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HomeMy WebLinkAboutMinutes BOARD OF APPEALS MINUTES OCTOBER 10, 2001 PRESENT: Fred Dahl, Cheryl Hentz, John Schorse, Chairman Don Krueger EXCUSED: Carl Ameringer, Joel Kluessendorf 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 September 26, 2001 were approved as mailed. Dahl/Hentz. Unanimous. Warren Kraft, City Attorney, addressed the board regarding personal liability of individual board members. It was stated that the City’s Public Official Liability and Omission Policy covers board members and elected city officials. This policy would provide defense for the board and would also pay for any judgement the applicant might receive. Attorney Kraft explained the nature of a frivolous lawsuit and stated there is no personal responsibility on the member’s part. Discussion continued on the interpretation of zoning laws and the ability to grant variances. Attorney Kraft stated that in 1998 the Wisconsin Supreme Court came out with the harshest interpretation of the zoning appeals law and at that time the local Board of Appeals was advised to use the same process they had been using. He added there is some effort in the legislature to change the interpretation. He noted there was a hearing on proposed bills two weeks ago that are still sitting in committee. I: 1825 WHITE SWAN DRIVE Benedict A. Schneider, applicant and owner, requests a variance to construct a 12’ x12’ or 144 square foot utility shed in the rear yard, whereas Section 30-37(B)(4)(e)(iii) of the City of Oshkosh Zoning Ordinance allows for utility sheds up to 100 square feet in size. Matt Tucker introduced the item with pictures. Mr. Tucker stated the item had been laid over on a 3-1 vote at the September 12, 2001 meeting. Ben Schneider, applicant and owner, presented pictures. He pointed out on the city handout it states that sheds less than 100 square feet do not require slab foundations, so this verbiage led him to believe that sheds over 100 square feet were allowed. He then assessed what he needed for space, applied for a permit and was told he could not have a shed larger than 100 square feet. Mr. Schneider noted that in conversation with staff it was stated that periodically the codes can be reviewed as to what is appropriate and at some point in time, perhaps a piece of property that has the square footage to accommodate a larger structure would be allowed. Mr. Schneider then presented a handout covering the issue of hardship involved with each alternative suggested by staff. He further noted the items he has for storage and the fact that the garage has a chimney on the inside wall, which detracts from available space. Mr. Schneider added that he is aware that variances have been granted for larger structures. He stated the neighbors have no objections to the variance request. Chairman Krueger noted that each variance request stands on its own merits. Board of Appeals Minutes -2- October 10, 2001 Board discussion followed with Ms. Hentz stating she supported the request the last time it was before the board and again supports the request. Motion by Hentz for approval of the variance to construct a 12’ x 12’ or 144 square foot utility shed in the rear yard. Seconded by Schorse. Motion laid over 3-1. Aye: Hentz, Krueger, Schorse. Nay: Dahl. II: 420 Division Street Jim Stapel, applicant, Carl Stapel, owner, request a variance to construct a 6’ high, less than 50% solid fence in the front yard area, whereas Section 30-35(E) of the City of Oshkosh Zoning Ordinance requires fences in the front yard be less than 4’ high and less than 50% solid. Matt Tucker introduced the item and noted neither the applicant nor the owner was able to attend the meeting. He directed the Board to the letter included in the Staff Report, to explain their position. Mr. Schorse inquired about the appearance of the fence on Division Street. Mr. Tucker responded that it is a 4’ black wrought iron fence with masonry posts on each end, situated on a retaining wall. Chairman Krueger asked if the proposed fence would be aluminum in color. Mr. Tucker responded that it would be white. He noted the intention of the fence is to be a physical barrier, not a solid screening fence or storage area. He said it would be a nice decorative fence. Ms. Hentz stated it would be a nice improvement. Motion by Schorse. Seconded by Hentz. Motion carried 4-0. Unanimous. Findings: Ms. Hentz stated it would not obstruct vision or cause a safety problem, it would be aesthetically pleasing, and would have no adverse impact on the neighborhood. III.1195 FREEDOM AVENUE Walter M. Cook III, applicant and owner, requests a variance to construct an off street parking space along side an attached garage, with a 2’8” side yard setback, whereas Section 30-36(C)(5)(a)(iii) of the City of Oshkosh Zoning Ordinance requires a 7’6” setback. Matt Tucker introduced the item with pictures. He noted the Board of Appeals reviewed and denied the applicant’s request for this parking space at the meeting of September 12, 2001. Mr. Tucker explained the applicant is exercising the right to ask for a variance three times in a 12-month time period. Board of Appeals Minutes -3- October 10, 2001 Keith Decker, Fox Cities Construction, stated they are the developers for the Vinland Farm Subdivision. He said the original site plan does not show the parking space because it was added later. He stated there was a misinterpretation of what a driveway is, they did not realize that the parking space requested was considered off street parking. Mr. Decker said it is not the applicant’s fault and he would never knowingly violate any codes. He added the neighbors have no objections. Craig Luczak, 1185 Freedom Avenue, stated the slab in question is located between his garage and the applicant’s garage and he has no objections to it being there. He also testified on behalf of Dan Gruel, 1180 Freedom Avenue, and Greg Linse, 1190 Freedom Avenue, who also have no objections. Walter Cook, applicant and owner, said the last time he made the request, neatness of the neighborhood was mentioned. He presented pictures from the surrounding area depicting similar circumstances to what he has. He said he tried to do this properly and if he had known it was in violation of the code the house could have been moved over to accommodate the required setbacks for the parking space. Chairman Krueger stated that each variance request must stand on its own merit and be reviewed independently. Ms. Hentz asked about the significance of the expired license plates on the vehicle. Mr. Tucker explained it is a code enforcement issue that is dealt with on a daily basis. He stated the City has a municipal code that does not allow inoperable or unlicensed vehicles on private property. Mr. Cook responded at the last meeting he clearly stated he would put plates on the car if this variance was approved. He added that the car is not the issue, as he could put it in storage. He said he has a utility trailer that he regularly uses for landscaping and he has no place to go with it. Ms. Hentz asked staff if this was approved does the city have a code that could enforce the car issue. Mr. Tucker explained that the unlicensed car was discovered when he was fact finding and the abandoned vehicle issue would be dealt with according to code enforcement. He added his point was to emphasize what could happen on these lots. Mr. Cook said that some people park vehicles on lots, and because they have collector plates on them there is no issue because the vehicle is registered. Ms. Hentz asked Mr. Decker if he would accept responsibility for the financial aspects to remedy the situation if the variance was denied. Mr. Decker responded he would take care of the problem for the applicant. He added that Mr. Cook needs the spot and he reiterated the fact that he never would have done it if he had known it was wrong. Mr. Tucker stated there was not a building permit taken out for the slab expansion. Mr. Schorse inquired if a second building permit was required and if the screening requirements could be added to the variance request. Board of Appeals Minutes -4- October 10, 2001 Mr. Tucker explained a paving and screening plan would be required for zoning approval. Ms. Hentz asked the applicant if he had any objections to a condition being added. Mr. Cook responded he would do whatever was required for him to keep the present space. Ms. Hentz stated in her opinion it was not Mr. Cook’s fault, the situation evolved from a misunderstanding, and she would hope Fox Cities Construction would take care of the expense of the screening if this variance was accepted. Discussion followed on what the screening would be. Mr. Tucker explained the requirements would be a 5’ high solid fence or 5’ high four-season hedge that would extend across the side and the rear of the area. Chairman Krueger stated he did not support this variance the last time and he can not support it this time. He said it is a new house, which the owner had built for himself, and between the contractor and the applicant it came in as an after thought. He added although he sympathizes with Mr. Cook, he can not support the request. Motion by Hentz for approval of the variance to construct an off street parking space along side an attached garage, with a 2’8” side yard setback with the following condition: 1.)The area be screened per Section 30-35(I) of the City of Oshkosh Zoning Ordinance. Motion seconded by Schorse. Motion denied 2-2. Aye: Hentz, Schorse. Nay: Dahl, Krueger. IV.215 W SMITH AVENUE Mark & Ellen Roemer, applicants and owners, request variances for a principal structure with a side yard setback of 5.5’ to the west and a front yard setback of 24.2’, whereas Section 30-17(B)(3)(b) and (c) require a 7.5’ side yard setback and a 25’ front yard setback. Matt Tucker introduced the item commenting that after further review the homes to the east and the west both have a less than a 25’ setback, so the front yard setback is no longer an issue. The variance now being requested is for the side yard setback of 5.5’ to the west. Mr. Tucker presented maps and pictures of the area. He added that because of the fact that the mechanicals are located in the front yard, he would like to see a moderate level of landscaping to screen the mechanicals. Board of Appeals Minutes -5- October 10, 2001 Chuck Williams, Attorney representing Mark & Ellen Roemer, explained the Roemer’s purchased a manufactured home from Steenburg Homes, who recommended several contractors. The applicants chose Mr. Hungerford, who came highly recommended. Attorney Williams said the applicants were unaware of the error made laying out the building on the lot. The building is now situated on the lot with the foundation and setbacks measured from inaccurate lot lines. A complaint has been filed at Consumer Protection in Green Bay and they are in the process of obtaining an administrative order prohibiting Mr. Hungerford from operating as a general contractor. Attorney Williams stated the neighborhood is older and having a modern home in the area is a benefit. He noted the encroachment exists on the northwest corner, which runs next to a driveway on the west, which is not as offensive because there is space to the west where the driveway is located. He explained the expenses in building this house have exceeded expectations. Attorney Williams noted the garage, which has not been completed, has been paid for in advance. He stated he does not know what the alternatives are, other than moving the house over 24”. Attorney Williams said the house does have a greater than necessary minimum setback on the southwest corner and in the rear yard. He noted it is an unfortunate situation. Chairman Krueger observed there appears to be 14’ from the back corner of the house to the lot line and inquired how far out the entryway steps protrude from the house. Discussion followed on the fact that the slab is 42” and the steps are 36”. It was stated that would leave about a 10’ driveway, an 8’ driveway is what is required with a 6” side yard requirement. Mrs. Roemer noted if the variance is granted they do intend to have landscaping to screen the mechanics in the front yard area. Attorney Williams stated that occupancy for the house has not yet been granted. The contract for the purchase of the home was signed November 28, 2000, the contract with the contractor was signed January 3, 2001, and the house was set on the foundation on February 15, 2001. Mrs. Roemer stated they fired Mr. Hungerford at the recommendation of another contractor, who through a certified survey map discovered the house was crooked and identified many problems that they were not aware of. Brian Schuster, 221 W Smith Avenue, stated he did not want to see the Roemer’s loose their house, but his lot is the one most affected and he has concerns about the narrowness of the driveway and a fence that is going to be erected. Mrs. Roemer explained the fence, Mr. Schuster was referring to, would be in the back yard not along the side of the driveway. Ms. Hentz said in her opinion Mr. & Mrs. Roemer should not have to pay out more money for a problem that should not have occurred in the first place. Mr. Schorse said he agreed, but just like the previous issue before the Board there was also a problem with the contractor. Board of Appeals Minutes -6- October 10, 2001 Discussion followed on the responsibility of contractors and on inspections that are required. It was stated that footing inspections are required, but noted that certified surveys are not required. Houses of this type are quickly constructed. Mr. Tucker explained potential options, which would require variances. Chairman Krueger explained the reason he could not support the previous request was because it was done after the fact. The required building permit was not obtained and it was added after the site plan was approved by the city. In the present request the site plan was submitted in good faith and it was approved, and now it has been discovered an error was made in the way it was constructed on the lot. He added there is not a builder to hold accountable for the error and the Board is the only relief available for the applicants. Chairman Krueger stated his support for the variance request. Ms. Hentz agreed. Motion by Dahl to approve the variance for a principal structure with a side yard setback of 5.5’ to the west. Motion seconded by Hentz. Motion carried 4-0. Unanimous. Findings: It was stated that it was the easiest way to solve the problem, the neighbors do not have an issue with it, the hardship was not self-created, and there was no other relief for the applicants other than starting over, and that would result in a great hardship. There being no further business, the meeting adjourned at 4:36 p.m. Respectfully submitted, Matt Tucker Associate Planner MT/mld