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HomeMy WebLinkAboutMinutes BOARD OF APPEALS MINUTES July 11, 2001 PRESENT: Carl Ameringer, Fred Dahl, Cheryl Hentz, Joel Kluessendorf, Don Krueger, John Schorse STAFF: Matt Tucker, Associate Planner; Mary Lou Degner, Recording Secretary The meeting was called to order by Chairman Krueger. Roll call was taken and a quorum declared present. The minutes of June 27, 2001 were approved as mailed. Hentz/Schorse. Unanimous. I: 307 S. Sawyer Street Jose & Luann Rodriguez, applicants and owners, request a variance to construct a pool in the front yard area, whereas Section 30-35(B)(2)(f) of the City of Oshkosh Zoning Ordinance requires recreational equipment is to be placed in the rear yard area. Matt Tucker introduced the item with maps and pictures. Luann Rodriguez, 307 S. Sawyer Street, said she would like to place an above ground recreational swimming pool in her yard. Chairman Krueger asked if the 25’ meets the setback requirements. Mr. Tucker responded that it would meet the setback of the principal structure. Ms. Hentz asked if the current hedge would be maintained. Mrs. Rodriguez stated that the hedge would continue to be maintained. Mr. Schorse asked if it was a permanent structure. Mrs. Rodriguez responded that it was a permanent structure. Board discussion followed with Ms. Hentz stating that it was pretty straightforward and she had no objections to the variance request. Mr. Schorse stated that due to the unique size of the corner lot and the position of the house there are few options. Motion by Hentz for approval of the variance to construct a pool in the front yard area. Dahl seconded the motion. Motion carried 5-0. Unanimous. Findings: Ms. Hentz stated that there were not many options, there would be no adverse impact on the neighborhood, and the applicants have no problem with maintaining the existing hedge. Board of Appeals Minutes -2- July 11, 2001 II: 1126 Fillmore Avenue Roger M. Coates, applicant and owner, requests an appeal to the zoning administrator’s determination that a parking space behind the garage is nonconforming, as its use has discontinued for a period of time greater than 12 months, and the following variances: a parking space located between the building and the rear lot line, whereas Section 30-36(5)(a)(iii) of the City of Oshkosh Zoning Ordinance does not allow uncovered parking spaces between the garage and the rear lot line; a 26’ wide driveway that will be wider than the garage, whereas Section 30-36(5)(b) of the City of Oshkosh Zoning Ordinance does not allow a driveway to be wider than the garage and no more than 24 feet in width at the lot line; and a 168 square foot utility structure, whereas Section 30-19(4)(e)(iii) of the City of Oshkosh Zoning Ordinance requires that utility structures not exceed 100 square feet; a reduction in the required number of parking spaces for a two family dwelling, from four to three, whereas Section 30-36(B0(8) of the City of Oshkosh Zoning Ordinance requires two parking spaces for each unit.. A Appeal to the zoning administrators determination that a parking space behind the garage is nonconforming. Matt Tucker introduced the item with pictures. He noted that the structure that had been inside the garage has been removed. William Manske, 300 Division Street, Attorney for Roger Coates, stated that the applicant feels there are inaccuracies and omissions in the staff report. Mr. Schorse asked why it was thought this is nonconforming use. Mr. Manske stated that it is their position that the use is nonconforming and that the use has not been discontinued for a period of 12 months. He reviewed sections of the City of Oshkosh Zoning Code that refer to nonconforming uses. He then read the description of nonconforming use from the Wisconsin Real Estate Law. Mr. Manske asked if the city has pictures to depict the discontinued use of the property for a continuous 12 month period. Mr. Tucker said he had no pictures and explained that the city has done regular inspections for the past several years. Mr. Manske responded that the City is surmising from pictures they may have taken at some point, that because the boats were not there at that time, the use was discontinued for a period of 12 consecutive months. He stated that he would be able to present testimony stating that the area has been used. He stated that the applicant has never abandoned use of the parking area. Mr. Ameringer asked for clarification of the area involved in the nonconforming use. Mr. Manske said it was his opinion that the law states that the entire lot was nonconforming. Mr. Tucker explained there is not blanket nonconformity for this property. He stated that in 1999 a zoning code was passed that created a legal nonconforming situation. Board of Appeals Minutes -3- July 11, 2001 Mr. Coates said that his property abuts with Hergert’s Sport Center who has 9 boats. He presented an aerial photo from 1985 of his property and stated he has additional pictures showing boats throughout the neighborhood. He said his boats have been on site for the past 30 years. Mr.Coates stated that his garage and yard have not been taken care of in a timely manner. He noted that this lack of maintenance was due to his wife’s illness and loss of income. Mr. Tucker presented photos of the boats at Hergert’s Sport Center, which were parked within Sawyer Creek. He noted they are not parked on Hergert’s property. He suggested that in reviewing this appeal, the board should focus on this individual property. Discussion continued on the continual use of the property, the present parking of the boats and trailers, and the existence of storage structures on site. Chairman Krueger asked for clarification on a previous variance request from January 21,1976. At that time a variance was granted for a 30’x 40’ garage. He asked if the garage was ever built. Mr. Coates said it was not built to the size as granted per variance. It was established that the garage is conforming at its current size. Chairman Krueger asked if there is anything on record to prove that the parking area between the garage and the water frontage has been discontinued for 12 months. It was asked if there are any inspection reports or affidavits from neighbors to substantiate the claim that the use has discontinued for a continuous 12 months. Mr. Tucker responded that the City takes the best information available, via site visits, inspection reports, and pictures. It is the City’s opinion that the use was discontinued for a period greater than 12 months. Mr. Ameringer asked again for clarification of the area and space involved in the nonconforming use. Mr. Tucker explained on October 31, 1999 an amendment to the Zoning Code was adopted, which no longer allowed for parking spaces between garages and rear lot lines, which created the nonconforming use that is being appealed by the applicant. He further explained that if the property was used continuously and was not sitting vacant for a period of time greater than 12 months, this parking area would be considered a legal nonconforming parking area, but not at the current size. He stated that the present size is considerably larger than what was indicated on the 1993 site plan for construction of the garage. Mr. Manske stated that it is his opinion that the City can not determine what the size of the nonconforming use was at the time the code was adopted. He said they are entitled to nonconforming use for the entire back yard area. He again stated they do have testimony to attest to the fact that it has been continuously used. Mr. Coates testified that the entire back yard has always been used. Board of Appeals Minutes -4- July 11, 2001 Ms. Hentz inquired as to who brought forth the issue that the nonconforming use was lost. Mr. Tucker responded the City identified this situation during other discussions and actions with Mr. Coates. Mr. Coates then requested that the board review this determination. th Mitch Coates, 718 W 5 Avenue, son of Roger Coates, stated that there has never been a discontinued use of the premises and the boats have always been parked in the area with items never being permanently parked on the grass. Board discussion followed as to whether the nonconforming use of the property has been lost. Chairman Krueger referred to the City of Oshkosh Zoning Ordinance Section 30-4 (A)(3). Mr. Tucker explained that it only referred to a gravel area between the garage and the boat slip, per the 1993 site plan. Discussion continued on the size of this area. It was noted that staff has not presented evidence to the fact that there has been no parking for 12 consecutive months, whereas Mr. Coat’s testimony and his son’s testimony confirm that the area has been used continually. It was stated that existing parking area appears to be expanded since 1993, which is a violation the City will have to address. Ms. Hentz stated that it was incumbent upon the City to show that the nonconforming use of the property was lost and this was not achieved. Motion by Hentz for approval of the appeal to the zoning administrator’s determination that a parking space behind the garage is nonconforming. Seconded by Schorse. Motion denied 0-5. B Driveway Matt Tucker introduced the item. Mr. Coates noted that the staff report is incorrect in the size of the expansion of the driveway requested. The request is for an additional 5’ on to his existing 21’ driveway. He questioned since the boats can now be moved out of the driveway, due to the previous determination, he wondered if the driveway issue now became an issue of nonconforming use. Mr. Coates spoke on parking issues, he would like a bunk in the garage that would be 9’6” wide, 15’ long, and 82” high, which would cause the 4 stall garage to be a 3 stall garage. He questioned if there was an egress or ingress issue with the zoning board in regard to access the garage. He said that clarification on these issues would determine if he needs to widen the driveway. Mr. Coates stated that the driveway has been in place since 1972 it is 81’ long with 8 parking stalls. Discussion ensued on the size and the location of the garage and the size of the existing driveway. Chairman Krueger asked if the variance request was for a 5’ expansion to the driveway on the west. Mr. Coates said that was correct. Chairman Krueger asked what the hardship is. Mr. Coates replied that the hardship does not exist. He said his driveway is fine the way it is, and he is happy with it. He stated that since the parking issue between the garage and the boat slip has been resolved he no longer needs the parking area extension of his driveway. Mr. Coates said as long as there is not a problem with the bunk in the garage and the parking in the driveway is adequate then there is no question about widening the driveway. Board of Appeals Minutes -5- July 11, 2001 Ms. Hentz said that since the nonconforming use issue has been resolved , Mr. Coates no longer needs the expansion. Mr. Coates agreed. Mr. Tucker explained the parking requirements for two-family dwellings. He noted Mr. Coates currently has code compliant parking within the garage. Mr. Manske stated that the use is nonconforming use and therefore the requirements do not apply. He stated the driveway has been used the same for the past 23 years. Mr. Ameringer asked if the variance request was being withdrawn at this point. Mr. Coates responded no. He said if there is an egress and ingress issue then he needs a wider driveway and this would constitute the hardship. Mr. Tucker stated this is not an issue about the use of the driveway, this is an issue about the expansion of the driveway. Ms. Hentz reminded Mr. Coates that he stated he no longer needed the increase in the driveway due to the resolution of the nonconforming use issue. She asked if he would consider withdrawing this variance request and if the city makes a determination, then reapply. She stated she has some issues approving an expansion of the driveway if it is not really necessary. Mr. Coates asked Mr. Tucker if the present driveway, the storage bunk in the garage, and the 3 stalls in the garage are against zoning ordinances. Mr. Tucker responded that the 3 stalls would be against zoning ordinances because he has 4 spots existing in the garage and is required to have 4 code compliant spots. Mr. Manske asked why this is not considered nonconforming use. Chairman Krueger responded that the garage has been added to the premises so the area has been altered and the garage provides conforming parking spaces. He referred to Section 30-4(A)(4), which states when the property is brought into compliance with the zoning ordinance, a nonconforming use may no longer be used. Board discussion followed with Mr. Schorse and Ms. Hentz saying they did not see a hardship to justify an additional 5’ expansion for the driveway. Motion by Hentz for approval of the variance to allow an expansion of the driveway by an additional 5’. Seconded by Mr. Dahl. Motion denied 0-5. Board of Appeals Minutes -6- July 11, 2001 C Utility Storage Shed Matt Tucker introduced the item. Mr. Coates stated that the request for the storage building is in conjunction with the City requiring him to store materials that are currently located in his yard.. He said that he has an 8’ x 12’ storage building on the property and when he purchased the property a 12’ x 16’ shed was on site. Discussion followed as to the size of structure requested, 12’ x 16’, and to the size of the existing garage, 24’ x 40’. It was noted that the staff report states the request is for 168 square foot structure, whereas it would actually be 192 square feet, which is twice the size of the current shed. Mr. Manske stated that this is an area variance, and it is his opinion that the request is not for a big variation in size than the current shed, and the applicant has demonstrated that the ordinance is an unnecessary burden. Mr. Tucker presented a letter of objection from Sally Struensee, an adjacent property owner of 1110- 1114 Fillmore Avenue, opposing variance requests. Mr. Kluessendorf asked why Ms. Struensee would object to a larger storage building when Mr. Coates is trying to achieve property maintenance by expanding storage opportunities. Mr. Tucker responded that all property owners must meet the same utility structure standards. Ms. Hentz commented that as businesses grow perhaps alternative warehousing is necessary for storage. Chairman Krueger added that he is unable to support this request because in 1976 Mr. Coates was granted a variance to construct a 1200 square foot garage but he opted to build a smaller garage. Motion by Hentz for approval of the variance to allow a 192 square foot utility storage shed. Seconded by Schorse. Motion denied 0-5. D Reduction In The Number Of Parking Spaces Required Matt Tucker introduced the item. Mr. Coates stated that he is looking for as much inside storage as he can acquire. He said the present garage has potentially four parking spaces. In one stall he wants to build a storage bunk with 13’ high side walls. He concludes that he has nonconforming use for parking because he has had eight parking spaces in his driveway for a number of years. Mr. Kluessendorf inquired what the hardship is. Mr. Coates responded that he is asking to eliminate one area approximately 9’ x 15’. His intent is to create a storage area for his property maintenance equipment. Board of Appeals Minutes -7- July 11, 2001 Mr. Manske said it is the City’s position that only vehicles can be kept in a garage. He stated that garages are often used as storage bins. Mr. Dahl said the ordinance states that four parking stalls are required for a two-family dwelling and he does not see a hardship. Mr. Manske replied that the hardship is the applicant has been parking for years in the driveway and now because he built a garage he is required to use this space for parking. He stated that it is unnecessarily burdensome because he wants to use the garage for storage other than parking. Chairman Krueger stated it was his opinion that Mr. Coates forfeited this hardship when he made the decision to build a smaller garage than approved by variance. Mr. Coates responded that he had other financial responsibilities at the time. Discussion followed on the number of vehicles on the property (7) and the number of vehicles to be parked in the garage (2 or 3). Mr. Tucker explained the intent of a garage is to store vehicles and the intent of a driveway is to provide access to the garage and when code compliant parking is established then you can park in the driveway. Board discussion followed. Ms. Hentz stated she did not see any hardship presented as to why the parking space requirement should be reduced. She stated there are 4 parking spaces as code requires and in regard to the storage issue, perhaps off site storage should be considered. Mr. Dahl stated that the ordinance requires the applicant to provide 4 compliant parking spaces, but these spaces can be used in any manner. Mr. Ameringer said he could not find the justification to reduce the number of parking spaces. Motion by Dahl for approval to reduce the required number of parking spaces for a two -family dwelling, from four to three spaces. Seconded by Hentz. Motion denied 0-5. There being no further business the meeting adjourned at 5:55. Respectfully submitted, Matt Tucker Associate Planner