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HomeMy WebLinkAboutMinutes BOARD OF APPEALS MINUTES NOVEMBER 27, 2002 PRESENT: Carl Ameringer, Thomas Feavel, Cheryl Hentz, Joel Kluessendorf, John Schorse, Ed Wilusz EXCUSED: Don Krueger STAFF: Matt Tucker, Associate Planner; Mary Lou Degner, Recording Secretary The meeting was called to order by Vice Chairperson Hentz. Roll call was taken and a quorum declared present. The minutes of October 30, 2002 were approved as mailed. (Ameringer/Wilusz) I: 349 BOWEN STRET Allan Stenerson, applicant and owner, is requesting a variance to construct a second story addition onto a nonconforming structure, which will exceed 50% of the current total assessed value of a nonconforming structure, whereas Section 30-4(B)(1)(c) of the City of Oshkosh Zoning Ordinance requires alterations, additions, and expansions may not exceed 50% of the current total assessed value of a nonconforming structure. Matt Tucker introduced the item and circulated pictures. Alan Stenerson, 3742 Fond du Lac Road, stated that the subject property is a single-family rental, which is now empty due to recent fire damage. He said his plan is to make improvements to the house so it can hopefully be sold in the future and be owner occupied as a starter home. Mr. Stenerson said he did not have a problem with the condition recommended by staff, noting that he recently had a new driveway poured and most of the parking area is already screened except for an area of about 20’ where the adjacent property owner removed an existing fence. He added that he would meet the screening requirements. Mr. Ameringer questioned if the staff report, which stated “the applicants may not exceed 50% of the assessed value of the structure, in structural alterations” was consistent with the applicants requesting a second story addition. Mr. Tucker answered that it was consistent. During board discussion Mr. Schorse said it seemed to be a reasonable request, since retaining the porch would benefit the neighborhood. Motion by Schorse to approve a variance request to construct a second story addition onto a nonconforming structure, which will exceed 50% of the current total assessed value of a nonconforming structure, with the following condition: 1) The existing off-street parking area be screened from the adjacent properties, through landscaping, to be approved by the Department of Community Development. Board of Appeals Minutes -2 -November 27, 2002 Seconded by Ameringer. Motion approved 5-0. Unanimous. Finding of the fact: It was concluded that the hardship was not self-created, it was the least variance necessary, there would be no adverse impact on neighboring properties, the structure was originally constructed in1880 and the front porch was consistent with other properties in the area, and in addition the repairs from the fire would exceed 50% of the current total assessed value. II: 27 STONEY BEACH ROAD Edgar Newell, applicant and owner, is requesting a variance to allow for 1,289 sq. ft. of detached garage space, whereas Section 30-17(B)(4) of the City of Oshkosh Zoning Ordinance permits detached garage space not to exceed 800 sq. ft. Matt Tucker introduced the item with photos. Edgar Newell, 27 Stoney Beach Road, stated that his son is in need of additional space. He explained that the gable end of the proposed garage would face the road and the doors would face the east, in addition the driveway next to the house would be eliminated and the existing lean-to would be removed. James Purtell, 60 Stoney Beach Road, said he was not aware of any opposition from the neighbors and he urged the Board to support the request. During board discussion Mr. Kluessendorf questioned if the maximum allowable garage space of 800 sq. ft. could be increased since the applicant was combining two lots. Mr. Tucker responded that there is a provision in the Ordinance which requires that there be a principal structure on a lot before an accessory structure is allowed, therefore preventing the option of constructing two 800 sq. ft. garages. Motion by Ameringer to approve a variance request to allow for 1,289 sq. ft. of detached garage space with the following condition: 1) No additional detached storage structures may be permitted on site, and the rear lean-to on the existing structure must be removed. Seconded by Wilusz. Motion approved 5-0. Unanimous. Finding of the fact: It was concluded there had been an annexation and properties in the area were consistent with this particular situation, it would serve to provide code compliant parking for the dwelling, it was under the 800 sq. ft. allowance for detached garage space, in addition the applicant has agreed to remove the lean-to, and there would be no adverse impact on neighboring properties. Board of Appeals Minutes -3 -November 27, 2002 III: 1001 CHERRY STREET Jungwirth Properties, LLC, applicant and owner, is requesting a variance to construct an off-street parking space along side a garage in the rear yard setback area, whereas Section 30-36(C)(5)(a)(ii) of the City of Oshkosh Zoning Ordinance requires off-street parking spaces along side a garage not be located between the building and the rear lot line. Matt Tucker introduced the item with photos. Vice Chairperson Hentz noted that the staff report referenced parking on Prospect Avenue and the subject property is actually located on the corner of Woodland Avenue and Cherry Street, she also commented that parking is only permitted on the west side of Cherry Street, not on both sides. John Jungwirth, 1010 Pierce Avenue, said they have a four bedroom house rented to college students, with available parking for only two vehicles. He stated that there is no parking allowed on Cherry Street, and added that with the present parking situation the neighbors are actually driving across their lawn and they would like to improve this situation. Mr. Jungwirth stated there is a small garage on the property with little space in front of the structure for parking. During board discussion it was noted that the off-street parking area would need to be paved within eighteen months. There was discussion on the correction notices, which were issued for the property, and the location of present parking. Vice Chairperson Hentz stated concern of using up the remaining green space. She said, in her opinion, it does not appear to be a hardship for the applicant, but perhaps for the tenants. She added that there are landlords in the college area who have no off-street parking available and she stated she would rather see cars parked in the street. Vice Chairperson Hentz said she would not support the request. Mr. Feavel agreed. Mr. Kluessendorf also expressed a concern with the lack of green space. Motion by Hentz to approve a variance to construct an off-street parking parking space along side a garage in the rear yard setback area, with the following conditions: 1) A screening plan be reviewed and approved by the Department of Community Development prior to obtaining a building permit. 2) The off-street parking area be paved within eighteen months. Seconded by Schorse. Motion denied 2-3. Aye; Ameringer, Wilusz. Nay; Hentz, Kluessendorf, Schorse. IV: 1115 BAY SHORE DRIVE James H. Lang, applicant and owner, is requesting a variance to construct a boathouse that will be 1,028 sq. ft., whereas Section 30-17(B)(4)(f)(iii) of the City of Oshkosh Zoning Ordinance requires boat houses not exceed 500 sq. ft. Matt Tucker introduced the item with photos. Board of Appeals Minutes -4 -November 27, 2002 Jim Larson, architect, 600 S. Main Street, and Jim Lang, 1115 Bay Shore Drive, introduced themselves. Mr. Larson presented pictures of the interior of the boathouse. He stated the structure has been there since 1940 and they are asking to replace it. He said the replacement would be about 20 sq. ft. smaller and of the same historical form as the English Tudor Style home on the property. Mr. Lang explained that before closing on the purchased property he learned there was a raze order on the boathouse. He said about 25’ of the front of the boathouse has slipped into the river, which he intends to fix with a seawall. He added he has a 12’ to 14’ wide slip, which is about 4’ deep and that this presently presents a safety hazard. Mr. Lang said his intent is to rebuild the structure to retain the integrity of the Tudor Revival style. It was noted that the applicant has a boat lift, which could not be accommodated in an area of 500’. Mr. Lang said the boat lift is presently holding up the structure. He added that the property is about 400’ deep and has 147’ along the river accounting to almost 60,000 sq. ft. of lot area. Matthew Hibsch, 1123 Bay Shore Drive, said from his point of view he supports the request, but added that he is speaking on behalf of the Lakeshore Club, 1107 Bay Shore Drive. Mr. Hibsch stated that the Club has concerns with the foundation. He presented pictures depicting the Club’s lot line in relation to the encroaching water access of the subject property. He said the Club has considered having rip rap along the shoreline, because a seawall is financially not an option for the Club, and is concerned with possible encroachment on Mr. Lang’s property. Mr. Hibsch questioned the proposed size of the boathouse and the position of the Department of Natural Resources (DNR). Mr. Tucker responded that there have been no objections from the DNR. Vice Chairperson Hentz said that the shoreline concerns could not be answered by the Board, but in her opinion, the the concerns could be discussed with Mr. Larson and Mr. Lang. Mr. Larson clarified that the size of the proposed boathouse would be 1’ less, on the side to the Club, than the current size. Attorney Russ Reff, 217 Ceape Avenue, said he was representing Mr. Lang. He explained that Mr. Lang gave copies of the boathouse plan to the neighbors. He stated that Radtke Contractors Inc. would be doing the shoreline work and Mr. Lang would direct them to work with the Club to coordinate with their intentions. Attorney Reff stated that the legal hardship was created by the nature of the Ordinance. He said they are limited to a 500’ boathouse regardless of the size of the property. And added, in his opinion, logic and reason should dictate that if one has a larger property they should be able to accommodate a larger boathouse. He said it makes good sense to grant the variance and to recognize the fact that in some situations the arbitrary limit of 500’ should be expanded to accommodate a unique and unusual property. Attorney Reff noted that they are trying to improve the situation in regards to safety, aesthetics, and from a historical viewpoint. Vice Chairperson Hentz asked if a boathouse constitutes being a part of the overall property that is listed on the Register of Historic Properties. Mr. Larson explained that at least twenty years ago the subject property was listed as being pivotal on the HNTB Intensive Historic Survey Report, and he would expect that the entire property is included in the listing. During board discussion Mr. Schorse said, in his opinion, the replacement is not unreasonable and it would obviously make it safer, and in relationship to the size of the property he would support the request. Vice Chairperson Hentz said she would support the variance, but stated that she was not Board of Appeals Minutes -5-November 27, 2002 convinced that by not approving the variance it would impact the ability to be placed on the National Register of Historic Properties. Motion by Schorse to allow for a variance to construct a boathouse that will be 1,028 sq. ft. Seconded by Ameringer. Motion approved 5-0. Unanimous. Finding of the fact: It was concluded that it is a replacement for an existing structure pursuant to a raze order, it has historic significance, it will increase the tax value, and there would be no adverse impact on surrounding properties. V: 2075 PARKSIDE DRIVE Jeffrey T/Rustick/Schuler & Associates, applicants, and William & Karen Druckrey, owners are requesting a variance to create a substandard lot, which will have 7,028 sq. ft. in lot area, whereas Section 30-17(B)(1)(a)(iii) of the City of Oshkosh Zoning Ordinance requires lot area be 7,200 sq. ft. minimum. Matt Tucker introduced the item and circulated pictures. Jeff Rustick, of Schuler & Associates, 2711 N. Mason Street, Appleton, WI, said he was available to answer questions. During board discussion Mr. Tucker explained that the term “infill” relates to a vacant piece of land that the majority of land surrounding has developed, and that piece is either developed or subdivided at a later date. Mr. Ameringer questioned the implications for the homeowner by approving the request for a variance as opposed to having it approved by the Common Council. Mr. Tucker explained that it simply was a house keeping action. He said that as an alternative, the area could be replatted and granting of the variance request was just another tool available to solve the problem. He added that the lot would be considered conforming. Mr. Ameringer said that he would move the variance with the understanding that there would be no disadvantage to the property owner in addressing the situation at the level of the Board of Appeals. Motion by Ameringer to approve a variance to create a substandard lot, which will have 7,028 sq. ft. of lot area. Seconded by by Hentz. Motion approved 5-0. Unanimous. Finding of the fact: It was concluded that the hardship was not self-created, the approval of the variance would support the existing use of the property, and it was the easiest solution to the problem. Board of Appeals Minutes -6 -November 27, 2002 VI: 61 STONEY BEACH ROAD James F. Purtell, applicant and owner, is requesting a variance to create a substandard lot, which will have a 54.15 sq. ft. in lot width, whereas Section 30-17(B)(1)(a)(i) of the City of Oshkosh Zoning Ordinance requires lot width be 60 sq. ft. minimum. Matt Tucker introduced the item and circulated pictures. James Purtell, 60 Stoney Beach Road, said he purchased the property about seven years ago to eliminate an easement on the property for access to the lake. He said through research on the assessor’s website he discovered that there are many lots with less frontage than what he is proposing. He said his intent is to build a house with sufficient green space for all setbacks. Mr. Purtell stated he is not aware of any neighbors being opposed to the request. Mr. Ameringer asked what the hardship would be. Mr. Purtell said that the lot is 114.5’ and the house is situated so that it makes it ideal to create another lot. He said it would add another property to the tax base and it would generate additional income to the utilities, adding that it makes good economic sense. Mr. Purtell said it is his understanding that it is in the best interest of the City to infill these particular properties. Mr. Tucker read a letter from Susan Case, 69 Stoney Beach Road, stating her objections to the requested variance. (Said letter on file in the Department of Community Development) Mr. Tucker addressed the concerns in Ms. Cases’s letter and explained issues that affect property values. He also directed the Board that if they so desired they could add a condition to the variance request empowering staff to review the design of a future house. Mr. Feavel questioned the footprint of the building at 69 Stoney Beach Road, as reflected on the close up view of the subject property. Mr. Tucker explained that the building footprints on the Geographical Information System (GIS) are derived from aerial photos, flown at low resolution in 1991, which can result in inaccuracies. Mr. Purtell said he does not intend to build a small cottage, as mentioned in Ms. Cases’s letter. He also commented that, in his opinion, Ms. Case may have signed the letter, however he believes the attorney across the street wrote the letter. During board discussion Mr. Kluessendorf said the City has ordinances for a reason and he does not see a hardship. Mr. Ameringer agreed, and with economic consideration aside it does not meet the hardship requirement. Vice Chairperson Hentz said she also agreed and that the hardship appears to be excessive land. She added, in her opinion, whether Ms. Case wrote the letter or not, she did sign it. Mr. Feavel said, in his opinion, it would be creating a hardship for adjacent neighbors to create a substandard lot. Motion by Schorse to approve a variance to create a substandard lot, which will have 54.15 sq. ft. in lot width. Seconded by Hentz. Motion denied 1-4. Aye; Wilusz. Board of Appeals Minutes -7 -November 27, 2002 VII: 2420 NICOLE COURT Tye & Kim Olson, applicants and owners, are requesting a variance to construct a detached garage in the front yard area, whereas Section 30-17(B)(4) of the City of Oshkosh Zoning Ordinance requires detached garages be located in the side or rear yard area. Matt Tucker introduced the item with pictures. He also presented a petition, against the variance request, attached to a list of covenants for the area development.(Said documents on file in the Department of Community Development) Mr. Tucker noted that the City is not party to private covenants, and therefore the covenants do not have any bearing on the variance request. There was discussion on whether the City Ordinance takes precedence over private covenants. Tye and Kim Olson, 2420 Nicole Court, identified themselves along with their attorney, Jack Kelly, 1 Pearl Avenue. Attorney Kelly stated that a building permit was issued, and upon inspection of the foundation it was discovered that the subject property has two front yards. He explained that the house and the front door both face Nicole Court, and the rear door faces Witzel Street. He stated that, in his opinion, Witzel is the back yard of the property, however because of road frontage it is considered another front yard. Attorney Kelly said that it is a unique situation and further explained that the protective covenants are a private enforcement mechanism. He stated that the applicants sent an application to the developer, as required by the covenants, noting the original developer was Heritage Homes, now listed as Midwest Homes. Attorney Kelly explained that the covenants state if there is no response to the application within sixty days it is deemed to be approved. He said the applicants then contacted Midwest Homes and Bill Mark, of Midwest Homes, sent a letter stating the Architectural Control Committee ceased to exist. (Said letter on file in the Department of Community Development) Mr. Kelly presented photos and described a a berm behind the property and screening of the adjacent property owner. Mr. Olson said he followed all the rules of the covenant and obtained a building permit and noted all setbacks have been met. Mr. Kluessendorf asked if an injunction could ensue if the variance was granted. Attorney Kelly responded that the neighbors could file a law suit. He stated that, in his opinion, the style of the proposed garage would not negatively impact the applicant’s property or the neighbor’s property. Mr. and Mrs. Olson said they were not aware of concerns until recently and added they were unaware of a neighborhood meeting at which a petition was circulated. They said the current garage is 20’x 20’ and the purpose of the proposed garage is to store a lawn tractor and recreational equipment and they added that they have taken possible drainage issues into consideration. There was discussion as to the site plans that were submitted for the building permit and the fact that the permit was issued in error and the approval of the slab was being withheld pending the outcome of the variance request. Mr. Ameringer questioned if there was any written notice indicating that there would be negative impact on neighboring properties. Attorney Kelly responded no and added that they did not believe that to be the case. Board of Appeals Minutes -8-November 27, 2002 Gary Giewald, 2405 Nicole Court, said there are ten homes in the area and if the garage was built it would set a precedent. He said, in his opinion, it would have an adverse impact on the neighboring properties. Mr. Giewald stated possible drainage problems, the fact that the driveway would be 4’ from the property line, and the fact that the neighborhood believed their investments were protected by the covenants. He stated nine out of ten neighbors were opposed to the variance request. Others expressing opposition to the variance were; Gerald Turner, 2400 Nicole Court, Julie Holmes, 2465 Nicole Court, Gail Perschbacher, 2425 Nicole Court, Bob and Virginia Collins, 2440 Nicole Court, and Margaret Wood, 2445 Nicole Court. Attorney Kelly said it should be every citizens right to use their property as they wish, as long as it is within the law, and he noted that a driveway can be 6” from the property line, and added that drainage issues would be addressed by the contractor. He stated that, in his opinion, the protective covenants do not forbid a garage and explained that the hardship is the issue of the second front yard. Mr. Tucker stated that the arguments the neighbors presented are arguments to be heard in a civil court case, the forum to handle the dispute between the property owners. He said that the Board of Appeals has no power to review, interpret or enforce protective covenants, and the decision that the board makes may affect a judge’s decision, if it is admissible. Mr. Tucker explained the only issue before the board is a garage in a front yard area, on a lot that has double frontage. There was board discussion on detached garages and the parameters and allowance of storage structures. The uniqueness of the double front yard was compared to a corner lot. There was an inquiry as to the description of the property as listed on the deed. Mr. Ameringer stated that the Board has four questions to address. He said, in his opinion, a case has been made that it is an unusual and unique property, he said the hardship requirement was a close one, and questioned if the granting of the variance would have a considerable adverse impact on neighboring properties, considering the view from 2440 Nicole Court. Mr. Feavel said, in his opinion, the hardship was related to 2440 Nicole Court, snow blowing concerns and the affect the proposed garage would have on property values. Vice Chairperson Hentz said there were many hard feelings in the neighborhood. She stated it was a unique property and she too was concerned about the view from 2440 Nicole Court, but noted this would not be an issue if they had a back yard. She said she would support the variance request. Vice Chairperson Hentz explained to the audience why Mr. Feavel was not voting. Mr. Kluessendorf said he wanted to state for the record that the residents, who signed the petition, would have legal recourse in a court of law. Vice Chairperson Hentz added that the other points that have been made, in her opinion, outweigh outweigh the view issue. Mr. Ameringer stated that a great deal of discussion has been irrelevant and added they should be careful in indicating that there may be legal recourse, not knowing what documents exist and whether they have expired. Motion by Schorse to approve a variance to construct a detached garage in the front yard area. Seconded by Ameringer. Motion approved 4-1. Nay; Ameringer. Finding of the fact: It was concluded that the hardship was not self-created and the fact that the berm exists makes it difficult to have a second front yard. Board of Appeals Minutes -9-November 27, 2002 VIII: 1203 S. MAIN STREET Andre Biesinger, applicant, and Patricia Groh, owner, are requesting a variance to construct a 6’ tall solid fence that will be located in a transitional yard setback, whereas Section 30-35(B)(1)(c) of the City of Oshkosh Zoning Ordinance requires a 25’ setback from the rear yard of 11 W. 12th Avenue, and a 19’3” side yard setback from 1213 S. Main Street. Matt Tucker introduced the item with photos. He noted that the 19’3” side yard setback should be from 1213 S. Main Street not from 11 W. 12th Avenue, as stated in the staff report. There was no representation for the applicant at this hearing. Vice Chairperson Hentz questioned why the applicant desired a metal fence. Mr. Tucker responded that Mr. Biesinger indicated to him that a metal fence maintains better and the fact that the applicant had a concern with the lack of sturdiness of a wood fence. Mr. Tucker said, in his opinion, a metal fence would have an industrial look and feel as as it would relate to the residential properties, and a wood fence would better serve the purpose from a maintenance standpoint. Board discussion consisted of the fact that there was no representation for the applicant to support the recommendation of wood fencing versus metal fencing. Mr. Tucker responded that at an earlier meeting the applicant agreed to construct the fence, but that there was no guarantee that a fence would ever be constructed. He expressed his concern that the applicant was not working in good faith to help resolve other code violations. Motion by Schorse to approve a variance to construct a 6’ tall solid fence that will be located in a transitional yard setback with the following condition: 1) The 6’ tall solid fence be of wood construction, to be reviewed and approved by the Department of Community Development. Seconded by Hentz. Motion approved 5-0. Unanimous. Finding of the fact: It was concluded that the hardship was not self-created, and there would be no adverse impact on neighboring properties. OTHER BUSINESS: Vice Chairperson Hentz welcomed new member Thomas Feavel. Mr. Kluessendorf clarified that the point he was making in regard to Item VII, 2420 Nicole Court, was that he thought it was important that the Board acknowledge the resident’s concerns. Mr. Ameringer explained he corrected the record because he wanted to clarify that the Board was not endorsing any private legal action nor did the Board have any insight as to whether that kind of action would even be feasible. Mr. Ameringer added that there was a lot of discussion about economic consideration regarding today’s items and stated it was his understanding that the Board is not to factor economics into consideration. Mr. Tucker said that economic factors can be taken into consideration as part of an overall public interest aspect and that is why the history of some properties is so important. Board of Appeals Minutes -9-November 27, 2002 There being no further business, the meeting adjourned at 6:05 p.m. Respectfully submitted, Matt Tucker Associate Planner MT/mld