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HomeMy WebLinkAboutMinutes BOARD OF APPEALS MINUTES OCTOBER 24, 2001 PRESENT: Carl Ameringer, Fred Dahl, Cheryl Hentz, Joel Kluessendorf EXCUSED: Don Krueger, John Schorse STAFF: Matt Tucker, Associate Planner; Nicole Krahn, Building Inspector; Mary Lou Degner, Recording Secretary Matt Tucker called for nominations for Chairman Pro Temp. Fred Dahl nominated Cheryl Hentz. Seconded by Joel Kluessendorf. Unanimous. The meeting was called to order by Chairman Pro Temp Hentz. Roll call was taken and a quorum declared present. The minutes of October 10, 2001 were approved as mailed (Dahl/Ameringer). I: 1825 WHITE SWAN DRIVE Benedict Schneider, applicant and owner, requires a variance to construct a 12’ x 12’ or 144 square foot utility shed in the rear yard, whereas Section 30-37(B)(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 noting that the item was laid over from the September 12, 2001 and the October 10, 2001 meetings. Ben Schneider, 1825 White Swan Drive, presented pictures to members of the Board. He noted the options indicated by staff and presented his hardships stating that a 10’ x 10’ shed is smaller than what is required for his needs, he stated that to enlarge the garage would be cost inhibitive since it would be necessary to have a foundation, and he added that a detached garage is actually larger than what his needs require. Mr. Schneider said his request is for his actual needs. He added that there has been an indication by staff that at some time in the future the code may be reviewed to allow larger sheds based on lots that are big enough to accommodate them. Mr. Schneider noted that he had previously commented he would not erect a 10’ x 10’ shed, but would consider doing it as a temporary structure until the code was modified. Mr. Schneider further stated that the verbiage from the city handout initially led him to believe that sheds over 100 square feet were allowed on a slab. He mentioned the shed would match the house and the fact that the neighbors have no objections to the requested variance. Discussion followed on the possibility to review the code regarding the requests for larger sheds. Mr. Tucker stated there have been a number of requests for variances of sheds greater than 100 square feet in size. He noted the code could be reviewed and modified to take into consideration other variables in determining the size of storage sheds. Chairman Pro Temp Hentz stated she supported the variance request the last two times and again supports it. Board of Appeals Minutes - 2 - October 24, 2001 Motion by Ameringer for approval of the variance to construct a 12’ x 12’ or 144 square foot utility shed in the rear yard. Seconded by Kluessendorf. Motion denied 2-2. Aye: Ameringer, Hentz. Nay: Dahl, Kluessendorf. II: 1428 ALGOMA BOULEVARD John M. Kelly, applicant and owner, requests a variance to construct a circular driveway on a lot that is 85 feet wide, whereas Section 30-36(C)(5)(d) of the City of Oshkosh Zoning Ordinance requires circular driveways shall be permitted where the minimum lot width is at least 100’. Matt Tucker introduced the item with pictures. He clarified that parking on Algoma will be removed while the street is being constructed and the parking will be eliminated at the finish of construction. John Kelly, 1428 Algoma Boulevard, said the decision by the City and DOT to make the current street, which is now 1 lane heading north, to 2 lanes is going to eliminate as many as 5 parking spaces in front of his home. Mr. Kelly stated the increase in traffic is a hardship combined with the elimination of the parking situation. Mr. Kelly stated that the 100’ width, cited in the ordinance, is an arbitrary number and the research he did suggests that restrictions on circular parking were aimed at preventing 24 hour parking in front yards in the college area. He noted he would occasionally have guests parking in the circle area, but it would not be long term. He stated this variance request is necessary as a safety issue and he is unaware of any opposition from the neighborhood. Discussion continued on safety issues, the material proposed to be used for the circle driveway, the landscaping possibilities, who is responsible for the new apron, and the time frame involved. Greg Brey, a trustee from Martin Lutheran Church, stated they have no issues with the variance requested. Board discussion found it would be an improvement on the safety issue. Motion by Dahl for approval of the variance to construct a circular driveway on a lot that is 85 feet wide. Seconded by Ameringer. Motion carried 4-0. Unanimous. Findings: Mr. Dahl stated the safety issue was greatly improved. Mr. Ameringer noted the hardship as being diminished parking and increased traffic. III: 1126 FILLMORE AVENUE Roger M. Coates, applicant and owner, requests an appeal to the Zoning Administrator’s determination as to the width of a legal nonconforming parking area. Board of Appeals - 3 - October 24, 2001 Matt Tucker introduced the appeal and presented pictures. He noted that it was difficult to determine the size of the area, but added he was confident staff found the correct size of this non-conforming area. He stated this was determined by using information the applicant had submitted to the City. Roger Coates, 1126 Fillmore Avenue, and William Manske, 300 Division Street, identified themselves. Mr. Manske noted he was representing Mr. Coates. Attorney Manske stated that the Board had previously determined that Mr. Coates had a legal non- conforming use for parking behind his driveway and the details relative to the size of this area were to be worked out with Mr. Tucker. He explained that in his opinion, Mr. Coates attempted to do that, but was unable to come to a conclusion on what the actual size is of the non-conforming use. Attorney Manske made reference to a letter Mr. Tucker sent on August 28, 2001. He cited the City of Oshkosh Zoning Ordinance Section 30-4. He said that in his opinion, the word “premises” in the code refers to the entire lot. He said to come to a conclusion on the matter, Mr. Coates is willing to have the definition of the area be defined as the hatch marked area on the site plan submitted with the application. He said they feel it is a fair definition of the non-conforming parking area. Attorney Manske said the area has been used in the past and they have witnesses to attest to that fact. He said the maps that Mr. Tucker has presented are maps showing the driveway from the rear of the garage going down to the water, not the parking area. Attorney Manske said at that point in time, when Mr. Coates was applying for a building permit for a garage, he was not required to depict the parking area. He stated Mr. Coates was merely showing the relationship of the driveway to the garage. Attorney Manske presented aerial pictures from 1997 and 1994 indicating where various items were parked on site. Discussion continued on the material used in the hatch marked area. Letters were presented from Russel Doemel, Jr. and Charles Oesterreich stating that gravel, stone, and hard pan clay fill were hauled into the area over a period of years from the 1960’s through 1980. Mr. Doemel, 2625 Fisk Avenue, testified to this fact also stating he was aware that vehicles parked in the hatched area at some point in time. Mr. th Oesterreich, 1207 Dove Street, also testified on behalf of Mr. Coates. Mitchell Coates, 718 W 5 Avenue, testified that the area has been used for 30 years and there has always been boats and trailers parked in the area. Mr. Ameringer stated he specifically asked for the size of the non-conforming use at a previous Board of Appeals meeting. He questioned why this was not presented at that time. Mr. Coates responded it was never requested. He added he did not have the figures until measuring it out recently. Attorney Manske said their response to that question had been that in his opinion, the entire back yard was considered non-conforming. He added Mr. Coates and Mr. Tucker were to come to an agreement on defining the area and were unable to do so. He added that is why they came back to have the area clearly defined. Mr. Ameringer stated as he understands it, the area Mr. Coates is requesting is easy to define based on the gravel that was brought into the area recently. Mr. Coates said, in his opinion, the ordinance specifically states that the “premises” can be a complete non-conforming use. He added he never intentionally parked anything on the grass area knowing it was against an ordinance. Board of Appeals Minutes - 4 - October 24, 2001 Chairman Pro Temp Hentz asked what business Mr. Coates is in, and asked his opinion of the legal non- conforming area. Mr. Coates replied he is in investment real estate and construction. He also does investment insurance and welding. He stated he measured the width of what he feels is the non-conforming parking area, which is 47’6” wide. Mr. Kluessendorf asked about the18’wide parking area depicted on the site plan for the 1993 garage building permit. Mr. Coates said that Mr. Tucker wrote the number on the site plan. Attorney Manske stated the site plan is not intended to show parking area, it is only depicting a driveway. Mr. Tucker stated he was given direction by the Board to determine the size of the non-conforming area. He added he did research and came to the conclusion based on scaled maps, submitted by the applicant, that the area in question was 18’ in width. Mr. Coates said that the 18’ does not depict the gravel and the parking area, only the driveway. Mr. Ameringer asked if there were two hearings previous to this matter. Chairman Pro Temp Hentz answered that it was started in June and laid over to July. Mr. Ameringer mentioned again that he asked at least twice at the previous meeting regarding the size of the legal non-conforming use. He said the information provided today is describing a very defined area. Attorney Manske noted at the last meeting it was their position that the entire premises was a non- conforming use, meaning the entire lot. He said the Board approved the appeal of non-conforming parking area between the garage and the boat slip, but it was left to Mr. Tucker to determine the actual size of the non-conforming use. At this point, although Mr. Coates believes he should be able to park any vehicles anywhere on his entire lot, he is willing to compromise, parking only in the area depicted with the hatch marks on the site plan. Mr. Ameringer stated in his opinion it was clear at the last hearing the board wanted to define the area in question and asked why this was not able to be accomplished. Attorney Manske responded that Mr. Tucker was using maps that showed the driveway and that was what he intended to use, regardless of the original purpose of the map. He said to keep in mind that the City has been against this all along and the City’s intention is to define this non-conforming use as narrowly as it can. He stated the pictures show that the boats have been all over the backyard, but to get this resolved they are willing to use the hatch marked area as the defined area. Mr. Ameringer asked if this would end the matter if the Board agreed with the area that was specifically designated by Mr. Coates. Board of Appeals Minutes - 5 - October 24, 2001 Mr. Manske answered yes, in his opinion. Mr. Kluessendorf asked if the difference they are looking at is 18’ x 50’ versus 100’x 47’6”. Mr. Tucker said the area the applicant requests also included the area along side the garage. Nicole Krahn, City of Oshkosh Building Inspector, stated in November of 2000 she was at Mr. Coates’ residence due to a property maintenance complaint and at that time the parking area was only behind the garage, as the original site plan shows. She added he now has additional gravel poured. She said this is a property maintenance issue because when the garage permit was issued there was a variance granted for a larger garage, in which to store the campers, trailers, boats, etc., however now all these items are being stored in the yard. She explained that when building permits are issued for garages it is required that the driveway locations be included. Mr. Ameringer asked for clarification as to what area was added since the inspector’s visit in November of 2000. Ms. Krahn responded the area along side the garage had gravel added to it and also an area depicted on the hatch marked map in the 47’6” area was added. She noted Mr. Coates admitted he added new gravel to this area, which was grass in her past November inspection. She said she was not there for the purpose of identifying the parking area, but can attest to the fact that the area was not being used for parking at that time. Discussion continued regarding information that is included in property files. It was explained that every property address in the City Oshkosh has a property file, which includes building permits that have been issued, letters of compliance action, correction notices, variance requests, site plan maps, etc. Mr. Kluessendorf inquired if it was clearly indicated on the 1977 scalable drawing, which was submitted for the issuance of the 1993 building permit, that the driveway was 18’ in width. Mr. Tucker explained he used a scalable ruler to measure the area to the best of his ability. Mr. Kluessendorf said it is his opinion that this would be a binding agreement. Mr.Tucker replied that the drawing was not for the purpose of the driveway, it was for a building permit for the garage, which indicated the driveway. It was stated from this drawing it was determined that the 18’ driveway would be the non-conforming area. Mr. Tucker noted the aerial photos, that were circulated by the applicant, indicate that vehicles were parked on the east side of the trees, past the hatch marked area. Chairman Pro Temp Hentz stated because the photos are taken from such a high elevation it is difficult to determine the exact area. Mr. Kluessendorf said that at the last meeting on this issue, no clear dimensions were set as to what the legal non-conforming area was. Mr. Tucker said he was given direction, by the Board, that the legal non-conforming area was much smaller than what was depicted. Mr.Tucker said it was decided that the size would be determined administratively and the applicant is now appealing that decision. Mr. Tucker said he did research using the property files, and with discussions with the building inspectors. He noted a letter was sent to Mr. Coates on August 28, 2001, stating it was determined that the legal non- conforming driveway is 18 feet wide Chairman Pro Temp Hentz asked Inspector Krahn if the gravel was there in November of 2000. Ms. Krahn responded that it is her observance that additional gravel has been placed since last year. Board of Appeals Minutes - 6 - October 24, 2001 Attorney Manske stated the inspector was not on site to determine the non-conforming use and it is simply her opinion to one occasion. He said in regard to the issue with the building permit, it was not required at that time for the driveway to depict a parking area. He said in 1975 there was not a non- conforming use because the law was not changed until the 1990’s. He added they have presented evidence the area has been continuously used to make it non-conforming use. Attorney Manske said the Board needs to consider this is an existing lawful use of premises and they ask the Board to approve the use as they have it depicted on the map. Board discussion followed with Mr. Ameringer stating at the initial hearing there was discussion regarding the parameters of this legal non-conforming use. He said the Board approved a legal non- conforming use contingent on an agreement between the City and Mr. Coates regarding the size of the area and apparently that has broken down. He said today there is contradictory testimony. He mentioned the testimony of Mitchell Coates, Russel Doemel, Jr., and Charles Oesterreich. Mr. Ameringer noted that Mr. Doemel and Mr. Oesterreich had some information, but it was back from 25 to 30 years ago. He said the City Inspector stated that some portion of this did have a gravel area, which she has designated is larger than the 18’area, but not equivalent to the 47’6”, nor the 12’ stretch along the garage. Chairman Pro Temp Hentz said she agreed that the testimony from 25 to 30 years ago does not carry much weight in the context of this legal non-conforming use. She said it is incumbent upon the applicant to prove his case and she does not feel that has been accomplished. Mr.Ameringer said there is no direct evidence to contradict the size of the area that is under gravel for a continuing period of time as designated by the City Inspector and therefore he would support an area larger than the 18’ area, but does not believe the applicant has proven his case in respect to the entire area. Chairman Pro Temp Hentz stated since this is an appeal the Board does not have anything it can modify, so they must either vote for approval or denial. Motion by Dahl to appeal to the Zoning Administrator’s determination as to the width of a legal non-conforming parking area. Seconded by Kluessendorf. Motion denied 0-4. TH IV: 1115 W 5 AVENUE Chris Schoening, owner, is requesting a variance to the City’s Building Code. Per Oshkosh Building Code Section 7-33, persons may file an appeal to the Board of Appeals as provided in the City Zoning Ordinance, Section 30-6(B)(2)(a) if an equally good or better form of construction is proposed. All appeals shall be accompanied by supporting data. Nicole Krahn, City of Oshkosh Building Inspector, introduced the item. TH Mr. Schoening, 1115 W 5 Avenue, said the house was built in 1948 and according to current code the present basement ceiling is 6” below code. He said his intent is to create an office space, room C from the drawing, which upon completion will have a finished ceiling height of 6’4”. He stated it would not be a sleeping area. He added he does not have a problem with the recommended conditions. Mr. Dahl asked if the only living space would be room A, shown on the drawing. Mr. Schoening replied yes and that the previous owner finished that particular room. Board of Appeals Minutes - 7 - October 24, 2001 Board discussion followed with Mr. Ameringer and Chairman Pro Temp Hentz saying they had no problem with the request as long as the conditions were met. Mr. Kluessendorf said he also was in support of the request, but asked how it could be verified that the area was not used for sleeping. Inspector Krahn said it could not be enforced and would only be detected in the case of another inspection. She added that she would like to recommend another condition: Drywall of 6’5” be installed by the stairwell. The applicant agreed to this. Motion by Ameringer to approve the building code variance for the creation of living space within an existing basement space that upon completion will have a finished ceiling height of 6’4”with the following conditions: 1.)Installation of an interconnected, hardwired smoke detection system with battery back up, with detectors provided in the following locations: a.In the finished basement rooms with detectors provided in each section where the room is divided by a beam that projects more than 4” below the finished ceiling . (NFPA 72 2-2.4.3) b.In any unfinished section of the basement. (If there are separate unfinished rooms, each must be provided with smoke detection.) c.On each floor level above the basement in locations required by present code. 2.)The ceiling shall not be reduced any lower than 6’4” (76 inches). 3.)The basement area shall not be used for sleeping purposes or for the creation of bedrooms without obtaining an additional variance. 4.)Drywall of 6’5” be installed by the stairwell. Seconded by Kluessendorf. Motion carried 4-0. Unanimous. Finding of the fact: It was concluded with the conditions the safety issues would be mitigated and it was noted the City recommended approval with the conditions. TH V: 617 W 17 AVENUE Robert & Rosemary Davis, applicants and owners, are requesting the Board of Appeals, per Section 30- 6(D)(3), to extend a zoning district boundary line, where the boundary line divides a lot held in single ownership. Matt Tucker introduced the item with pictures. TH Robert Davis, 617 W 17 Avenue, said he was there to answer any questions. He mentioned that many years ago the lots on Ohio Street were all owned by the same person. He said they purchased this portion in 1987 and the zoning problem was not discovered until recently, when it was discovered on a city map. Chairman Pro Temp Hentz said it is essentially a housekeeping issue. Board discussion agreed it is merely a procedural measure. Board of Appeals Minutes - 8 - October 24, 2001 Motion by Dahl to approve the request to extend the R-1 Single Family Residence District boundary line, where the boundary line divides the lot. Seconded by Ameringer. Motion carried 4-0. Unanimous. VI: 515 W BENT AVENUE Weston Stromme, applicant for the estate of Emma Stromme, requests an appeal to the Zoning Administrator’s determination that the property at 515 W Bent Avenue is not a legal non-conforming duplex per Section 30-4 of the Oshkosh Municipal Code. Matt Tucker introduced the item with pictures stating if this appeal is unsuccessful, the next item will be a request for a variance to allow for a two-family dwelling on a non-conforming lot. It was stated if item VI were approved then item VII would be withdrawn. Mr. Tucker stated on this item the intent is to focus on the use of the structure. William Manske, 300 Division Street, Attorney for the estate of Mrs. Stromme, introduced Dell Tritt, the real estate broker, who has been handling the listing of the property. Mr. Tritt stated in addition to being the real estate agent, he was also a neighbor to Mrs. Stromme for 20 years. He stated in 1996 Mrs. Stromme had a bad experience with a tenant and the upper apartment has not been rented out since. He testified through the years it has been empty, the property has not been used for anything other than a duplex. He said there is not a connecting stairway to the upper floor, the only access is the outside stairway. He noted the house was never used for a single family home, to the best of his knowledge. He said because of the fact that Mrs. Stromme was elderly and she did not want to deal with a tenant the estate should not be punished. He said Mrs. Stromme had pulled the second electric meter because she no longer wanted to pay the meter charge for the upper apartment. Discussion continued on the fact that the house was a two-family residence, but not always occupied. Mr. Tritt questioned if that was a legitimate reason to pull the status of a duplex. Mr. Kluessendorf asked if the second meter was removed in 1993. Mr. Tritt explained that was the gas meter. He said the unit only has one furnace and that may have been for a cooking stove. He added Mrs. Stromme supplied heat for the upper apartment. Mr. Tritt explained the physical layout of the house and the available parking. Chairman Pro Temp Hentz asked if there were any photos of the two units and if the only entrance to the upper unit was on the back of the house. It was stated there were no pictures available and the back entrance is the primary entrance. Mr. Tucker stated there might be code issues involved on the stairway that would need to be addressed. Weston Stromme, 3999 Sunny Vale Drive, De Forest, Wisconsin, said his mother owned the property and it never ceased being a duplex. He noted it is in need of an additional meter and some deferred maintenance for it to be rented. He added nothing has been changed and he would like to continue the use as a duplex. He added she never occupied the upstairs, it was only occupied by renters. Attorney Manske noted it is his opinion that periods of vacancy should not determine the status of whether the structure is non-conforming use. Board of Appeals Minutes - 9 - October 24, 2001 Board discussion followed. Mr. Ameringer said the issue involves continuing use and asked Attorney Manske if there was definite interpretation of this term in case law. Mr. Manske responded they believe the definition of non-conforming use is such that just because it has not been occupied it does not lose the status of duplex. He stated it is considered a duplex, it has been a duplex, it is set up as a duplex, and it is a duplex. He added it was not taken over as a single-family residence and therefore, in his opinion, is still a duplex. Mr. Ameringer asked if the courts have addressed this issue or if there have been any decisions regarding continuing use in this area. Mr. Manske replied he was not aware of any decisions. Mr. Tucker replied that Section 30-4 (A)(2) and (3) of the Oshkosh Zoning Ordinance is the opinion of staff regarding these issues. Mr. Tucker explained that the Board could make modifications on the issue. Discussion continued on the vacancy issue. Chairman Pro Temp Hentz said she did not feel a duplex owner should be penalized for not renting an apartment for a period of 12 months. Mr. Kluessendorf said he views Section 30-4 literally. He stated the duplex owner is obligated to rent the apartment within 12 months. Motion by Ameringer to grant the appeal to the Zoning Administrator’s determination that the property at 515 W Bent Avenue is a legal non-conforming duplex. Seconded by Dahl. Motion laid over 3-1. Aye: Ameringer, Dahl, Hentz. Nay: Kluessendorf. VII: 515 W BENT AVENUE Weston Stromme, applicant for the estate of Emma Stromme, requests a variance to allow for a two- family dwelling on a 50’ x 126.4’ lot, whereas Section 30-35(B)(4)(b) of the City of Oshkosh Zoning Ordinance allows lots of record with less width and area than required by District Regulations be used for a single family dwelling. The subject lot is 6,320 square feet in area. Due to the fact that Item VI was laid over, the applicant asked for Item VII to be laid over. Board approved the requested lay over. There being no further business, the meeting adjourned at 5:50 p.m. Respectfully submitted, Matt Tucker Associate Planner MT/mld