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BOARD OF APPEALS MINUTES
January 9, 2013
PRESENT: Robert Cornell, Kathryn Larson, Jane Cryan, Robert Krasniewski
EXCUSED: Dan Carpenter, Dennis Penney
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 December 12, 2012 were approved as presented. (Carpenter/Cryan)
ITEM I: 1880 STILLMAN DRIVE
Background information on the request:
Sentry Security Systems, LLC-applicant, Old Dominion Freight Line Inc.-owner, requests the following
variances to permit a 10’ high fence in the minimum front and side yard setbacks:
Description Code ReferenceMinimum Proposed
Front (north) yard setback 30-30 (B)(1) 30’ 0’
Front (south) yard setback 30-30 (B)(1) 30’ 23’
Side yard setback 30-30 (B)(2) 20’ 0’
Muehrer: Sentry Security Systems, LLC-applicant, Old Dominium Freight Line, Inc.-owner, requests the
following variances to permit a 10’ high fence in the minimum front yard and side yard setbacks. Code
requires 30’ on both frontages and 20’ in the side yards. The applicant is proposing to construct a 10’ high
electrically-charged fence approximately 4” to 12” inside the existing chain link fencingthat encloses the
entire perimeter of the subject development. Variances are required because the proposed new 10’ high
fencing would intrude completely into the required minimum front yard (north) and both side yard setbacks
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as well as 7’ into the front yard (south) setbackThe Board of Appeals Procedures and Regulations
document states the burden is upon the petitioner to prove the need for the variance. The submitted
application states the proposed 10’ high electrically-charged fence is needed to enhance security beyond the
existing system in place. Specifically, the business is targeted due to the high value of the goods stored on-
site and subsequently has suffered rising crime resulting from the flagging economy. However, the City of
Oshkosh Police Department reports one theft at the subject parcel is on record. No other theft thefts are noted
in the City of Oshkosh Police Department records for the property and no demonstrated history of repeated
crime has occurred. Regarding alternatives, the City of Oshkosh Police Department reviewed the current
request as part the Crime Prevention Through Environmental Design analysis. That review is a multi-
disciplinary approach to deterring criminal behavior through environmental design in advance of the criminal
activities. The report for this proposal is included with this staff report. A summary of the report
recommendations to improve security of the premises included improved perimeter lighting; maintenance of
existing landscaping; enhanced security on parked trailers in the off-street loading facility; alarms on the
building; and camera installation. Regarding the fencing variable, the CPTED report notes the existing 6’
high chain link fencing to remain is already augmented by 2’ of barbed wire and outriggers. Likewise a 6’
Board of Appeals Minutes 1 January 9, 2013
high electric fence is installed inside the perimeter of the non-electric fence and questions if such fence was
in place during the one break-in incident. The report also notes electric fences can be defeated by proper
insulation and/or the intruder’s overall desire to enter the property. Finally, the circumstances presented in
the application are hardships unique to the property owner and/or tenant rather than the parcel itself.
Additionally, the request is contrary to public interest as the proposed 10’ high fence within setbacks will
create a design outlier in the immediate vicinity and open the code to be challenged in the future. Denial of
the variances as requested is recommended.
Cornell: Okay do we have someone here in the audience wants to come and speak to this item. And your
name and address for the record please. That doesn’t work.
Cindy Gsell: Which is fine. My name is Cindy Gsell, 121 Executive Center Drive, Columbia, South
Carolina, Business Development Director for Electric Guard Dog Sentry Security Systems which is the
owner that is in question being installed at the Old Dominium on Stillman Drive. Let it be noted that yes the
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fence is now installed at 6 feet high. It was permitted on December the 19 We installed it on December
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19 after receiving a permit to install up to 6 foot high which is allowed by code. So the question here is not
whether or not we want to allow the electric fence to be permitted and installed that has already been
approved and installed, the question here is on the height only. It was not installed at the time of the break in
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which was on December the 3. It was installed Old Dominium is now Old Dominium uses this perimeter
security system nationwide in all their new installations and they’re outfitting retrofitting many of their older
installations because it is such an effective perimeter security system. To speak to many of the issues that
were raised in the both staff report and CPTED report and I I would like to to do so. First on the setbacks I
understand the setbacks we are a perimeter security system and in order for this system to be effective and
the standards for this system they are national standards for electric security fencing is that it be installed 4 to
12 inches behind the existing perimeter fence that we passed around that was submitted with the application.
This fence is completely surrounded by a perimeter security system just so that it’s important to know that
just so that if you do have any hesitation about it it never comes in contact with an innocent passerby or the
public. It’s on the private property it’s in the and completely surrounded by a perimeter fence. It is not used
for residential but rather used for commercial and industrial type settings which this is an industrial type
setting. It is used to protect businesses that utilize outside storage that are allowed to have outside storage
and that have to have outside storage such as a trucking terminal. A trucking terminal can’t bring their can’t
bring their trucks into a building. The the nature of the business is that the that the freight maintained is
maintained on the trucks overnight and on the weekend and then its moved on but its not moved off of the
trucks and into a storage building that’s just not the nature of that business its of the industry. So it is
important for this security system to be around the perimeter and afforded to just inside the perimeter fence.
If you were to bring this in thirty feet in order to make it to be allowed to go ten feet you would be taking off
thirty feet around the entire perimeter of a trucking terminal and that’s just not feasible in a in a in a a
business that is basically a parking lot with a center center building and the trucks. They don’t have that sort
of space. You also then create a thirty foot no man’s land that’s unmaintainable. This fence again is
completely surrounded so there is no entrance and exit to this fence its only at the gate of the business so if
you create a thirty foot setback you create a distance between the perimeter fence and this security fence
you’ve got a thirty foot strip of land that can’t be maintained is totally useless and not a viable resource or an
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option for something such as a trucking terminal. There was a theft in December on December the 3 of two
loads of copper wire however in talking with with Phillip the terminal manager if they had gone two trailers
down and gotten in that trailer instead of the copper wire trailer they would have gotten a full load of
firearms and ammunition and I don’t think you want that kind of stuff out in your city. If you think about
what a trucking terminal does it it has it stores it moves it maintains a high inventory of very valuable highly
fenceable goods. One single truck can have $250,000 to over $1,000,000 worth of inventory on it and it is
critical that they be maintained that they be protected. Old Dominium sees us as their first line of security.
Board of Appeals Minutes 2 January 9, 2013
They install this system everywhere they go. The reason we need to be ten feet from that front setback is if
you look at the pictures of the um I’ve got some pictures I’m not sure of what all you have but I’ve got an
actual picture of the fence that I’ll be glad to pass around. What we’re talking about if a customer maintains
this perimeter which would be the chain link that would be their perimeter fence the electric fence that we
are talking about is this these fiberglass poles and twenty strands of wire. So what you’re talking about these
strands of wire are eight feet apart at the top so if you’re talking about the difference between eight foot and
ten feet you’re talking about three single strands of wire. So for aesthetic purposes it’s really not that much
its much less intrusive than barbed wire much less intrusive visibly than razor wire. The thing that makes
this system work are these signs that are posted every sixty feet that say warning electric fence. We don’t
say warning saved pulsed electricity battery powered this won’t hurt you go ahead and try. We don’t say
that we just say warning electric fence. That’s enough to deter most perpetrators from trying to come in
because they don’t know what type of electric fence it is and that deters about 98% of crime once these
fences are installed. Great system. I’ll pass it around so you can see exactly what the aesthetics are that
we’re talking about. Um also again in this in this uh report electric it is stated that electric fences can be
defeated by proper insulation. That is true. Any security system can be defeated by a proper insulation but
the theft that occurred in December that came in from the side that has the cement business on there and they
came in the cement business has cameras and they came in through their property and cut the fence on that
side. Those cameras didn’t deter them from you know. The cameras on the cement side actually protect their
property and they certainly didn’t deter the perpetrators from being on their property and coming across.
Um, these fences actually these signs and the fences actually deter crime from happening rather than report it
which is what a camera does. Um, the things that make this hardship unique to this particular parcel because
they say that um maybe the the hardships noted were not unique to this property. This is a very isolated area
there is like six or eight businesses on that on that area. All those businesses are closed at nights and
weekends that is typically when this fence is run. Its as well as Old Dominium has no one on site during the
nights and weekends so its very isolated there is a lot of high valuable inventory down there. It’s a its even
admitted by the policeman who came out to do the CPTED study or no the policeman who came out to do
the um take the police report for the crime that occurred in December that its not a very well patrolled area.
There’s just not a need for patrol out there. There’s not enough business for patrol and with the installation
of this fence it requires less patrol because it deters the crime so your your police officers can patrol other
areas as needed. Um there are approximately 30-40 trucks every night and on the weekend on this lot with
as many as anywhere from $250,000 to over $1,000,000 worth of inventory. Um now that is okay. Lighting
was was um discussed in the CPTED report they said that we need to change the lighting while all the
lighting is on top of their building and it does shine out towards the whole property. The CPTED report
suggested making lighting around the perimeter. The perimeter you really want to light the facility and the
trucks the fence just goes along the perimeter to keep the perpetrators from coming in but there is lighting on
top of the building and it does light up the whole parking lot. Uh landscaping they suggested some things
about landscaping that grasses could be cut to three inches and have a thirty foot clear zone around the fence
and bushes to be maintained. If you look at that at the pictures on there there is no bushes around it there is
no landscaping there is nothing that hides that. It not like the criminals have a place to come in and can be
hidden by landscaping so we don’t feel like uh an improvement in the landscaping would help deter the
crime because there are no there is no landscaping there that allows the criminals or perpetrators a place to
hide. Um trailers in the lot they recommend the CPTED report recommends that all valuables be removed
from the trailers when the businesses are closed and placed inside the building. While that’s simply not the
nature of the business. You can’t empty off the trailer this is a trucking terminal where the inventory is
stored in these trucks. You can’t expect them to all be emptied and put into a building at night and put back
on the trailers in the morning that’s just not the nature of the industry. Alarms on the building suggest
alarming the buildings and the doors and the windows again it’s not the doors and the windows that need the
protection it’s the the whole lot the outside storage where the trucks are that need the alarms and also this
burglar this fence system is an alarm. It’s an alarm system we’re licensed as an alarm company in most
Board of Appeals Minutes 3 January 9, 2013
jurisdictions. Um if someone does perpetrate this fence cuts it breaks the uh spreads it open breaks the
circuit in any way it becomes a monitored burglar alarm. It’s an audible alarm that sounds it calls into a
security warehousing dispatch and dispatches the terminal manager. It just like your Brinks home security or
your ADT home security it is a monitored burglar alarm so that is the alarm that we are looking for. But of
course that wouldn’t do alarms on the building and windows would not help in this instance. Um they they
wanted to know uh the fencing it says from the observation from the outside it says that there’s a fence an
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electric fence already there. That is the fence that was installed on December the 19 that we did get
permitted for. It is there we are just trying to now extend the height to the ten foot height which is the
industry’s standard for electric security fencing. The reason you need to be taller the perimeter fence is
never electrified. Again that perimeter fence that the passersby would come in contact with is never
electrified. If both fences were the same height one would climb and again remember they need to be four to
twelve inches apart because you don’t want to create that huge entrapment zone or that huge no man’s land.
If the fences were the same height or if we were shorter than the perimeter fence we were only allowed to be
six foot with a perimeter fence that is six foot that has two feet of barb wire than someone would climb the
perimeter fence hop over our fence and be in and you would have lost all your security value. If we’re the
taller fence someone could still climb the perimeter fence but then they would have two feet or four feet of
electric fence that they could not climb. And again its two feet above the barbed wire so you’re only talking
about three single strands of aesthetics in exchange for a safe and and secure lot that’s the need for the
height. Um I think that’s all I have in rebuttal of the reports that were issued again from an aesthetics view
I’ll just show you this is what a fence looks like. You’re talking about this part up here. It’s really not that
um it really looks like one single fence to a passerby. The way you really notice the fence is because of the
sign they’re every sixty feet and again that is the deterrent. Um I’ll be happy to answer any questions but
again we’re here not for the electric but for the height and the height needs to be taller than the maximum
height allowed to permit the fence.
Larson: I have two questions for you. One is could you electrify the uh barbed wire at the top of the six foot
and would that deter.
Gsell: Not just the well we don’t deal with the barbed wire at all. The barbed wire is on the perimeter fence
um if you electrify only from six feet up by putting six foot fence that’s not electrified and has electric
barbed wire that that does you no good because somebody cuts through the chain link that’s how they came
in this last time they cut through the chain link fence and came in so you do need the electric fence on the
inside and its electrified all the way up.
Larson: Okay. Second question I presume there are gates that close at night.
Gsell: Yes ma’am.
Larson: How are those going to be any different than coming over any other six foot fence these these
interior fences aren’t going to.
Gsell: We attach to the gate the only place on the entire fence that we attach is on the gates.
Larson: Okay.
Gsell: However the chain link gates still from the outside is not electrified and I can show you a video if you
want to see it of of us touching of a volt meter on the fence with 10,000 volts and us touching the the
perimeter fence. The perimeter fence is not electrified we attach to the gate so that we move with the gate
and open with the gate.
Board of Appeals Minutes 4 January 9, 2013
Larson: Okay that answers my questions.
Gsell: They’ll have the protection where they can’t go over. You have to have to provide an additional
footage over the non-electrified fence in order for the system to in order for the criminals to to be sorry the
perpetrators to um.
Cornell: If I understand you correctly then you can electrify the gate without even affecting the six foot
fence on either side of it that the gate is attached to.
Gsell: You can electrify the chain the the electric fence that attaches to the gate uses um pole connectors and
it does not transfer to the chain link only fence. So if the if the electric fence were turned on cause it’s turned
on and off. They turn it off when they leave and they turn it they turn it on when they leave and off when
they come in in the morning. If it’s turned on you can lean up against that outside of that chain link gate and
chain link fence to your hearts content and you would never feel any voltage. The only time you are going to
come into contact with voltage is if you touch one of the wires and it’s a pulsed one ten thousandth of a
second in duration battery twelve volt battery powered solar panel charge it doesn’t plug into your main its
its like a slap with a ruler on your hand. I touched it I got a video of me touching it but again the electric
fence it not what’s really in question it’s the height and I’m just here to explain the electric fence so that you
can understand the need for the additional height above what your maximum fence height is.
Cornell: Go ahead Kathy.
Larson: One more question of Todd. Is that entire area industrial out there.
Muehrer: Yes it’s the north industrial park.
Cryan: Listen um I have a couple of questions. In addition to uh firearms in the trailers what other types of
materials would be on your lot.
Tim Behling: Do I have to say my name and everything.
Cornell: Name and address for the record please.
Behling: Tim Behling uh address of business 1880 Stillman Drive. I’m the manager at Old Dominium.
Cornell: Okay.
Behling: Um we’re a general commodities company. We haul everything firearms, chemicals, TV’s, stereo
systems, we name it we haul it. Uh there’s there’s very little we won’t haul so on any given night one or all
of those could be within the yard.
Cryan: Okay. And where are the tractors are they under the roof or
Behling: The tractors
Cryan: disengaged from the trailers.
Behling: Yes they’re all disengaged from the trailers.
Board of Appeals Minutes 5 January 9, 2013
Cryan: Okay.
Behling: This time of year we have to plug them all in so they start.
Cryan: Oh alright.
Behling: But uh usually they are up against the building also or they’re locked and keys are inside the
building.
Cryan: So you do have the whole rig on the lot.
Behling: Right correct.
Cryan: Okay. And you’re always leaving freight in the trailers when they’re parked here.
Behling: We have trailers that can be in and out of out of the terminal all night long.
Cryan: Okay.
Behling: And uh but the terminal itself there’s not personnel in there to unload the trailers.
Cryan: I get it.
Behling: So like on Friday nights and on Saturday morning when all these trailers come in uh they’ll sit until
Monday morning and then they all eventually get back in and and unload.
Gsell: And then reloaded.
Behling: And then reloaded down their trailers.
Cryan: Okay. And did I understand correctly that a ten foot security fence is the industry standard and that
would mean nationwide.
Gsell: Yes ma’am.
Cryan: Okay. Thank you.
Gsell: Sure.
Cornell: Go ahead Bob.
Krasniewski: How long has this facility been there.
Behling: We’ve been in there for about eight years.
Krasniewski: How many uh thefts break-ins have you had in eight years.
Behling: Just the one.
Board of Appeals Minutes 6 January 9, 2013
Krasniewski: Just the one. Um your nearest neighbor your nearest like neighbor down the road is Federal
Express. Do they have a similar system.
Behling: They do have I don’t know if their fences are electrified or not.
Krasniewski: Okay.
Gsell: They do use our fences though in many of their locations.
Krasniewski: They obviously don’t have a ten foot fence on this property unless it’s in a setback area.
Muehrer: In a setback area. It was recently developed. Correct.
Krasniewski: Oh one one other thing. The um crime prevention report that was made was that did you
either of you discuss that with the police or is that something that they did.
Behling: They just did.
Krasniewski: So you have no no there’s been no contact with the police department other than this report
being given to us it was given to you.
Gsell: It was given to me. I also got a copy of it.
Krasniewski: But you hadn’t talked to the police about what you could do to do better.
Gsell: No.
Cornell: Any other questions. Okay if not is there any other interested property owners that would like to
testify.
Gsell: I did get do you want to tell them.
Behling: Just before I was working with uh the concrete company next door and they they had installed
cameras up there just for the reason people were coming in and stealing their stone. Caught somebody in
their building uh if they ever reported it or not I have no idea. But just before I was getting ready to come to
this hearing the owner of uh Corrim Door right next door Robert Gluth uh he he stopped by and he had
gotten the notice that he was having a hearing and forgot all about it but he uh he just said uh let him know
I’m 100% in favor of this he says if you he says if you need me come down there call me uh but I just can’t
come down right now. So.
Gsell: He left his number if anybody.
Behling: I have the number of his cell phone if you want to call him right now. Not against it uh he’s
actually increasing his security around his building too uh I didn’t ask why if he’s having problems or
anything else but uh usually when there’s an increase in security that’s usually.
Cornell: Thank you. Anything else. Okay back to the board for discussion.
Board of Appeals Minutes 7 January 9, 2013
Krasniewski: Do we need a motion.
Larson: I’m struggling with this.
Krasniewski: Yep.
Cornell: Make a motion. Let’s get a motion on the table for discussion.
Krasniewski: Let’s have a motion to approve. I move that we approve this.
Cornell: Okay. Do we have a second.
Larson: To approve. Okay I’ll second.
Cornell: Moved and seconded then. Go ahead with your discussion.
Larson: Mine is that I know that its contrary to ordinance but I also know that ten feet ten foot fences are
standard for lots of yards with outdoor outside storage and um the setbacks I know in Winnebago County are
not as great as the thirty feet which I’m not saying if its right or wrong but that’s why I’m struggling. I do
feel the ten foot is required for this kind of business and maybe the ordinance needs to be changed.
Cornell: Go ahead Bob.
Krasniewski: Um Todd is is we our maximum height is six feet correct for a fence.
Muehrer: Well depending on where it’s located and what type of property it is there are different standards
for different properties.
Krasniewski: Alright this this fence is eight feet that’s there the current.
Muehrer: The current one is eight feet.
Krasniewski: Is eight feet.
Muehrer: What was actually permitted in the file though was six feet the two feet.
Krasniewski: So the fence there is illegal.
Muehrer: The additional two feet was found out. Correct
Krasniewski: The six foot fence is now illegal.
Muehrer: That’s a whole separate issue.
Krasniewski: But the barbed wire is illegal correct. Or against its not illegal it’s outside of the it’s outside of
the permit.
Muehrer: Correct.
Board of Appeals Minutes 8 January 9, 2013
Krasniewski: So you have a six foot fence.
Muehrer: No. No. Let’s back up.
Krasniewski: Or is it.
Muehrer: No. No. Let’s back up. I think we’re talking we’re talking about two different things.
Krasniewski: I know I’m talking about the original fence.
Muehrer: The original six foot fence that is on the perimeter that was pulled prior to the one that they did in
the middle of December.
Krasniewski: Right.
Muehrer: That permit that was pulled from my recollection was based on a six foot fence. That it was
issued I believe in the early 2000’s.
Krasniewski: So the two feet of barbed wire on it.
Muehrer: Some point in time it was installed with two additional feet of barbed wire we don’t know when
that occurred. And then they can in um this current company the company slips my mind but they they came
in within the last month and pulled the additional six foot fence.
Krasniewski: On the inside.
Muehrer: On the inside that is currently electrified.
Krasniewski: And it’s not really a fence if you if you look at it it’s not really a fence its just strands of wire.
Now if I’m not mistaken each one strand is powered and one strand is grounded is that not correct.
Gsell: You’re good. The first ten the first ten wires are that way. The top ten are all powered are all all
powered.
Krasniewski: So you need to be grounded.
Gsell: It is grounded. It’s got three ground wires.
Krasniewski: How do I touch if I touch the top ten wires and I’m not grounded so they’re not going to do me
they aren’t going to hurt me at all are they.
Gsell: You touch two together.
Krasniewski: Two together. Okay.
Gsell: We will uh we will we’ll agree to remove that barbed wire cause you don’t have to have that on.
Krasniewski: It’s not a okay it’s its not a the fence the fence design is is not material here as you said.
Board of Appeals Minutes 9 January 9, 2013
Muehrer: From a staff’s standpoint when we were evaluating this in addition to the CPTED report which
again is not intended to be all inclusive it’s just intended to provide recommendations to enhance the
security. We also looked at it from the standpoint that we also have the the pillar so to speak that the State
has set up that the if the tenant moved in this case what are the characteristics of the property itself that
would lead credence of allowing a ten foot high fence at that property. From our standpoint we just kept
going back to its still going back to the use itself. Its not it’s not like a wetland case where you have to
modify your dimensions to meet setback or something like that. You also have again you have the a ten foot
high fence with two frontages in a major corridor and industrial park so you are going to have a substantial
street presence on two frontages. Again between all those circumstances with along with the CPTED review
we felt and again our discussions with the police department also lends us to the fact that without going into
too great of detail the crime that occurred it didn’t matter whether it was a fifty foot fence that was there or a
six foot fence it was going to occur. And going back to your original question the way they entered the
property it didn’t matter whether they had a large fence or not.
Krasniewski: I was I was trying to find I found the police report number.
Muehrer: I was told to try to keep it in confidence as much as I could so I don’t want to overstep my bounds.
Krasniewski: Well I looked up the police report number but I couldn’t get any further data on it and I didn’t
have time to talk to you about it.
Muehrer: So and again I don’t know how far that’s along so I don’t want to reveal anything publicly I can’t.
Krasniewski: That’s fine with me. Okay.
Muehrer: But again going back to your original question again they’ve been there for eight years there is
there is not a large demonstrated occurrence of crime out there thank God.
Krasniewski: Is this is this is this facility originally built eight years ago. Its eight years old. Or was
Muehrer: Uh that I don’t think so I think they acquired it.
Behling: Its thirty years old.
Krasniewski: Thirty years old.
Behling: Several different companies have been there.
Krasniewski: We have theft on do we go back any more than just these this current owner on on the police
reports or is it did they do it by address.
Muehrer: I believe they do it by address so if there was anything in the file they would have had a record of
it.
Larson: The week before there might not have been trucks there to steal from.
Krasniewski: It’s been a terminal for thirty years.
Larson: It’s been a terminal oh I’m sorry I missed that.
Board of Appeals Minutes 10 January 9, 2013
Cornell: Go ahead you can speak.
Gsell: I disagree with that statement about that the crime would have happened whether the fence was there
or not because from what I understand the chain link was cut and that’s how they entered the property. If our
fence had been there and the signs were there there would have been signs and they would probably have
been afraid to cut through the electric fence. With it six feet it might have happened because they could have
gone over the fence but if our fence was there and it was taller than the perimeter fence they would have they
probably would have been scared to cut through it and then they would not have been able to scale it. So I
think if it had been a ten foot tall fence there that crime probably would not have happened.
Krasniewski: Criminals aren’t known for their intelligence. If they would have done a little research you
can cut each one of those wires individually and no one is going to get hurt.
Gsell: But they don’t.
Krasniewski: But they’re not but they’re not always the brightest people in the world.
Gsell: They’re going to see an electric fence and its going to be a deterrent.
Krasniewski: I don’t see can they read the sign.
Cornell: Okay any other questions from board members.
Krasniewski: I have no questions there our discussion is internal here.
Cornell: Okay. Then let’s we’ll cut off the public discussion get it back to the board.
Krasniewski: That’s where I though we were.
Cornell: Very good.
Larson: I don’t know.
Krasniewski: Any ideas Jane.
Larson: We could add a condition that it be removed if this current owner occupier uh moves out correct.
Muehrer: Um Mr. Praska do you have any comment on that. I’m not sure if that’s legal or not based on use.
Cornell: David for the for the record could you give your name and position so Deb can have it in the
record.
David Praska: David Praska the Assistant City Attorney and there was a law change for variances taking
effect in spring of 2012 and that’s the law simply states that variances are permanent and run with the land
unless when it was granted it had an expiration date on it. Obviously that’s a change and that’s something
we were going to talk to you about after your meeting today and we are going to talk to you about it next
month.
Board of Appeals Minutes 11 January 9, 2013
Larson: Okay. Got that.
Praska: If you have to be um careful about over using that change because um you might be tempted to grant
that to certain property owners for certain purposes and um either way that you should remember what Todd
said and the ultimate purpose of the variance is to deal with a hardship related to the property and not a
hardship related to whether it be a trucking company or a house residence or whatever it is.
Larson: Understood.
Praska: But to answer your question is the law Wisconsin law now states that it is possible to have some
type of a sunset on variances.
Cornell: Okay. Any other questions or discussion from the board. If not we have a motion and a second if
the discussion is over call for the vote.
Deborah Foland: Larson.
Larson: No.
Foland: Cryan.
Cryan: I’m going to vote yes in favor of the petitioner for two reasons. Um number one the ten foot is an
industry standard nationwide and number two um the fact that they are transporting and overnighting
firearms on the lot uh plus other valuable inventory I think makes it imperative that they have better
perimeter security. So I am voting yes.
Foland: Krasniewski.
Krasniewski: No.
Foland: Cornell.
Cornell: No. Okay your variance has been denied. We need findings from the board.
Praska: I recommend you do findings yes.
Krasniewski: There is there is no there is no unusual or physical limitations on the property.
Cornell: Anything else.
Gsell: Thank you. Can you inform me what your appeal process is.
Cornell: Uh
Gsell: Is it City Council.
Cornell: Todd Todd can handle that for us.
Board of Appeals Minutes 12 January 9, 2013
Muehrer: Um Dave what’s the process thirty days within the ruling they have to file with the is it the State
of Wisconsin Board of Appeals.
Praska: Right. It’s a statutory issue of what we call a certiorari appeal to circuit court.
Gsell: Okay.
Praska: And that’s not a re-hearing. You want legal council will tell you all this but its.
Gsell: We just went through this in New Jersey and won last week actually.
Praska: Well so all the paper from here is transported over to the courthouse and then the judge takes a look
it and make some decisions whether it is reasonable or not.
Gsell: Okay. Great. Thank you.
Cornell: Any other findings we need more than one.
Krasniewski: I think the um it’s more of a self imposed.
Cornell: That would have been my that would have been my decision.
Krasniewski: Yeah
Cornell: Okay Thank you.
ITEM II: 2571-2573 VILLAGE LANE
Gerritt J./Donna Kleinhuizen Rev. Trust-applicant/owner, requests the following variance to eliminate the
required 4’ wide green area separation standard for a two-family driveway with adjacent attached garages:
Description Code ReferenceMinimum Proposed
Green area separation 30-36 (B)(1)(c)(ii) 4’ 0’
for two-family driveway with
adjacent attached garages
Mr. Muehrer presented the item and distributed photos of the subject site. He stated that the property was
zoned R-3 Multiple Dwelling District and is being used for two family dwelling purposes with the two-story
duplex and attached garage constructed in 1992. The general area can be characterized as medium density
residential in nature. The applicant has reconstructed the concrete driveway and was issued a Correction
Notice after it was observed that a valid building permit was not obtained and the variance is requested
because the driveway does not possess the 4’ wide green area to separate the driveway. According to current
zoning ordinance standards, the subject property is deficient one off-street parking space and should maintain
a 4’ green area separation for two-family driveways. In this case, the subject property driveway width is
insufficient to accommodate the 4’ green area and cannot be widened to exceed the width of the existing
garages and would be unnecessarily burdensome as it would reduce the functional driveway area. The
nonconforming off-street parking arrangement and its driveway width are creating a unique limitation for the
property and a hardship is present; therefore the variance approval is recommended.
Board of Appeals Minutes 13 January 9, 2013
Donna Kleinhuizen, 1115 E. New York Avenue, stated that the property was not going to look very well
with a strip of grass down the middle of the driveway and that her and her husband take pride in their
property. She further stated that this was how the driveway was originally constructed and it was in need of
replacement and the contractor who completed the work told them a building permit was not necessary. She
reiterated that a strip of grass down the center of the driveway would not look right.
Mr. Krasniewski commented that any general contractor that does work in the city should be aware that a
building permit was necessary.
Motion by Cryan to approve the request for a variance to permit the elimination of the required 4’
wide green area separation standard for a two-family driveway with adjacent attached garages.
Seconded by Krasniewski.
Mr. Krasniewski questioned if it was originally built this way if it was legal at the time of construction.
Mr. Muehrer indicated that it was legally constructed when built however standards changed in 2008 or 2009
and the new ordinance is intended for duplexes with larger parking areas. The driveway had a legal
nonconforming status until it was reconstructed and the property owner has no opportunity in this case to
expand the garage to allow for a wider driveway access.
Gerritt Kleinhuizen, 1115 E. New York Avenue, discussed the contractor he usually works with and that he
was too busy to get the driveway work completed therefore he hired a different contractor. He wanted the
property to look good and he did not feel he should be penalized due to the fact the codes have changed since
the duplexes were built.
Mr. Cornell commented that it was frustrating that contractors proceed with these types of projects without
the required building permit.
Mr. Kleinhuizen responded that the property owner should not be penalized.
Motion carried 4-0.
Finding of Facts:
Unique limitations of property.
No harm to public interest.
ITEM III: 1065 W. NINTH AVENUE
David A. Panske-applicant/property owner, appeals the City of Oshkosh Department of Community
Development’s determination that a commercial screen printing/embroidery service is a prohibited home
occupation use under Section 30-35 (L)(3)(b) of the Municipal Code. Staff assessment is the use and scope
of operations is light industrial in nature and not compatible with surrounding residential properties.
Mr. Muehrer stated that in the summer of 2012 the City of Oshkosh Fire Department (OFD) questioned if
any documentation was present that legally permitted a commercial service business in the detached garage
of a residential property as the site had outstanding fire code violations since 2003. Annual fire inspections
have been conducted at the subject property since 1992 under the assumption that it was a legal commercial
use. Records do not reflect any documentation that the commercial use was ever legally approved and a
Board of Appeals Minutes 14 January 9, 2013
correction notice was issued by the Department of Community Development in August 2012 to cease all
commercial activities. Since no response was received from the property owner, an on-site meeting was
scheduled with the property owner in November 2012 to view the operations and the owner was advised to
submit a home occupation application for review and assessment of the business operations. Inspection
Services records show a building permit was issued in 1994 for a one-story detached garage and a letter was
issued to the property owner in 1995 documenting that an inspection revealed the garage was being framed
as a two-story structure which was not permitted and a temporary Certificate of Occupancy was issued in
1995 documenting that the garage was to be used only as an accessory structure for the residence and all
noted violations shall be corrected. After review of all the information gathered, the Department of
Community Development concluded that the home occupation standards could not be met and a letter was
drafted to the property owner stating such and outlining the appeals process. Home occupation regulations
dictate that the limited non-residential uses conducted at a dwelling unit rely on products/tools found
customary within a residential dwelling and limit impact on surrounding properties and the general public’s
welfare. When assessing the home occupation application, consideration was given to the type and volume
of products being used and stored on the premises and the OFD documented violations present with no effort
to correct the issues and the potential impact on surrounding properties and overall safety. The consensus
among staff is the use and scope of operations is light industrial in nature and not compatible with
surrounding residential properties; therefore denial of the appeal is recommended.
David Panske, 1065 W. Ninth Avenue, stated that this issue came up “out of the blue” this fall and he was
not attempting to hide his business operations and that he had come to City Hall at the time it commenced to
check on the regulations and he had been in business at this site for 30 years. He had never been told in the
past that his business required him to apply for certain types of permits and he has been inspected every year
and he always corrected any violations that he received. He further stated that he had spoke with Jeff from
the Planning Services office regarding his use on the site and was told to apply for a home occupation
permit.
Ms. Larson inquired if he had deliveries to his house for the business operations and if customers came to the
site as well.
Mr. Panske responded that he received deliveries from United Parcel Service at least two to three times a
week or sometimes daily and that customers occasionally came to the home however he delivered a lot of his
products to the customer.
Ms. Larson also inquired about the size of the parcel.
Mr. Panske indicated that the lot was 50’ by 150’.
Mr. Krasniewski questioned the size of the building as the attachments to the staff report indicate two
different sizes for the garage structure.
Mr. Panske replied that it was 23’ by 33’.
Mr. Muehrer stated that the site plan originally submitted had one size on it however it was modified later.
Mr. Panske stated that he had a letter from one of his neighbors supporting his variance request as she could
not attend the meeting and that his business is his only source of income and he has not found another place
to relocate it.
Board of Appeals Minutes 15 January 9, 2013
Ms. Foland read the letter from the adjacent neighbor, Anita Davis, 1059 W. Ninth Avenue, stating that she
did not see any reason why he could not have his business on the site as it did not create any disturbances.
Mr. Krasniewski questioned if the chemicals kept on the site were flammable.
Mr. Panske responded that the ink would be a low flammable but not the thinner.
Ms. Larson inquired if this area was ever zoned any other classification other than R-2 Two Family
Residence District.
Mr. Muehrer replied that this area has been zoned R-2 since 1964 which is as far back as the zoning records
extend.
Brian Bending, Oshkosh Fire Department (OFD), 101 Court Street, stated that they have issued violations
notices for this property in the past and have never received compliance letters back from the property owner
which initiated the inquiries into the permitted use issue. The OFD had performed inspections annually at
the site as it was on their list of properties to be inspected however they do not customarily perform fire
inspections in residential districts.
Mr. Panske responded that he had always responded to fire inspection violations to the best of his
knowledge.
Mr. Bending indicated that he did not intend to shut the business down but the OFD had concerns with safety
issues and the use on this site and that compliance letters were not received back when violations were noted.
Mr. Krasniewski questioned what types of dangers were present.
Mr. Bending replied that there was not a safe avenue to exit the facility if a fire occurred and that there was
too much chemical storage.
Mr. Krasniewski then questioned if the use was safe for the neighboring properties and if the operation
possessed safety measures such as fire extinguishers and a sprinkler system.
Mr. Bending responded negatively stating that the chemicals were not stored properly in cabinets, there was
no sprinkler system installed, and the fire extinguishers were present but not hung up properly.
Ms. Cryan questioned if the flammability was a major issue.
Mr. Bending responded that the potential was present for a fire to occur under these circumstances.
Ms. Larson inquired if the garage was constructed with the intent to use it for their business operations.
Mr. Panske responded affirmatively.
Motion by Larson to approve the request for a variance to overturn the Department of Community
Development’s determination that a commercial printing operation is not a permitted use as a home
occupation.
Seconded by Krasniewski.
Motion denied 4-0.
Board of Appeals Minutes 16 January 9, 2013
David Praska, Assistant City Attorney, recommended determining findings of facts regardless of the
outcome of the vote on this item particularly the need to address the Department of Community
Development’s report and the zoning issues brought up.
Finding of Facts:
Property use does not apply to ordinance. R-2 residential area with a commercial/industrial use not a legal
use on property.
No harm to public interest as to where the business is located.
Safety issue with storage of chemicals.
Nature of business as described by applicant and the Community Development office, the use is typical of a
commercial or industrial activity rather than residential according to the zoning.
Mr. Muehrer stated that a development plan for relocation to a light industrial district was necessary as the
use is not compatible with the area and thanked Mr. Panske for being understanding and cooperative
regarding this issue.
Mr. Panske questioned what type of time frame he had to relocate the business.
Mr. Muehrer responded that a follow-up meeting would be scheduled between Mr. Panske and city staff to
discuss the need to relocate the business to a safe environment so that it to can continue to operate within
code requirements.
Mr. Panske questioned why it took so long for the city to make this determination.
Mr. Muehrer indicated that when it commenced it was most likely small and has expanded over the years to
no longer be feasible at a residential location.
DISCUSSION OF BOA PROCEDURES
The workshop scheduled with the Attorney’s office was postponed as all board members could not be
present and it would be re-scheduled for February. Ms. Foland will send out an email in advance to verify
attendance for that meeting.
There being no further business, the meeting adjourned at 4:42 p.m. (Cryan/Krasniewski).
Respectfully submitted,
Todd Muehrer
Associate Planner/Zoning Administrator
Board of Appeals Minutes 17 January 9, 2013