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BOARD OF APPEALS MINUTES
FEBRUARY 13, 2002
PRESENT: Carl Ameringer, Fred Dahl, Cheryl Hentz, Don Krueger, John Schorse
EXCUSED: Joel Kluessendorf
STAFF: Matt Tucker, Associate Planner; Mary Lou Degner, Recording Secretary
The meeting was called to order by Chairman Krueger. Roll call was taken and a quorum declared
present.
The minutes of January 9, 2002 were approved as mailed. (Hentz/Dahl).
I: 3114 ALGOMA BOULEVARD
B. Mike Sammons, applicant requests a variance to construct an addition on an existing building that
will have a 20’ side yard setback and a10’ rear yard setback, whereas Section 30-30(B)(2) of the City
of Oshkosh Zoning Ordinances requires a 50’ side yard setback and Section 30-30(B)(3) requires a
25’ rear yard setback.
Matt Tucker introduced the item with pictures and circulated a copy of the Comprehensive Plan map
showing industrial use as the planned use for the general area.
Mike Sammons, 1845 Walnut Street, said the tenant that rents his back property has had a problem
with theft and the purpose of the addition is so items can be moved inside and locked up. He added
that when the building was originally built it was in the Town of Oshkosh, which required a 10’
setback. Mr. Sammons said the 10’ rear yard setback would be beneficial for the backing of vehicles
and trailers into the building. He said, in his opinion, the adjacent property that is now zoned R-1 will
eventually be zoned M-3, and in regard to the future reconstruction of the HWY 110 and HWY 41
overpass he believes part of that property will be gone at that time.
Ms. Hentz inquired if at the time of road construction on HWY 110 if the property at 3140 Algoma
Boulevard would be available for sale.
Mr. Sammons responded that the owner informed him that she gave the property to a church in
Texas.
Mr. Ameringer asked if Mrs. Marsh expressed any concern regarding the extension.
Mr. Sammons answered no and presented pictures of the rear of the property.
Mr. Schorse inquired if the addition was going to expand the whole building, rather than just add
onto one end.
Mr. Tucker clarified that only the portion to the north would be expanded.
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Discussion continued on the location of the subject property and provisions that could be made to
address the code violations if the variance request was not approved. Mr. Tucker explained that
moving the materials inside would change it from what it has become, an open storage contractor’s
yard, to a code compliant situation. Resolving other code violations, such as pallets, piles of gravel
and dirt, etc., would be a code enforcement issue.
Peter Jungbacker, 377 City Center, representing King Fitness, presented pictures of the area. He said
he wanted to bring it to the attention of the Board that the property is zoned M-3 and has a number of
setback issues, which if it had been built today would cause problems with the existing code. He cited
the existing setback measurements conflict with what would meet the present requirements He stated
that the structure is a nonconforming structure that was brought in from the Town of Oshkosh at an
earlier date. Attorney Jungbacker presented copies of the DOT (Department of Transportation)
remodeling plan for the intersection of HWY 110 and HWY 41. He added this is an area of transition
and his client, Mr. King, has invested in substantial improvements to his property. He further noted
the adjacent residential property owner, Mrs. Marsh, has provided him a notice that she is against the
variance request. Attorney Jungbacker added that there is no economic hardship that has been
articulated by the applicant, and there are current substantial setback issues in place, that are
acceptable based on the classification of the structure being a nonconforming structure. He added the
subject property is already extensively used. Attorney Jungbacker said, in his opinion, as a result of
the future Highway 110 interchange project, properties on Algoma Blvd. will probably be used more
for commercial use rather than M-3 zoning. He said, in his opinion, it would be wrong public policy
to further exacerbate what is a number of setback issues as it relates to the current site, in the absence
of any compelling economic hardship. He asked if a parking plan was submitted.
Discussion continued on the pictures that were presented by Mr. Jungbacker, the size of the building,
and the size of the proposed addition.
Mr. Ameringer asked how the King property would be adversely affected by the requested variance.
Attorney Jungbacker responded the test is not the damage. He stated the objection is the intensity of
the utilization of the site, which is not compatible to King Fitness, although the use is permitted in
industrial zoning. He said in his opinion, the test the City must apply is the economic hardship burden,
which has not been met. Attorney Jungbacker stated that the applicant has full utilization of his
property with the three buildings on site and the situation where he is storing substantial property
outdoors.
Chairman Krueger clarified that the Board can not consider an economic hardship.
Attorney Jungbacker explained, in his opinion, the reason for the variance request is completely
economic.
Discussion continued on the concept drawing from the DOT.
Ms. Hentz stated for the record, she would like it verified who owns the property at 3140 Algoma
Blvd., since there is a discrepancy as to the ownership. She expressed a concern as to the statement by
the applicant saying Mrs. Marsh does not have a problem with the requested variance and a signed
statement, presented by Attorney Jungbacker, saying she is against the variance request. Ms. Hentz
stated she would like to be able to ask Mrs. Marsh what her objection is.
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Jim Schaeffer, 1206 Nimrod Ct., said he owns the property to the south, 3092 Algoma Blvd., and
stated he has no objections to the variance request. He said, in his opinion, it should be approved
because the 50’ setback requirement is wrong in this particular case. He added he has a similar
situation at 1944 W. Fernau Ave.
Mr. Tucker noted a few points of clarification, correcting errors in Attorney Jungbacker’s statement,
citing Section 30-30(B)(8) of the City of Oshkosh Zoning code, which refers to existing uses and
structures. He stated a section was added in the 1996 zoning code update, because the industrial
properties that did not meet new setback provisions were uncomfortable with the classification of
being nonconforming. Hence, there was a special provision written that states that uses and structures
in the district that were conforming prior to the effective date of the ordinance will remain conforming
under the adoption of the ordinance. Mr. Tucker said that all the structures that exist are conforming
today.
Mr. Ameringer asked if there could be an expansion to the property that would be conforming, which
would not require a variance.
Mr. Tucker explained that if the expansion were added to the west, toward Algoma, a variance would
not be required. Although compliant, it would probably not be feasible because of the construction of
the current structure, and it would also encroach upon the available maneuvering area. He said in
regard to the parking plan, typically in new industrial properties one is required to submit a parking
plan. The parking of semi trucks, trailers, vehicles, etc., introduces what is referred to as a contractor
yard. Mr. Tucker added if the applicant chose to erect a 6’ high solid fence he could create a
contractor yard, but he would need to meet the required setbacks. As far as the future zoning and use
issues raised by Attorney Jungbacker, Mr. Tucker noted that M-3 permits a number of commercial
uses as well as industrial uses.
Mr. Ameringer asked how a variance could be granted on what might happen in the future.
Discussion continued on the guidelines that could be used. Chairman Krueger noted that this site
could easily be turned into a contractor yard and would then continue to be an eye sore. He questioned
if the variance was approved could there be restrictions so the area could not be turned into a
contractor yard. Mr. Tucker responded that would be restricting the use by condition, which would be
a potential problem. Chairman Krueger stated he had a hard time supporting this. Ms. Hentz said she
torn, but was leaning against the request. She asked if Mr. Sammons and Mr. King could reach a
compromise on the size of the addition, so it would not encroach as much on the setbacks and so it
would not be such an eye sore for the neighbors.
Discussion ensued regarding the buildings on Mr. King’s property, the alleged opposition from the
neighbor to the north, and the use of the M-3 property.
Mr. Sammons withdrew the variance request.
II: 121 CHURCH AVENUE
Bob Finley, applicant and John C. May, owner, are requesting a variance to install a ground sign with
a 10’ front yard setback, whereas Section 30-26(B)(3)(c) of the City of Oshkosh Zoning Ordinance
requires a minimum 25’ front yard setback in a C-3 Central Commercial District where block frontage
is shared with a residential district.
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Matt Tucker introduced the item with photos.
Bob Finley, 121 Church Avenue, said he would like to erect a sign on the property, which is
consistent with signs that are on adjacent properties.
Board discussion found the sign would be appropriate.
Motion by Hentz for approval of the variance to construct a ground sign with a 10’ front yard
setback. Seconded by Dahl. Motion approved 5-0. Unanimous.
Finding of the fact: It was concluded the sign would be consistent with other signs on the block
and there would be no adverse impact on the neighboring properties.
III: VACANT TYLER AVENUE, LOT 17 BLOCK 16
R. Duke Schneider, applicant and owner, is requesting a variance to construct a two family dwelling
on a lot with 50’ of width and 6000 sq. ft. of area, whereas Section 30-19(B)(1) of the City of
Oshkosh Zoning Ordinance requires 60’ of width and 7200 sq. ft. of lot area.
Matt Tucker introduced the item with photos and circulated a map denoting existing land use of the
area.
Dan Binder, 835 Merritt Avenue, said he was there on behalf of Duke Schneider. He said when Mr.
Schneider purchased the property he assumed he could erect a duplex because it was Zoned R-2. Mr.
Schneider believes, in his opinion, it is the best use for the lot because it is hard to market a new
single family home in an older neighborhood.
Chairman Krueger asked how long Mr. Schneider owned the property.
Mr. Tucker explained the property changed hands in August of 2001 and the owner may have been
an original partner when the land was originally purchased in the early 1990’s. Discussion continued
on the marketability of the subject property. Mr. Binder said the applicant’s intent is to manage the
duplex and he presently owns about 300 rental units. Ms. Hentz asked about the plans for parking
issues. Discussion continued on parking requirements.
Delores Donker, 1028 Tyler Avenue, objected to the variance request. She stated a concern about the
parking situation and the available space for a driveway. She also expressed her unhappiness with
conditions that other duplexes in the area have caused and the fact that all the additional vehicles
block the fire hydrant in the street.
Kim Bahr, Mrs. Donker’s daughter, of 2515 Minerva Street, also stated her objection due to the
inadequate size of the lot.
Mary Bernier, 1419 Walnut Street, was present to represent her parents of 1023, Tyler Avenue. She
stated it is an owner occupied neighborhood with older homes and expressed a concern about the size
of the lot and the fact that the duplex does not fit into the neighborhood. She noted her parents had
contacted staff to voice their objection to the variance request. Mr. Tucker concurred.
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Board discussion followed with Mr. Ameringer noting that no criterion has been met for a variance
and the fact that the hardship was self created. He further added that the applicant should not have
assumed he could erect a duplex. Ms. Hentz inquired when the duplex at 1012 Tyler Avenue was
built.
Mr. Tucker responded it was built in 1993 or 1994 and the zoning requirements changed in 1996.
He further clarified that the subject property transferred ownership on June 27, 2001. Ms. Hentz said
the applicant bought the property with the intent of building a duplex. She further added she does not
have a problem with the structure not being owner occupied, but she could not support the request
because of the exceptionally small lot size. Mr. Ameringer asked for clarification on whether the
applicant purchased the subject property before or after the zoning requirements changed. Mr. Tucker
explained the applicant may have been a member of the group that changed ownership, however only
Mr. Schneider would be able to answer that question. Mr. Ameringer asked for the minutes to reflect
that if his comments were incorrect it was because he was basing his understanding that the applicant
purchased the property after the restrictions went into effect and that may not be the case. He said he
still would not support the variance based on what he knows, the fact that the applicant is not present
to answer the questions, and in addition the neighbors have indicated this would be a hardship on their
property. He added he thought it would be very difficult to meet the criterion established.
Motion by Hentz for approval of the variance to construct a two family dwelling on a lot with
50’ of width and 6000 sq. ft. of area. Seconded by Schorse. Motion denied 0-5.
IV: 1120 S. KOELLER STREET
Flyway Signs, applicant for Wisconsin Hospitality Group, LLC (dba/Pizza Hut) is requesting an
appeal to the Zoning Administrator’s determination that per the City of Oshkosh Zoning Ordinance, a
proposed sign qualifies as a roof sign, and therefor is not a permitted sign.
Matt Tucker introduced the appeal presenting a photo of the roof design. He noted there is confusion
in the Zoning Ordinance that states in one section that wall projecting and roof signs are permitted
(for mansard style roofs) and further in another section states that roof signs are not allowed. The
determination has been that the verbiage “ roof signs permitted” is incorrect and it will be clarified in
future code amendments.
Chairman Krueger noted the request is not a variance for a roof sign, rather it is an appeal to staff’s
determination of the ordinance.
Mr. Ameringer asked to see the ordinance. Mr. Schorse stated a concern in the interpretation of the
conflicting passages of the ordinance. Mr. Tucker explained the roof sign referred to in the section of
the sign ordinance is a parapet/mansard roof, which is a wall along the edge of a roof, so it is
considered a wall sign. Chairman Krueger said an example of a parapet sign would be the old
Menards.
Scott Steffen, 1120 S. Koeller Street, stated there is confusion as to whether the design of the
building is considered a roof or a parapet area. He explained the roof was damaged, and in order to
make repairs the sign had to be removed, and due to technicalities of the ordinance the sign could not
be replaced. Mr. Steffen said due to the design of the building there is not sufficient wall space and
although the “red roof” design is present, as the building exists now, it is not recognized as a Pizza
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Hut. He cited an example of Shakey’s trademark building in the area no longer being a Shakey’s
franchise. He said Pizza Hut does have a fairly low profile pylon sign that is situated by the highway
and in his opinion, to place a 60’ sign would introduce some setback conflicts. The design,
architecture, and brand image of the building is such that it should have the logo on the roof section,
which is designed more as a parapet. Mr. Steffens said they are not seeking a variance to make it
permanent because the building is going to be rebuilt in a 2 1/2 to 3 year period, so when the building
is redesigned it is no longer an issue.
Ms. Hentz questioned the pylon sign. Mr. Steffen responded they could construct a new pylon sign
that could be up to 60’ tall, but the process to change the existing sign would be about $28,000. Mr.
Steffen presented pictures of a similar type building, which shows the new revised Pizza Hut sign on
it. He said they would like to get the logo identification back on the building.
Jim Metko, representing Wisconsin Hospitality Group, the franchise owners, said the lease expires in
2006. He said the landlord is in a current position where he does not want to rebuild at the present
time. Mr. Metko stated in about 2 ½ years they will be leveling the building to come back with a new
proto type Pizza Hut building, which does not resemble the current structure. He explained because it
is a short term basis they are requesting an appeal, not a variance. He stated they would like to restore
the identity to the building. He said because of the storm damage of June 11, 2001 they had no control
over the situation.
Mr. Ameringer asked if they had any contractual obligation to the franchise in regard to signage. Mr.
Metko replied no. He added that in the case of a new building they would have to use the new
required signage. Mr. Ameringer asked if the roof sign restrictions were in effect when Pizza Hut was
initially set up. Mr. Tucker responded there were no design standards on the HWY 41 Corridor. Mr.
Metko replied that in his opinion, roof signs were not allowed and their sign was viewed as a wall
sign. He said they have encountered other grandfather clauses, which have since expired, and they
now have to come into compliance. He said other communities consider this area a cupola with wall
projections, so it is classified as a wall section. Mr. Ameringer asked which other Wisconsin
municipalities abided by that interpretation. Mr. Metko answered Glendale and presented photos.
Discussion continued on the language and whether it was similar.
Ms. Hentz inquired if the future Pizza Hut would again have problems with the signage. Mr. Tucker
said the sign is in violation according to staff’s interpretation of the ordinance today and noted a
future Pizza Hut would probably be of a new design, but no pictures were available today of this
sign. Chairman Krueger noted this is an appeal to the determination of staff. Mr. Ameringer stated
since this is not a variance they do not have to stick to this case and he would like to know if there
have been other kinds of interpretations by staff. Mr. Tucker cited two examples; Hair Experts made a
request to take down and replace their roof sign, which was not allowed, and Pommerening Chevrolet
had to redesign their proposed sign to not be supported by the roof.
Chairman Krueger asked if the cupola area or parapet area is part of the roof structure or part of a
bearing wall. Mr. Metko responded it is tied to a bearing wall, which runs through the middle of the
structure itself and is additional support to the outside perimeters. He said it is a separately framed
structure. He noted the original design intent was for advertising. He explained that when a Pizza Hut
closes a restaurant, the entire cupola is removed, because it is part of the de-identification of the
property.
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Mr. Schorse asked when and if the building is torn down, would it be built in the same area. Mr.
Metko answered that is the intent. Discussion continued on the probability of a new building and the
language in Section 30-37 of the Zoning Code.
During board discussion Mr. Tucker circulated a picture from a book entitled “Sign Regulations for
Small and Mid Size Communities”. This picture depicted a photo of a Pizza Hut and described the
sign as an “integral roof sign”. Mr. Dahl stated in his opinion the area in question is not a wall.
Chairman Krueger said he sympathized with the applicants for the request for the signage, however he
feels the area in question is a roof. Mr. Ameringer said he is also sympathetic to the applicants
because the hardship was not self created. He added because this is not a variance request it is
necessary to take into account other interpretations by staff and other instances so under these
conditions he would deny the appeal. Mr. Steffen explained staff suggested that since they disagree as
to the interpretation that the sign is a roof sign, they should apply for an appeal rather than a variance
request. Discussion continued on the possible support of a variance request. Mr. Schorse noted the
two conflicting statutes in the code that could be argued because at the present time they are both on
the books. Ms. Hentz agreed that the hardship was not self created and mentioned she too was
bothered by the fact that there is conflicting verbiage in the code. She added she does not see how
putting the sign back would adversely affect any businesses in the area. She said she would support
the applicants. Mr. Tucker read the conflicting Section 30-37 pointing out the wording “(if not
prohibited by this Section)”.
Chairman Krueger clarified that a yes vote would support staff’s determination and a no vote denies
the appeal.
Motion by Hentz for support of the Zoning Administrator’s determination that the proposed
sign qualifies as a roof sign and therefor is not a permitted sign. Seconded by Schorse. Motion
approved 2-3.
V: 2175 W. 20TH AVENUE
Tom Leske, owner of SERV-ICE, is requesting a variance to construct an addition onto an existing
building that will result in the building having a 10’ side yard setback, whereas Section 30-30(B)(2)
of the City of Oshkosh Zoning Ordinance requires a 20’ side yard setback.
Matt Tucker introduced the item with photos. He presented a letter from Bemis Flexible Packaging
stating they have no objections to the variance request, and a letter from Chamco Inc., indicating
approval of variances from the Industrial Park covenants, and in support of the variance.
Tom, Leske, 2175 W. 20th Avenue, noted staff did an excellent job in explaining the situation. He
noted Bemis is on record as having no objections. Mr. Leske stated they have purchased land, from
Power Mechanical, to help the situation of moving the parking and many steps have been taken,
however the variance request is for one area that was not able to be resolved. He made a request that
the recommended condition be removed because he feels it is unnecessary due to the extensive
landscaping Serv-Ice has established on their property. He stated they have proven that they always
exceed what is necessary in regards to landscape plans.
Discussion continued on the landscaping situation. Mr. Tucker explained that a landscape plan would
be required for a building permit, and staff wishes to take a look at the landscaping and how it will
work with the required stormwater retention areas.
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Board discussion followed with it being stated the issue is very straightforward and the fact that a
landscaping plan would have to be submitted. It was stated that the area is a class area for the
Industrial Park, and is an excellently maintained property.
Motion by Hentz for a variance to construct an addition onto an existing building that will
result in the building having a 10’ side yard setback with the following condition:
1) A landscape plan be submitted and approved by the Department of Community
Development prior to a building permit being issued.
Seconded by Schorse. Motion approved 5-0. Unanimous.
Finding of the fact: It was concluded it would be the least possible to remove the hardship, and
noted that an attempt was made to purchase the needed land so the variance would not be required.
There being no further business, the meeting adjourned at 5:30 p.m.
Respectfully submitted,
Matt Tucker
Associate Planner
MT/mld
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