The Board of Zoning Appeals met 05/16/2022 and took up the variance request from Mill City Public House to provide only 13 parking stalls for their restaurant/bar business instead of the 33 required by Municipal Code due to the fact that the building was built prior to when the current municipal code was enacted and was much smaller than current code requires a property with its zoning to be. There physically was no space to create the additional parking spots required by the current code.
Prior to the board beginning its discussions, they opened things up for members of the public to ask questions and provide comments. Dick, the owner of the property directly next to and connected to the Mill City Public House spoke. He had purchased that lot and built his building many years ago, and had moved his business to that location specifically because there was parking.
Dick was concerned that because his parking lot abutted Mill City Public House’s parking lot that restaurant patrons would end up using it. His building was currently vacant and had been so for about 4 years. He was going to be putting it on the market, but he thought he would have issues selling it if the parking lot was being used by restaurant patrons.
He said that somebody from Mill City Public House had sent him an agreement for him to sign regarding sharing his parking lot but when he read the agreement it said that they would have unlimited use of his parking lot from 5AM until 2AM, so he did not sign the agreement.
He didn’t know how he was going to keep extra traffic out of his parking lot and was concerned it would be a hindrance to him selling the building. He also complained that he had had no contact with the City of Appleton and nobody in any of the departments had called or checked with him. He didn’t want to look like the bad guy in this, but he did have an investment in his building which was his main concern.
He finished up by saying the owners of Mill City Public House were interested in buying his building and they would have first choice if they could work out some kind of purchase agreement. Otherwise, he would sell it to someone else, but he needed to have parking in order to sell it.
Once the board took up the item, Mill City Public House Owner Rusty Leary spoke and gave some background to address Dick’s concerns.
The Mill City Public House was purchased by his business partner in April of 2021. It was the old Elks Club building. In 1995, the Elks Club was issued a special use permit allowing them to serve alcohol as a private club/bar. A condition of that special use permit was that a parking agreement be signed between them and Dick. That agreement was in place until the building was sold last year.
When Rusty submitted an application for a special use permit to sell alcohol in a restaurant, that triggered a discussion about whether or not the parking agreement needed to be renewed. Initially, they thought that it did need to be renewed, so the realtor that facilitated the purchase of the building reached out to Dick and tried to get the parking agreement renewed. “It didn’t go very well.”
However, after some additional research, Community and Economic Development Department Principal Planner Don Harp determined that city code had changed sufficiently since 1995 that having an parking agreement with the neighboring property was no longer necessary to issue the special use permit. So, Mill City Public House was issued a special use permit in April of 2022 and subsequently received a liquor license. As a result, they stopped pursuing a parking agreement with Dick.
He believed that Dick had a valid concern about the parking because there was no visual separation between the two parking lots. Mill City Public House has 13 parking stalls and Dick’s property has 12 stalls. Rusty thought that people would park in Dick’s lot if they opened the restaurant.
One proposed solution was that they purchase Dick’s building. They were aggressively interested in doing that and had the resources to do so. It was just a matter of coming to an agreement, but it sounded like Dick wasn’t quite ready to list the property year although it sounded like he was willing to give them a change.
Dick reiterated that they would get the first shot.
Rusty told the board that their purchase of Dick’s property would be a permanent solution to that problem, but regardless of that he believed that they had a pretty valid case for the variance. The lot was a historic lot that was small and did not conform to the current development standards for C2 Commercial zoned properties. It was only 9,806 square feet, but current development standards require C2 properties to be 14,000 and the parking standards in city code are based on properties being at least 14,000 square feet.
He added that their property had an occupancy limit of 99 which was the highest number of occupants allowed by current fire code. Previously the posted occupancy of the building had been around 174, but the fire code had been updated since then. An occupancy of 99 was perfectly suitable for them, and they were asking to only provide 13 off street parking stalls because that was all that existed in their parking lot and the lot was too small to add any more.
Board member Karen Cain asked a question off microphone, and Rusty responded that even adding the spots in Dick’s parking lot only added up to 25 total which, under the current standards, would only allow for an occupancy of 75.
Board member Kelly Sperl wondered what triggered the need to meet the parking code. Was it because of the sale of the building? The building had previously had an A2 Assembly use and still had that use and the zoning had not changed.
Rusty believed the trigger was that they were seeking a new occupancy permit and part of that process is a parking review.
Board member Sperl didn’t seem to think that ought to have prompted a requirement that they come in line with current code. “What’s confusing to me is why this has triggered the issue of what we’re doing here. Because there is no change of use and there’s no zoning change on this. All that doesn’t solve the issue between the two and your parcels, but short of putting a guard rail or something between the two properties you know, protecting your own, but that’s a whole nother discussion, but I guess I’m really curious as to why the variance is actually needed.”
Rusty said he was told by the Inspection’s Department that they were going to be limited to a 39 person occupancy based on having only 13 stalls so that was why he was there. They never really did definitively determine why the building, which had existed prior to the current code, was not grandfathered in.
Chairman Paul McCann brought things back to the main question of the variance and asked where the restaurant patrons would park.
Rusty responded that there was ample street parking and were actually 20 spaces directly adjacent to their restaurant and a nearby commercial property, so people would not even have to park in front of a house. He reiterated that their hope was that they would eventually be able to buy the next door property and use the entire parking lot.
Chairman McCann asked if they bought the building next door would they not also be expanding their business which would increase the number of patrons.
Rusty said they had no interest in doing that. The space they currently had was perfectly designed. The people involved with starting the business had many years of experience in the restaurant industry and they were all begrudgingly getting back into it because it was a fun thing to do. But the restaurant was small by design. The country was in the middle of an intense staffing crisis, and if they did try to expand into the adjacent building they would run into an actual logistical problem with parking where patrons would not have anywhere to park and they would get frustrated.
Chairman McCann asked what they would do with the adjacent building if they purchased it, and Rusty said they would use the property for parking and the building for storage.
Board member Sperl commented that they could lease it out, but Rusty said they would not.
Board member Sperl asked how the hours of operation between Mill City Public House and the business next door classed, but Rusty said the adjacent building was currently vacant. In terms of how they might clash with a business with 8am-5pm hours, Mill City Public House was currently only going to be open for lunch and dinner Wednesday through Saturday, although that could change and they could directly conflict at some point.
Chairman McCann, after having confirmed that they wouldn’t be expanding their business into the adjacent building, summed things up by saying they would probably be waiving the parking requirement for the business and then if they bought the property next door it would be for the convenience of the customers and not in order to comply with city parking requirements.
He then asked Dick if the Board had handled any of his concerns through their questions. He understood Rusty and Dick had yet to sort out any arrangements they might make, but at this point Rusty’s intent was to stay put in his 13 parking stalls.
Dick was only partially picked up by the microphone. From what I could gather, he was still concerned about parking and pointed out that if they had 4 employees their 13 spots would be cut down to 9. He said he would probably put up a fence. “That’s not a joke.” He was also going to put up big signs. He didn’t want any liability for people parking in his lot.
The building he had built was a good building. If he leased it to someone it would probably be a 3 or 5 year lease and they would need parking.
His building was a nice looking building, “I’ll tell you it’s the nicest looking building on the block.” He had a similar building in Neenah which he sold and got what he wanted for it. He reiterated that he’d talk to the Mill City Public House owners first about selling his building.
Chairman McCann said the board’s responsibility was to determine whether or not there was a hardship for the use of this property as an assembly space and a restaurant/bar. As things sat that day, there was not enough parking on the property to meet code, and they needed to decide whether or not they would adversely affect the residents of Appleton by granting the variance.
He noted that Dick had coexisted with the Elks Club.
Dick responded, “They were a bunch of old people,” and went on to explain that they weren’t there 90% of the time and when they were there they were home by 8.
The Board members went on to confirm with Inspections Supervisor Kurt Craanen that the property was a non-confirming lot of record which in this case meant that if that lot were created today with that zoning it would need to be several thousand square feet larger. It had, however, always been legally occupied. It was in some respects a similar situation to the earlier case they had listened to regarding a variance for a deck.
Chairman McCann asked the board for a motion, and board member Scott Engstrom made a motion to approve it due to the hardship of being a very small legal nonconforming lot.
To Dick he said, “I am noting your comments, sir, and I do take them into account. But when I look at the legal requirements, the standard of review, and the information that the applicant has put forward, they have met the review criteria. And that’s the basis for my motion to approve.”
Prior to voting, board member Sperl said, “I would just hope the two of them can work out their issues so it protects his property and his parking.”
Dick said something off microphone to which Chairman McCann responded that the restaurant patrons would have to respect the property next door. Rusty would have to work on that, and Dick could protect his property however he saw fit.
There were no further comments or questions, and the board voted 4-0 to approve the variance request.
Chairman McCann finished by wishing Rusty good luck on his project and enjoined both Rust and Dick to “be kind to each other.”
[Hopefully Rusty and Dick are able to work out a reasonable deal to sell Dick’s property to Mill City Public House. That seems like the most effective way to deal with parking problems.
Dick came off sounding kind of grouchy during the meeting, but I can’t necessarily blame him because his concern was valid. Putting up a fence and signs and then rigorously having illegally parked cars towed is probably his best bet if he really wants to protect his parking lot but isn’t ready to sell his property to his neighbors.]
View full meeting details and video here: https://cityofappleton.legistar.com/MeetingDetail.aspx?ID=964834&GUID=B0DF5D19-2CD7-4D4E-B12C-78CDAAE54E17
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