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HomeMy WebLinkAboutMinutes BOARD OF APPEALS MINUTES October 10, 2012 PRESENT: Dan Carpenter, Robert Cornell, Dennis Penney, Kathryn Larson, Jane Cryan, Robert Krasniewski EXCUSED: none STAFF: Todd Muehrer, Associate Planner/Zoning Administrator; David Praska, Assistant City Attorney; Deborah Foland, Recording Secretary Chairperson Cornell called the meeting to order at 3:30 p.m. Roll call was taken and a quorum declared present. The minutes of September 12, 2012 were approved as presented. (Penney/Carpenter) ITEM I: 3348 FOND DU LAC ROAD Russell J. Reff-applicant, Jason R. Lasky-owner, requests the following variance to permit an at-grade patio in the minimum setback from the Ordinary High Water Mark (OHWM) of Navigable Waters: Description Code ReferenceMinimum Proposed Structure Setback from OHWM 17.20 (3)(a) 75’ 31’ Mr. Muehrer presented the item and distributed photos of the subject site. He stated that the property was zoned R-1 Single Family Residence District and is being used for single family dwelling purposes. The existing principal structure is 4,418 square feet with an 864 sf attached garage and a 196 sf detached gazebo and the general area is characterized as low density residential in nature. The City of Oshkosh is required to administer the Winnebago County Shoreland District Standards for properties annexed into the City after May 7, 1982 and this property was annexed on December 15, 1988. Winnebago County standards require any new structure to maintain a minimum 75’ setback from the Ordinary High Water Mark (OHWM) from a navigable waterway. The applicant is proposing to construct a 2,000 sf patio on the east side of the dwelling which will intrude 44’ into the required setback from the OHWM. The Board of Appeals Procedures and Regulations requires that the petitioners prove unnecessary hardship that is unique to the property and denying this request would not prohibit the single family residential use at the site. Moreover, a denial of the variance request would not restrict a patio from being constructed adjacent to the home but would not allow it to be constructed immediately adjacent to the family room which is a hardship unique to the property owner and not the property. Various combinations of pathways and landscape design enhancements could be utilized as alternatives to the proposed site plan which would accomplish the desired aesthetic value of the project. The application and supporting materials were forwarded to the Wisconsin Department of Natural Resources for comment and they did not feel that a legal hardship was present and that it would have a negative impact on the vicinity and the variance should not be granted. Staff was recommending denial of the variance. Mr. Carpenter stated that he was recusing himself from this request as he was personally acquainted with Russell Reff and his family. Board of Appeals Minutes 1 October 10, 2012 David Praska, Assistant City Attorney, stated that if Mr. Carpenter was recusing himself from voting on this item, he should not participate in discussion on this request. Mr. Cornell commented that he also had some contact with Attorney Reff but it had not been recently. Attorney Russell Reff, 217 Ceape Avenue, was present representing the owner for the request, and stated that the area deemed a navigable stream was what he would refer to as a drainage ditch as it was dry at times. He further stated that it was the only reasonable location for the proposed patio and he felt the variance should be granted. He commented that he was not surprised the Wisconsin Department of Natural Resources, (WDNR) did not approve of the request but felt that City staff should have recommended the approval of it. A representative of the WDNR did not visit the site and a different WDNR representative had granted permission for other structures in the harbor of the same site. He discussed variance requests and why they exist and that the most critical phase is preventing the owner from using their property as they so desire. He felt not allowing the patio to be placed in the area requested would unreasonably prevent the owner from using his property as people use outside areas of their property more than they used to in the past. He commented on the WDNR’s opinion that the storm water runoff would generate considerable amount of runoff that could be detrimental to the immediate vicinity and further discussed storm water runoff issues. He explained that the patio would be constructed and pitched in such a way that storm water would be diverting from the ditch and that the ditch drains other properties runoff prior to reaching the Lasky’s property. The additional runoff from the addition of the patio would be minuscule. He further stated that the location of the proposed patio is where any owner would want it to be and the ditch is what is creating the problem. The internal sidewalk and landscaping features suggested by staff are not reasonable and locating the patio off from the bedroom is not reasonable and could affect the value of the property. The fact that there are two 75’ setbacks on one property is unique and considering the size of the property, the patio will not be visible to any adjacent property owners and the nearest neighbor provided a letter of support for the variance request. He also commented that he did not feel this was a self created hardship as the home was not built by the Lasky’s and they were not aware that these restrictions existed regarding the shoreland setback requirements. He did not feel that the granting of the variance would cause harm to the public, would not effect the visibility of the lake view, and the storm water runoff would not be harmful to the vicinity. Mr. Penney questioned where the boat dock was located. Mr. Reff displayed on the map the location of the existing boat dock. Mr. Penney questioned what the distance was from the harbor to the family room. Mr. Reff responded that the ditch was the only problem with the shoreland setback issue. Jason Lasky, 3348 Fond du Lac Road, displayed on the map where the boat slip was located which was on the north side of the property with the boat located west of the ramp. Mr. Krasniewski inquired when the property was purchased. Mr. Lasky responded that it was purchased in 2005. Ms. Larson questioned when the home was built. Mr. Lasky indicated that the home was built in 1961 or 1962. Board of Appeals Minutes 2 October 10, 2012 Mr. Penney inquired if this property was part of the City’s jurisdiction at that time. Mr. Muehrer replied that the property was not in the City when it was built in the 1960’s however it was annexed into the city in 1988 prior to the Lasky’s purchase of the parcel. Mr. Krasniewski questioned if the City inherited the WDNR’s regulations. Mr. Muehrer explained that the City is responsible to enforce the County’s standards when it comes to shoreland regulations. Mr. Krasniewski commented that he felt it was relevant to determine the dates of when these regulations came into place. Mr. Praska stated that the house was built in the 1960’s and the statutory shoreland regulations were developed in the late 1960’s and the County was required to either develop its own shoreland regulation or enforce the state’s ordinance. The County developed an ordinance after the state legislation was in place which would have been in the late 1960’s or early 1970’s. He referred to State Statutes 59.692 Shoreland Enabling Regulations and read some excerpts from the document. These regulations would apply to any properties annexed into the City after 1982 and the state statutes require the City enforce the County’s ordinance. Mr. Reff stated that the County allowed the house to be built in the area that it currently exists and he had discussed the matter with the County who indicated that they never considered an at-grade patio to be a structure until recently and the WDNR also just recently started enforcing the regulations as such. Ms. Larson stated that she worked for the County zoning office for many years and the regulations have been interpreted this way for about 20 years. Mr. Reff stated that a Supreme Court ruling changed the standards at one time. Ms. Larson commented that there were other areas on the lot where the patio could be constructed and further commented that a patio is not considered a necessary structure. There were also references made from the letter submitted by the WDNR by Mr. Reff however those points were only part of the letter in its entirety which did not support granting a variance for this request. Mr. Krasniewski questioned where the runoff from the patio would be directed. Mr. Reff indicated it would eventually flow into Lake Winnebago. Mr. Lasky commented that the patio would be constructed so the water would drain to the north of the property into a grassy area rather than directly to the lake. Mr. Krasniewski stated that storm water runoff cannot be directed to flow onto neighboring properties. Gary Baeten, Shade Today Landscaping & Nursery, 1401 W. Evergreen Drive, Appleton, stated that he was the contractor for the project and explained how the water would drain into the ground prior to draining into the lake. He further explained how the paver patio system would not be bringing more water to the lake than before and referenced the site plan depicting the location of the patio and the area of concern. He explained Board of Appeals Minutes 3 October 10, 2012 that his system would pitch the patio to avoid the runoff being directed into the stream and how this new paver system is constructed to permeate the ground with the runoff. He passed around some literature explaining the system he proposed to install and gave a more detailed description of how the system functions. He stated that it essentially creates a dry detention pond and the storm water can be appropriately managed with this system which utilizes new techniques that people may not be up to par on. He further stated that he felt that the owners should not be held to current standards of building codes when the home was constructed in the 1960’s and the location of the patio was relevant regardless of the fact that it could be located elsewhere on the site. Mr. Lasky stated that part of his responsibility at his company is storm water management so he understands these concepts and that he is also dealing with everyone else’s storm water runoff that is upstream from his property. He further stated that the construction of the patio should actually make the situation better as this new paving system is meant to deal with storm water management issues. Mr. Krasniewski commented that the soil base in Oshkosh is clay and does not drain well and questioned if the soil had been tested. Mr. Baeten responded negatively. Mr. Krasniewski stated that the paving system must have enough capacity to hold all the runoff from the patio and questioned if the property was located in the flood plain. Mr. Lasky indicated that a portion of the property was in the flood plain but not any part of the area designated for the patio. Mr. Krasniewski stated that he researched the property and the ditch/stream has remained constant for the past 20 years and 2/3 of the patio would be located outside of the setback. Mr. Baeten commented the location of the patio was important to the owner as no one wants a patio near their bedroom. Mr. Lasky stated that the shore land requirements reduce the area where the patio could be located and he felt the property was unique with its limitations. Mr. Krasniewski inquired if the property owner was aware of the setback area when the property was purchased. Mr. Lasky responded negatively. Mr. Penney questioned what the distance was between the south edge of the house and the ditch. Mr. Lasky indicated that it was 38 feet and the patio would be following the same line as the home however the setback varies as the ditch meanders through the parcel. Mr. Penney commented that the house already encroached into the shore land setback area when it was purchased. Ms. Larson added that nonconforming structures are allowed to remain as is however the property owner is not allowed to expand upon the encroachment with new construction. Board of Appeals Minutes 4 October 10, 2012 Mr. Cornell discussed water absorbing and runoff processes and asked for clarification on the paver system that was described previously. Mr. Baeten further explained the drainage system and stated that all water eventually soaks in however red clay sheets off more than other types of soil. He commented that his paver system would give the runoff from the patio a place to settle and it would not make the situation any worse than it currently exists. Ms. Larson commented that the conversation was getting side tracked with discussion on runoff issues and the proposed structure still needs to meet the shoreland setbacks as the “ditch” is an existing navigable waterway per the WDNR. Mr. Reff stated that the property owner was still faced with having to abide by unreasonable and unnecessarily burdensome restrictions and that it was also unreasonable to suggest that any soil testing should be performed to install a patio. Mr. Cornell questioned whether the Board was being asked to grant a variance for the property or the property owner as there were other options for location in this case. Mr. Lasky responded that the other options available for the location of the patio bring down the property value and that granting the variance would bring no harm to the neighbors or immediate vicinity or the storm water runoff in the area. He felt he possessed a hardship as he cannot change how the house was built and the addition of the patio would both benefit the community and the neighboring properties. Mr. Reff stated that complying with the regulation is unnecessarily burdensome. Motion by Krasniewski to approve the request for a variance to permit an at-grade patio in the minimum setback from the Ordinary High Water Mark of Navigable Waters. Seconded by Penney. Mr. Penney stated he would like to know when the ditch was declared a navigable waterway and when the 75’ setback limitation went into effect. Mr. Krasniewski commented that the City was required to administer the County’s Shoreland District Standards for properties annexed into the City after May 7, 1982 and this property was not annexed until 1988. He also stated that from the conversation during deliberations it appears that the ordinance has been in effect for 24 years. Ms. Larson confirmed that the 75’ foot setback has been in effect since the 1970’s. Mr. Krasniewski stated that it appeared that this was declared a navigable waterway prior to 1988. Mr. Praska commented that the Board should determine findings of facts for the variance if it is approved or denied. Mr. Cornell stated that the Board usually only has findings when a variance is approved. Mr. Penney inquired what recourse could be taken if the variance was denied. Board of Appeals Minutes 5 October 10, 2012 Mr. Praska indicated that either the property owner or the WDNR could sue depending on the result of the variance hearing. Mr. Reff added that the decision is difficult to reverse. Mr. Praska stated that since there could be repercussions from either the owner or the WDNR in this case that findings of facts should be determined regardless of whether the request is approved or denied. Motion denied 1-4. Ayes-Cryan. Nays-Cornell/Penney/Larson/Krasniewski. Finding of Facts: Unable to establish hardship. Approval of variance would allow a benefit not enjoyed by other property owners. Not a true hardship to property. Self imposed hardship. ITEM II: 1886 RATH LANE La Quinta Inn-applicant, Bre LQ Properties LLC-owner, requests the following variance to permit an eight (8’) foot high fence in the minimum front and side yard setbacks: Description Code ReferenceMinimum Proposed Fence setback 30-35 (E)(4) 25’ (front) & 15’ (side) 0’ (front & side) Mr. Muehrer presented the item and distributed photos of the subject site. He stated that the property is split- zoned C-2 General Commercial & R-1 Single Family Residence Districts within the Highway 41 Corridor Overlay and is being used for commercial hotel purposes with the general area comprised of predominately commercial uses. The applicant is requesting the variance for the proposed fence for screening purposes as a result of the recent US Highway 41 project that reconfigured the interchange. The hotel facility is attempting to mitigate the visual blight caused by the neighboring maintenance building at the golf course which was previously not an issue as the main entrance was located on Omro Road. With the hotel’s access being relocated to Rath Lane, the main entrance is now adjacent to the rundown maintenance building. The proposed fence placement has been discussed with neighboring property owners and was well received and a unique situation and justifiable hardship has been created with the highway project and reconfiguration. Alternatives to the fencing would be tree/shrubs to screen the area and would have the same limitations of the fencing as far as height restrictions and no vision problems would result from granting the variance as no street intersections or driveways are close to the proposed location of the fencing so it will not be detrimental to the public. Mr. Muehrer further stated that a fax was received this morning from staff at the golf course affirming that the placement of the fencing would not have any adverse effect on the golf course and they would support granting the variance. Christopher Mueller, 1886 Rath Lane, and Bryan Coulthard, 2294 Meadow Height Circle, Neenah, were both present to represent the La Quinta Inn. Mr. Coulthard stated that the Highway 41 project has been difficult and they were trying to make the new entrance as attractive as possible. Mr. Mueller read a letter from the Louis Giannopoulos, owner of Two Brothers Restaurant, 1930 Rath Lane, which he submitted for the record supporting the request for the variance. Board of Appeals Minutes 6 October 10, 2012 Mr. Krasniewski questioned why they were not requesting to extend the fence the entire length of the property. Mr. Coulthard responded that they have removed a few trees along the back side however the rest of the view wasn’t that bad and the hotel’s laundry facilities were also located on the back side of the building. Mr. Carpenter inquired if there would be other landscaping along the fence. Mr. Coulthard replied that the parking lot area backs up along the proposed fence. Motion by Penney to approve the request for a variance to permit an eight foot high fence in the minimum front and side yard setbacks. Seconded by Cryan.Motion carried 5-0. Mr. Krasniewski commented that the City should be embarrassed by the condition of the maintenance building. Finding of Facts: No harm to public interest. Eyesore from building creates hardship. Least variance necessary. ITEM III: 1414 ELMWOOD AVENUE Kirk J. & Susan Kaufman-applicant, Kirk J. Kaufman-owner, requests the following variance to permit a single-family residential driveway in the minimum side yard setback: Description Code ReferenceMinimum Proposed Side yard setback 30-36 (B)(1)(b) 2.5’ 0’ Mr. Muehrer presented the item and distributed photos of the subject site. He stated that the property is zoned R-2 Two Family Residence District and is being used for single family dwelling purposes. It is an irregularly shaped lot with a structure built in 1953 with the general area characterized as low density residential. The applicant constructed a concrete driveway to replace the poorly conditioned asphalt driveway which has existed for 60 years leading to the garage without a valid building permit and a variance is required because it intrudes 2.5’ into the required side yard setback. The special condition is the parcel’s irregular shape limiting legal placement of the driveway and the hardship that would result if the variance was not granted by loss of the functionality of the driveway. The variance is being recommended for approval. Kirk and Susan Kaufman, 1414 Elmwood Avenue, were present to answer any questions. Ms. Kaufman stated that she made an error in not obtaining the building permit prior to the construction however she has always lived in a township in the past and was not aware of the ordinance requirements. She further stated that their driveway was beyond repair and water drained into the garage after a rainfall. They received a correction notice from the City regarding the lack of permit and discussed the matter with Jeffrey Nau of the City’s Planning and Zoning office. A permit could not be obtained until the request went through the process of receiving a variance and one of the adjacent property owners was present who had offered to sell Board of Appeals Minutes 7 October 10, 2012 them a portion of land to give them the necessary area to meet the setback requirements however this was not feasible as it would have made his lot nonconforming by reducing its size beyond minimum requirements. Ms. Kaufman also provided a letter from the other adjacent property owner, John Murphy, Jr., 1422 Elmwood Avenue, stating that he could not be present for the hearing but did support their variance request. She also commented about the amount of traffic parking on the street in their neighborhood as they are located across the street from Paine Art Center and Arboretum. She also discussed the upgrades to their home they have completed and the odd shaped lot it possesses and displayed on the site plan the difficulty with parking due to the narrow driveway and the hardship that would be imposed if it had to be setback 2.5’ from the lot line. She discussed the amount of traffic on their street and the fact that there is no parking on the street on their side of the road. Mr. Penney questioned if the driveway would be the same size as the previous one. Mr. Krasniewski inquired what contractor completed the project. Ms. Kaufman responded that the driveway was in the same footprint as the previous one and friends completed the project so no contractor was hired. Mr. Krasniewski questioned if the driveway meets the City’s code standards for depth. Mr. Muehrer responded affirmatively. Mr. Carpenter inquired if the curb cut was an existing one. Ms. Kaufman responded affirmatively. Ms. Larson again questioned if the driveway had been widened when it was re-constructed. Ms. Kaufman indicated that it was the same width as before and it may be the angle of the photo that makes it look different. Paul Mankini, 1408 Elmwood Avenue, stated that he is the adjacent neighbor on the driveway side of the property and he felt the replaced asphalt enhances the property and brings up the property values in the neighborhood. He discussed the situation with Inspection Services and was in support of the variance request. Motion by Carpenter to approve the request for a variance to permit a single-family residential driveway in the minimum side yard setback. Seconded by Penney.Motion carried 5-0. Finding of Facts: Safety issue. Unique shaped lot. Improvement to neighborhood. No harm to public interest. Board of Appeals Minutes 8 October 10, 2012 OTHER BUSINESS Mr. Cornell requested that either Mr. Praska or the City Attorney attend the next meeting to discuss and clarify findings of facts on denials of variances which has not been done in the past and also to discuss any other procedural processes that need to be addressed There being no further business, the meeting adjourned at 4:55 p.m. (Cryan/Carpenter). Respectfully submitted, Todd Muehrer Associate Planner/Zoning Administrator Board of Appeals Minutes 9 October 10, 2012