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Home My WebLink About2013-Letter (BZA variance denied) O City of Oshkosh Darryn Burich Dept.of Community Development Director Planning Services Division Planning Services Division OIHKOIH 215 Church Ave.,PO Box 1130 �.�...� Oshkosh,WI 54903-1130 (920)236-5059 (920)236-5053 FAX htt ://www.ci.oshkosh.wi.us August 15, 2013 FILED Paul &Janet Eberhardy BOARD of APPEALS 715 Washington Av. aUG � 5 2013 Oshkosh, WI 54901 OSHKOSH C011111UVITl DE�'ELOP11E1T Re: 711 & 715 Washington Av. To Whom It May Concern: On August 14, 2013, the City of Oshkosh Board of Appeals denied your variance request to permit a 6' high solid wood fence in the minimum front yard setback. The decision of the Board was filed in the Planning Office of the Department of Community Development on August 15, 2013. Section 30-6(C)(1) and (2) of the City of Oshkosh Zoning Ordinance allows the same variance request to be heard 3 times in any 12-month period. If this is the first or second time you have requested this variance within 12 months, you may re-apply if you wish. If your variance request has been denied 3 times within a 12-month period, but you feel there has been a change in the circumstances affecting your request, you may submit a request for an additional hearing stating the changes that have occurred. The Board will review this request, and if three Board members feel there is sufficient change in circumstances to warrant an additional hearing, then you may re-submit your variance request through the normal procedure. You may call me at(920) 236-5059 if you have any questions. ' Respectfully, Todd M. M"uehrei Associate Planner/Zoning Administrator TMNI/dff CC: Inspection Services Division, City Hall , Motion by Carpenter to approve the request for a variance to permit a detached garage in the front yard. Seconded by Cornell. Ms. Larson stated that she felt it would be an improvement to have a protected parking area and the garbage receptacles inside as well as relieving the parking on the street issues. Mr. Penney commented that he felt the placement situation for the garage was unique to the property. Mr. Cornell felt it would be an improvement to the site. Motion carried S-0. Findings of Facts: Unique property and limitations. Significant improvement to the pro"perty. : ITEM IV: 711 & 715 WASHINGTON AVENUE Paul & Janet Eberhardy-applicants/owners, request the following variance to pernut a 6' high solid wood fence in the minimum front yard setback: Description Code Reference Minimum Proposed 6' high solid wood fence 30-35 (E) 25' 4' Mr. Muehrer presented the item and distributed photos of the subject site. He stated that the properties are zoned R-4 Multiple Dwelling District with 715 Washington Avenue being used for single family dwelling purposes and 711 Washington Avenue being used for recreationaUopen space purposes. The existing principal structure and garage were built in 1947 and the structures on 711 Washington Avenue were razed in 2009.. The general area can be characterized as low density residential in nature.. The applicant has : constructed a 6' high solid fence along the south lot lines of the subject parcel with a 4' setback and is requesting a variance as the zoning ordinance requires fences 6' high to be placed as far back or farther back from a front property line as the principal struciure. The applicant submitted a site plan and was informed that it did not meet code requirements and would require a modification or the granting of a variance prior to construction. The fence was subsequently installed without a building permit and a correction notice was issued. By-right permitting alternatives are present and the placement and height of the fencing is a personal , preference that will have a negative impact on neighborhood aesthetics and sightlines and would be contrary to the public interest. Staff recommends denial of the variance as requested. Janet Eberhardy, 715 Washington Avenue, stated that they previously pulled a building permit for a parking � pad by their garage and since they were replacing an existing fence they thought that a permit was not necessary. She further stated that she thought there was some miscommunication as the fence brochure from the City stated that fences 6 foot high or less may be installed on any part of the lot so they felt their placement was within code requirements. She stated that there were beautiful homes going toward the lake but the homes located in the area going toward Main Street were less desirable and their lot was being used as a cut through from the bars downtown. They were tired of picking up trash in their yard and the fence blocks people from cutting through their property and makes the neighborhood safer. A 4' fence would not be adequate in height to keep people off their property and they needed a safe environment for their child. Board ofAppeals Minutes 5 August 14,2013 She claimed that their efforts to improve their property had inspired other neighbors in the area to make improvements to their property as well. Paul Eberhardy, 715 Washington Avenue, stated that pedestrian safety was not an issue as there are no sidewalks on Shawano Avenue and the fence does not protrude any further out than their yard markers. Ms. Eberhardy commented that they purchased the adjacent lot for use as a side yard and the houses in this area are situated very close to the street. She further stated that she would understand the reasoning for these requirements if they owned a corner lot. Mr. Krasniewski stated that the property owner had requested a building permit with their initial site plan and were told by City staff that modifications were necessary to receive approval and questioned when the fence was installed. Mr. Eberhardy responded approximately April of 2013. Mr. Krasniewski commented that the fence was installed essentially after the property owner was told they could not have it. Ms. Larson stated that the property owner should have called the City to clarify the regulations if the brochure was not understood. Ms. Eberhardy reiterated that she interpreted the brochure to mean that this requirement for a setback was only applicable if the fence was greater than six feet. Ms. Larson responded that they should have contacted City staff to verify this before proceeding. Mr. Muehrer stated that the handout she was referring to is an informational brochure and not the official ordinance and further explained the code requirements which are different for front yards and side or rear yard areas. He also stated that the work proceeded without a permit after they were informed that the fence they desired to install was not allowed. Mr. Eberhardy indicated that he did not think a pernut was necessary because they were replacing an existing fence. Mr. Muehrer replied that a building permit was still required for the replacement. Discussion ensued on why fences were different than other structures and why there were no sidewalks on Shawano Avenue. It was deternzined that the lack of sidewalk was due to the limited right-of-way in this area. Mr. Carpenter questioned what the property owners could do to comply at this point. Mr. Muehrer responded that the fence height would have to be reduced by two feet and be modified to be picket-style rather than solid. Ms. Eberhardy stated that it would waste too much of their yard and it was not detrimental to the neighborhood to leave the fence as constructed. Board of Appeals Minutes 6 August 14,2013 Mr. Carpenter commented that the adjacent neighbor's fence was shorter and picket style as code requires � and he felt it would initiate other variance requests if this one was granted. Mr. Penney inquired how long they have owned this property. Mr. Eberhardy responded they purchased it in 2003. Ms. Larson suggested that the height be reduced and remove every other board and plant landscaping features along the fence between the openings. ' Ms. Eberhardy reiterated that there were safety issues in their neighborhood. : Mr. Carpenter commented that fencing in an area gives people a place to hide and the openness is a safer environment. Ms. Eberhardy disagreed and stated that they need security for their bedrooms as it was a one story home. Ms. Larson stated that the property owners have referred to Shawano Avenue as an alley but it is streetscape to the adjacent property owners in this area. Ms. Eberhardy felt that the fencing cuts down on noise and was a wind block as we1L Mr. Penney questioned if the police department had ever been contacted about her safety concerns. Ms. Eberhardy responded negatively. Mr. Carpenter inquired how much the street was widened when it was reconstructed. Mr. Eberhardy responded two to three feet. Discussion ensued on where the fence would be located if moved to meet the required 25' setback and where the additional fencing would be located to enclose the remainder of the yard. Ms. Eberhardy objected to this concept as they would lose the practical use of their yard and trees and the additional expense to move the fence from its current location. Discussion continued on various concepts of where the fence could be located. Mr. Penney commented that if safety issues were the main concern in this matter, have they checked with the Oshkosh Police Department for a record of arrests in this area. Ms. Eberhardy responded that they did not check on arrest incidents however she had seen squad cars on Shawano Avenue more than once and suspects there may be drug activity. Mr. Penney stated that they should have applied for the variance prior to installing the fence if it was for safety reasons. Ms. Eberhardy replied that they did not think the fence was going to be an issue. Board of Appeals Minutes 7 August 14,2013 Mr. Krasniewski questioned if the property owner did not receive the phone call from City staff that the placement of the fence as proposed was not allowed. ' Ms. Eberhardy responded that they did receive the call but she felt it was a miscommunication verbally and that she had interpreted the brochure correctly. She further stated that the other party requesting a variance today did not get a permit either and their variance was approved. Mr. Cornell indicated that the board cannot consider other cases when making a decision as each variance request has to be reviewed as a single item. Ms. Eberhardy commented that she has only been in Oshkosh for three years and wants a safe neighborhood for both them and others. Motion by Krasniewski to approve the request for a variance to permit a 6' high solid wood fence in the minimum front yard setback. Seconded by Carpenter. Board members continued discussion on the safety issues and whether fencing would make the area safer or create more places to hide. Mr. Krasniewski stated that there were other areas to gain access to the yard if someone has the desire and that he did not want to see neighborhoods surrounded by six foot fences and does not want to set precedence by approving this request. Ms. Larson commented that the City has neighborhood watch programs for safety purposes and the property owners were requesting something not allowed for others. She further commented that she did not want to see homes surrounded by privacy fences in this community. Motion denied 0-5. Ms. Eberhardy questioned if she could place bird feeders or other objects on the four foot fencing. Mr. Muehrer responded that it would be allowed as long as the requirement that it remains 50% open is still met. Findings of Facts: Harm to public interest. Self created hardship. Creates a more dangerous situation. ITEM V: 440 W. SOUTH PARK AVENUE Lorenz L. Rangeloff-applicant/owner, requests the following variances to permit two ground signs in the minimum front yard setbacks: Description Code Reference Minimum Proposed Front yard setback (south) 30-19 (B)(2)(c) 25' 9' Front yard setback (north) 30-19 (B)(2)(c) 25' 7' Board of Appeals Minutes 8 August 14,2013 � STAFF REPORT BOARD OF APPEALS ' AUGUST 14TH,2013 ITEM IV: 711 & 715 WASHINGTON AVENUE GENERAL DESCRIPTION AND BACKGROUND Paul & Janet Eberhardy-applicants/owners, request the following variance to permit a 6' high solid wood fence in the minimum front yard setback: Description Code Reference Minimum Prouosed 6' high solid wood fence 30-35 (E) 25' 4' The subject .10 acre (approx. 4,400 sq. ft.) and .12 acre (approx. 5,200 sq. ft.) properties are rectangular in shape and located on the south side of Washington Street and the north side of Shawano Avenue. They are zoned R-4 Multiple Dwelling District, with 715 Washington Avenue being used for single family dwelling purposes and 711 Washington Avenue being used for recreational/open space purposes. 715 Washington Avenue's principal structure is a single-story ranch style home built in 1947 that possesses 1,449 sq. ft. of total area. The parcel also has a 16'x22' detached garage also built in 1947 located south of the principal structure with driveway access provided via Shawano Avenue. 711 Washington Avenue does not possess a principal structure. The previous : home and accessory structures were razed and removed in 2009. The parcels are bordered by single-family residential uses in all directions, except the west which is two-family. The general area is comprised predominately of low-density residential uses. ANALYSIS In reviewing a variance request, the following questions should be addressed: When considering an area variance, the question of whether unnecessary hardship or practical difficulty exists is best explained as "whether compliance with the strict letter of the restrictions governing area, set backs, frontage, height, bulk or density would unreasonably prevent the owner from using the property for a permitted purpose or would render conformity with such restrictions unnecessarily burdensome." Are there any unusual or unique physical limitations of the property which create a hardship? Will granting of a variance result in harm to the public interest? The applicant has constructed a 6' high solid fence along the south lot lines (50 lineal ' feet) of the subject parcels with a 4' setback (see attached site plan). A variance is being requested because the zoning ordinance requires fences 6' high to be placed as far back or farther back from a front property line as the principal structure. The applicant submitted a site plan in April 2013 to construct 6' solid wood fencing along the south, west and north areas of the lots. The plan did not comply with standards along the south lot line and the owner was advised via a phone call April 23, 2013 that a modification would need to occur or a variance would need to be applied for prior to construction. An inspection of the properties in July 2013 revealed the fencing had been constructed without a building permit. Subsequently,the owner was sent a correction notice on July STAFF REPORT BOARD OF APPEALS ITEM IV -2- AUGUST 14TH,2013 ' 10, 2013 advising of the violations and corrective action needing to occur. The applicant is now requesting a variance to leave the fencing as constructed. The City of Oshkosh Board of Appeals Procedures and Regulations document clearly outlines that self imposed hardships and ignorance of the law are not sufficient reasons for granting a variance. The owner was advised the original plans for the fencing did not meet code standards prior to installation and was denied a building permit. Instead of proceeding with revisions that would meet standards or applying for the variance at that time, the owner elected to install the fencing without a building permit. By-right permitting alternatives are present that would enclose the subject azea and not require variance. For example, the code permits fences 4' high or less in the front yard setback up to the property line provided the first fifteen feet from the properiy line are not more than 50% solid. Thereafter, the next ten feet permits 4' high or less fencing to be solid if desired. If the applicant prefers 6' high solid fencing, there is nothing unique to the property that would prevent the fence to be moved 25' back from the front yard(south) lot line to meet standards. Instead, the request to place the 6' high solid fencing with a 4' setback is personal preference. Public safety of motorists and pedestrians is the primary purpose of the fence standards regulating height and density. All of the properties in this city block have vehicular access via Shawano Avenue. Therefore, introducing a 6' high solid wall along this frontage will have a negative impact on neighborhood aesthetics, sightlines and more importantly will be contrary to the public interest. RECOMMENDATION Based on the information provided within this report, staff recommends denial of the variance as requested. ` Please Tvpe or Print in BLACK INK � Return to: Department of Community Development O1H�QIH 215 Church Ave. OHiHEW�TEF p,0.Box 1130 � Oshkosh,WI 54903-1130 CITY OF OSHKOSH APPLICATION FOR VARIANCE Please submit a complete renroducible site plan (maximum size 11" x 17"). (A complete site plan includes, but is not limited to, all structures, lot lines and streets with distances to each.)Please refer to the fee schedule for appropriate fee. FEE IS NON-REFLJNDABLE. The fee is payable to the City of Oshkosh and due at the time the application is submitted. Address of Parcel Affected: 7// �,�,��,v ,,.�v� nj 1- Petitioner: t� .,,,1 a C t Home Phone: 37�'-��/�j9�aC�9S` Petitioner's Address: rl/5� fi � �` Work Phone: Signature Required: d-�.� ��✓�/��'te: ��/7-f3 Owner(if not petitioner): Home Phone: Owner's Address: Work Phone: Signature Required: Date: In order to be granted a variance, each applicant must be able to prove that an unnecessary hardship would be created if the variance is not granted. The burden of proving an unnecessary hardship rests upon the applicant. The attached sheet provides information on what cci.st;tutes a hardship. (Attach additianal sheets, if necessary,to provide the informatien requested. Additional information may be requested as needed.) 1. Explain your proposed plans and why you are requesting a variance: , E .e ,�c� l' ' � � - 5 Question#1: Explain your proposed plans and why you are requesting a variance: We are requesting a variance along Shawano Ave. for the construction of a 6 foot solid wood fence to be located at a 4 foot setback. Our address is Washington Ave. and it is a unique situation as Shawano Ave. borders the rear lot line. We are very concerned with the amount of foot traffic that uses our lot and the beer cans, garbage, and liquor bottles that we have removed. We feel the 4' setback would be ideal as it would not create, but hinder, a loitering spot, which the lot has been previously. It would increase the safety of the neighborhood and give us piece of mind when our 2 year old is in the yard, also while we are sleeping since our bedrooms face the lot. It would allow us the maximum usage of our property as the only 2 trees on the property are at a 5' mark and we would like to have them inside the fence. We are not located on a corner lot so the fence does not create a safety issue for traffic. The neighbors are happy with the fence as it gives them a sense of privacy, creates a sound barrier from the traffic on Washington, and keeps the foot traffic away from their property also. With the good side out towards the neighbors it sets a natural wood back drop for landscaping and can only enhance the neighborhood. With the houses that are addressed on Washington Ave. all but ours and my neighbor to the East are set back as far. There are no other open properties for people to cut through and/or loiter along the street other than our lot. We would like a safe environment for our family and to deter unwanted behavior from the neighborhood. Question#2: Describe how the variance would not have an adverse effect on surrounding properties: We have spent 2 '/2 years trying to purchase this property and have spent a considerable amount of money to go about purchasing it. The neighborhood to the east is a very desirable neighborhood and the block to the we5t of us is not so desirabie. Gur Uiocx teeters cn the verge of going either way. We've bought the property to add value to our home and for our enjoyment. When we started making improvements to our home then our neighbors started following our lead. To date we have 4 homeowners that have either landscaped, added a fence, and or a new driveway. We are happy to see the positive effect we are having on the neighborhood. The neighbors are pleased with our fence and approve as we stated in question #1. They would prefer us to have the 4' variance since the 10' would allow"dark spots"where loitering & illegal behavior can occur. Safety is everyone's 1 St concern and having the fence with a 4' variance great improves the safety of the neighborhood for everyone. There has been unwanted behavior in the neighborhood (to the extent that one neighbor installed a video camera on the back of his home) and the lot encouraged this unwanted behavior. Question#3: Describe the special conditions that apply to your lot or structure that do not apply to surrounding lots or structures: This truly is more of a side yard. There is no sidewalk behind us and Shawano Ave. was at one time an alley. Our neighbors behind us face the back of our house and garage. We've talked with the neighbors and they would rather look at a nice wood fence 4' from the lot line with nice landscaping such as mulch and shrubbery verses a 10' variance with grass that would create a dark pocket between the garages, it would look awkward and also would be a safety issue. Truly this is an odd situation with the way the lots were structured and homes built. The 6 neighbors support us and agree on the 4' variance with a 6' solid wood fence. A 4' fence would allow trespassers to hop the fence and then sit in the yard doing unwanted behavior and also to have access to our bedroom windows. Question#4: Describe the hardship that would result if your variance were not granted: Setting back the 6' solid wood fence 25' would greatly depreciate the value of our home and create an abundance of wasted space. It would look very odd and almost half of our yard would be outside the fence. Setting back the 6' solid wood fence 10"would create a dark pocket behind and between homes that loitering and illegal behavior would occur. The lot was a huge problem before we purchased it. It was a cut threw for intoxicated people to visit the neighborhood taverns. It also encouraged young adults to loiter and exhibit behavior that was unwanted and illegal. Trespassers would create a lot of noise and disturb the neighborhood at all hours of the night. It was a huge safety issue in the neighborhood. 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