The human interest story of the 03/03/2021 Common Council meeting was whether or not Tyler was going to be granted his request for a second curb cut. I honestly find things like this to be some of the more interesting things to watch local government officials deal with because it’s totally not political, there are decent arguments on either side of the issue, and it touches on a fundamental aspect of life in a municipal community which is how do we live peaceably as neighbors while respecting the sometimes competing rights and/or desires of various residents.
As you may recall, Tyler wanted to build a garage on his property to house his boat. There wasn’t enough room to expand his current garage and still meet code, and there were also some practical construction issues with expanding that garage separate from meeting code. He applied for permits to build a second garage on the other side of his house. He met all the requirements to do that and was approved to install the structure. However, the permitting process to install a driveway and get a second curb cut is separate from the permitting process to install a secondary structure. City policy currently lays out 5 requirements that must be met in order to be automatically or administratively granted a second curb cut.
- A sketch showing proposed location of second driveway is submitted to the Engineering Division of Public Work.
- The Engineering Division does not object to the request.
- The Forestry Division does not object to the request.
- The Inspections Division does not object to the request.
- The two neighboring properties to each side of the requesting property do not object to the request. (Municipal Services Report, June 18, 1997)
Tyler met the first 4 of those requirements, but the 5th one he did not meet as the owners of one those four neighbors did object. They expressed concerns that it would change the character of the neighborhood and were worried that it would lead to other houses getting second driveways and having more vehicles. Per city policy, if a curb cut was denied the denial could be appealed to the Municipal Services Committee with a final vote by the Common Council. He did appeal it, and after considering the situation, the Municipal Services committee voted to approve the second curb cut.
Tyler did not appear at the Common Council meeting where the final decision would be made, but his next door neighbor who had objected to the curb cut did appear and gave a fuller picture of the reasons they objected to the curb cut.
Kari spoke first via Zoom. Her husband showed up to speak in person. She explained that they live next door to Tyler who is wanting to cut another driveway and add another garage next to his house right by them. She said that she and her husband had been in their house for 20 years. Tyler and his wife closed on their house a year ago. She said it was awesome to have new neighbors but also pointed out that they had been living in their house less than a year before they drew up these plans to build a second garage. She said that when they moved into their house 20 years ago, their little sunroom and kitchen faced into the backyard of all the neighbors. It was a serene, green landscape. Two years later the house behind them said they were putting up a storage shed. That shed turned into the size of their house, which was the legal limit set by the city. She understood that was what it was. The greenspace that once was there was now a huge garage behind another garage with a concrete slab between them. That’s what she and her husband see from their kitchen and sunroom, but that’s not what they moved into. They’ve spent thousands of dollars on trees to line their property and act as a screen. They’re doing their part. What that screen doesn’t block out is the constant stereo music and noise that for 15 years was left blaring all weekend. She didn’t think it was until a couple years ago that they were actually able to open their sliding door from their bedroom into their backyard and relax free of noise because their neighbors got a cottage up North. She said that they were great people but that she was also trying to give some background to demonstrate that it’s more than a garage. While aesthetically nice, their neighbor’s garage became a man cave that was always full of activity and constant noise which impacted her and her husband greatly. Now Tyler and his new wife want to put up a garage next to them on the other side that faces their sunroom and dining room window. She said that for the last year his truck has not fit into his current garage and he leaves it in his driveway which. She didn’t mind that because it was down by his house. Now he wants to cut a driveway and add a garage closer to them. She understood that he wanted it for his boat which he currently stores off site, so more than likely this additional driveway would be where his boat is pulled inside and his truck will remain outside in the driveway. She said that if that is at his house which is farther away [I took her to mean if it was parked at the driveway that is farther away] then that would be fine, but she was worried about everything moving closer to them. She said that he had explained that he looked into having his current garage expanded but that would cost too much money. She thought it was a poor choice for him to buy that house in the first place and to have not taken that into account. She didn’t think she and her husband should have to pay the price for that mistake by adding an additional cluttered driveway and garage closer to their house. She reiterated that this was a second driveway and a second garage.
She understood that Tyler is an accomplished fisherman and wins money at tournaments which she saw online and which she thought was awesome. She had seen the large boat and various trucks that have been parked on their street. She mentioned that only to show that having a boat is not new to him and that for someone who fishes that frequently, which she reiterated was wonderful. She was worried about the amount of activity surrounding cleaning and putting the boat in and out of the garage. She felt like this was just another man cave closer to their house. She was worried about the level of activity in addition to the character of their neighborhood being impacted. She felt like a positive vote from the Common Council to allow this driveway to be cut and the garage to be built would mean that every one of them would be perfectly fine if the same thing happened right next to their house. That they’d be fine having a neighborhood be house, garage, house, garage, garage, garage, house. If they allowed this to happen then what becomes of our city? How would the Council determine equitably which neighborhood they would allow this in? She wondered if they were facing this because they were on the south side and it doesn’t matter how mjunked up their neighborhood looks. She didn’t think they would vote yes for this to happen to anyone on the north side of the city. She didn’t feel she and her husband should be punished for Tyler’s lack of planning or lack of resources to expand the garage that currently existed.
Her husband Mike then spoke. He said they picked their neighborhood because of its diverse charm; every home looks different–two story homes, ranches, big, small, older and newer homes. 20 years ago they looked all around the city including area municipalities and found that to be the perfect neighborhood with some of the best schools in the Fox Valley. The neighborhood had established, well manicured lawns with a single driveway and many mature trees. They were not looking to build a new home again and start over again with a new lawn. If any home had an accessory building in this neighborhood it was in the backyard. The only things they were going to change with their property was going to get rid of the weeds and add some more trees. 20 years later they still think this is a great looking neighborhood. A second driveway with a large, detached building would look like a second home or a two family dwelling unit which they do not have in this neighborhood. It would look very out of place and change the residential character of the neighborhood. The addition of a second driveway would also subtract a public parking spot by the park. He had emailed the Council a photo illustrating what it would look like with a second driveway and garage. He didn’t know if anybody saw that or not. He reiterated that their neighborhood doesn’t have any of that currently, and said that if you start adding this the area will be crowded. He stated they never would have moved into this neighborhood if that was already occurring. He didn’t think Tyler would be out of options if this permit for a second curb cut was denied. Tyker could continue to store his boat elsewhere like millions of boat owners. He also still has the opportunity to store his boat at home by expanding his existing driveway and remodeling and expanding the current garage which would fit the personality of the neighborhood. He could also move to a different location where second driveways are not uncommon. All things considered, Mike thought a second driveway and accessory building in the front yard is not consistent with the character and style of the surrounding neighborhood.
Alderperson Kyle Lobner (District 13) asked to clarify what the vote would be.
Per Attorney Behrens, a motion to approve would approve the request for a curb cut. Denial would deny the curb. The item was amended at committee to recommend approval. It came out as a recommendation for approval, and currently the motion on the floor was to approve the recommendation to approve the curb cut.
Alderperson Patti Coenen (District 11) directed a question to Director Paula Vandhey. Regarding accessory buildings outside, is that a covenant for the subdivision or does the city have anything to do with it in this case?
Director Vandehey said that the city does not enforce neighborhood covenants. So they would have no idea what the covenant is. The accessory structure is permitted under city code. In fact, this would not be before the committee if it was not for a second curb cut.
Alderperson Coenen thanked her and stated she just wanted to clarify that the building can be built. It’s the curb cut that is being discussed. The building can be built either way, and that is part of the subdivision covenants.
Alderperson Corey Otis (District 15) said he thought Kari and Mike stated their case pretty well, and he did not support the curb cut. The applicant for the second driveway met 4 of the 5 criteria for the driveway opening, but the 5th one is that the neighbors–two neighbors to each side–are basically surveyed on whether they approve. He said that if you look at the map you’ll see that essentially Kari and Mike are Tyler’s only neighbor. There is a park across the street and they’re the only two houses at the end of that block, so Kari and Mike are really the only people affected and they strongly object to the curb cut. He thought this was a case where they let the neighbors figure it out. He had a hard time stepping in as a Common Council member and ruling in this case when they haven’t exhausted all of their opportunities or options. His final point was why do we have this policy with these 5 criteria? It seems like this was not their place to step in so he would ask them to vote this down.
Alderperson Nate Wolff (District 12) agreed with Alderperson Otis. If they were to overturn this he thought they should first get rid of the 5th qualification. He thought that they needed to follow through with the standards that are set until they are no longer the standard.
Alderperson Brad Firkus (District 3) stated that at committee he voted to approve this and he still believes they should follow through with approving it. His reasoning for allowing this is that the street that it’s on is not a particularly high traffic street–it’s not an artery, it’s not a collector street–so he didn’t think the second driveway would have a very large impact on traffic on the area. Even though there are two houses on the street, the only driveway on the street is Tyler’s existing driveway. He also understood that when we buy our homes that is a big investment and we do buy them for the neighborhood we move into, but he also believed there’s a limit in how reasonable they can expect a neighborhood to remain the same–especially over a period like 20 years. He thought this curb cut was a pretty reasonable request, especially given that it was for a garage that may get built anyway regardless of the curb cut. He thought that if they put Tyler in a situation where he has a garage with no driveway to come out of it, that that scenario would not necessarily make anyone happier. He thought they could potentially end up with a situation where Tyler is hauling his boat across his yard, ripping his grass up, and making it look less nice–although he added that he didn’t know if that would happen. Ultimately, he didn’t think that the second curb cut was an unreasonable request, and he asked his colleagues to support it.
Alderperson Joe Prohaska (District 14) agreed with Alderperson Firkus. The garage can be built regardless even if the curb cut got voted down. The garage can still be built which is what the neighbors don’t want. So they won’t actually be voting to help the neighbors who don’t want the garage built, since Tyler could build it regardless. Then in two months if the rule gets changed, he could apply for a curb cut again. He’s perfectly able from the city rules to build that garage there. He thought it would be built whether they allowed the curb cut or not. The only question was whether he could get to it without tearing up his yard. If the Council forced him to do that then how were the neighbors going to feel about him having big ruts in his yard because he was backing his boat through his yard in the spring? Alderperson Prohaska recommended that the Council vote to approve the curb cut.
Alderperson Alex Schultz (District 9) said that this was a tough one where he could see himself voting on either side of the argument. On the one hand, he agreed with Alderman Otis that they have established guidelines and one of those guidelines is that neighbors agree. That policy is similar to other decisions the Council has made to allow neighbors some say in what happens in their neighborhood, so he’d err on the side of that vote. On the other hand, it’s a real challenge, as some of his other colleagues were saying, to prevent Tyler from exercising his right to build on his own property. Alderperson Schultz expected that if Tyler didn’t get the curb cut that he would not build the garage which he’d have to drive over his lawn to get to. Alderperson Schultz wondered if the existing garage could be expanded, but he acknowledged he was coming into this situation late and wasn’t sure what those discussions were or how expensive it would be to expand his current garage vs. building a new garage and pouring a new pad. Having experience in the construction trades and knowing what the costs are the alderperson wouldn’t expect to see much of a difference between either option. He didn’t know how he was going to vote but was leaning toward no because the 5 established criteria were not met.
Alderperson Katie Van Zeeland wanted to know if the garage was built would he be able to pave an area to the street? It’s just the curb cut that the Council was voting on correct?
Director Vandehey clarified that they were voting on the second driveway. If he doesn’t get the curb cut he would not be able to build a second driveway, but that wouldn’t mean that there wasn’t a way to expand his existing driveway to get over to the new garage. If the curb cut got denied he’d have to look at some other options. [I’m glad Alderperson Van Zeeland asked that question, because I had wondered about that. It sounds like the house my friends rented in Los Angeles with nothing but asphalt for a front yard would not be to code in Appleton.]
Alderperson Otis pointed out that the construction of the garage is not in question. The applicant has met all the criteria for that structure. It’s the driveway, and while the neighbors are not pleased about the potential structure going up, it was also the driveway that they were concerned about because they felt that there would be cars parked in it which would be essentially right outside their window since that’s the side of the house it faces. Again, he asked that they stick to the policy and let the neighbors figure it out.
Alderperson Firkus pointed out that part of the policy is appealing, so the Council making a decision here would not be outside the policy. Tyler is staying within the policy by appealing and the Council making a decision that maybe goes against what the neighbors want is not out of bounds. [His audio was a bit glitchy, but I think that was the gist of his statement.]
Alderperson Schultz noticed that there’s a hydrant within 4 to 5 feet of the proposed curb cut. He wanted to know what the distance from hydrants to driveways was.
Director Vandehey was not sure of the exact distance, but reiterated that this request met all requirements, so it must be within the approved distance. She thought it was 3 feet, but she didn’t know for sure.
Alderperson Wolff wasn’t sure what the precedent was on neighbors saying no to driveways, but he recalled one of his constituents requesting having a chicken coop in her backyard and having a neighbor say no and therefore it was denied. Instead of getting what she wanted she had to ask and fight for the rule to be changed, and it was and she eventually got her chickens. He’s not in favor of having a policy that allows a neighbor to be able to say no to something that you want to be able to do with your home, but he was in favor of following the policy that is in place. Since this is in place he thought that they had an obligation to follow it until it was changed.
Alderperson Meltzer (District 2) thought that if the city has a policy that says that if the neighbors don’t approve then it can be appealed at Council, and then the Council uses the fact that it was appealed as the one criteria by which they deny it that that doesn’t make any sense. The alderperson supported the curb cut and saw it as another example of why some of these policies should be changed, although that is a different conversation, then added that even if they were going to follow the policy as it is, it didn’t make sense to deny it on the basis of an appeal being sought. [I thought that was a really good point.]
Alderperson Van Zeeland relayed a personal story. Due to the layout of her property, she has four neighbors. When she wanted to build a fence to keep her son safe, two out of her four neighbors were opposed to it, but there’s nothing wrong with a fence. She worried about making decisions like this just because someone who has lived in the neighborhood longer thinks that it shouldn’t be there. She thought it was important to have their input and that everyone should have the ability to speak about it, but she didn’t think that every neighbor should be able to tell another neighbor what they can do in their own yard. She was going to vote to approve this.
The motion to grant the second curb cut was approved 9-6.
The issue of whether or not to keep that fifth requirement has been put on the Municipal Services Committee Agenda for their 03/08/2021 meeting.
The rest of this is just my thoughts, but I think this illustrates why it’s important to be very thoughtful when crafting a policy. This policy was crafted decades ago and the people who created it left no guidance as to how alderpersons were supposed to weigh the competing interests of neighbors or what exactly the Common Council’s role was supposed to be when dealing with appeals. The first four sets of conditions involve city government concerns versus the desires of a resident to have a curb cut. That is an easier thing to arbitrate and the sort of thing that the Board of Zoning appeals does regularly.
The last requirement, however, takes the matter completely outside of city concerns and places it in an entirely different realm. One of the purposes of building codes in general and things like set back requirements and building size limits specifically is to allow property owners to build on their own property in a way that is respectful of the neighboring properties. It may not be perfect but at least those guidelines are clearly laid out, understandable, and not arbitrary. But when you have a requirement that gives a neighbor broad authority to deny a nearby property owner the right to utilize their property as they desire even if what they want to do otherwise meets all clearly laid out requirements, that would seem to open up a situation where a lot of unfairness can happen. It puts Common Council members in the awkward situation of no longer having to arbitrate between the city’s interests and a property owner’s interests but of instead having to make value judgements between the competing goals or desires of two different parties each of which may be understandable and reasonable and between which there is no definitive correct answer.
View full meeting details here: https://cityofappleton.legistar.com/MeetingDetail.aspx?ID=825733&GUID=9973B851-C986-4DD5-9412-17B7B27B00BA&Options=info|&Search=
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