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HomeMy WebLinkAboutMinutes BOARD OF APPEALS MINUTES NOVEMBER 14, 2001 PRESENT: Carl Ameringer, Cheryl Hentz, Joel Kluessendorf, John Schorse, Chairman Don Krueger EXCUSED: Fred Dahl 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. There was a correction made on the minutes of October 24, 2001. Mr. Ameringer asked that the word continuant, on page 6, be replaced with the word contingent. The minutes were approved as corrected. (Hentz/Kluessendorf). I: 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 nonconforming duplex per Section 30-4 of the Oshkosh Municipal Code. Matt Tucker introduced the item with pictures. He noted the issue at hand is relative to the loss of a legal nonconforming use. He introduced case law relative to the issue, prepared by the City Attorney’s Office. Mr. Ameringer asked if any of the cases referred to by Mr. Tucker indicated that use is the equivalent of vacancy. Mr. Tucker stated one of the cases specifically talks to a use that was discontinued for a dog kennel in La Crosse County. The applicants, in this case, were choosing to reestablish the dog kennel after a time period of when the kennel was vacant for a period greater than 12 months. Mr. Schorse asked if any of the cases referred to residential real estate. Mr. Tucker responded that one case referred to residential real estate in an industrial district in Madison. He explained that nothing was found that paralleled to this issue at hand, but several cases were found that refer to uses that are nonconforming. Mr. Tucker also presented a Legal Encyclopedia, which he received from the City Attorney, on the “Termination and Amortization of Nonconforming Uses and Structures”. He noted there is a section titled “Presumption of Intent to Abandon”, which Wisconsin wrote into the State Statute to establish the 12 month nonconforming rule. Weston Stromme, applicant, and William Manske, representative for the Stromme estate, introduced themselves. Attorney Manske said he did research in the state of Wisconsin and could not find a Wisconsin case on point, however he did find a Rhode Island case close to the item at hand. Attorney Manske presented copies of the Rhode Island Case and pictures of 515 W Bent Ave. He stated the only changes to the duplex were the meters that were discontinued. Chairman Krueger stated what needs to be established is the use of the past 12 months. He asked if the wiring was changed. Attorney Manske answered the wiring was not changed, but the meter was discontinued. Mr. Tucker said the use of the property must be considered not the structure. He said “use” is what the State Statute and the Zoning Code refer to. Attorney Manske said he disagreed. He referred to the Rhode Island case and said, in his opinion, the intent was for it to be a duplex. He stated the fact that the State of Wisconsin has not ruled on this specific point leaves it open to say that this is a duplex. Mr. Stromme testified nothing has been changed in the apartment. It is the same as it was when the last renter moved out. He said the building is still a duplex. Discussion continued on the “use” of the building versus the “intent” of the building. Mr. Tucker said the 12-month time period is described in the State Statutes because past cases demonstrated how it was impossible to read one’s mind in regard to “intent”. The statute was written so officials would not be forced to try and figure out what one’s intent was in the past. He added the merit of whether or not this property is an appropriate duplex would be addressed later. Mr. Ameringer said he did think “use” is the question to address, but stated the applicant does have facts to support that the property was being used not as a single family residence. Ms. Hentz said she agreed, and it is her opinion, that simply because the apartment was not rented, the use of the property was still a duplex. Mr. Schorse said the residence was being used as residential real estate and is zoned R-2. Mr. Kluessendorf said he disagrees, it is his belief that Section 30- 4(A)(2) is very explicit when it states the 12 month time frame. Mr. Tucker stated the Zoning Ordinance was modified in 1987 to specifically allow for duplexes on lots with widths as narrow as 45’, and the Ordinance was again updated in 1996, at which time the Common Council removed the stipulation to allow for two-family dwellings on substandard lots. The intent of requiring two family dwellings on conforming lots is to help stabilize older neighborhoods and return nonconforming duplexes to single family use. Attorney Manske responded he was a member of the Planning Commission and City Council when the zoning ordinances were originally established as R-2, R-3, etc. He explained, in his opinion, the zoning maps are now deceptive, that instead of changing the zoning territory the underlining qualifications have been changed. He said there are many people in the City of Oshkosh who do not realize that although they are zoned R-2 on the map, in actuality they are now nonconforming use. He stated in Mrs. Stromme’s case she never intended to lose her eligibility of R-2. He added she never did anything to alter the fact that the property is a duplex. Discussion continued on zoning issues and legal nonconforming duplexes. Mr. Tucker said this area was identified, in the 1993 Comprehensive Plan, as a targeted down zone area from R-2 to R-1C, which allows a limited number of two-family dwellings by special permit/restrictions. Ms. Hentz inquired about the utility meters being removed in 1993 and1996. She said the real estate broker indicated in the minutes of October 24, 2001, that the last tenant was in the apartment in 1996. Weston Stromme said the meters were removed because his mother did not want to pay the fee associated with the second meter. Roxanne Gajewski, 504 W Bent Avenue, responded that she believes the last time the apartment was rented was in 1991. She stated the house has been vacant for 1-½ years and there have been no tenants upstairs for 10 years. She questioned if the intent of the home was to be a duplex, why wasn’t the interior staircase removed and why did Mrs. Stromme discontinue the use of the meter. She stated the City Directory has 515 W Bent listed as a single-family dwelling. Ms. Hentz responded the City Directory is compiled of information that is merely submitted by occupants, it is not an official document. Mr. Tucker circulated copies of the City Directory dated back to 1997. Mrs. Gajewski mentioned there was an offer on the property, which was refused, to convert the house into a single family dwelling. She said now the family wants to have it qualified as a duplex for reasons of resale. She said based on the merits it does not conform to the definition of a duplex. Mr. Ameringer asked for clarification of some of Mrs. Gajewski’s statements. Donna Lohry, 511 W Bent Avenue, said she purchased her property 5 years ago knowing Mrs. Stromme was the only occupant of the house. She voiced concerns about the value of her property depreciating if the subject property is sold as a rental. Discussion continued on the basis of her concern. Chairman Krueger directed discussion back to the “use” of the property. Ms. Hentz stated, in her opinion, the house is a multi-family dwelling, it is a duplex, it simply did not have the other apartment occupied. Tom Galica, 514 W Bent Avenue, stated he believed the last renter occupied the upper apartment in 1991. He said he had a discussion with Mrs. Stromme around 1995 and she told him she would never rent it out again. Mr. Galica explained the circumstances of the conversation. Judith Stromme, 715 Baldwin Avenue, daughter of Mrs. Stromme, stated she is unaware of an offer for the purchase of the property as a single-family dwelling. She stated the only offer on the property, that has been received, was for the house as a duplex. She said her mother was fearful of the last renter and doubted whether she would rent in the future. Mrs. Stromme said her mother had purchased the property as a duplex. Board discussion followed with Mr. Ameringer stating that the Rhode Island case is most closely on point with the current issue. He added there was additional evidence presented this time concerning conversations that had taken place, which could be an explanation as to why Mrs. Stromme no longer wanted to rent the apartment. Mr. Ameringer said he found it to be a difficult case. Ms. Hentz agreed that past circumstances, age, and fear could have been determining factors as to why she chose not to rent again. She said if the intent was to convert the house to a single family dwelling, removing the plywood separation in the interior staircase could have easily done it. Ms. Hentz said, in her opinion, it is still set up as a duplex, it is in an appropriate neighborhood, and if it were not for the size of the lot it would not be an issue. She stated she was in favor of the appeal. Mr. Kluessendorf stated the property has lost its use because it has not been used in the past 12 months as a rental property. He said, in his opinion, there is an obligation to fulfill the 12-month time frame. He added if the Board granted this appeal they would be striking down Municipal Code 30-4. Mr. Kluessendorf said he reads the code in the literal sense and it is very explicit. Chairman Krueger said he agreed with Mr. Kluessendorf. He mentioned the conversation between Judith Stromme and her mother, with her mother making a conscience decision not to rent the apartment again. He said during that period of time the nonconforming use was forfeited. Mr. Kluessendorf said the code states very clearly if it is not used for 12 months you lose the right for the nonconforming use, regardless of what the building looks like. Motion by Hentz to appeal to the Zoning Administrator’s determination that the property at 515 W Bent Avenue is not a legal nonconforming duplex. Seconded by Schorse. Motion denied 2-2. Aye: Ameringer, Hentz, Schorse. Nay: Kluessendorf, Krueger. II: 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 for lots of record with less width and area required by District Regulations be used for a single family dwelling. The subject lot is 6320 square feet in area. Matt Tucker introduced the item and circulated pictures of the house, a land use map, and an assessor’s blotter data. During consultation with the Chief Building Inspector he learned if a variance were granted for a duplex on this lot, the property would not need to be brought up to current duplex codes. Mr. Tucker added to allow it existing, as it is today, would also allow it to have legal nonconforming parking. Attorney Manske presented pictures of the property. He noted it has unique characteristics of an outdoor stairway, a double garage, extra bathroom, and an extra kitchen. He noted a great deal of money was spent on this property to convert it to a duplex, at a time when it was possible to do this, and now it would be a hardship, that is not self created, to turn it back to a single family residence. Attorney Manske stated this property became a nonconforming use without the knowledge of Mrs. Stromme. He added there are many people in the City of Oshkosh, who are in the same situation, because of the fact that underlining characteristics of the zoning changed to make it impossible for the many older lots, that are only 50’ in width, to retain their R-2 zoning. Attorney Manske said as a result, this is another hardship that was not self-created. He said approving the variance is the least possible way to rectify the situation. He stated, in his opinion, there would not be considerable adverse impact on the neighborhood because there are other duplexes in the area, and it already was a duplex. Attorney Manske added this is not a conversion of a property, it is property that already exists in the R-2 zone. He said this is a property that lends itself to a variance, this is what variances are created for. Ms. Hentz asked the applicant if he would make the 4th code compliant parking space, if the variance was granted. The response was it could be stated in the offer that it would have to be code compliant. Chairman Krueger inquired when the applicant’s mother purchased the property. The answer was 1973. Donna Lohry, 511 W Bent Avenue, said her driveway and the subject property join on the west side. She said there would be adverse impact on her property if green space was taken away for additional parking. She said there would also be negative impact on the value of her property. Mrs. Lohry mentioned the monetary value of the home would be the same whether it was sold as a duplex or a single family home. She added there is still tree damage that needs to be addressed on the property due to the storm of June 11, 2001. Roxanne Gajewski, 504 W Bent Avenue, said there are three poplar trees by the driveway, which would have to be removed to expand the parking. She mentioned if there were to be a fire the owner of the property would be able to rebuild a duplex on the site and she does not feel that would be consistent with the existing neighborhood. She said the only duplex she is aware of in the area is on West Bent Avenue, which is owned by Mrs. Lohry. Ms. Hentz asked Mrs. Lohry why she felt having additional rental property in the neighborhood would adversely affect the value of her home. Mrs. Lohry responded she is an owner occupied rental and therefore is able to control many aspects. Discussion continued concerning rental homes versus owner occupied homes, and single family homes versus multi-family homes. Tom Galica, 514 W Bent Avenue, said he has resided there since January of 1974. He said it is a good neighborhood to raise a family and stated his preference for the subject property to be a single family home. Board discussion followed with Chairman Krueger saying he believes this is an opportunity to help a neighborhood in transition. He said the house was originally built as a single-family residence and was converted to a duplex in 1942. He added the Board now has the opportunity to turn it back to what it was originally designed for. He said the only hardship that has been established is financial. Chairman Krueger noted it would take green space away for the additional parking required and that would affect the entire neighborhood. He stated he would vote against the variance request. Ms. Hentz said, in her opinion, it is set up as a duplex. She stated the lack of green space for children should not be a concern since there is only one bedroom in each apartment. She said in addition, as far as the character of the people, who could possibly move in, there are no guarantees whether it is owner occupied or purchased as a rental property. Ms. Hentz said she supports the request. Mr. Kluessendorf said he agreed there are no guarantees as to the occupants, however he believes chances are greater there will be less discretion used in a rental that is not owner occupied. Mr. Tucker suggested if the Board chooses to approve the variance request a requirement be made that code compliant parking be provided for occupancy. Motion by Hentz for approval of the variance to allow for a two-family dwelling on a 50’ x 126.4’ lot, with the following condition: 1). A fourth code compliant parking space be provided. Seconded by Schorse. Motion denied 2-3. Aye; Hentz, Schorse. Nay; Ameringer Kluessendorf, Krueger. II: 1408 OREGON STREET Ron Gartman, applicant and owner, requests a variance to provide six parking spaces for a four unit apartment building, and to allow for an off-street parking area with side yard setbacks of 3’ and 5’ and a rear yard setback of 10’, whereas Section 30-36(B)(6) of the City of Oshkosh Zoning Ordinances requires two parking spaces for each unit with 2 or less bedrooms and Section 30-35(B)(1)(c) requires transitional yardage of 19’3” for side yard setbacks, and Section 30-36(C)(3)(d) requires a 25’ rear yard setback. Matt Tucker introduced the item. Ron Gartman, 2409 Burnwood Drive, said he intends to raze the garage and provide a fence as recommended by staff. Chairman Krueger asked the applicant why he does not need 8 parking spaces. Mr. Gartman responded the apartment has been occupied by elderly people. He said he has two tenants that do not own a car. He stated he could not account for the future, but for the past five years the majority of time there has only been two cars in the parking lot. Discussion continued on the availability of space and the required landscaping. Carl Raddatz, 1412 Oregon Street, said he would prefer a fence on the south side of the property, which is located next to his property and questioned available space for snow removal. Mr. Tucker explained where the area for snow is located. Board discussion followed with Mr. Schorse noting it would be an improvement, it would be creating more parking spaces than what is currently provided. Motion by Ameringer to provide six parking spaces for a four unit apartment building, and to allow for an off- street parking area with side yard setbacks of 3’ and 5’ and a rear yard setback of 10’, with the following condition: 1). The parking area be screened in accordance with Section 30-35I of the City of Oshkosh Zoning Ordinance. Seconded by Hentz. Motion approved 5-0. Unanimous. Finding of the fact: It was concluded it would be an improvement to the area, it has created additional parking, and there is no adverse impact on the neighboring properties. IV: 506 DAKOTA STREET Brian Gabavics, owner and applicant, is requesting a variance to allow for a hot tub in the side yard area, with a 3’6” side yard setback, whereas Section 30-35(B)(2)(f) of the City of Oshkosh Zoning Ordinance requires recreational equipment be located in the rear yard area, and provide a 5’ setback to lot lines. Mr. Tucker introduced the item with pictures. Brian Gabovics, 506 Dakota Street, stated he had no idea about the Ordinance regarding recreational equipment and the required setbacks. He said he is willing to abide by the condition recommended by staff, but asked if he could leave the south side open because of the location of the garage service door. He commented the cover of the hot tub acts as a barrier when it is open. Mr. Tucker said this type of activity has a substantial potential for negative impact on the adjacent neighbors and suggested a gate could be used for access by the service door. Mr. Gabovics commented the cover extends 3’ above the top of the tub. Discussion continued on the feasibility of a fence on the south side. Chairman Krueger stated there is 34’ between the tub and the property line on the south, so he does not think it is as critical on the south side compared to the east side. Board discussion followed with it being stated it was necessary for additional fencing to be installed on the east side versus the south side, since the top of the hot tub, when open, can serve as a screen. Motion by Hentz to allow a hot tub in the side yard area, with a 3’6” side yard setback, with the following condition: 1.) A 6’ tall fence be installed on the north side and the east side of the deck. Seconded by Ameringer. Motion carried 5-0. Unanimous. Finding of the fact: It was concluded it is an unusual property with little room for recreational equipment and the hardship was not self-created. V: 2712 Stoney Beach Street V. Geraldine Young, owner, and John & Julie Nicks, applicants are requesting a variance to remodel and expand a nonconforming structure, exceeding 50% of the current total assessed value of the structure, whereas Section 30-4(B)(1) of the City of Oshkosh Zoning Ordinance requires alterations, additions, and expansions may not exceed 50% of the current total assessed value of a nonconforming structure. Matt Tucker introduced the item presenting pictures. Sarah Pietkivitch, 4405 Honeysuckle Court, introduced herself as the agent representing John & Julie Nicks. She stated the owner has an offer contingent upon the variance being granted. She said they thought if they were to move the garage 2’ closer to the water it would interfere with the neighbor’s view. She said there are two story homes on each side of the property and this addition would increase the value of the surrounding properties. Mrs. Pietkivitch said the applicants would be investing about $100,000 in the property. Chairman Krueger asked what guarantee they had that no more than one story would be added to the top of the building. Mr. Tucker responded there is a requirement that the house be no higher than 35’. He added this measurement is found half way between the peak and the eave. Discussion continued on the present heating of the home with underground oil tanks and the possibility of it being converted in the future to a natural gas forced air system. John Pietkivitch, 4405 Honeysuckle Court, representative of Remax Realty Services, said they have no idea about the pollution issue, and can not vouch as to the height of the addition. He said the second story addition would comply with current building codes. Mr. Tucker suggested conditions could be added to the variance regarding the oil tank, and the additional height. He said building plans have not been submitted to the city. Mrs. Pietkivitch said since the furnace is in working condition, the applicants may not want to change it out until they do the addition. Mr. Pietkivitch said he is unaware of the ridge elevations on the subject property and the lot height may not be the same as the neighbors, so if an average was to be computed this could be inaccurate. He said he would be uncomfortable with a restriction. Mr. Schorse asked why it would be necessary to condition things that are not being identified as problems. He mentioned the variance requeste is to remodel and expand a nonconforming structure, exceeding 50% of the current total assessed value. He added the building codes regulate what can be done. Ms. Hentz said she is uncomfortable listing conditions when the applicants, who are not in attendance, are unaware of them. Chairman Krueger said his intent, with the question he posed, was to clarify the point that this house could be higher than the two neighboring houses. He said he was not looking for conditions to be made. Mr. Kluessendorf asked if the house would still be nonconforming when the work was completed and if the nonconforming classification would allow for latitude in construction of the addition. He stated he has concerns because plans have not been submitted. Mr. Tucker responded the house is now nonconforming because it does not have a 25’ front yard setback. He stated the nonconforming classification restricts construction opportunities. He stated they are not requesting a reduction in the front yard setback requirement, but the opportunity to add on a sunroom and 2nd floor. Granting of the variance would allow them to exceed 50% of the total assessed value in modifications, with the intent to extend the life of the structure. Mr. Pietkivitch answered Mr. Kluessendorf’s concerns about not being able to see the proposed expansion, by stating stipulations could be made for the areas of concern. Chuck Drexler, 2708 Stoney Beach, voiced a concern about the garage being moved, because it could obstruct his view. Motion by Hentz to approve the variance to remodel and expand a nonconforming structure, exceeding 50% of the total assessed value of the structure. Seconded by Schorse. Motion carried 5-0. Unanimous. Finding of the fact: Chairman Krueger concluded it would be a net gain for the neighborhood, the structure would be improved, it would increase value throughout the neighborhood, and the shoreline is being preserved. VI: 1902 W MURDOCK AVENUE The City of Oshkosh, applicant, and JMJ of Oshkosh Inc., owner are requesting a variance to construct a ground sign with a 3’ front yard setback, whereas Section 30-24(B)(3)(c) of the City of Oshkosh Zoning Ordinance requires a 20’ front yard setback. Matt Tucker introduced the item presenting maps showing the location of the existing sign as to the location of the area that will be dedicated for right-of-way fot the Department of Transportation (DOT). Mr. Ameringer asked where else the sign could be located and if there were any objections from the neighbors. Mr. Tucker responded the sign would have to be 20’ back, which would reduce the ability for the applicant to move vehicles around, and it would lose the visibility impact. He stated there are no objections. Mr. Kluessendorf asked if the variance was for the existing sign. Mr. Tucker answered discussions, with the owner, have been in regard to the existing sign. He noted if in the future they would want a new sign, the request would come before the Board. Chairman Krueger added they would still have to have a conforming sign and codes would have to be met. Motion by Hentz to approve the variance to construct a ground sign with a 3’ front yard setback. Seconded by Kluessendorf. Motion carried 5-0. Unanimous. Finding of the fact: It was concluded the hardship was beyond the owner’s control because the DOT is taking his land. Ms. Hentz stated she would like clarification, from Warren Kraft, regarding the policy of Board members speaking to people in advance concerning variance requests. She said it is her understanding that when there is an appeal they should not discuss it with the applicant, but was not aware it is in violation of open meeting laws, to do so for a variance request. Discussion continued on this subject. There being no further business, the meeting adjourned at 5:50 p.m. Respectfully submitted, Matt Tucker Associate Planner MT/mld