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HomeMy WebLinkAboutMinutes BOARD OF APPEALS MINUTES August 22, 2001 PRESENT: Carl Ameringer, Cheryl Hentz, Joel Kluessendorf, Jon Schorse, Chairman Don Krueger EXCUSED: Fred Dahl STAFF: Lynn Lorenson, Assistant City Attorney; 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 August 8, 2001 were approved as mailed. Hentz/Schorse. Unanimous. th I: 521 W 16 Avenue Christopher R. Kindt, applicant, requests an appeal to the Oshkosh Common Council ordinance that rezoned the subject property from M-2 Central Industrial District to R-3 Multiple Dwelling District, with a planned development overlay. Matt Tucker introduced the item. Christopher Kindt, 345 Windingbrook Drive, attorney for Zion Lutheran Church, stated it is his opinion that the City Council acted in error. He stated that his client wishes to appeal the council action and the correct procedure would be to proceed with the Board of Appeals before going to the Circuit Court. Mr. Kindt said there are two legal issues involved; the first being jurisdictional, and the second being the issue on the merit. Chairman Krueger stated that the first order of business would be to decide if the Board has jurisdiction. Mr. Kindt argued that the City is a creature of the State government and can only do what the State authorizes them to do, so in order to determine the jurisdiction of appeals from actions that the City makes, the statutes must be reviewed. Mr. Kindt presented copies of Sec. 62.23(7)e.7. Wis. Statutes. Mr. Ameringer stated there are two issues involved regarding jurisdiction; the first is raised by the City in the memorandum involving administrative officials. He asked if there are any definitions that describe the City Council as administrative officials. The second issue involves the wording of the State Statute, noting that the wording in the handout is different than the wording in the memorandum issued by Assistant City Attorney Lorenson. He noted that there are crucial differences, which affect the interpretation. Mr. Kindt apologized for the discrepancies and noted the errors were not intentional. Ms. Hentz questioned the language and asked for clarity regarding “administrative official” in regard to the Common Council. Board of Appeals Minutes -2- August 22, 2001 Ms. Lorenson, Assistant City Attorney, explained that typically administrative officials within the City would include people such as Matt Tucker, Zoning Administrator, and City Building Inspectors. She stated that the Common Council acts in a legislative function, establishing policy. Ms. Lorenson said in her interpretation of the statute the Board has no jurisdiction over the appeal submitted by Zion Lutheran Church in this case. Ms. Lorenson stated that she performed a search to see if there was any case law that suggested that the Board has the authority in matters of this type, and she said she found none. She further added that the appeal process for the alleged errors made by the Common Council is through the Circuit Courts. Mr. Ameringer asked Ms. Lorenson if Mr. Kindt needed to request this appeal to exhaust the appeals that are available within the city administration. Ms. Lorenson responded positively. She stated that neither Mr. Kindt nor her found any case law for this type of appeal. She noted that their interpretations differ and it is her interpretation of the language that the Board does not have the authority to review legislative decisions. Chairman Krueger said he agreed with Ms. Lorenson. He noted the Board would be overwhelmed if they have the power to review Council actions. Motion by Schorse that the Board does not have jurisdiction to act upon this appeal to the Common Council ordinance that rezoned the subject property. Hentz seconded the motion. Motion carried 5-0. Unanimous. There being no further business the meeting adjourned at 3:50. Respectfully submitted, Matt Tucker Associate Planner MT/mld