval of the appeal or they could subset the issues. Mr. Lang suggested making a motion on the original request and if so desired to then amend the request and add conditions. Ms. Hentz voiced her concern with Mr. Lang’s suggested procedure. Chairman Schorse said they have generally made a motion on what they would like seconded and then it is either affirmed or denied. He stated that amendments or conditions should be stated as part of the motion. There was further discussion on the procedure. Motion by Lang to approve a variance to construct a two-story detached garage that will be 21 feet in height and 1216 square feet in area. Motion failed for a second. Ms. Hentz asked for more discussion. Motion by Hentz to modify the variance request to construct a two-story detached garage that will be 21 feet in height and 1216 square feet in area. Seconded by Lang. Motion approved 3-2. Aye; Hentz, Lang, Schorse. Nay; Feavel, Wilusz. Board of Appeals Minutes -6 -September 24, 2003 There was discussion on which motion should be voted on first. It was decided to vote on the amended motion first. Mr. Haidlinger commented that the measurement of 1216 square feet versus 1200 square feet was derived for the allowance of even footage for the masonry blocks. Motion by Hentz to approve a variance to construct a two-story detached garage that will be 21 feet in height and 1200 square feet in area, with the following condition: 1) There be no other detached storage structures allowed on the property. Seconded by Lang. Motion approved. 5-0. Unanimous. There was confusion and discussion on what motion and variance was approved. Mr. Tucker explained that the first motion by Ms. Hentz was to modify the variance request, before asking for a vote of approval, which passed by simple majority. The second motion by Ms. Hentz was to approve the modified variance request, which carried 5-0. Finding of the fact: It was concluded that there would be no adverse adverse impact to the neighborhood, the approved structure is smaller than what currently exists, and it would be a benefit to the neighborhood. IV: 1340 HEIDI HAVEN COURT Attorney Russell J. Reff, representing Rusch Homes, LLC, applicant, and Jeff and Christa Meinen, owners, are requesting a variance to permit a principal single family structure to have a 16.93’ front yard setback, whereas Section 30-17(B)(3)(c) of the City of Oshkosh Zoning Ordinance requires principal structures have a 25 foot front yard setback. Matt Tucker introduced the item and presented photos. He also circulated a copy of the building permit and a plan, as submitted to the Department of Inspections, denoting where the structure would be located. Attorney Russ Reff, 217 Ceape Avenue, presented a petition in support of the variance request (document on file in the Department of Community Development). He explained that the applicants are requesting a setback variance for the existing front yard of the residence. He said that there was an unfortunate but honest mistake made as to the location of the house. He stated that, in his opinion, it is clear that the excavator, who dug the basement, improperly measured the setback. He further added that the problem occurred because the radius of the cul-de-sac was not taken into account in regard to the measurements. Attorney Reff said the house appears to be consistent with the other residences in the cul-de-sac. He stated that it was Mr. Tim Rusch’s responsibility to locate the house in the correct spot and added that they are not blaming the City for the error. He added that the fact remains it is the City’s policy not to stake the arc of the cul-de-sac and that was a factor in the unfortunate result. Attorney Reff stated that if the stake had been in place, the proper measurement would have been taken. He stated that there were inspections throughout the course of construction and it was not noticed that the setback was improper. Attorney Reff said that he respectfully disagreed with staff’s determination that there is not a legal basis for this variance. He noted that this variance is to correct a mistake that was made and there was no ulterior motive. He said it would be an extreme hardship for the innocent Meinen family, the Board of Appeals Minutes -7 -September 24, 2003 owners, if they were to be displaced from their home and added that the hardship was not self-created. He further explained that the hardship is not purely financial, but is due to the unique nature and circumstances of the property. Attorney Reff stated that approval of the variance would not have an adverse affect on the neighborhood, noting that the cul-de-sac is fully developed at this point in time and the present position of the house does not detract from the appearance of the neighborhood. He said, in his opinion, the only reasonable solution to the problem would be the granting of the variance. Mr. Lang asked Mr. Rusch how many cul-de-sacs are in the subdivision and how many were measured in error. He also questioned if Mr. Rusch has built other houses on bulbs of cul-de-sacs. Mr. Tim Rusch, Rusch Homes, LLC, responded that there are about six cul-de-sacs in the development and stated that he was not the only builder in the subdivision. He said that he had previously built on the corners of cul-de-sacs, but never on a lot that was as unique as the one in question. Mr. Rusch also recalled building another house at 3150 Hallie Hollow Court, which is on the bulb of a cul-de-sac. Mr. Tucker stated that 3140 Heidi Haven Court is the only property that staff is aware of with a front yard setback problem. Ms. Hentz stated her support for the variance request and questioned who was financially responsible. Attorney Reff responded that there are a number of potential responsible parties involved in the situation. Mr. Feavel suggested a possible solution could be to locate the garage in the back yard. The covenants of the subdivision restricting detached garages and out buildings were mentioned and there was discussion on the required code compliant parking spaces. There was also discussion on the title of the property. Gary Vidlock, 1335 Heidi Haven Court, said he had signed the petition in support of the variance and added that the neighborhood would like to know who is at fault and how this mistake could happen, he added that they would like to ensure that such an error does not occur in the City again. Ms. Hentz said the answer to that question would have to be determined by a judge. Mr. Feavel commented that many checks and balances were missed in the process. During board discussion Ms. Hentz questioned if the City is considering putting a system of checks and balances in place to ensure that this does not happen again. Mr. Tucker answered that in order to update procedures and to effectively change the rules of the current policy it is essential to review all comments and research the issue. There was discussion on the difficulty and expense ($500-$1000) involved in requiring pre and post construction foundation certification maps. Mr. Wilusz asked how many other municipalities require pre and post certification maps. Chairman Schorse questioned if that was an area the Board needed to explore and stated that the Board is not acquainted with permit procedures. He stated that if the City wanted constructive insight from the Board they would need more information. Mr. Lang agreed with Chairman Schorse stating a need for more information on pre and post certification maps. He added that at this point he would not support the variance request because, in his opinion, there is no justification. Ms. Hentz disagreed, stating that the owners of the house have been harmed. Mr. Wilusz stated his support for the variance request. He said, in his opinion, the tests that the Board have to meet are extremely difficult and stated that moving a house is not reasonable. Mr. Feavel stated his support for the variance with the added condition, that it be recorded at the Register of Deeds office that the variance was approved with a substandard setback. There was further discussion on the Board of Appeals Minutes -8 -September 24, 2003 justifications for the variance. Ms. Hentz stated a concern that the staff report has opened the possibility of the City being named in a lawsuit if the variance request is not approved, because of the fact that pre and post construction foundation certification maps are not required. Mr. Lang said he feared precedence was being set, which would allow for the asking of forgiveness instead of asking for permission. It was decided that staff would investigate the procedures and policies of other municipalities, comparable in size to Oshkosh, and report back to the Board. Motion by Feavel to approve a variance to permit a principle single family structure to have a 16.93’ front yard setback with the following condition: 1) It be recorded at the Register of Deeds that a variance was approved for a substandard front yard setback. Seconded by Hentz. Motion approved 4-1. Nay; Lang. Finding of the fact: It was concluded that there was an unnecessary hardship present for the homeowners, that there exists unusual and unique physical limitations of the property, and that granting of the variance would not result in harm to the public interest. V: 838 FREDERICK STREET Todd L. Levendusky, applicant and owner, is requesting a variance to construct an off-street parking area that will have a 4 foot rear yard setback and 3 foot side yard setbacks, whereas Section 30-35(B)(4)(a) of the City of Oshkosh Zoning Ordinance requires a 20.4 foot rear yard setback and 4.7’ side yard setbacks. Matt Tucker introduced the item with pictures. Todd Levendusky, 838 Frederick Street, said his intent is to maximize the maneuvering ability behind the house. He stated that the driveway is very long and it would addresses a safety issue to be able to drive forward out of the driveway, making it easier to observe pedestrians on the sidewalk. Ms. Hentz asked if the only reason for the request was to allow vehicles to drive forward out of the driveway and noted that most people have to back out of their driveways. She asked the applicant if he was agreeable to the condition recommended by staff. Mr. Levendusky stated that it is a safety issue to not have to back out of the 80-100 foot driveway and said he was agreeable to the recommended condition. Chairman Schorse asked if there would be a garage constructed and if it was necessary, if the variance was granted, for the driveway to be paved. Mr. Levendusky said his intent is to create four parking spaces without a garage. Mr. Tucker responded that the driveway would not be required to be paved but the parking area would be required to be paved. There was discussion on the available space for maneuvering. It was noted that the house is a duplex for student housing. Board of Appeals Minutes -9 -September 24, 2003 Motion by Hentz to approve a variance to construct an off-street parking area that will have a 7+ foot rear yard setback and 5.5 foot side yard setbacks with the following condition: 1) The off-street parking area be screened from the adjacent properties by a 4-seasons hedge. Seconded by Feavel. Motion approved 5-0. Unanimous. Finding of the fact: It was concluded that the property is uniquely shaped, there would be no adverse impact on neighboring properties, it is the least variance necessary to solve the problem, and it would eliminate the garage, which is an eyesore and a safety issue. OTHER BUSINESS Mr. Tucker asked for clarification on what the Board is requesting in regard to the procedures of the issuance of building permits. He explained the present procedures for obtaining a building permit and installing a foundation. Mr. Lang said he would like a workshop to discuss procedure. He said he believes that variance requests should go forward as requested by the applicant, and then if so desired modifications can be added or the request could be modified after the original motion has been voted on. Mr. Tucker replied that the topic could be discussed during review of the Procedures and Regulations draft. Ms. Hentz said she would like to point out that the minutes from the workshop of September 10, 2003 reflected that Mr. Lang was both present and excused. There was further discussion on the draft version of the Procedures and Regulations. Due to the time restraint it was decided there would be further discussion on this topic at the next meeting. Mr. Lang requested that his future packets have diagrams from architects copied on 11x17 paper rather than 8 1/2x 11. There being no further business, the meeting adjourned at 5:30 p.m. Respectfully submitted, Matt Tucker Associate Planner MT/mld