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Plan Commission Minutes 1 January 6, 2015
PLAN COMMISSION MINUTES
January 6, 2015
PRESENT: David Borsuk, Ed Bowen, Jeffrey Thoms, John Hinz, Steve Cummings, Kathleen
Propp, Gary Gray, Robert Vajgrt
EXCUSED: Thomas Fojtik, Donna Lohry, Karl Nollenberger
STAFF: Darryn Burich, Director of Planning Services; David Buck, Principal Planner; Elizabeth
Williams, Assistant Planner; Steve Gohde, Assistant Director of Public Works; Deborah
Foland, Recording Secretary
Vice-Chairperson Propp called the meeting to order at 4:00 pm. Roll call was taken and a quorum
declared present.
The minutes of December 16, 2014 were approved as presented. (Bowen/Cummings)
I. CONDITIONAL USE PERMIT FOR AN EXTENSION OF AN EXISTING
TELECOMMUNICATIONS TOWER LOCATED AT 1821 JACKSON STREET
(DOLLAR TREE)
The applicant is requesting a conditional use permit to construct a 35-foot extension to an existing 45-
foot telecommunications tower located at 1821 Jackson Street.
On December 16, 2014 the Plan Commission laid over the conditional use permit request for extension
of an existing telecommunications tower located at 1821 Jackson Street until the January 6, 2015
meeting to allow Planning Services staff time to conduct research on the Federal and State laws
pertaining to limitations on local regulation and the flexibility that would be allowed when considering
such requests. The petitioner agreed to the delay and stated that he did not have any issues with a short
delay of the request.
Mr. Buck presented the item and reviewed the site and surrounding area as well as the discussion
relating to this item from the last meeting. He also reviewed the site plan, landscaping, and photos of
the existing tower as well as renderings of the proposed tower. He reviewed the conditions
recommended for this request which are unchanged from the last meeting. He also discussed the
legislation currently regulating placement of these types of facilities and limitations on municipalities
to deny their installation. He reviewed the memo provided detailing the three legislative acts that
govern cell tower installations and modifications and how they would affect the City’s ability to deny
these requests. He further explained that this project would fall under what is referred to as a “class 1
collocation” and that the City may require a conditional use permit and review the request under these
regulations however it prevents municipalities from denying the request due to location, aesthetics,
height of the tower providing it is under 200 feet, or setbacks providing that they meet the City’s
standard for building setbacks. The matter was also discussed with the City Attorney to ensure that the
legislation was interpreted correctly.
Mr. Burich further discussed the memo prepared by staff relating to this issue and discussed Wisconsin
2013 Act 20 and reviewed the regulations on page 5 and 6 detailing the restrictions municipalities are
required to follow. He stated that the new Zoning Ordinance currently in progress will address these
changes as the current ordinance does not account for the changes recently enacted.
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Plan Commission Minutes 2 January 6, 2015
Mr. Thoms questioned if there were any safety concerns relating to the cell tower’s collapse or if the
conversation regarding that they are constructed to self-collapse would address any of those types of
concerns.
Mr. Buck responded that those issues are regulated by the FCC.
Motion by Vajgrt to approve the conditional use permit for an extension of an existing
telecommunications tower located at 1821 Jackson Street with the following conditions:
1. The proposed tower and tower site shall be designed to accommodate collocation of at
least two additional users per Section 30-35(J)(2)(c)(i) of the Oshkosh Zoning
Ordinance.
2. The permit holder for the tower shall allow collocation of at least two additional users
per Section 30-35(J)(2)(c)(ii) of the Oshkosh Zoning Ordinance.
Seconded by Borsuk.
Ms. Propp inquired if the conditions related to collocation of other users were still allowed.
Mr. Buck responded affirmatively.
Motion carried 8-0.
II. RESIDENTIAL DESIGN STANDARDS VARIANCE REQUEST FOR THE CLOSURE
OF ONE WINDOW ON THE WEST SIDE ELEVATION OF PROPERTY LOCATED
AT 416 W. 9TH AVENUE
The applicant is requesting approval of a variance from the City’s Residential Design Standards to
permit the closure of one window located on the west side elevation of the single-family home at 416
W. 9th Avenue.
Ms. Williams presented the item and reviewed the site and surrounding area as well as the land use and
zoning classifications in said area and discussed the history of the site. She reviewed the ordinance
provisions of the design standards and the ability of the Plan Commission to authorize granting a
variance from the standards and the conditions that apply to allow a variance. She also discussed the
remodeling of the home and the circumstances that led to the application for the variance request. She
reviewed photos of the home showing the window being requested to be removed and explained that
the applicant was claiming an unnecessary hardship due to the window being located in the bathroom
as the reason to grant the variance request. She also reviewed photos of the home before and after the
window removal was completed as the work was already done prior to the variance request being
heard. She also displayed photos of the neighboring properties and reviewed alternative construction
methods to retain the existing window. She also explained the city rehabilitation project that was
completed in 2012 and is adjacent to the subject site and how the window in this case was retained.
She also stated that the Plan Commission must make a finding that the window retention creates an
unnecessary hardship to grant the variance with specific reasoning to support this determination.
Mr. Bowen requested clarification of the determination of unnecessary hardship.
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Plan Commission Minutes 3 January 6, 2015
Ms. Williams explained the criteria for the finding that a hardship exists as well as the reasoning to
determine that the hardship does not apply.
Mr. Thoms questioned if the Commission could grant the variance under the criteria that the standards
do not apply to this particular project.
Ms.Williams responded affirmatively.
Mr. Gray inquired if the motion would be voted upon first and findings determined after the motion
has been approved or denied.
Mr. Buck indicated that the motion should include the finding of why the variance would be approved.
Mr. Thoms questioned what the past practice has been regarding ignoring City ordinance standards as
the applicant proceeded with the work without the variance being granted.
Mr. Burich replied that the Commission’s responsibility is not of a punitive nature and that
enforcement of the ordinance is a separate issue. The Commission should review the variance request
as it would any other that has not completed the work and the property owner will have to comply with
whatever the Plan Commission concludes in regard to the reasonableness of granting or denying the
variance.
Mr. Thoms then questioned if costs could be considered if the interior remodeling has already been
completed.
Mr. Burich responded that moisture and other concerns relating to the window retention could be
considered but if they had not proceeded without approval of the design standards variance in advance,
this would not constitute a hardship alone. The Commission should consider maintenance of the
window and moisture issues not costs when determining if this case has a justifiable hardship.
Mr. Buck added that the Commission should consider this request at its merit prior to any of the
remodeling work being completed and not take into consideration the work that has been done in
advance of receiving approval to deviate from the design standards. The decision is a subjective
conclusion and the Commission would need to justify if an unnecessary hardship exists.
Mr. Cummings voiced his displeasure that the applicant had their building plans approved, the permit
issued, and proceeded to do what they wanted regardless of the direction given to them by staff relating
to the design standards ordinance.
Mr. Burich indicated that the Commission members needed to separate these facts out and base their
determination on if all the necessary factors are present to grant a variance to the ordinance.
Mr. Cummings voiced his concern with the amount of staff time and resources that went into this effort
and how it could have been alleviated if the applicant could have followed the proper procedures.
Mr. Hinz questioned if when the permit was issued what the status of the bathroom was at that time
and whether anything was foreseen to be an issue.
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Plan Commission Minutes 4 January 6, 2015
Ms. William responded that the building permit issued was for replacement of existing windows,
kitchen cabinets and countertops, and repairs to the front porch. There was no mention of remodeling
the bathroom at the time of permit issuance.
Mr. Borsuk inquired about whether the bathroom construction was completed.
Ms. Williams responded that the work may have been completed but was unaware if a permit was
issued for it.
Mr. Thoms stated that the staff report indicates that the window removed was 12 feet from the front of
the house and questioned if there was another room in front of the bathroom where an alternate
window could be installed.
Ms. Williams replied that the area fronting the street on this elevation is a bedroom and that the
bathroom is located between two bedrooms however this alternative was discussed with the property
owner and he did not desire to add an additional window to this area.
Mr. Buck reviewed the photos of the home and discussed how the original structure most likely looked
like prior to alterations done in the past to its façade.
Kevin Bennett of KC Bennett Construction, 3916 Leonard Point Road, stated that he was the petitioner
for the variance request on behalf of the property owner. He further stated that he was doing
remodeling work on this property and did not totally understand the design standards ordinance. He
removed the existing window from the bathroom as it was located in the shower he installed and that
the hardship was due to moisture issues. He explained that this was a rental property and the window
in that location can lead to mold and mildew issues which he felt constituted a hardship.
Mr. Thoms commented that he could understand the issues with the window’s location in the shower
however he could not understand why the window was not installed in the bedroom instead.
Mr. Bennett responded that it would have been a financial hardship to relocate the window as the costs
would be at least $1500 and he was not sure if the window would fit in this area of the home.
Mr. Borsuk questioned if the applicant agreed with the statement of facts contained in the staff report
as to how this circumstance transpired.
Mr. Bennett replied that he deviated from the original permit when the shower surround was installed.
Ms. Propp inquired since the shower surround was installed was the home ready to be rented.
Mr. Bennett indicated that it was not rented as yet and that he had not been to the site for the past few
weeks and finish work still had to be completed. He had removed the window and installed the shower
surround only but other work remains to be addressed.
Ms. Propp questioned if the applicant had agreed that the window would not be removed at the time
the building permit was issued.
Mr. Bennett responded that he did not recall and that he does what the property owner dictates.
Mr. Borsuk inquired about the identity of the property owner.
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Plan Commission Minutes 5 January 6, 2015
Mr. Bennett replied that it was Excel Properties which is owned by Randy Schmiedel.
Ms. Williams commented that the conditions were explained to the applicant that all windows needed
to be retained and the form stating that is signed by the applicant and is included in the building permit
issuance.
Mr. Borsuk stated that even with alternatives available, it is not the responsibility of the Plan
Commission to design it and there is an ordinance in place to address this as well as the
Comprehensive Plan and he does not want to continue to deviate from these requirements. The
applicant signed off on the building permit and agreed to not remove the window at that time and he
would not support deviation from the design standards requirements in this case.
Mr. Thoms commented that from looking at the various photos of the neighboring properties, there is a
vast variety of designs with some homes possessing more windows than others and continued to
discuss the windows in this particular home. He further commented that he did not know if the
removal of this window would detract from the neighborhood and did not know how to define a
hardship in this case as the home fits into the rest of the neighborhood as far as design.
Mr. Bowen stated that when determining if this is a hardship to retain the window, it must be
considered that with current construction methods it is possible to place a window in a shower area or
there are other methods to address retaining the window in this location. He did not feel that this case
produced the proper criteria to qualify for granting a variance due to unnecessary hardship.
Mr. Cummings commented that the current design standards were not in place at the time when some
of the other homes in this vicinity were remodeled however this ordinance and design standards
criteria were developed for a reason. The permit was signed and issued as the applicant presented the
scope of the work to be and he felt it would be setting an incorrect precedence to approve this request.
Mr. Gray stated that he agreed with Mr. Cummings and that he did not feel the Commission should
grant a variance in this case as the applicant needed a substantial reason other than money to request a
variance based on hardship.
Mr. Vajgrt inquired if there was a requirement to have a plumbing permit for the shower surround
installation as in this case no permit was obtained.
Ms. Williams responded that a permit would not be required for the installation of the shower surround
alone but with the removal of the window, it may have exceeded the expense limitation that would
make a building permit required.
Mr. Buck added that venting was also installed in relation to the remodeling project which may also
have triggered the necessity for a building permit.
Board discussion ensued regarding how the motion should be presented. It was determined that the
motion should be made in a negative form as no findings need to be included with the motion if the
variance request is denied. If the motion would be passed, a finding with specific reasoning would
have to be presented to support granting the variance request.
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Plan Commission Minutes 6 January 6, 2015
Motion by Bowen to deny the residential design standards variance for the closure of one
window on the west side elevation of property located at 416 W. 9th Avenue due to unnecessary
hardship.
Seconded by Thoms.
Mr. Hinz stated that from looking at the photos in the staff report that windows were removed on other
homes in this neighborhood at some point and that this design standards ordinance was enacted for a
reason. He stated he would not support this variance request because it does not fit the criteria that
were established as far as a hardship and although mistakes were made during the remodeling process
in this case, it did not qualify as a hardship.
Ms. Propp commented that it provided a good example of when the petitioner should have applied for
a variance as this case would not have transpired as it did if the process was followed correctly.
Mr. Thoms inquired if another window could be added to this elevation to meet the design standards
instead of in the existing opening.
Mr. Buck indicated that the intent of the ordinance to be met would only apply if the window was
installed in the existing location.
Further discussion ensued on the motion made and the effect of voting aye or nay on it. It was
determined that since the motion was made for denial, an aye vote would support denial of the variance
where a nay vote would support granting the variance.
Motion carried 8-0.
III. PARTIAL STREET VACATION OF THE 1400 BLOCK OF MOUNT VERNON
STREET BETWEEN EAST CUSTER AVENUE AND HARRISON STREET
The Oshkosh Housing Authority requests partial vacation of the 1400 block of Mount Vernon Street
between East Custer Avenue and Harrison Street. The subject area is approximately 60 feet wide by
142 feet deep and 8,400 square feet in area.
Ms. Williams presented the request and reviewed the site and surrounding area as well as the land use
and zoning classifications in said area. She explained the reasoning for the partial street vacation
request and reviewed the site plan depicting the area to be vacated. She further explained the Housing
Authority’s plans to redevelop the site and the requirement that the property be more than five acres in
size for the entity to qualify for funding assistance through Wisconsin Economic Development
Corporation. She further stated that the Department of Public Works has reviewed the request and has
no concerns with the vacation but will retain access to the property for maintenance and repair of
public utilities that are located underground in this location.
Mr. Thoms questioned if the City Attorney had reviewed this request and questioned the legality of it if
the City was vacating the area only for the purpose of allowing the Oshkosh Housing Authority the
ability to gain access to state funds for redevelopment of the adjacent site.
Mr. Buck responded that the City Attorney had reviewed this request and explained some of the
history of the site which at one time had multiple users. The Housing Authority is the sole owner of
the adjacent property to the proposed vacation area and although this small portion of right-of-way
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Plan Commission Minutes 7 January 6, 2015
may have served a purpose in the past, it no longer functions as an active street. The vacation of the
right-of-way would result in no further maintenance being required by the City.
Mr. Borsuk questioned why the City was not abandoning the entire street rather than just the southern
portion.
Mr. Buck responded that the City reviewed the site and explained the vacation process of half of the
vacated area being disbursed to each adjacent property owner. In this case, the northern portion of the
street would be divided with half disbursed to the Housing Authority and the other half remaining in
possession of the City. He further explained the desire of the Department of Public Works to retain
this portion of the street for future storm water detention purposes.
Steve Gohde, Assistant Director of Public Works, gave further explanation of why the City desired to
retain as much area as possible to the north of the area designated under this vacation request for storm
water management and maintaining it as right-of-way.
Mr. Thoms stated that the City still has to maintain the northern portion of this area and the whole
street could be vacated with an agreement that the Housing Authority deed a portion back to the City
for the necessary storm water management area. This would eliminate the street maintenance for the
City.
Mr. Gohde responded that City crews will eliminate the northern portion of the street once the southern
area has been approved for vacation and it would be returned to turf so no street maintenance would be
necessary.
Mr. Cummings added that this portion of Mount Vernon Street was not actually an active street but a
turnaround area only.
Mr. Gray stated that the existing factory structure was in a planned development area and questioned if
there was an existing planned development for the site or if a new planned development was proposed.
Ms. Williams indicated that there was no application for a planned development at this time however
the Housing Authority may submit plans at a later date for the site.
Su van Houwelingen, Executive Director of the Oshkosh Housing Authority, stated that she was
present if the Commission members had any questions relating to this request.
Mr. Gray questioned what the timeline was for redevelopment of the site.
Ms. van Houwelingen responded that at this point the Housing Authority had applied for historical
designation for the property however a timeline had not yet been established for redevelopment and
that they may come back to the Commission later in 2015 for approval of any redevelopment plans.
Motion by Bowen to approve the partial street vacation of the 1400 block of Mount Vernon
Street between E. Custer Avenue and Harrison Street.
Seconded by Vajgrt. Motion carried 8-0.
IV. AUTHORIZATION TO ACQUIRE PROPERTY AT THE 3400 BLOCK NORTH MAIN
STREET AND ACQUIRE AN EASEMENT AT 3262 JACKSON STREET
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Plan Commission Minutes 8 January 6, 2015
The City of Oshkosh Department of Public Works is requesting authorization to acquire:
A. Approximately 11.87 acres of land for construction of a storm drainage detention area serving
the Fernau Avenue Watershed; and
B. A 30 foot by approximately 615 foot easement for installation of a storm sewer.
Mr. Buck presented the item and reviewed the site and surrounding area as well as the land use and
zoning classifications in said area. He stated that the parcels were located in the Town of Oshkosh and
reviewed both the land acquisition area and easement acquisition area. He also reviewed the Fernau
Avenue Watershed map and a map depicting the existing conditions for the storm sewer drainage areas
and the proposed conditions for the detention basin drainage areas. He also reviewed a map depicting
the TID #27 general vicinity showing the proposed improvements of regional storm water management
both inside and outside the TID area and discussed the history of the Industrial Park development. He
also discussed the storm water regional ponds planned for this area and the proposed location of each
one which would allow for future development in the vicinity as some portions of the parcels in this
area would not be developable due to the constraints of having to construct individual storm water
management facilities on each site. The proposed detention basin would address both flooding issues
and storm water quality management in this vicinity. The proposal has been discussed with the
property owner however this action would be the first step in the process to acquire the land and
easement areas and the request is consistent with the Comprehensive Plan.
Mr. Thoms questioned if it was the Plan Commission’s responsibility to advise the Common Council
on the acquisition or just to determine if it is consistent with the Comprehensive Plan.
Mr. Buck responded that the Plan Commission’s responsibility would be to make a recommendation to
the Common Council on both the land acquisition and the easement acquisition.
Mr. Thoms then questioned if there is not an agreement in place, is there any stipulations on how the
land area is to be acquired.
Mr. Burich indicated that it is a planning function to recommend approval or denial of the request
however it is not the Plan Commission’s responsibility to make any decisions on how the acquisition
occurs.
Mr. Gray requested that staff point out on the map where the Bemis facility is currently located.
Mr. Buck displayed on the map the location of that facility.
Doug Kleinschmit, 3262 Jackson Street, stated that there have been discussions with the City regarding
this acquisition however they have all been one-sided. He had questions relating to the possible
location of wetlands on the site; how the actual parcel to be acquired has doubled in size since their last
contact with the City; how covering of the water drainage areas would affect the vicinity and possibly
make flooding issues worse. He felt that the only property to be serviced from the creation of this
proposed detention basin is for the benefit of Bemis. He also had objections to the easement
acquisition as it would not allow any construction on the property and there was city property to both
the south and the west of this site. He further stated that the City would be taking property out of the
tax base to acquire this land for the proposed detention basin.
Mr. Gohde indicated that as far as any wetland delineation, the City has requested permission to access
the property to make that determination however the owner would not allow it therefore that issue
would have to be dealt with at a later date. He did not anticipate any issues with that matter. In regard
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Plan Commission Minutes 9 January 6, 2015
to the increase in size of the site to be acquired, the detention basin was originally planned to service
only the TID #27 area; however with the revisions made to the plans since that time, the basin will
drain the entire area. He explained the flow of the storm water from this area and how it flows in the
direction of the area designated for the basin. He also discussed the navigable waterway to the south
and the issues with water treatment before discharging into this stream that would be addressed with
the basin at this location.
Mr. Thoms questioned why the City does not just acquire the property necessary for the easement
rather than requesting an easement on the parcel.
Mr. Gohde responded that the easement on the parcel will reduce the property taxes as it reduces
buildable area and it create more issues with small slivers of land being acquired as it results in setback
issues.
Mr. Kleinschmit stated that they have no interest in selling the property to the City and the parcel
without both Jackson Street and N. Main Street access limits the development potential. He further
stated that this property was their retirement plan and selling part of it to the City for storm water
purposes was to benefit the City but had no benefits for them.
Motion by Borsuk to approve the authorization to acquire property at the 3400 block of N.
Main Street and acquire an easement at 3262 Jackson Street.
Seconded by Bowen. Motion carried 8-0.
OTHER BUSINESS
Mr. Borsuk requested that after the April 2015 elections that a workshop be held with the Common
Council and Plan Commission to discuss plans and make sure that both entities are on the same page.
Mr. Bowen requested that the City’s Redevelopment Authority also be included in this workshop.
Mr. Burich responded that a workshop would be scheduled at some point after the elections.
Mr. Buck stated that the first ¼ of the zoning ordinance draft will be available by January 22nd and that
a workshop would be scheduled for the Plan Commission to review it in February. He also discussed
the sections that would be addressed.
Mr. Thoms commented that we needed to address issues relating to the riverfront property and that he
would also like to hold a workshop on detention basins and landscaping features.
There being no further business, the meeting adjourned at approximately 5:34 pm. (Vajgrt/Cummings)
Respectfully submitted,
Darryn Burich
Director of Planning Services