The Board of Zoning Appeals met 07/19/2021 and took up a variance request for a property on N. Bateman Street.
The meeting took nearly an hour and I was impressed with the thoroughness with which the Board members approached the issue given that city staff had already reported that the applicant met the review criteria for a variance. Two neighbors did show up to lodge their concerns and disagreement with the proposed variance, one neighbor strenuously so, and, although the Board did eventually approve the variance, they seemed to give careful thought to the neighbors’ position.
Fox Valley Church of Christ currently owns the property on the corner of N. Bateman Street and Atlantic Street, and they are hoping to sell it to a party that wants to turn it into a non-profit recreational facility that will host educational workshops, classes, and small photoshoots for artists and up and coming photographers to learn and perfect their craft. Unfortunately, the site has no off-street parking and no space to build off street parking. At the same time, city code requires that a business of this nature provides 5 off street parking spots. They were seeking a variance that would allow the property to be used without having to provide those parking spots.
The meeting started off with a public hearing at which the two neighbors spoke.
David owns three properties on N. Bateman Street, two in the 500 block and also the one directly across the street from the property in question. [A quick search of the city’s property viewer suggests he doesn’t live at the one across the street from the church.] He didn’t think the proposed use was appropriate for the neighborhood or the building. He understood the desire to do it, but he thought the claim of hardship wasn’t really legitimate. The zoning rules were there for a reason and there didn’t seem to be a compelling reason to sidestep those rules in this case. He noted that once this variance was granted, there would be no way to compel the applicants to honor their statements that they intend to have small classes and be a very low-key operation. There was also no reason to believe their assertions that many of the visits would not be by vehicle, an assertion he thought was just a hopeful opinion.
He wasn’t concerned just about the parking but also about traffic. North Bateman is only two blocks long and one of the things that those in the neighborhood value is its quiet calm and low traffic, and a change of use like this ran the risk of adversely impacting that. He acknowledged that the same could be said of a church, but a church’s use is typically very specific—on Sunday for a few hours. An operation such as what was proposed could be 7 days a week with no limit on the hours it could operate. He mentioned the possibility of having film shoots with hundreds of people coming to the building and noted that the building has a large occupancy limit. He thought the variance request seemed to be a special pleading, essentially saying, “I’d like to do something that isn’t allowed, and I’d like you to change the rules so I can do it.” However, he thought changing those rules would adversely impact the neighborhood, and that, while the concept of the business was not bad, it was the wrong neighborhood for it to be in.
Alderperson Vered Meltzer (District 2) was the alderperson for the district in which the property was located [and, though not noted, actually lives right in that area so would be personally affected by any changes] and came to the meeting to speak in support of the variance. The hardship of lack of parking would exist for anyone no matter what they were doing with the building, and it could be disruptive to the neighborhood if the only option for a future owner of that property is to tear it down. That would also be a lot more destructive. Granting a variance would help preserve the building, and the nature of the proposed business was a good use for the space. The inability to create parking on the lot was a hardship, and Alderperson Metzler requested that the Board approve the variance.
In response to that, David said he would like to reiterate that it was only a hardship because they’d like to do something and if they’re not allowed to it will mess up their plans, but the potential buyers don’t own the building so they don’t really have a hardship; they were just contemplating a hardship. He also pointed out that the City of Appleton’s master plan for that lot was for it to be residential. The idea that the lot be redeveloped as housing hardly seemed inappropriate when the city’s master plan called for it to be housing.
Gayle, another neighbor who lived across the street from the building [not in one of the houses David owns] also appeared. She said she wanted to know what the proposed business was.
Chairman Paul McCann told her she would hear about that when the applicant talked and that he would make sure that question was asked. He went on to tell the applicants that they would need 4 affirmative votes to approve the variance and that they would know the answer by the end of the meeting. He then asked the applicants to give some background on the case.
Technically, Fox Valley Church of Christ was the applicant, but John and Graham, the two men wanting to buy the property, and for whom the variance was being sought appears as agents for the church.
Graham said they were going to start an education focused non-profit organization. They planned to remodel the space, keep the chapel area as it is—which he noted was beautiful—and add a photo/video studio. They would also install a dark room and film print space in the basement. They wanted to focus on education within the photo/video field and have had really good conversations with schools and youth organizations in the area. He said there was high interested for education in this field.
Chairman McCann asked them to tell the Board a little more about their application and why it was a hardship to provide off-street parking.
Graham said there was no onsite parking and the only way to get any parking would be to use the little bit of greenspace that’s build around the building which might make space for one or two cars. He said they needed a variance for the same reason the church has a variance—there’s just no parking on the lot.
Chairman McCann perked up a bit at that comment and asked City Inspections Supervisor Kurt Craanen to clarify if there was a variance on this property for parking or if it just predated the ordinance.
Supervisor Craanen said the church was build before the ordinance.
Graham noted it was built in 1922 so would be 100 years old in a few months.
Chairman McCann also wanted to clarify if the Board granted a variance to allow them to not be required to have off-street parking, that variance would stay for the life of the property.
Supervisor Craanen said it would depend on how they crafted the motion for this particular use (non-profit recreational facility). If they broadly said the property didn’t need any parking than it would be general for any use, or they could craft something more specific to the type of use being requested. Other types of uses could require more parking.
In response to some back and forth, he said that if a property owner didn’t change the use and just kept it as a church, they wouldn’t need to get a variance for parking, but if they did change the use then they would need a variance, and different uses had different parking requirements. He mentioned a tavern might need to have 20 spaces (which would be different than the current requested use which only required 5). So, the board could give a variance for a specific use, or they could make it general for any use.
In answer to a question, he confirmed that the use requested was for a non-profit recreational facility which was a relatively new use that had only been around for two-three years. The municipal code defined a non-profit recreational facility as “any land or facility operated by a non-profit organization and which is open to the public or members of the non-profit organization, that may include, but not be limited to, athletic fields, picnic areas and bike/hike trails.”
Chairman McCann said it sounded like of all the use-types, this one required the least amount of off-street parking.
Board Member Kelly Sperl said he assumed the building was vacant right now, but Graham told him the church was currently using it.
Board Member Sperl confirmed that they were looking to purchase it from the church and convert it to this other operation, and when Graham told him that was correct, he wanted to make sure that they were aware that moving from one use to another would result in building code changes particularly regarding required accessibility not only into the building, but with bathrooms, and general circulation throughout the building.
John said that they had gotten a courtesy inspection from the city and had received a full report of everything they would need to do. His understanding was that, with the usage they were going to be changing it into, that nothing was going to hamper that and make them not able to move the project forward. He noted they had also had their own private inspection done as well as an abatement. He did appreciate the concern and desire to make sure they were aware of those potential issues.
Board member Sperl said that he drove past the building and confirmed that there was absolutely no way to get any kind of off-street parking on that site.
John said he had been keeping an eye on it on different days, and on Sunday mornings during their service he counted over 40 vehicles along the street on the surrounding blocks. He understood that was a limited day and time of the week, but he still wanted to point that out. He also wanted to let them know that they have been talking to surrounding businesses and there are some lots that are partial use lots only a couple blocks away, so they are looking at those as an option to work out a deal with someone if they have a situation where they are going to have more vehicles. They wanted to be conscious of the neighborhood. He thought a project like this would add more to the neighborhood than it would take away, but he reiterated he understood the concerns about parking.
Chairman McCann asked him to talk a little bit more about their programming and what they expected the traffic and the impact on the neighborhood to be.
John said it was a little bit in flux, but right then they were planning to have workshops for 10-15 people at most which was about as many as one would want to be teaching in a single class. Some of them could be students. Some could be after school programs. Adults could also be taking classes too. They would also be providing a service for people to learn how to develop and process their own film in the dark room on the lower level. If they ended up doing photoshoots, those would have a crew of no more than 5-10 people.
He noted that photoshoots are not as big as video production, and there would be no way they would cram 100 people into the building. He said he had experience working on big sets, doing big commercials, and no matter what they did they would be pulling a day permit for parking on the street no matter where they were filming, even if they owned the building. If they held a special event, they would have to submit a parking permit for that special event just like someone who was holding a block party or doing any sort of special usage. He didn’t see them doing any big, overwhelming events, but if they did, they would go through the special permitting process for those.
Chairman McCann asked what ages they were planning to serve.
John answered that depended on the school district what they could work out with them regarding programming. They were in talks with the Appleton Area School District and the Boys and Girls Club. They would mostly run programming for middle school aged children through adults.
A couple Board members discussed with each other about how there was simply no way to put parking on that lot.
Graham said he thought the building was just a few houses outside the historic City Park neighborhood, and the building was about to turn 100 years old. He recognized that he didn’t understand all the work the city does, but if that lot was flagged to be turned into residential, that meant a 100 year old building was going to have to be torn down. It it was changed to residential it would also need on-sight, off-street parking so, with its it’s current layout, either an adjacent property would have to be bought to provide parking or the building would need to be torn down and a 100 year old piece of history would be gone–if he understood things correctly.
Board Member Sperl agreed that to be residential, the church would have to be torn down, either fully or in part.
John said historic preservation was great and he loved rehabbing and working in old buildings. He mentioned The Draw down in the flats which he had converted and runs. To be able to bring new life to an old building was really exiting. They were lifelong Appleton guys and wanted to be able to continue to foster creativity, education, and workmanship.
Board Member Sperl asked Gayle if she would like to provide any further comments now that she understood what the planned usage was.
She said she was concerned about the amount of traffic that this would result in. The church used it once a week for three hours, but what they were proposing was far different than that. She was concerned about how many cars and people would be coming to the area and how often because it was a quiet, residential area.
The board members had a bit of a drawn out discussion with Supervisor Craanen about the language in the Municipal code and the difference between “unnecessary hardship” and “undue hardship”. They ended up deciding that they meant the same things, and I’m not sure if it was an issue at all because it turned out that some of the Board members were referencing slightly older versions of the Municipal Code. I’m not sure if it was the older version or the current version that included that terminology.
At any rate, they went back to questioning the applicants and Chairman McCann asked them what their expected hours of operation would be.
Graham said that was to be determined. They would definitely not be 24 hours and not be until 10pm. They hoped to get some students in during the day and then do an after school program. They expected to end in the 7-8PM range. He reiterated they were just starting conversations with area organizations.
Chairman McCann asked how many days and hours per week did they expect to operate.
John said currently they were planning to do around 2 workshops a month which would be 2-3 hours long on a Saturday or Sunday. They would also be doing after school programs. He estimated that they would operate from noon until 7 or 8pm for, at the most, four days a week. Beyond that, there would be just one or two vehicles on the street at a time for people using the dark room which could only be used one at a time. He appreciated the questions because they help provide focus. He suggested they would be willing to make concessions on times if necessary.
Board Member Engstrom asked if another church took over this space would they have the same issue with needing to provide off-street parking.
Supervisor Craanen said that right now it was a legal non-conforming use, and if the use stayed the same that would remain. The change of use was the key thing bringing the lack of off-street parking into play.
Graham pointed out that without a variance the only thing the church could do would be to wait for another church to buy this, or, Board Member Sperl added, someone could knock the building down and build a home.
Chairman McCann asked David, assuming that the property would not continue as a church, and there were likely going to be other commercial operations interested in it, was there any other acceptable imaginable use of the property from his perspective.
David referred them back to the city master plan which called for it to have a residential use. He reiterated that the variance request seemed like a special pleading. He said he lives in a 120 year old house and believes in historic preservation. He wasn’t anxious to see a 100 year old church be demolished, but he was also anxious to see the city zoning codes enforced for the reason they were passed, and he was also anxious to see the city’s land use plan be honored. He said there was also the possibility that another church could buy the property. He finished by pointing out that once the variance was granted, it was granted, and it opened the door the sequential greater use.
Chairman McCann said the variance would be restricted to use as a non-profit educational facility.
David answered, “I don’t want to seem cynical, but there have been people who have incorporated non profits and used them to their very own great personal advantage. I’m not saying that’s the case here, but we’re talking about industry professionals who want to create a, basically, a studio space and it almost beggars the imagination that this entire project is being done for a couple of after school programs.”
Chairman McCann said, “I don’t want you to judge the project, Sir. I want you to just tell me what you think the impacts could be.”
David replied, “And it is because of that possible alternate, you know, increasing or oozing uses that I think it’s very difficult to accept this potential use. It isn’t just a matter of five parking spaces. It’s a matter of impact on the neighborhood from traffic, and from hours of traffic, and so it is very difficult for me to envision any other use except for the one that the city itself says is the appropriate use for the land which is residential.”
Engstrom asked Supervisor Craanen if the lot was rezoned to residential would that in any way allow the minimum parking spaces requirement to be circumvented.
Supervisor Craanen said residential properties were listed in the same chart regarding required minimum parking as commercial businesses were. If it was made residential they would still need to get a variance for parking.
Chairman McCann summed things up by saying the only acceptable solution to the neighbors at the meeting would be to tear the building down and convert it into a residential structure with sufficient off street parking.
The Board confirmed that the church was the official applicant and they did not need the variance now for the current use, but were asking for the variance forva potential future use so that they would be able to sell the property.
They also confirmed that the city’s future plan did have this property down for a residential use; however, it was not the city’s position that the only use could be for residential. [And certainly, the city’s master plan is not carved in stone, and they can and have rezoned parcels to be outside of what the master plan called for. And, regardless, in this case, the parcel would actually have to be rezoned in order to be residential.]
Supervisor Craanen mistakenly believed the property would have to be rezoned in order to be used for what they planned, but Graham corrected him. The property was currently zoned PI (Public Institutional) and the proposed use also fell under that zoning. They had worked with other cit staff, and all hurdles had been cleared other than the variance they were currently meeting about.
The Board had no further questions for the applicants, and was ready to make a motion.
After what felt like a very long time of silent consideration, Board Member Sperl finally made a motion that the variance be approved with limitations to be determined during the discussion that the committee was about to have.
Thus began what, to me, seemed like a discussion that went off the rails for a bit. The committee wanted to make sure that the variance would be limited in scope and would not allow apply were another entity with an unrelated and more disruptive purpose to purchase the building in the future.
The property was zoned Public/Institutional and was approved for a “recreational facility, non-profit” use. Chairman McCann, however, proposed tying the variance to an “Educational institution; business, technical or vocational” use. To be fair, the Municipal Code defined “Educational institution; business, technical or vocational” to mean “a use including specialized instructional classes that provides training for business, commercial, or trade skills such as accounting, data processing or automotive repair.” From a layman’s perspective, that sounded a lot more like the proposed use than the “Recreation facility, non-profit” definition which was “any land or facility operated by a non-profit organization and which is open to the public or members of the non-profit organization, that may include, but not be limited to, athletic fields, picnic areas and bike/hike trails.”
Regardless of the fact that it seemed more in line with the stated purpose, I was still quite confused as I watched the video because he seemed to be tying the variance to a use that Graham and John had not been approved for, and I didn’t understand how that would work.
Chairman McCann was focused on the educational aspects of their venture and was trying to craft a variance that would address the neighbors’ concerns about it turning into a commercial operation with a studio used for commercial purposes.
Graham said that part of the scope of the education they provided would be giving people a hands on experience. They would not, however, be turning it over to a big film crew because it was a limited space that wouldn’t fit those purposes.
Chairman McCann clarified that it was going to be a programmed space—not an area with studio space for rent.
John, however, answered that it would be a mixture of that and would have some professional components. People would be able to be able to come and do headshots or rent space and staff from the non-profit to do a shoot. That would ideally allow students and interns to get hands-on experience and on-the-job training. He wanted to make sure the variance the purpose of the property were aligned and did not want to give the impression that they were a school or would be strictly an educational facility because that is not what they were going to be.
The Board members eventually determined that the Planning Department picked the recreational facility usage and it was not within the Board’s purview to change the usage, so they decided to tie the variance to the property’s use as a “Recreational facility, non-profit”.
Board Member Engstrom said they spent a lot of time talking about the use, but the real concern of the Board should be about the hardship and the actual physical limitations of the property. It was a unique property that was old and with no place to park. The lack of parking would be an issue regardless of what type of use change the property experienced. To David’s point about the city planning for it to be residential, the exact same issue regarding lack of parking would exist if the property were residential. The concept of undue hardship was intended to provide relief to people where strict adherence to the code did not make sense. He thought there was a hardship here which was directly related to the physical limitations of the property.
Another Board Member pointed out that a variance was for a situation where the property owner had no reasonable use of the property in the absence of the variance. In this situation, without a variance the only way the property could be used is if it was kept as a church. Otherwise, the only other option would be to level it.
The Board voted 4-0 that the variance be approved for recreation facility, non profit, use only.
[Although I would assume the neighbors were displeased with the result, I do think it was a little hopeful of them to expect a perfectly serviceable building to be razed because it didn’t have parking. Beyond that, the proposed project honestly seems like one of the better uses they could have hoped for in terms of impact on the neighborhood. I would think a lot of parents with students in an afterschool program would drop their kids off and go run errands or do something rather than just sit parked and waiting for 2 hours, and 15 cars using on-street parking twice a month for workshops seems less disruptive than 40 cars every Sunday.]
View full meeting details and video here: https://cityofappleton.legistar.com/MeetingDetail.aspx?ID=878696&GUID=268E3461-D9EE-445C-875F-F9338D3D3108&Options=info|&Search=
Be the first to reply