BOARD OF ZONING APPEALS

Transcription

1 AGENDA BOARD OF ZONING APPEALS Page 1 of 44 Members: o Robert Woehr (Chairperson) o Andrew Boden o George Doxtator o Lynn Schulist o Ismaila Odogba o Lynn Markham (Alternate 1) o Jim Oliva (Alternate 2) Date and Time: January 30, :30 PM 1. Roll call Location: Police Department Room Michigan Avenue Stevens Point, WI Discussion and possible action on the following: 2. Presentation by City Attorney: Roles and duties of the Board of Zoning Appeals pages Report of the December 18, 2019 meeting pages Board of Zoning Appeals Decision Form pages Request from Frank Jurgella for a variance from setback standards to construct an attached and covered structure at 925 Second Street (Parcel ID s & ) pages Schedule Regular Meeting 7. Adjourn PLEASE TAKE NOTICE that any person who has special needs while attending these meetings or needs agenda materials for these meetings should contact the City Clerk as soon as possible to ensure that a reasonable accommodation can be made. The City Clerk can be reached by telephone at (715) or by mail at 1515 Strongs Avenue, Stevens Point, WI Maps further defining the above area(s) may be obtained from the City of Stevens Point Department of Community Development, 1515 Strongs Avenue, Stevens Point, WI 54481, or by calling (715) , during normal business hours. PLEASE TAKE FURTHER NOTICE that a quorum of the Common Council may be in attendance at this meeting. 1 of 1

2 Page 2 of 44 Adopted: December 18, 2018 Revised: January 24, 2019 Zoning Board of Appeals Procedure Guidelines Preamble The Zoning Board of Appeals (the Board ) is a quasi-judicial body, subject to certiorari review of its decisions by the circuit court. As such, members must ensure that their actions, comments, and decisions will withstand legal scrutiny within the four corners of Wis. Stat (7)(e). This document is intended to provide guidelines for the Stevens Point Zoning Board of Appeals in discharging its statutory responsibilities. Preparation Prior to Meeting Upon receipt of an application from any individual or party aggrieved by a decision of the city s Zoning Administrator, a written request for a hearing by the Board will be completed by the aggrieved individual/party on forms provided by the Community Development Department. The application and any supporting documents, along with the Zoning Administrator s written response to the information contained therein will be consolidated into a meeting packet to be provided to the Board. Staff of the Community Development Department will schedule a meeting of the Board for a time/date amenable to all persons concerned. The Community Development Department, in coordination with the Board s chairperson, will prepare a meeting agenda and post the appropriate meeting notice in accordance with applicable law. During agenda preparation, if it appears that both the applicant and the Zoning Administrator will be represented by legal counsel, the Board chairperson may request that the City obtain legal counsel for the Board. All agendas will contain the appropriate notice that the board may at any time adjourn into closed session in accordance with Wis. Stat (1)(a) to deliberate at a quasijudicial hearing. Board members must avoid ex parte communication with the applicant, City staff, and other Board members outside the legally noticed meeting. Meeting Sequence All meetings of the board will be open to the public, but are not public hearings. The principal participants will be Board members, the applicant, the Zoning Administrator, and legal counsel of the aforementioned groups. Normally, testimony will not be sworn, however if sworn testimony is requested by either of the opposing parties, the chairperson may choose to administer oaths. Traditional rules of evidence will not be applied, but evidence shall be relevant and not duplicative of evidence already presented. The aggrieved individual/party will present its testimony first and may call witnesses. At the conclusion of testimony, the zoning administrator and board members will be afforded an opportunity to ask questions pertaining to the testimony. The Zoning Administrator will then present his/her testimony, with the applicant & Board members afforded an opportunity to ask questions pertaining to that testimony. The chair will then close testimony & begin deliberation among the Board members. During deliberations,

3 Page 3 of 44 Board members may ask witnesses for additional clarification of their testimony, however opposing parties, witnesses, or members of the audience will not be allowed to participate in the discussions. During deliberations and when discussing motions which are on the floor, members should restrict their comments to the relevant standards enumerated in Wis. Stat (7)(e)7.b.& d. (i.e. unnecessary hardship, public safety and welfare secured, substantial justice, unique conditions, etc.). Roll call votes will be taken on each issue, and the yeas & nays of each member recorded in the minutes. In the event of a tie vote, the matter voted on shall remain open pending a recess by the Board. During such recess, a member who was absent from the meeting will be provided the written materials entered into the record on the matter and an audio or video recording of the proceedings. That member shall have an adequate amount of time to review such materials. Following that review, the Board shall re-convene with the previously absent member present. The previously absent member shall then cast a vote to break the tie. Decision to be in Writing and Filed with Zoning Administrator The Board shall render its decisions in writing using a standardized form which may be updated from time to time. Such form shall reference the applicable legal standards and provide for a description of the evidence entered into the record before the Board that supports its findings regarding such standards. The Board may, during its deliberations on matters before it, reach a general consensus on the content of the form, followed by the introduction of a motion to adopt the findings as written. Upon a majority vote of the Board to adopt it, the written form shall constitute the findings and decision of the Board. Such findings and decision shall be filed with the Zoning Administrator within 5 days of their adoption, and such filing shall constitute the filing of the decision in the office of the board of appeals as identified in Wis. Stats (7)(e)10. Post Meeting As soon as practicable, draft meeting minutes will be prepared by Community Development Department staff and distributed to Board members who attended the meeting for review and corrections. Upon receipt of the member s responses, minutes will be finalized for approval at the next meeting of the Board.

4 Updated Wis. Stats. Published and certified under s December 1, Page 4 of Updated Wis. Stats. CITIES ments have the effect of changing the allowable use of any property within the city, the notice shall include either a map showing the property affected by the amendments or a description of the property affected by the amendments and a statement that a map may be obtained from the city council. If the council does not receive recommendations and a report from the plan commission, board of public land commissioners or plan committee within 60 days of submitting the proposed amendments, the council may hold hearings without first receiving the recommendations and report. 2m. In any city which is not located in whole or in part in a county with a population of 750,000 or more, if a proposed amendment under subd. 2. would make any change in an airport affected area, as defined under sub. (6) (am) 1. b. and the owner or operator of the airport bordered by the airport affected area protests against the amendment, the amendment shall not become effective except by the favorable vote of two thirds of the members of the council voting on the proposed change. NOTE: Subd. 2m. is shown as affected eff by 2017 Wis. Act 243. Prior to it reads: 2m. a. In case of a protest against an amendment proposed under subd. 2., duly signed and acknowledged by the owners of 20 percent or more either of the areas of the land included in such proposed amendment, or by the owners of 20 percent or more of the area of the land immediately adjacent extending 100 feet therefrom, or by the owners of 20 percent or more of the land directly opposite thereto extending 100 feet from the street frontage of such opposite land, such amendment shall not become effective except by the favorable vote of three fourths of the members of the council voting on the proposed change. b. In any city which is not located in whole or in part in a county with a population of 750,000 or more, if a proposed amendment under subd. 2. would make any change in an airport affected area, as defined under sub. (6) (am) 1. b. and the owner or operator of the airport bordered by the airport affected area protests against the amendment, the amendment shall not become effective except by the favorable vote of two thirds of the members of the council voting on the proposed change. 3. The council may repeal or repeal and reenact the entire district plan and all zoning regulations in accordance with subd. 1. The council may repeal or repeal and reenact a part or parts of the district plan and regulations in accordance with subds. 2. and 2m. 4. The city council shall maintain a list of persons who submit a written or electronic request to receive notice of any proposed zoning action that may be taken under subd. 1. a. or b. or 2. that affects the allowable use of the person s property. Annually, the city council shall inform residents of the city that they may add their names to the list. The city council may satisfy this requirement to provide such information by any of the following means: publishing a 1st class notice under ch. 985; publishing on the city s Internet site; 1st class mail; or including the information in a mailing that is sent to all property owners. If the plan commission, the board of public land commissioners, or city plan committee of the city council completes action on any tentative recommendations that are noticed under subd. 1. a., proposed changes to a proposed district plan and regulations that are submitted under subd. 1. b., or proposed amendments that are submitted under subd. 2., and the city council is prepared to vote on the tentative recommendations, proposed changes to a proposed district plan, and regulations or proposed amendments, the city council shall send a notice, which contains a copy or summary of the tentative recommendations, proposed changes to a proposed district plan, and regulations or proposed amendments, to each person on the list whose property, the allowable use of which, may be affected by the tentative recommendations or proposed changes or amendments. The notice shall be by mail or in any reasonable form that is agreed to by the person and the city council, including electronic mail, voice mail, or text message. The city council may charge each person on the list who receives a notice by 1st class mail a fee that does not exceed the approximate cost of providing the notice to the person. An ordinance or amendment that is subject to this subdivision may take effect even if the city council fails to send the notice that is required by this subdivision. (da) Interim zoning. The common council of any city which has not adopted a zoning ordinance may, without referring the matter to the plan commission, enact an interim zoning ordinance to preserve existing uses while the comprehensive zoning plan is being prepared. Such ordinance may be enacted as is an ordinary ordinance but shall be effective for no longer than 2 years after its enactment. (de) Conditional use permits. 1. In this paragraph: a. Conditional use means a use allowed under a conditional use permit, special exception, or other special zoning permission issued by a city, but does not include a variance. b. Substantial evidence means facts and information, other than merely personal preferences or speculation, directly pertaining to the requirements and conditions an applicant must meet to obtain a conditional use permit and that reasonable persons would accept in support of a conclusion. 2. a. If an applicant for a conditional use permit meets or agrees to meet all of the requirements and conditions specified in the city ordinance or those imposed by the city zoning board, the city shall grant the conditional use permit. Any condition imposed must be related to the purpose of the ordinance and be based on substantial evidence. b. The requirements and conditions described under subd. 2. a. must be reasonable and, to the extent practicable, measurable and may include conditions such as the permit s duration, transfer, or renewal. The applicant must demonstrate that the application and all requirements and conditions established by the city relating to the conditional use are or shall be satisfied, both of which must be supported by substantial evidence. The city s decision to approve or deny the permit must be supported by substantial evidence. 3. Upon receipt of a conditional use permit application, and following publication in the city of a class 2 notice under ch. 985, the city shall hold a public hearing on the application. 4. Once granted, a conditional use permit shall remain in effect as long as the conditions upon which the permit was issued are followed, but the city may impose conditions such as the permit s duration, transfer, or renewal, in addition to any other conditions specified in the zoning ordinance or by the city zoning board. 5. If a city denies a person s conditional use permit application, the person may appeal the decision to the circuit court under the procedures contained in par. (e) 10. (e) Board of appeals. 1. The council which enacts zoning regulations pursuant to this section shall by ordinance provide for the appointment of a board of appeals, and shall provide in such regulations that said board of appeals may, in appropriate cases and subject to appropriate conditions and safeguards, make special exceptions to the terms of the ordinance in harmony with its general purpose and intent and in accordance with general or specific rules therein contained. Nothing in this subdivision shall preclude the granting of special exceptions by the city plan commission or the common council in accordance with the zoning regulations adopted pursuant to this section which were in effect on July 7, 1973 or adopted after that date. 2. The board of appeals shall consist of 5 members appointed by the mayor subject to confirmation of the common council for terms of 3 years, except that of those first appointed one shall serve for one year, 2 for 2 years and 2 for 3 years. The members of the board shall serve at such compensation to be fixed by ordinance, and shall be removable by the mayor for cause upon written charges and after public hearing. The mayor shall designate one of the members as chairperson. The board may employ a secretary and other employees. Vacancies shall be filled for the unexpired terms of members whose terms become vacant. The mayor shall appoint, for staggered terms of 3 years, 2 alternate members of such board, in addition to the 5 members above provided for. Annually, the mayor shall designate one of the alternate members as 1st alternate and the other as 2nd alternate. The 1st alternate shall act, with full power, only when a member of the board refuses to vote because of interest or when a member is absent. The 2nd alternate shall so act only when the 1st alternate so refuses Wisconsin Statutes updated through 2017 Wis. Act 367 and all Supreme Court and Controlled Substances Board Orders filed before and in effect on December 1, Published and certified under s Changes effective after December 1, 2018 are designated by NOTES. (Published )

5 Updated Wis. Stats. Published and certified under s December 1, Page 5 of CITIES Updated Wis. Stats. 22 or is absent or when more than one member of the board so refuses or is absent. The above provisions, with regard to removal and the filling of vacancies, shall apply to such alternates. 3. The board shall adopt rules in accordance with the provisions of any ordinance adopted pursuant to this section. Meetings of the board shall be held at the call of the chairperson and at such other times as the board may determine. The chairperson, or in the chairperson s absence, the acting chairperson, may administer oaths and compel the attendance of witnesses. All meetings of the board shall be open to the public. The board shall keep minutes of its proceedings, showing the vote of each member upon each question, or, if absent or failing to vote, indicating such fact, and shall keep records of its examinations and other official actions, all of which shall be immediately filed in the office of the board and shall be a public record. 3m. If a quorum is present, the board of appeals may take action under this subsection by a majority vote of the members present. 4. Appeals to the board of appeals may be taken by any person aggrieved or by any officer, department, board or bureau of the city affected by any decision of the administrative officer. Such appeal shall be taken within a reasonable time, as provided by the rules of the board, by filing with the officer from whom the appeal is taken and with the board of appeals a notice of appeal specifying the grounds thereof. The officer from whom the appeal is taken shall forthwith transmit to the board all the papers constituting the record upon which the action appealed from was taken. 5. An appeal shall stay all legal proceedings in furtherance of the action appealed from, unless the officer from whom the appeal is taken certifies to the board of appeals after the notice of appeal shall have been filed with the officer, that by reason of facts stated in the certificate a stay would, in the officer s opinion, cause imminent peril to life or property. In such case proceedings shall not be stayed otherwise than by a restraining order which may be granted by the board of appeals or by a court of record on application, on notice to the officer from whom the appeal is taken, and on due cause shown. 6. The board of appeals shall fix a reasonable time for the hearing of the appeal or other matter referred to it, and give public notice thereof, as well as due notice to the parties in interest, and decide the same within a reasonable time. Upon the hearing any party may appear in person or by agent or by attorney. In any action involving a listed property, as defined in s (4), the board shall consider any suggested alternatives or recommended decision submitted by the landmarks commission or the planning commission. 7. a. In this subdivision, area variance means a modification to a dimensional, physical, or locational requirement such as a setback, frontage, height, bulk, or density restriction for a structure that is granted by the board of appeals under this paragraph. In this subdivision, use variance means an authorization by the board of appeals under this paragraph for the use of land for a purpose that is otherwise not allowed or is prohibited by the applicable zoning ordinance. b. The board of appeals shall have the following powers: To hear and decide appeals where it is alleged there is error in any order, requirement, decision, or determination made by an administrative official in the enforcement of this section or of any ordinance adopted pursuant thereto; to hear and decide special exception to the terms of the ordinance upon which such board is required to pass under such ordinance; to authorize upon appeal in specific cases such variance from the terms of the ordinance as will not be contrary to the public interest, where, owing to special conditions, a literal enforcement of the provisions of the ordinance will result in practical difficulty or unnecessary hardship, so that the spirit of the ordinance shall be observed, public safety and welfare secured, and substantial justice done. c. The board may permit in appropriate cases, and subject to appropriate conditions and safeguards in harmony with the general purpose and intent of the ordinance, a building or premises to be erected or used for such public utility purposes in any location which is reasonably necessary for the public convenience and welfare. d. A property owner bears the burden of proving unnecessary hardship, as that term is used in this subdivision, for an area variance, by demonstrating that strict compliance with a zoning ordinance would unreasonably prevent the property owner from using the property owner s property for a permitted purpose or would render conformity with the zoning ordinance unnecessarily burdensome or, for a use variance, by demonstrating that strict compliance with a zoning ordinance would leave the property owner with no reasonable use of the property in the absence of a variance. In all circumstances, a property owner bears the burden of proving that the unnecessary hardship is based on conditions unique to the property, rather than considerations personal to the property owner, and that the unnecessary hardship was not created by the property owner. e. The council of a city may enact an ordinance specifying an expiration date for a variance granted under this subdivision if that date relates to a specific date by which the action authorized by the variance must be commenced or completed. If no such ordinance is in effect at the time a variance is granted, or if the board of appeals does not specify an expiration date for the variance, a variance granted under this subdivision does not expire unless, at the time it is granted, the board of appeals specifies in the variance a specific date by which the action authorized by the variance must be commenced or completed. An ordinance enacted after April 5, 2012, may not specify an expiration date for a variance that was granted before April 5, f. A variance granted under this subdivision runs with the land. 8. In exercising the above mentioned powers such board may, in conformity with the provisions of such section, reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination appealed from, and may make such order, requirement, decision or determination as ought to be made, and to that end shall have all the powers of the officer from whom the appeal is taken, and may issue or direct the issue of a permit. 10. Any person or persons, jointly or severally aggrieved by any decision of the board of appeals, or any taxpayer, or any officer, department, board or bureau of the municipality, may, within 30 days after the filing of the decision in the office of the board of appeals, commence an action seeking the remedy available by certiorari. The court shall not stay proceedings upon the decision appealed from, but may, on application, on notice to the board of appeals and on due cause shown, grant a restraining order. The board of appeals shall not be required to return the original papers acted upon by it, but it shall be sufficient to return certified or sworn copies thereof. If necessary for the proper disposition of the matter, the court may take evidence, or appoint a referee to take evidence and report findings of fact and conclusions of law as it directs, which shall constitute a part of the proceedings upon which the determination of the court shall be made. The court may reverse or affirm, wholly or partly, or may modify, the decision brought up for review. 14. Costs shall not be allowed against the board unless it shall appear to the court that the board acted with gross negligence or in bad faith, or with malice, in making the decision appealed from. 15. All issues in any proceedings under this section shall have preference over all other civil actions and proceedings. (ea) Filing fees. The common council may by ordinance or resolution establish reasonable fees for the filing of a petition for amendment of the zoning ordinance or official map, or for filing an appeal to the board of appeals. (em) Historic preservation. 1. Subject to subds. 2. and 2m., a city, as an exercise of its zoning and police powers for the purpose of promoting the health, safety and general welfare of the community and of the state, may regulate by ordinance, or if a city Wisconsin Statutes updated through 2017 Wis. Act 367 and all Supreme Court and Controlled Substances Board Orders filed before and in effect on December 1, Published and certified under s Changes effective after December 1, 2018 are designated by NOTES. (Published )

6 Page 6 of 44 ZONING BOARD OF APPEALS REPORT December 18, :30 PM Police Department, Room Michigan Avenue, Stevens Point, WI PRESENT: Mr. Bob Woehr, Mr. Andrew Boden, Mr. George Doxtator, and Mr. Ismaila Odogba. ALSO PRESENT: Zoning Administrator Kearns, City Attorney Beveridge, Secretary Mohr, Ms. Lori Kunze, and Mr. David Kunze. 1. Roll call. INDEX: Discussion and possible action on the following: 2. Report of the September 26, 2018 meeting 3. Board of Zoning Appeals Policy & Procedures 4. Request from Lori Kunze for an administrative appeal regarding a single-family or two-family use at 2306 College Avenue (Parcel ID ) 5. Adjourn 1. Roll call. Chairperson Woehr called the meeting to order at 4:30 PM, to which a quorum was present. Present: Woehr, Boden, Doxtator, Odogba Excused: Schulist Discussion and possible action on the following: 2. Report of the September 26, 2018 meeting Chairperson Woehr noted several changes to the draft minutes. Motion by George Doxtator to approve the report of the September 26, 2018 Zoning Board of Appeals meeting with the following corrections: 1. Page 2/43: state statute (7)(3) 62.23(7)(e). seconded by Andrew Boden. Roll Call: Yeas: Woehr, Boden, Doxtator, Odogba Nays: None Motion carried 4-0. Page 1 of 10

7 Page 7 of Board of Zoning Appeals Policy & Procedures Chairperson Woehr referenced to page 21 of the agenda packet and explained that he had notified all the members of the board back in October that he was in the process of writing the policies and procedures. A draft had been sent to the City Attorney for modifications and corrections. Additionally, he had asked the board members not to discuss it with anyone as it would be brought forward at the current meeting. The only change he had, he noted, was the name of the document heading from manual to guidelines, adding that he was not sure how long it would be at the time of drafting it, but that it ended up being 2 pages. He asked if there were any additional questions and if everyone understood what was before them. The reasoning for it, he explained, was two-fold. First, the statute required that the board develop rules in accordance with the City s Zoning Code, and second, he had felt very strongly in writing up rules and coming up with a workable document as the board, over the last 20 years, had not had any rules which made meetings unpredictable in how they were going to be run. The document was subject to amendments at any time due to statute change. He asked the City Attorney if he had anything to add. City Attorney Beveridge referenced to the decision form in the agenda packet and explained that the intent was not to codify the form as part of the guidelines. The form could be changed and amended as needed, but it was essentially there to serve as an indication that there needed to be findings of fact for a determination. This could be done without the use of a form, but it was there to serve as an aid, or kind of a reminder, to address items in making decisions. They could certainly try the form that was attached, and he could make changes as needed or dictated by experience as the board moved forward. It was not meant to be a permanent thing that would require action of the board to change it in the future. Chairperson Woehr asked the board if the document presented was understandable. Commissioner Doxtator stated that the form spelled it out quite well, as it would allow them to present their findings similar to the Plan Commission or Public Works board. Chairperson Woehr stated having big issues with the form that was attached. He foresaw that post meeting, once the draft minutes were done, that a statement listing the findings of fact would be typed up or written, and he, as Chairman, would stop by the Zoning Administrator s office, sign the form, and that would constitute the requirement of filing the decision with the board. However, the minutes would then reflect the motions and votes that were taken during the meeting, so they wouldn t have to have another meeting to fill out the form. The form would be filled out approximately five days after the meeting then be filed. If someone wanted to file a certiorari regarding their decision within those five days, there would be a 30 day count for them in what they could file with the courts. He was looking for a motion to adopt the document presented with the one change he had indicated. Motion by George Doxtator to adopt the Zoning Appeals Policy & Procedures with the following change: 1. Update Header: Zoning Board of Appeals Procedure Manual Guidelines seconded by Andrew Boden. Commissioner Boden asked who would fill out the form. Chairperson Woehr noted that he had discussed that with the City Attorney. The front portion of the form would be filled out by staff. The Zoning Administrator s idea for the back was to have each member fill out one of the forms to see if they could come to a consensus. The problem with that, he explained, was that they would have five different scenarios and findings of fact of what transpired, such as one board member Page 2 of 10

8 Page 8 of 44 thinking there s a hardship, and one thinking there may be a hardship but it s self-imposed. He stated his preference in having a discussion after a motion and second had been made in order to key towards the 6 standards within the statute. The form, he further added, was copied pretty much so, from a document that was written by Lynn Markham at the university, whom had also written a 200-page manual that covered not only the Board of Zoning Appeals, but several other planning and zoning committees. Going back to the form, he noted more concerns such as the area noting conclusions of law, adding that the majority were not trained attorneys. The section about unnecessary hardship and what had to be proven was already in the statute. If a person couldn t read the statute, he stated, they probably shouldn t have been appointed to the Board of Zoning Appeals. He noted further issues with listing only hardship and public interest, while leaving out the other standards. As previously stated, he envisioned that the decision form being signed by the chairperson would reflect the comments that were in the minutes and on the tape, not only to protect the board, but in complying with the statute. However, what form they used was quite immaterial, as the decision and rollcall vote would ultimately be what was factual. Commissioner Odogba agreed that having 5 people fill the form might create some inconsistency as you re saying. He asked who would sign it if they had only one form, as the form asked for a Board of Zoning Appeals Commissioner signature. Chairperson Woehr stated that they did not have commissioners, to which Commissioner Odogba asked who would sign it. Chairperson Woehr turned to the Zoning Administrator and asked if his initial feeling or thought was to have each member fill out the form. Zoning Administrator Kearns confirmed that to be correct, but noted that there were inconsistencies with either option. If they had one form, there may be opposing parties that attest to the findings of fact listed on the form, which could be the minority in most cases, so only the majority decision would be documented on the form. He questioned whether it was fair to have only the majority decision and findings of fact documented. Chairperson Woehr stated that the decision of the board was the majority, to which Mr. Kearns confirmed correct. Chairperson Woehr commented that as opposed to the Supreme Court which may have dissenting decisions, they were looking at primarily recording the thoughts and comments of the majority. While there may be dissenting votes, the minority doesn t count, as the majority of the votes were counted. He asked the City Attorney if there was anything he wished to add. City Attorney Beveridge explained that the scenario he wanted to avoid was to have somebody listen to 45 minutes to over 2 hours of audio of discussion just trying to discern the findings. What he wanted, he explained, was to have a motion to adopt a set of findings that had already been written down. Who was to put pen to paper to create the document didn t matter, but ultimately it should be a document that in its context everybody would be able to look at once filled and decide if they want to adopt it, and whether the evidence produced at the meeting added up to those findings. Zoning Administrator Kearns asked if then the form should be produced after action had been taken, or after the meeting, to which City Attorney Beveridge stated no. Zoning Administrator Kearns asked how the form would be prepared if the findings of fact identified end up being the minority, and asked whether they would need to draft another form in the event if it was not Page 3 of 10

9 Page 9 of 44 approved. In summary, he asked how the findings of fact could be produced prior to a vote if they did not know how the body would be voting. City Attorney Beveridge stated that if there was a motion, and it failed, the variance or whatever was being sought would not be granted per the agenda item they had just completed for policy and procedures. Zoning Administrator Kearns noted that correct, unless there was another motion. City Attorney Beveridge stated that there could be a motion to reject them, such as denying it on the basis that there was no sufficient evidence of hardship. Zoning Administrator Kearns commented that perhaps the form should be drafted after and outside the meeting, to summarize the findings of fact either through video or the minutes. City Attorney Beveridge questioned whether they would then reconvene to vote. What they would end up with is a situation where a form was drafted in the absence of the body that had already voted. If the item potentially went to circuit court before a judge where an argument could be made, the form produced would have only been seen by the chairperson. The idea, he explained, would be to have findings that were made that could be reached through a general consensus during discussion. If they got a sense of a vote being unanimous, they were going to get a vote that supported the findings that were produced. Additionally, other parties could bring their own proposed findings as a filled form to the table, as could the Zoning Administrator. He agreed that it was a little weird to have a meeting of the minds of multiple people on a written document, but the comparison to the Supreme Court, or any other court acting with multiple judges, was not a totally inept comparison. If there was a 9-0 decision, they would have one written decision by one person in conjunction with a bunch of clerks, but then they would all vote to sign onto that one decision. He pictured it being a similar scenario, where they could be voting on a filled form for that particular action. Zoning Administrator Kearns asked who he anticipated filling the form prior to the vote, and whether it was the Secretary or Chairperson. City Attorney Beveridge stated that if somebody was prepared to make a motion, they should list their basis in doing so as the motion was being made. Whether it was the Secretary or whomever, they could conversationally work through what was going to go into the form, and then hand it to the person making the motion. They could then move them to be their findings. If there s a second, then it can be shared to everyone to look at, and then voted on. While tedious, he saw it standing up better to legal scrutiny, as well as creating a clear and unambiguous record rather than taking a verbal record and distilling from that something that was supposed to represent a consensus of the group. Chairperson Woehr noted that they would probably need to leave the form in whatever format it was in, in limbo for the time being. Commissioner Doxtator agreed that discussion became a little convoluted. He explained that the form was straightforward and he did not know why it was getting complicated. He did not foresee them filling out the form beforehand as they could come up with five different interpretations. Rather, they would work out the interpretation at the board meeting before voting on it, and if the chairperson needed to go in after the fact to sign it, so be it. City Attorney Beveridge asked that they not get hung up on the phrase conclusion of law, as they were not asking them to come up with an opinion about the complicated statutory issue, but rather findings of fact. Page 4 of 10

10 Page 10 of 44 This could include who owns the property, the description of the property, how it s being used, what they had been told was the harm or suffering, and what the evidence itself said. Not only were they capable of coming up with conclusions of law, that s exactly what the board was tasked with doing. He asked them not to get hung up on the word law, but rather think of it as more of a judgement. Commissioner Doxtator stated that he was getting hung up on hardship. He asked for clarification that they were supposed to be interpreting the law, ordinances, and statutes, to which City Attorney Beveridge confirmed accurate. Commissioner Doxtator further stated that the ordinance was pretty black and white. Single family or duplex, they had 10,000 square feet, but 15,000 square feet was needed to be a duplex. As opposed to a previous request regarding a parking lot that needed to plant 48 shrubs per the ordinance, it was a question of whether she was just filling pot holes or restoring the parking lot. Chairperson Woehr explained that they operated from the statute as far as decisions were concerned, and how hardship was defined. In regards to a consensus, it seemed that there was an agreement to develop the form at a future date. The form could be completed in coordination with the City Attorney, and would not need to be approved, but as indicated in the guidelines the form could be changed from time to time. Commissioner Boden stated that there was still a motion on the floor. Chairperson Woehr questioned whether they had voted on it, to which Commissioner Boden confirmed that they had not as they had gone straight into discussion. Zoning Administrator Kearns confirmed that there had been a motion to approve the policy. Roll Call: Yeas: Woehr, Boden, Doxtator, Odogba Nays: None Motion carried Request from Lori Kunze for an administrative appeal regarding a single-family or two-family use at 2306 College Avenue (Parcel ID ) Chairperson Woehr read the agenda item as written, adding that the item had been previously on the agenda September 26, The minutes were contained in the packet along with background information. At the time of the last meeting, the board split at a 2-2 tie, as to whether the residence was being maintained as a single family or two family residence. They then had voted to postpone the final decision to the next meeting, which happened to be the current meeting. Chairperson Woehr asked Commissioner Odogba if he had been provided the link to the meeting video, to which Commissioner Odogba stated that he had. Chairperson Woehr asked if he had reviewed the video, to which Commissioner Odogba stated that he had. Chairperson Woehr asked if he had reviewed the minutes of the meeting that had been held on September 26, currently pages 2-12 of the current packet, to which Commissioner Odogba stated that he had. Chairperson Woehr asked if he had reviewed the information that was contained at the rear of the packet, specifically pages of the current packet, to which Commissioner Odogba stated that he had. Page 5 of 10

11 Page 11 of 44 Chairperson Woehr asked if he had discussed the item with anyone, any other board member, or City staff, to which Commissioner Odogba stated that had had not. Chairperson Woehr asked if Commissioner Odogba had any questions as to what was contained in the packet, or what has been shown in the video. Commissioner Odogba stated that his takeaway from the video and minutes, was that the request was about the utility of the property, in whether it was being used as a duplex or single family. His question, he explained, was in regards to the definition of a single family dwelling. He referenced to page 35 of the agenda packet, noting that the particular section stated: functioning as a single housekeeping entity. While he had looked up housekeeping entity in the dictionary, he asked for further guidance in defining what was meant as a housekeeping entity. In terms of square footage, it did not meet the requirement, but looking at the definition indicated that there was utility there. His takeaway from the dictionary was that it involved management of duties, and chores by the parties. City Attorney Beveridge clarified that he was serving as legal counsel to the board, and he was there to assist them, not represent any point of view or any parties to the action. In regards to what was just asked, he explained that when a quasi-judicial body was called upon to make a determination about the definition of something, that there was a certain level at which it was their choice to assign a meaning to the words that they saw fit. Commissioner Odogba had referenced one of the definitions in here, he noted, and had looked to the dictionary as to the definitions, but at a certain point it was his judgement call to make. He further explained that they were serving as a judge so to speak. In terms of assistance in making that decision, that s where they could look to the parties to make an argument of what that word should mean in their view. He could either decide to adopt one of those points of views, or ultimately make a judgment call himself. Chairperson Woehr asked if he had any other questions, not to the board, but to the City Attorney. If he had none, he asked that in accordance to their policy procedure, that Commissioner Odogba cast his vote. David Kunze asked if that meant that they would not have an opportunity to speak regarding the item, to which Chairperson Woehr confirmed accurate and asked if they had a copy of the packet. David Kunze confirmed that they had just received it, with Ms. Lori Kunze adding that they had not had the minutes. Chairperson Woehr stated that the packet had contained the minutes, and policy and procedure guidelines that had just been approved. As he had indicated to Ms. Kunze at the September meeting, a determination would be made at the following meeting, which was the current meeting. He stated that he had said nothing about additional testimony. Ms. Kunze stated that was fine. Commissioner Odogba asked if he was allowed to ask a question to the applicant. Chairperson Woehr explained that he should be standing on the testimony already given. He asked the City Attorney for a determination. City Attorney Beveridge stated that he was not sure what he was being asked to determine. Chairperson Woehr clarified whether he should be able to ask additional questions as the hearing had already been held, and the current meeting was to make a final determination. In a situation where they had recessed, it would be different. But the intent then would be ex-parte to gain additional information. Page 6 of 10

12 Page 12 of 44 City Attorney Beveridge stated that the board had adopted guidelines for procedures earlier in the meeting. As a procedural question, he noted that it would go to the chair, and the chair would make a ruling on it. If there was an objection, he could take a vote of the body to determine whether there was a majority to overrule the decision of the chair as to procedure. Chairperson Woehr ruled that it would not be appropriate because the hearing on the matter had already been held. Objection by Commissioner Boden as to the ruling of the Chairperson. Commissioner Boden explained his objection, stating that the four board members who were previously there had the opportunity to ask the appellant questions as to facts of the case, and he believed that Commissioner Odogba should have the same opportunity to do so. Chairperson Woehr noted Commissioner Boden s objection. As it was not debatable, he asked for a roll call vote. Zoning Administrator Kearns, for clarification, stated that an aye vote would mean he could not take additional testimony, and a nay vote would mean he could take additional testimony. Chairperson Woehr further stated that it was to object the ruling of the chair. Zoning Administrator Kearns asked for clarification on what an aye vote would constitute. City Attorney Beveridge explained that the vote would be whether or not to overrule the decision of the chair. An aye vote would be to adopt the position of Commissioner Boden, and a nay vote would be to adopt the position of the chair. Commissioner Doxtator, upon being called for his vote, stated that he had a question, to which City Attorney Beveridge interjected and advised that it would not be appropriate for there to be questions and discussion during a roll call vote. Voting proceeded. Commissioner Odogba, asked for clarification, in whether stating aye would allow questioning, to which it was confirmed accurate. Voting proceeded. Roll Call: Yeas: Boden, Odogba Nays: Woehr, Doxtator Motion failed 2-2. Zoning Administrator Kearns asked that policy that was adopted be referenced in regards to a tie vote. Chairperson Woehr recognized Commissioner Doxtator regarding a question he had. Commissioner Doxtator referred to page 12 of the agenda packet. Starting on the second paragraph of page 12, he partially read and summarized the meeting minutes, stating that the minutes indicated that the board would meet, hopefully with 5 members, and they would be voting on the item without further testimony as Commissioner Odogba had gone through all the testimony after his appointment. Chairperson Woehr clarified that the comment was referring to the Board of Review statutes which dealt with property assessments, not variances, adding that it was a different statute. He further clarified that the Page 7 of 10

13 Page 13 of 44 objection to the ruling of the chair failed with a 2-2 vote. Therefore, he went back to Commissioner Odogba and asked for him to cast his vote. Commissioner Boden asked that they clarify that there had been two different motions previously, one to grant the appeal, which had ended in a 2-2 tie, and another vote to deny the appeal which ended in a 2-2 tie. Chairperson Woehr added that there had been a third motion to postpone. He explained to Commissioner Odogba that his vote was to either state that the residence at 2306 College Avenue, City of Stevens Point, was being maintained, or operated as a single-family residence or as a two-family residence. Commissioner Odogba noted that he understood the vote, but hoped to be able to question the applicant. He asked if he was allowed to abstain. City Attorney Beveridge asked if he had any personal, financial, or familial connections with any of the parties relating to the matter, to which Commissioner Odogba stated that he did not, adding that he did not know anyone there. City Attorney Beveridge explained that if he had asked him if he should abstain, he would tell him that there was no reason to, as abstaining was typically used to avoid a conflict of interest, not to avoid having to make a decision on a piece of business before the body. Commissioner Odogba stated that he did not want to make an uninformed judgment. After reading the minutes and listening to the tape, he just wanted to clarify something before he cast his vote, but now he would not have the opportunity to address the applicant. Chairperson Woehr, stated that he would allow the question to be posed to the City Attorney. He asked that he mute his microphone if, in his legal opinion, it was found to be appropriate. City Attorney Beveridge was not sure why microphones would be muted. The intent of the chair, he believed, in drafting the provisions relating to tie votes was for there to not be any discussion on the matter when there was a reconvention of the board for voting. The idea, he explained further, was that if somebody else who was also a member of the board had access to all of the information that had been presented up to that point, then they would have all the information that the board had felt was necessary at that time. He understood the frustration, but he noted that it was odd to be interpreting the ambiguity of something that was just adopted minutes ago. Overall, the intent was to not allow for further discussion prior to breaking a tie vote. Mr. Kunze, for clarification, stated that the board had passed some resolution decision moments before dealing with an item from September that had been taken prior to the rules being set. Had the agenda items been switched around, they could have operated differently, and now the rules impacted the current item. He asked the chairperson if that was correct, and if he was clear on the matter. Chairperson Woehr stated that they had adopted a procedure, to which Mr. Kunze added that it was moments before, which now impacted the current item. Chairperson Woehr stated that it was quite immaterial when they adopted it. Mr. Kunze stated that the issue was from September, so it was not immaterial, adding that items from September were on the agenda and he chose to put an item before it that impacted it. Page 8 of 10

14 Page 14 of 44 Chairperson Woehr stated that in September, the final motion regarding Lori Kunze s property was a motion to postpone a decision until the current meeting, which was in the record. Mr. Kunze stated his understanding, but added that they had chosen to move a postponed item to the last item on the agenda so they could create a rule that would impact the decision. He asked if that was correct, noting that he wanted to make sure he understood how the chair was operating. He additionally recalled the objection, which as chair, he also got to rule on. He stated that he wanted to understand the chair s motivation, as it seemed he had an opportunity to give the new member an opportunity to ask questions, and he had chosen not to do so by how the agenda was setup, and how the objection was handled. Chairperson Woehr imposed another portion of the procedure, that during discussion and deliberation, members of the audience were not to participate. Mr. Kunze thanked the chair for letting him speak. Commissioner Odogba asked what motion he was voting on, to which Chairperson Woehr stated that the question was whether he considered the property a single-family or two-family residence. Commissioner Odogba noted that it was for the use of the property, but asked which motion they were looking at. Chairperson Woehr stated they were looking at the current use of the property, in how it was described in the minutes. Zoning Administrator Kearns asked if he could comment, to which the chairperson stated yes. Zoning Administrator Kearns explain that he, as the Zoning Administrator, had made a determination based off the Zoning Code, and the powers and definitions within that code which had been summarized in the staff report. The applicant had come before the body because they had a different interpretation that they had outlined in the meeting minutes and video. Hence, the body essentially was entertaining an appeal to the interpretation of the Zoning Administrator or to that of the applicant which differed. Lastly, he explained that it was the body s duty then to identify which interpretation they were going to side with, whether that of the Zoning Administrator, or that of the applicant. He asked if the summary helped to clarify things. Commissioner Odogba thanked Mr. Kearns for his summary, and stated that he was ready to vote. Commissioner Odogba voted to grant the request from Lori Kunze for an administrative appeal regarding a single-family or two-family use at 2306 College Avenue (Parcel ID ), which found the living arrangement on the property, as presented, to constitute a single family use. Complete Roll Call (includes action taken on the item on September 26, 2018): Yeas: Boden, Schulist, Odogba Nays: Woehr, Doxtator Motion carried 3-2, with Boden, Schulist, Woehr, and Doxtator casting votes during the September 26, 2018 meeting. Chairperson Woehr stated that the determination and the decision of the board was that the property at 2306 College Avenue, as the parcel was identified, was a single family residence. Page 9 of 10

15 Page 15 of 44 Zoning Administrator Kearns asked that the use occurring previously on the applicant s property would be permitted based on the Zoning Board of Appeals decision. Chairperson Woehr asked to what use he was speaking of, to which Zoning Administrator Kearns referenced the use that was described in the application, adding that the use occurring was not as a duplex, but constituted as a single-family use. Chairperson Woehr agreed. Commissioner Boden further clarified that the appeal for Ms. Kunze had been granted, to which Chairperson Woehr confirmed accurate. Ms. Kunze asked if she could speak, to which it was allowed. Ms. Kunze stated that the process had taken a long time, explaining that she had received the initial letter in July, she had responded in August, a meeting had not been held until September, and it was now December. In the meantime, she had lost her roommate, and as a result, lost income she had been counting on to help pay for bills and other things. She understood that there were rules and decisions that had to be made, but she encouraged the board to take on those decisions quickly rather than leaving things in limbo for people who were in the process. She understood there were other things that had to be done, such as scheduling, but she recommended that they have monthly meetings. Lastly, while she knew the meeting was being taped for transparency and accountability, things had come out during it that affected her security in her home, such as stating that her place was vacant. She asked that there be more balance between the privacy of the individual and what the public needed to know. She thanked the board. City Attorney Beveridge stated that he could speak with Ms. Kunze regarding some of her questions and concerns privately, as they were well outside the confines of the agenda and for the body. 5. Adjourn. Meeting adjourned at 5:29 PM Page 10 of 10

16 Page 16 of 44 City of Stevens Point Community Development Department 1515 Strongs Avenue, Stevens Point, WI P: (715) F: (715) Board of Zoning Appeals Decision Form Application/petition # Filing Date: Hearing Date: FINDINGS OF FACT Having heard the testimony and considered the evidence presented, the Board determines the facts of this case to be: 1. Applicant or appellant is (name and address, owner/lessee): 2. The property is presently in used for, and has been so used continuously since. 3. The property includes a nonconforming structure/use described as 4. The property has been the subject of a prior appeal/variance or other municipal approval described as 5. The applicant or appellant proposes (brief project description/attach plans): 6. The applicant or appellant requests: o an appeal of the zoning administrator s determination o a use variance o an area variance under Section of the zoning ordinance. The details of the proposed construction and property that relate to the grant or denial of the application or appeal are (refer to the language/standards of the ordinance): Application for a Zoning Permit Page 1 of 4

17 Page 17 of 44 City of Stevens Point Community Development Department 1515 Strongs Avenue, Stevens Point, WI P: (715) F: (715) CONCLUSIONS OF LAW Based on the above findings of fact the Board concludes that: 1. Appeal/Interpretation The order of the zoning administrator (is/is not) in excess of his/her authority because (or) The zoning administrator s interpretation of Section of the zoning code (is/is not) a correct interpretation because 2. Variance The variance (does/does not) meet all three of the following tests: Unnecessary hardship For an area variance, unnecessary hardship exists when compliance would unreasonably prevent the owner from using the property for a permitted purpose (leaving the property owner without any use that is permitted for the property) or would render conformity with such restrictions unnecessarily burdensome. The board of adjustment must consider the purpose of the zoning restriction, the zoning restriction's effect on the property, and the short-term, longterm and cumulative effects of a variance on the neighborhood, the community and on the public interests. This standard reflects the new Ziervogel and Waushara County decisions. For a use variance, unnecessary hardship exists only if there is no reasonable use of the property without the variance. BZA Decision Form Page 2 of 4

18 Page 18 of 44 City of Stevens Point Community Development Department 1515 Strongs Avenue, Stevens Point, WI P: (715) F: (715) A. Unnecessary hardship (is/is not) present because B. The hardship (is/is not) due to physical limitations of the property rather than the circumstances of the appellant because C. The variance (will/will not) harm the public interest because BZA Decision Form Page 3 of 4

19 Page 19 of 44 City of Stevens Point Community Development Department 1515 Strongs Avenue, Stevens Point, WI P: (715) F: (715) ORDER AND DETERMINATION On the basis of the above findings of fact, conclusions of law and the record in this matter the board orders: 1. Appeal/Interpretation The zoning administrator s order/interpretation of the zoning code or map is (affirmed/modified/reversed) and the administrator is ordered to: 2. Variance The requested variance is (denied/granted/granted-in-part/postponed); provide additional comment if necessary: Any privilege granted by this decision must be exercised within months of the date of this decision after obtaining the necessary building, zoning and other permits for the proposed construction. This period will be extended if this decision is stayed by the order of any court or operation of law. Appeals. This decision may be appealed by a person aggrieved by this decision or by any officer, department, board or bureau of the municipality by filing an action in certiorari in the circuit court for Portage County within 30 days after the date of filing of this decision. The municipality assumes no liability for and makes no warranty as to reliance on this decision if construction is commenced prior to expiration of this 30-day period. Board of Zoning Appeals Commissioner Signature (Print Name) Date Drafted By: BZA Decision Form Page 4 of 4

20 Page 20 of 44 Appendices Decision Form Zoning Board of Adjustment/Appeals Application/petition # FINDINGS OF FACT Having heard the testimony and considered the evidence presented, the Board determines the facts of this case to be: Filing Date: Affidavit of publication/posting is on file. Hearing Date: A. The applicant or appellant is (name and address): B. The applicant or appellant is the owner/lessee/mortgagee of the following described property which is the subject of the application or appeal: 1/4 of 1/4, City/Village/Town of, County known as (street address) C. The property is presently in use for and has been so used continuously since. D. The property includes a nonconforming structure/use described as E. The property has been the subject of a prior appeal/variance/conditional use described as F. The applicant or appellant proposes (brief project description/attach plans): G. The applicant or appellant requests: D an appeal of the zoning administrator s determination D a conditional use/special exception D a use variance D an area variance under Section of the ordinance. The features of the proposed construction and property that relate to the grant or denial of the application or appeal are (refer to the language/standards of the ordinance): APPENDICES 174

21 Page 21 of 44 Appendix D Blank Forms CONCLUSIONS OF LAW Based on the above findings of fact the Board concludes that: Appeal/Interpretation The order of the zoning administrator (is/is not) in excess of his/her authority because (or) The zoning administrator s interpretation of Section of the zoning code (is/is not) a correct interpretation because Variance The variance (does/does not) meet all three of the following tests: A. The hardship (is/is not) due to physical limitations of the property rather than the circumstances of the appellant because B. The variance (will/will not) harm the public interest because C. Unnecessary hardship For an area variance, unnecessary hardship exists when compliance would unreasonably prevent the owner from using the property for a permitted purpose (leaving the property owner without any use that is permitted for the property) or would render conformity with such restrictions unnecessarily burdensome. The board of adjustment must consider the purpose of the zoning restriction, the zoning restriction's effect on the property, and the short-term, long-term and cumulative effects of a variance on the neighborhood, the community and on the public interests. This standard reflects the new Ziervogel and Waushara County decisions. For a use variance, unnecessary hardship exists only if there is no reasonable use of the property without the variance. D. Unnecessary hardship (is/is not) present because Conditional Use The application for a conditional use permit (does/does not) qualify under the criteria of Section of the ordinance because 175 APPENDICES

22 Page 22 of 44 Appendices ORDER AND DETERMINATION On the basis of the above findings of fact, conclusions of law and the record in this matter the board orders: Appeal/Interpretation The zoning administrator s order/interpretation of the zoning code or map is (affirmed/modified/reversed) and the administrator is ordered to: Variance/Conditional Use The requested (variance/conditional use) is (denied/granted/granted-in-part) subject to the following conditions/mitigation: The zoning administrator is directed to issue a zoning permit incorporating these conditions and certifying by the petitioner/applicant s signature that he/she understands and accepts the conditions. Expiration of permit. Any privilege granted by this decision must be exercised within months of the date of this decision after obtaining the necessary building, zoning and other permits for the proposed construction. This period will be extended if this decision is stayed by the order of any court or operation of law. Revocation. This order may be revoked by the Board after notice and opportunity to be heard for violation of any of the conditions imposed. Appeals. This decision may be appealed by a person aggrieved by this decision or by any officer, department, board or bureau of the municipality by filing an action in certiorari in the circuit court for this county within 30 days after the date of filing of this decision. The municipality assumes no liability for and makes no warranty as to reliance on this decision if construction is commenced prior to expiration of this 30-day period. Zoning Board of Adjustment/Appeals Signed Chairperson Attest Secretary Dated: Filed: APPENDICES 176

23 Page 23 of 44 Decision Self Audit Form Use an annual self-assessment of board activities to increase board efficiency and the effectiveness of ordinance standards: 1. Revise ordinance language to reflect interpretations of the board; 2. Adjust dimensional standards where similar limiting site conditions make current standards unworkable or ineffective (e.g. nonconforming lots); and 3. Convert conditional uses to permitted uses if appropriate location, design and use standards can be developed. Track and assess disposition of individual petitions/applications or categories of similar requests. Discuss your findings with the planning committee/commission and cooperate to propose appropriate amendments to the local governing body. EXAMPLES Modification of nonconforming structures Administrative Appeals Section & Subject Decision/Interpretation Recommendations Modifications requiring permit & subject Revise ordinance to enumerate activities to limitations: requiring permit. Construction beyond foundation footprint? Additional story or basement? Replacement of structural members? Foundation replacement included? 3.4 Minimum area requirement Are screened porches included in enclosed area requirement? 4.6 Setback measurement From what point on a structure and in what plane are setbacks measured? Revise ordinance to better describe enclosed areas. Revise ordinance to state setbacks are measured from nearest connected portion of a structure and in a horizontal plane. Appendix D Blank Forms APPENDICES

24 Page 24 of 44 Appendices 178 Variances Section & Subject Relaxation Granted/Denied Conditions Recommendations requested Shore <5 5/4 Remove NC accessory bldg. (6) Standardize conditions 1-3 as setback for new /3 Plant/maintain screening mitigation requirements in ordinance. home /12 vegetation (4) /22 Restore 50 shore buffer (5) /5 >50 Conditional Use Permits Section & Subject Granted/Denied Conditions Recommendations Fill & grade 23/4 Avoid areas >15% slope (23) Divert runoff around site during construction & stabilization (23) Stabilize according to NRCS guidelines for site (23) Convert to permitted use for areas <2,000 sq. ft. & <15% slope provided conditions 2 & 3 are implemented & pre-construction photo is submitted.

25 Administrative Staff Report Frank Jurgella Variance Request 925 Second Street January 23, 2019 Page 25 of 44 Department of Community Development 1515 Strongs Avenue, Stevens Point, WI Ph: (715) Fax: (715) Applicant(s): Frank Jurgella Staff: Michael Ostrowski, Director mostrowski@stevenspoint.com Kyle Kearns, Associate Planner kkearns@stevenspoint.com Parcel Number(s): & Zone(s): "B-1 Neighborhood Business District Master Plan: Commercial/Office Council District: District 4 Oberstadt Lot Information: Actual Frontage: 96 feet Effective Depth: 50 feet Square Footage: 2,300 Acreage: Current Use: Tavern & Multi-Family Applicable Regulations: and 23.02(2)(a) Request Request from Frank Jurgella for a variance from setback standards to construct an attached and covered structure at 925 Second Street (Parcel ID s & ) Attachment(s) Application Property Details Zoning Ordinance Findings of Fact The property is zoned B-1 Neighborhood Business District. An addition is under construction on the north side of the property which does not meet setbacks. The applicant is requesting a variance from setbacks to construct the addition entryway. The property is 2,300 square feet in size with the dimensions of 50 feet by 46 feet. Taverns are a conditional use. A conditional use permit was granted on January 21, 2019 for the expansion. Staff Recommendation Deny the variance request. The variance standards are somewhat met. Specifically, staff has found that a hardship does not exist, nor a physical limitation on the property rather than from circumstances of the appellant. Staff have determined that public interest may not be harmed with the variance, but some neighbors have voiced concerns. In summary, the property can be utilized for a permitted purpose without the approval of the variance. Also, the applicant has other options to create an expanded entrance, such as one meeting the required setbacks, or to construct a detached structure adjacent to the building to accommodate patrons. Furthermore, any hardship created from the setbacks or lot size is due to the applicant s desire for the expansion, already under construction, and thus is considered to be self-imposed. With only one of three standards potentially met, staff would therefore recommend denying the variance request. Page 1 of 7

26 Vicinity Map (2018 Aerial Photo) Page 26 of 44 Background The applicant has requested an area variance from setback standards to construct an attached entryway and awning at 925 Second Street. Construction of the addition has begun, but was required to stop until applicable review and approvals occur. Note also that use within the building includes a tavern, which operates as a conditional use. Therefore, the expansion of the use with the construction of the addition would require a conditional use permit, which was obtained on January 21, Page 2 of 7

27 The B-1 zoning district requires the following performance standards for setbacks: Page 27 of 44 Street Yard Setback: 20 feet Side Yard Setback: 10 feet on each side Rear Yard Setback: 20 feet A portion of the addition, closest to the street, is proposed to be an awning, which is permitted to exist within the setback. Therefore, a variance of five feet is requested from the required 20 foot street yard setback, which would create not less than a 15 foot setback. In addition, an approximate 12 foot variance is requested from the 20 foot rear yard setback, which would create a setback no less than 8 feet. The side yard setback is met as the adjacent lot is under the same ownership and can be considered one zoning lot. These setbacks are further indicated on the site plan below. SITE PLAN The Board of Zoning Appeals shall have the authority to review and grant or deny special exception (variances) from the terms of the ordinance in harmony with its general purpose and intent and in accordance with general or specific rules therein containted. Section found below describes the Board of Zoning Appeals review process. Page 3 of 7

28 23.05 Board of Appeals Page 28 of 44 The Board of Appeals shall not permit any change in established flood elevation or profiles; shall not grant flood plain variances for a use that is common to a group of adjacnet lots or premises (in such case, the Zoning Ordinance would have to be amended through proper procedures); shall not grant a variance unless it is consistent with the spirit and intent of the ordinance and will not be contrary to public interest or damaging to the rights of other persons or property values in the area; shall not grant a variance for an action which requires an amendment to the flood plain regulations; shall not grant a variance which would have the effect of allowing or expanding a use or structure which is prohobited in that zoning district; shall not grant a variance for a selfcreated hardship. Standards of Review 1) An unnecessary hardship is present. Analysis: The applicant has indicated that the existing building was constructed with a zero foot setback. Further, zoning was then placed on the property with increased setback standards. For an area variance, unnecessary hardship exists when compliance would unreasonably prevent the owner from using the property for a permitted purpose (leaving the property owner without any use that is permitted for the property) or would render conformity with such restrictions unnecessarily burdensome. To determine whether this standard is met, zoning boards should consider the purpose of the zoning ordinance in question, its effects on the property, and the short-term, long-term, and cumulative effects of granting the variance. The B-1 zoning district is established to provide only those establishments which supply convenience goods, and professional or personal services. These districts are intended to generally serve an area less than City-wide and to be allowed only at major traffic intersections and the total extent of such district to be limited to within an immediate zone of such intersections consistent with the City's Comprehensive Plan. Generally, setbacks exist to create space between uses and their structures to ensure uses don t conflict with one another. Furthermore, they can allow for the installation and access of utilities and create a fire separation. Findings: The property exists within a transitional neighborhood where mixed uses exist. Furthermore, surrounding homes and other commercial structures encroach within the setbacks for their respective zoning districts. This makes the structure and surrounding structures and lots nonconforming due to lot size or setbacks, and thus results in homes and accessory structures which pre-date the zoning ordinance. For residential structures, the zoning code has allowed for reduced setbacks within the dense part of the City under the Traditional Neighborhood Development Overlay District (TND District). Within this district, a residential home can request a street setback of not less than 12 feet, and a rear yard setback of not less than 15 feet. Unfortunately, a similar district for commercial uses does not exist. Furthermore, the dense commercial properties typically fall within the B-2 and B-3 districts, where setbacks are zero feet or significantly reduced to better align with the dense development pattern. The City s future land use map identifies the property to continue to be utilized as commercial/office. Given the configuration of the existing mixed-use building, surrounding buildings, and exposure on a main thoroughfare, the future land use designation is fitting. However, if the building were demolished, the lot would be significantly challenged as only a 10 foot wide by 26 foot long structure could be built on the property. Thus, it is assumed that the building would remain to continue the commercial use. However, as indicated in the application, the owner has identified the need to create an improved entrance to the tavern to assist in maintaining the viability of the business. Page 4 of 7

29 Page 29 of 44 In conclusion, based on the analysis and findings above, any hardship that may exist is the result of the applicant s pursuit to begin constructing the expansion. While, expansion of the building or use under the B-1 performance standards would not be consistent with the existing building or the surrounding neighborhood, it can occur meeting the existing setbacks as indicated above. Furthermore, the building has operated without the expansion and could likely continue to do so with the same use, similar uses, or less intense uses. A more appropriate way to allow for physical expansion or expansions of the use may be to rezone the property, but a request and review would need to occur. 2) The hardship is due to physical limitations of the property rather than the circumstances of the appellant. Analysis: The applicant references that the circumstances of the property existed prior to their purchase. See analysis above regarding the building characteristics and the property s zoning classification. Furthermore, the applicant indicated regulation regarding the use of tobacco within commercial establishments. Findings: Some findings relating to the review standard have been provided in standard one. In conclusion, the lot s small size, combined with the complete build-out of the existing structure on the lot, makes it quite difficult to expand within the confines of the zoning ordinance. The difficulty is such that even with more land area, the setbacks significantly limit expansion to the building given the existing zero foot setback. However, it is important to note that the property has been used successfully under its current configuration for decades, and the use would likely continue if the variance is denied. Furthermore, alternatives exist in order to create a tobacco use shelter on or adjacent to the property. Lastly, note that the applicant s desire for the proposed addition should not be used as a factor in determining a physical limitation. 3) The variance will not harm the public interest. Analysis: The proposed addition incorporates both an awning overhang and enclosed entryway. The enclosed area will be lit but not necessarily heated. The applicant has indicated that it will allow patrons who utilize tobacco to be protected from the elements and offer better security. Findings: Granting of the variance should not be detrimental to the public, as the setback is not being increased past the existing principal structure. The surrounding area has a mix of uses where structures exist that do not meet setbacks. Furthermore, the proposed structure will allow for improved security and aesthetics relating to the tavern use by patrons onsite. Also, note that at the public hearing for the conditional use permit (attached resolution) neighbors voiced concern and were in support of the project. A letter previously submitted the Community Development Department is attached. After review, staff has concluded that the variance standards are somewhat met. Specifically, staff has found that a hardship does not exist, nor a physical limitation on the property rather than from circumstances of the appellant. Staff have determined that public interest may not be harmed with the variance, but some neighbors have voiced concerns. In summary, the property can be utilized for a permitted purpose without the approval of the variance. Also, the applicant has other options to create an expanded entrance, such as one meeting the required setbacks, or to construct a detached structure adjacent to the building to accommodate patrons. Furthermore, any hardship created from the setbacks or lot size is due to the applicant s desire for the expansion, already under construction, and thus is considered to be self-imposed. The zoning code has indicated the uniqueness of older densely constructed buildings on small lots, and provided a mechanism for residential property owners to obtain a reduced setback (TND District). However, unfortunately, no mechanism exists for commercial properties even though it may be warranted. Therefore, an amendment to the zoning ordinance to create such mechanism might be appropriate, but would have to be created with caution, as it would apply to more than one property. Additionally, the zoning, in context with the future land use map, significantly limit the development of the property for new uses, which therefore suggests realistically the existing Page 5 of 7

30 Page 30 of 44 use and structure will continue, or a rezoning may be appropriate, but careful review would need to occur with any rezoning request. With only one of three standards potentially met, staff would therefore recommend denying the variance request. Page 6 of 7

31 Photos Page 31 of 44 Page 7 of 7

32 Page 32 of 44 City of Stevens Point Community Development Department 1515 Strongs Avenue, Stevens Point, WI P: {715) F: (715) APPLICATION FOR A ZONING VARIANCE (Pre-Applic:atlon Conference Optional) ADMINISTRATIVE SUMMARY (Staff Use Only) Applic:ation # I Date Submitted I Fee Required :36"0..e._ I Fee Paid l ~c~ Assoc:iated Assigned Case Applic:ations if Any Manager ;t l- -r1 g ~5 Applic:ant Name Address City, State, Zip Telephone Fax Contact Name Address City, State, Zip Telephone Fax CONTACT INFORMATION (Same as Applicant? OWNERSHIP INFORMATION PROPERTY OWNER lin FORMATION (Same as Applicant?[]) Owner's Name l ~rank and trnie '.s i.l C Owner's Name Address l5ame. as dp ) /tt_6nl Address City, State, Zip Telephone Fax City, State, Zip Telephone Fax PROPERTY OWNER 2 INFORMATION (If Needed) VARIANCE SUMMARY Subject Property Location [Please Include Address and Assessor's Identification Number(s)] Parcell J Parcel2 l Parcel3 Legal Description of Subject Property I I l Designated Future Land Use category Current Use of Property Proposed Use of Property Current Zoning District(s) X Ordinance Provision(s) from which a variance is requested i-l Ne''1hL:orhoom ~us~~'5j?.a' STreet "Set bo.c..k (to \ 1\e~r ymc\ ~et bc"ack 'D\:str \vt

33 Page 33 of 44 TYPE OF VARIANCE REQUESTED Project (i.e. setback, parking, height, area, etc.) Required Proposed ~ List the exceptional and extraordinary circumstances that are peculiar to the land or structure Involved which are not applicable to other land or structures In the same zoning district. (use additional pages If necessary for questions below) See a:t-kckd..snee=l: List any and all practical difficulties or unnecessary hardships that will result from the exceptional and extraordinary circumstances. 3 ~ The applicant must prove that the exceptional and extraordinary circumstances do not result from the actions of the applicant. How were the exceptional and extraordinary circumstances created? List any and all alternatives considered by the applicant and provide evidence as to why they are not feasible. ~ Would approval of this variance allow the applicant to do something that other property owners In the same situation would not be able to do11f so how? ~ Would denial of this variance deprive the applicant of rights commonly enjoyed by other property owners In the similar situations? If so how?. I Application for a Zoning Variance Page 2 of 3

34 .. Page 34 of 44 Current Zoning Surrounding SUbject Property North: East: South: West: Current Land Use Surrounding Subject Property North: East: South: West: EXHIBITS OWner Information Sheet D Additional Exhibits If Any: Maps (vicinity, zoning, floodplains, wetlands others as requested by stafll Site Plan (designating primary, side, and service street frontages) Photos of property, building, etc. CERTIFICATION AND SIGNATURE By my signature below, I certify that the information contained in this application is true and correct to the best of my knowledge at the time of the application. 1 acknowledge that I understand and have complied with all of the submittal requirements and procedures and that this application is a complete application submittal. I further understand that an incomplete application submittal may cause my application to be deferred to the next posted deadline date. Signature of Applicant Date Signature of Property OWner(s) Date D D D ld- ~- I_& Application for a Zoning Variance Page 3 of 3

35 Page 35 of List the exceptional and extraordinary circumstances that are peculiar to the land or structure involved which are not applicable to other land or structures in the same zoning district. When the 925 2nd St property was constructed there must have been a zero setback ordinance, as the property has no setback to the east, south, and west. As the ordinance may have changed requiring 20 feet, my property as it stands will not comply. My application is for the 20 feet variance to be waived for the east and west side of the property as an extension to what is presently an exceptional circumstance. 2. list any and all practical difficulties or unnecessary hardships that will result from the exceptional and extraordinary circumstances. Due to the smoking ordinance set in place several years ago patrons of the business have been relying on a make shift shelter with no lighting or insulation to consume their tobacco products. Although I personally don't consume tobacco, I do feel an obligation to provide a means of enjoyment that is structurally both secure and appealing to the eye. The shelter I want to provide will have lighting and windows and will be adjoined to the north facing wall resulting in an improved atmosphere as well as secure and safe. 3. The applicant must prove that the exceptional and extraordinary circumstances do not result from the actions ofthe applicant. How are the exceptional and extraordinary circumstances created? The change in law requiring buildings to be smoke free results in these exceptional circumstances. 4. list any and all alternatives considered by the applicant and provide evidence as to why they are not feasible. Having had the makeshift shelter (garden shed) in place, I felt I had no control over the activities taking place in that shelter. The alternative for which I am applying will improve visibility and security. No alternatives exist because of the Bl ordinance and the smoking ban. 5. Would approval of this variance allow the applicant to do something that other property owners in the same situation would not be able to do? If so how? No, there are many buildings in the Bl district that don't have 20 foot setbacks. 6. Would denial of this variance deprive the applicant of rights commonly enjoyed by other property owners in a similar situation? If so how? Yes, because there are buildings in the Bl district that do not comply with the 20 feet setback ordinance, and as it be, allows them to accommodate their patrons in the same way for which 1 am applying.

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38 Tax key number: Property address: Owner: Second St Frank and Ernie's, LLC 527 Granite Ridge Rd W Stevens Point, WI Property Records for City of Stevens Point, Portage County Neighborhood / zoning: Comm - Second St/NW/North / B1 Neighborhood Business Traffic / water / sanitary: Medium / City water / Sewer Legal description: S 46' LOT 4 BLK 23 STRONG ELLIS & OTHERS ADD S32 T24 R8 448/272; December 10, 2018 Page 38 of 44 Summary of Assessment Land $9,500 Improvements $101,800 Total value $111,300 Land Qty Tax Classification Unit of Measure Width Depth Sq Ft Acres Waterfront Description Assess Value 1 Commercial Square feet , None Per Strongs Ellis & Others Plat - corner Second/Portage $9,500 Total land: $9,500 Commercial Building (Second Street Pub) Above grade section Name: Stories: Perimeter: Total area: Section feet 4,224 SF Year built: 1925 Occupancies : 2,112 SF Tavern/bar/lounge: 2,112 SF Exterior walls Stud-Brick Veneer: 100.0% HVAC Forced air unit: 2,112 SF HVAC Package unit: 2,112 SF Building Permit Date Opened Purpose 11/10/2015 Replace hot water heater 11/15/2012 Replace water heater 1/7/2003 Air Conditioning & Furnace 925 Second St, City of Stevens Point Valid Sales Sale Date Sale Price Sale Type Tax key number: Page 1 of 1

39 lllllllllllllllllllllllllllll\ Tx : Page 39 of CYNTHIA A. WISINSKI REGISTER OF DEEDS PORTAGE COUNTY STEVENS POINT, WI RECORDED ON 01/22/ :54 PM REC FEE: TRANSFER FEE: PAGES:4 FEE EXEMPT: RESOLUTION [Conditional Use Permit- 925 Second Street- Expand Tavern with Entryway/Awning] BE IT RESOLVED by the Common Council of the City of Stevens Point, Portage County, Wisconsin, that based upon the application and after reviewing the Plan Commission record and hearing the testimony of interested parties, the Common Council determines that all conditions required have been met, the property located at 925 Second Street [ParceiiD's & ), and described ass 46' LOT 4; and S 42.5' OF N 86' OF LOT 4 & S 22.5' OF N66' OF W 18' OF LOT 3, BLK 23 STRONG ELLIS & OTHERS ADD S32 T24 R8, City of Stevens Point, Portage County, Wisconsin, is hereby granted a Conditional Use Permit to expand the tavern, as proposed on the attached plans, subject to the following conditions: 1. The licensee shall maintain order and peace in the licensed premises. 2. Any licensed premise established, operated, or maintained in violation of any of the provisions or requirements of this conditional use permit shall be grounds for suspension or revocation of this conditional use permit and/or declared to be unlawful and a public nuisance, the City may, in addition to or in lieu of, any other remedies set forth in the Stevens Point Municipal Code Chapter 12 of the City's Revised Municipal Code, commence an action to enjoin, remove, or abate such nuisance in the manner provided by law and shall take such other steps and apply to such court or courts as may have jurisdiction to grant such relief as will abate or remove such public nuisances, and restrain and enjoin any person[s) from establishing, operating, or maintaining said conditional use contrary to the provisions of this conditional use permit. 3. The business must be operated in a manner that music heard from outside the building does not unreasonably disturb the peace and enjoyment of the surrounding properties. 4. The licensee shall require that all exterior doors be kept closed so that noise does not unreasonably disturb the peace and enjoyment of the surrounding properties. 5. The licensee shall require that the area surrounding the premises be kept clean and orderly. All cups, bottles, cans, garbage, rubbish, cigarettes, etc. shall be

40 Page 40 of 44 properly disposed of at the end of each day, and not left on the property or public right-of-way. 6. Should significant changes be made to the refuse storage and containers on site, they shall be screened from view. 7. Further details be submitted by the applicant regarding the architecture and fa<;ade materials, to be reviewed and approved by the Community Development Department. 8. A similar brick found on the primary structure shall be incorporated into the fac;ade of the addition, which shall be approved by Community Development Department staff. 9. A variance must be granted by the Board of Zoning Appeals for the reduced setback. 10. A sidewalk cafe license may be issued without amending this conditional use. 11. A barrier shall be installed on the north side of the property separating the parking lot from the adjacent lot. Community Development Department staff shall have the authority to approve the barrier. Such approval constitutes a Conditional Use under the City's ordinances. Approved: Attest: Paul Piotrowski, City Clerk Dated: Adopted: Return to: January 14, 2019 January 21, 2019 City Clerk

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