HomeMy WebLinkAboutMinutes
PLAN COMMISSION MINUTES SEPTEMBER 21, 2004 PRESENT: Bryan Bain, Jon Dell’Antonia, Shirley Mattox, Donald Simons, Jeff Thorkildsen, and Kathleen Propp, Vice Chairman EXCUSED: David Borsuk,
Steven Gehling, Cathy Scherer, John Weinsheim, and W. Lee Bettes STAFF: Darryn Burich, Director of Planning Services, Jackson Kinney, Director of Community Development, and Vickie Rand,
Recording Secretary The meeting was called to order at 4:00 p.m. by Vice Chairman Propp. Roll call was taken and a quorum declared present. The minutes of the September 7, 2004 meeting
were approved as mailed. (Bain/Thorkildsen) Unanimous. I: CONSENT AGENDA A: EXTRATERRITORIAL TWO LOT LAND DIVISION AT 3651 SAND PIT ROAD IN THE TOWN OF OMRO National Survey & Engineering,
petitioner for James and Margaret Potratz, owners, are in the process of selling the current house on the property and would like to separate the house and related outbuildings from
the balance of the parcel that is being used for agricultural purposes. Currently the parcel encompasses 40 acres from which the owners would like to create two lots. Lot 2 would contain
the house and outbuildings and be approximately 1.7309 acres. Lot 1, would remain in agricultural usage and be approximately 37.9694 acres. Parcel ownership goes to the centerline of
Sand Pit Road and the CSM provides for the dedication of this road area to create a 66-foot wide right-of-way. Motion by Simons for approval of the extraterritorial two lot land division
at 3651 Sand Pit Road in the Town of Omro. Seconded by Thorkildsen. Motion carried 5-0. II: SERIES OF EXTRATERRITORIAL LAND DIVISIONS AT THE SOUTHEAST CORNER OF NEKIMI AVENUE AND S.T.H.
26 IN THE TOWN OF NEKIMI National Survey & Engineering, petitioner for Robert and Cheryl Pennau, owners, are proposing a series of extraterritorial land divisions/certified survey maps
that will result in the creation of 12 lots from four base parcels totaling approximately 82 acres. The lots range in size from 5 to 14 acres and are being created for the purpose of
residential development. The lands are located in the Town of Nekimi, generally at the southeast corner of Nekimi Avenue and S.T.H. 26. The lands are currently zoned A-1 under Winnebago
County zoning but are in the process of being changed to A-2 which allows the creation of residential lots on minimum 5 acre lots. Mr. Burich introduced the item reviewing the criteria
and ordinance standards by which he based his determination on. Mr. Dell’Antonia arrived at this time.
Plan Commission Minutes -2-September 21, 2004 Vice Chairman Propp asked for clarification of the role the Plan Commission plays in this case. Mr. Burich stated the State Statutes enable
the City to review land divisions and plats within a three-mile area out from City boundaries. He stated their decision would determine whether or not the owners could proceed with the
development plans. Mr. Burich explained that the City expects to see growth in this area in the future and the creation of lots that conflict with the Comprehensive Plan is not recommended.
Mr. Burich stated if this isn’t approved the petitioner can’t record the Certified Survey Maps (CSMs) or move forward with his development plans. Mr. Dell’Antonia questioned what would
happen if the Plan Commission did not give their approval even if the County would approve of this proposal. Mr. Burich stated the developer would not be able to record the CSMs or be
able to sell the property as lots if the City did not sign the CSMs. He stated the developer developer would have the option to take the matter to court. Ms. Mattox questioned if the
subject property was being farmed at this time and what the standard lot sizes were for the Town of Nekimi. Mr. Burich stated he didn’t think the subject property was being farmed at
this time and he believed the standard lot size for the Town of Nekimi was 5 acres. Mr. Dell’Antonia questioned why the Common Council would not review this proposal. Mr. Burich stated
the plat process goes through the Common Council for approval but land divisions do not. Attorney John St. Peter, 10 Forest Avenue, Fond du Lac, WI, stated the Wisconsin Department of
Transportation (WisDOT) and the County have no objection to these land divisions, and the Town of Nekimi Plan Commission has also given their approval. He stated the plan is consistent
with the advice from Foth and Van Dyke, and the current Comprehensive Plan, however, now they have learned the City is in the process of updating the Comprehensive Plan. He stated it
is difficult difficult to understand the policy and the mechanism in place to force annexation and he understood the CSMs would be approved if Mr. Pennau signed an annexation agreement.
Attorney St. Peter stated the Leichtfuss Subdivision on the other side of the road was approved in this manner. He stated his client wasn’t forced to sign an annexation agreement but
was told that if he would sign such an agreement they could obtain the City’s approval. He stated an annexation should be voluntary and in effect the City is imposing an injunction on
the land unless a minimum lot size of 35 acres is platted per lot. Attorney St. Peter stated the City has taken away his clients ability to develop the land unless he constructs one
dwelling per 35 acres. Attorney St. Peter questioned if signing an annexation agreement would take away the planning issues and allow the development to proceed as proposed. He stated
accepting the determination of the Staff Report would prevent the development as proposed. He stated he felt it was fair to question if the City would sign the CSMs if his client would
sign an annexation agreement. Vice Chairman Propp questioned if the subject property was contiguous to the City. Attorney St. Peter stated it was not. He stated the language the City
would be using in the annexation agreement was that his client would agree to annex “when it becomes legally possible to do so.” He stated under current law, the City could annex with
a 10’ segment of land connecting Mr. Pennau’s property with the City of Oshkosh at this time. He stated Mr. Pennau doesn’t own all of the property that would allow the annexation to
occur, however, only the approval of a majority of land owner’s is needed and it is done frequently.
Plan Commission Minutes -3-September 21, 2004 Mr. Bain questioned if the agreement states that the City will approve the CSMs once Mr. Pennau signs the annexation agreement. Attorney
St. Peter stated that is the question he is asking, if Mr. Burich has the authority to state that if his client signs an annexation agreement the City will sign the CSMs. Mr. Dell’Antonia
questioned if this agreement included the City of Oshkosh to make public improvements to the subject property. Attorney St. Peter stated there was no agreement in place for public improvements.
He stated the Town of Nekimi and the City of Oshkosh have made efforts to discuss an intergovernmental agreement, however, they have been unwilling to negotiate. Mr. Dell’Antonia asked
to see the annexation agreement that Mr. Pennau has been asked to sign. Attorney St. Peter handed him an annexation agreement, however, it was the Leichtfuss agreement and there wasn’t
an annexation agreement for the Pennau property drawn up at this time. Robert Pennau, 1051 S. Oakwood Road, stated he had met several times with Mr. Burich and Mr. Kinney and at the
first meeting he was told his development didn’t comply with the City’s future plans, however, they would contact their consultants, Foth and Van Dyke, to see what could be done. Mr.
Pennau stated at the next meeting with Mr. Burich and Mr. Kinney he was told the development could be done with the development of 5 acre lots if he asked them if he could sign an annexation
agreement with the City. He stated Mr. Kinney and Mr. Burich stated they told him they couldn’t ask him to sign an agreement, he would have to ask them. Next Mr. Pennau stated he got
a packet of information from the City and went to the County to discuss the proposed street layout. He stated the County had suggested creating a cul-de-sac at the east end of the road
that would allow right-of-way if the area didn’t become industrial so the road would proceed towards highway 41 through a residential area. He stated they suggested the same synopsis
with the road to the south. Mr. Pennau stated he discussed this with Mr. Burich and was told not to spend money on changes to the CSMs until after the Plan Commission meeting. Mr. Pennau
questioned what would happen if they would sign an annexation agreement as brought up by the City staff. Mr. Burich stated he wanted to clarify Attorney St. Peter’s mischaracterization
of what was discussed with Mr. Pennau regarding the annexation agreement issue. He stated that he (Mr. Burich) never stated the City would approve of the development with the annexation
agreement. He stated that the City was looking for a way to work with Mr. Pennau regarding the land divisions and the Subdivision Regulations allow the Plan Commission to consider such
agreements for land divisions that would make it difficult to provide public services to the area or accomplish future annexations. Mr. Burich also stated that it is the City Attorney’s
opinion that the City would not be able to move forward with an annexation agreement at this time. Mr. Kinney, Director of Community Development for the City of Oshkosh, stated he would
also like to clear up some mischaracterization's made. Mr. Kinney stated when he and Mr. Burich met with Mr. Pennau, they tried to find a way not to have to recommend against this proposal.
He stated the City’s current and draft Comprehensive Plan indicates that the subject area is appropriate for rural preservation and the creation of 12 5-acre lots conflicts with the
rural preservation land use designation.
Plan Commission Minutes -4-September 21, 2004 Mr. Kinney stated in an effort to work with Mr. Pennau, they incurred the expense of contacting the City’s land use consultant, Foth & Van
Dyke, and spent several weeks studying the area to do justice to Mr. Pennau’s request. Mr. Kinney stated Foth and Van Dyke recommended changing the classification from industrial to
residential. They received a revised map from Foth and Van Dyke showing the land use plan designating the area for residential/rural preservation, which doesn’t mean the creation of
5-acre lots. He stated the growth of the City will most likely not reach that area anytime soon, however, he stated the proposal isn’t consistent with the City’s vision for the future,
to retain the land for agricultural use. Mr. Kinney explained there are two classifications for agricultural use, the first being A-1 which allows commercially based agricultural uses,
and the second is A-2 which allows one dwelling unit per 35 acres. He stated the creation of 5-acre lots is not consistent with the City’s growth for the area from an extraterritorial
standpoint. Mr. Kinney stated they made it very clear to Mr. Pennau that they were not looking to coerce him into an annexation agreement, but under the Ordinance’s review criteria for
land divisions they pointed out to Mr. Pennau some concerns about future growth and if they had an annexation agreement request the Plan Commission may be able to consider the proposal
in light of the land division criteria. Mr. Kinney stated they had further review with City Staff regarding Mr. Pennau’s proposal and it was the opinion of the City Attorney that it
would not be appropriate to have an annexation agreement without City services being provided to the area, therefore it became a mute point. Mr. Kinney stated the proposal is inconsistent
with the City’s proposed land use plan for rural preservation for that area. Mr. Dell’Antonia questioned if it was possible to annex the area today. Mr. Kinney stated from a legal standpoint
he would have to refer to an attorney, noting that Attorney St. Peter referred to a 10’ strip of land that would connect the subject properties to the City. Mr. Kinney stated they were
trying to find any way to make Mr. Pennau’s proposal work so they wouldn’t have to recommend denial, and were advised by the City Attorney not to pursue an annexation agreement even
if the property owner initiated it. Mr. Dell’Antonia questioned if it would be acceptable to annex this proposal to the City if the subject property was contiguous to the City. Mr. Kinney
stated the Plan Commission and Common Council would review the annexation to ensure it was in the City’s best interest to annex 5 acre lots instead of more appropriate sized urban lots.
He stated when they talked about annexation they didn’t mean anytime soon, therefore, from an urban development standpoint, it wouldn’t be cost effective to service the area at this
time. Mr. Dell’Antonia asked Mr. Burich to address the land uses in the surrounding area. Mr. Burich stated to the north of the subject property was light industrial and undeveloped
land, to the west was a commercial use, to the east was agricultural uses and to the south was farm land. He stated there was some scattered residential uses mostly associated with agricultural
uses in the area. Mr. Kinney stated that some of the residential uses in the area pre-date the City’s authority of extraterritorial review for land divisions. Mr. Simons questioned the
DOT’s approval of the proposed road that would connect to State Highway 26. Mr. Kinney stated the State is not looking at land use, they are looking at the number of streets allowed
on a particular length of highway. Mr. Simons questioned what Winnebago County’s role was in the approval process of this land division. Mr. Burich stated Winnebago County has subdivision
regulations by which to determine the approval of land divisions.
Plan Commission Minutes -5-September 21, 2004 Mr. Kinney stated an agreement was needed with the Townships in areas such as these since the City’s definition of rural preservation is
looked at differently than the townships definition of rural development. Ms. Mattox asked if rural development referred to the development of 35-acre lots. Mr. Kinney stated that rural
preservation referred to one dwelling per 35 acres, an agricultural type of relationship, and the Township of Nekimi’s definition of rural development relates to 5-acre lots. Mr. Kinney
stated they need to find a way to work with townships for acceptable rural development. Attorney St. Peter stated the City is not interested in having negotiations with the Township
and Mr. Kinney can’t talk for the Common Council or the City Manager. He stated this is a no win situation, and the City is exercising land use control. He stated the City has no Zoning
Ordinance in place regarding extraterritorial land use rights, they don’t want to see this area developed unless it’s into 35-acre lots. He stated he didn’t know an annexation agreement
existed until his client brought it up. He stated the City is exercising regulatory taking since they don’t have zoning control. He added it was good news to hear that the City wants
to work on an intergovernmental agreement and hopes it will happen. Mr. Kinney stated that he never indicated that the City wasn’t willing to have negotiations. Mr. Pennau stated he
purchased the subject property one year ago after looking at the land use issues for the County and found that 5-acre lots were allowed, and didn’t know of any plans the City had at
that time for this area. He stated the City didn’t seem to have any plans for that area before he came forth with his proposal. Mr. Pennau stated he has put over a million dollars into
this property and has five potential buyers who don’t want city living, but are looking for country living and more acreage than could be found in the city, but less than a typical farm.
Mr. Dell’Antonia stated the City has an intergovernmental agreement with the Town of Algoma and doesn’t understand how Attorney St. Peter can state the City won’t negotiate with the
Townships. He questioned if the Plan Commission could wait to act on this until there was an Extraterritorial Ordinance in effect. Mr. Burich stated the Plan Commission has to take action
on this item today to either approve or deny Mr. Pennau’s request. Mr. Dell’Antonia stated the City should consider getting an Extraterritorial Zoning Ordinance in effect as soon as
possible. Mr. Thorkildsen questioned if Mr. Pennau could bring the proposal back once the Extraterritorial Zoning Ordinance was in place if the Plan Commission denied the request today.
Mr. Burich stated that would depend on the terms of the Ordinance. Mr. Kinney discussed the Intergovernmental Agreement between the City of Oshkosh and the Town of Algoma and the makeup
of the committee who had worked out the agreement. He stated The Plan Commission has the authority under the Extraterritorial Statutes to review land divisions for consistency with the
Comprehensive Plan for the area. Ms. Mattox questioned the voting process. Mr. Burich stated they would vote according to the proposal’s consistency with the Comprehensive Plan according
to the land division criteria listed in the Zoning Ordinance. He also noted the recommendation made by staff and what the outcome of their vote would allow.
Plan Commission Minutes -6-September 21, 2004 Ms. Mattox questioned if Winnebago County was in the midst of updating their Comprehensive Plan. Mr. Burich stated he believed they had
adopted land use plans for each of the townships. Mr. Bain questioned if the owner would be able to come back with a proposal for the area if it were more in line with the City’s Comprehensive
Plan or proposed update to the Comprehensive Plan. Mr. Burich stated he couldn’t answer that question without having a proposal before him. Ms. Mattox questioned what the courts would
look at if this was denied and the owner took the matter to court. Mr. Kinney stated he was not qualified to answer that question. Attorney St. Peter stated the issue before the courts
would be if the City has exceeded their review authority. Motion by Thorkildsen to find that the proposed land division is not consistent with the City’s Comprehensive Plan per Section
30-71 (I)(3) of the City of Oshkosh Zoning Ordinance, as well as Land Division Criteria 30-71 71 (M)(5)(i-iv) for the previously discussed reasons and each land division/certified survey
map be denied. Seconded by Dell’Antonia. Vice Chairman Propp stated she wanted it noted that when the Planeview Annexation came before the Common Council when she was a member of the
Council she had voted no because she felt it to be urban sprawl. Motion carried 6-0. OTHER BUSINESS Vice Chairman Propp stated that a meeting was scheduled for Monday, September 27,
for further review of the Land Use Chapter of the update to the Comprehensive Plan, at 4 p.m., room 404, Oshkosh City Hall. She urged all Plan Commission members to attend. Mr. Burich
stated a workshop was tentatively scheduled for October 5, following the regularly scheduled Plan Commission meeting, which would be a good refresher for all members. There being no
further business, the meeting adjourned at approximately 5:27 p.m. (Bain /Thorkildsen) Unanimous. Respectfully submitted, DARRYN L. BURICH Director of Planning Services DLB/vlr