Given the 4th of July holiday and the fact that last week was the 5th week in a 4-week city government meeting cycle, things are a little slower than usual. I thought I would take the opportunity to go back to the 05/16/2022 Board of Zoning Appeals meeting and recap the variance request I had missed back in May.
The board took up three requests that night, two of which I already recapped:
- One in which they allowed Mill City Public House to operate with fewer parking stalls than required by city code
- One in which they allowed a residential property owner to build a deck 8′ from the rear property line instead of the 25’ required by code
The third variance request they approved, and the one that took the longest time to discuss and deliberate one, allowed a property owner to operate a light manufacturing/3D printing business on a lot zoned as residential.
The property, located right next to a train track, was zoned residential but had a Quonset hut on it that was essentially used over the years as a garage for hobbyists working on their various projects. Dating back to the 1960s a number of properties in the area were used for commercial purposes and were grandfathered in, as such, when the zoning was changed and were considered legal-nonconforming lots. This lot, however, had no record of ever having had a building permit issued indicating that a commercial building had been approved by the city in the past, which meant that the entire set-up was essentially illegal even though the property had passed through multiple owners and had been used since the 60s as a garage and commercial property. The illegal nature of the property was only discovered when a prospective purchaser asked the city planning department to research the property ahead of the purchase.
The prospective purchaser wanted to use the property as a place to perform 3D printing projects which were then sold on the internet. His wife was assisting him with the business and felt bad that she had asked the city to research the property. In response to this turn of events, the man and his wife as well as Curt, the person who currently owned the property, submitted a variance request to be allowed to continue using the property for light manufacturing.
The Inspection Department’s position was that the property was large enough to fit a house on it so the variance should not be granted. However, after much discussion, and taking into consideration the close proximity to the rail road tracks, the long and established history of having been used for commercial purposes, the way in which, for a time, the zoning in that area had bounced back and forth between being residential and being commercial, and the fact that the alderperson for that district, Vered Meltzer (District 2), held the opinion that building a house on the land would probably result in quality of life issues for any future resident and the current use was probably more reasonable than as a residential property, the Board of Zoning Appeals ended up approving the variance request.
One member of the public came and gave comment on the request. She lived next to the property and, while she had no issue with its use, per se, she was concerned about the general messy appearance of the property and worried that being granted a variance would result in more noise.
The discussion was fairly drawn out, and I don’t necessarily think we need a straight play by play. But there were some interesting points that don’t necessarily come up that often in variance discussions.
Curt, the current owner, said he had bought the property under the assumption that it was a commercial property. He had rented the building since 2000 prior to buying it. Before he occupied the property it was the Busy Bee Car Wash and Detailing shop and was then purchased by someone else who lost it to foreclosure. Eventually Curt rented it and then bought it. It was never a homestead property. During the time Curt owned it he got yearly fire inspections all of which he had passed. Now he was being told that it was a residential property, which surprised him.
Inspections Supervisor Crane explained that that area of town was all zoned residential, but there were a number of properties there with legal non-conforming uses. In the case of this particular property, city planners researched its history all the way back to the 1960s. Often when staff did that, they would find as they went back through the records that there was a building permit from 60 years ago and that the zoning was different at that time than it was currently. In this case they did not find any past permits and reached the conclusion that someone started using the building in a certain way without getting a permit. Yes, the building was a commercial building which had been there for many years being used for a commercial use, never for a residential use, but unlike some properties that had received permits at some point, this property never had and so instead of being a legal non-conforming use, the way the property had been used had never been legal.
Looking back through the records, it appeared a remodel permit was issued in 1962 to a Roger Wetzoff. The property was then sold to Roger, but no permit was applied for. It appeared that a Smoky Body Shop was in that location at one point, and there was a letter from the city’s Inspections Department saying that it was not a legal use. Inspections Supervisor Craanen thought the city simply didn’t follow up on that or make them change anything. In 1967, the property was sold to Kenneth Kemps who operated Sammy’s Pizza there until 1978. The property was also used at one point for something related to the Outagamie County Airport that used to be located in that area. There was a note that said, “No record of an occupancy permit issued by Inspections Department confirmed that Kenneth Kemp occupied the building for a for a specific use.” In 1968 the property was zoned for residential use, and in 2004 the property was zoned R2 – two family residential district. A man named Kenneth purchased the property through a foreclosure sale and in 2017 sold it to Curt. It looked like the property moved back and forth between having a residential zoning and a commercial zoning and during the 1950s it was actually zoned for commercial light manufacturing. However, at the end of the day, per Inspections Supervisor Craanen, “No record of a Certificate of Occupancy issued by Inspections Department is on record anywhere.”
The lack of a record of a certificate of occupancy was a problem as was the fact that there were some documents and letters written to a previous owner telling them that his use of the building was not a legal permitted use.
Board Chairman Paul McCann said that it sounded like the zoning at the time the letter was written had been residential, but when the property moved back to a commercial zoning then the use would have become legal.
Inspections Supervisor Craanen pointed out that granting a variance in this situation was complicated. The board typically deals with some sort of measurement—the height of a building, the size of a fence, the dimensions of a sign, the distance for a setback. In this case, the applicants were requesting a use variance that would allow them to use the property in perpetuity for a commercial purpose. According to city ordinances, in order to qualify for a use variance, an applicant was required to prove that the property could not be used for anything else, which was a much higher standard than was someone who was applying for a dimensional variance needed to meet.
As he went onto explain, this property was large enough to accommodate a new residential house, “So our opinion is that even though this is not what the applicant and, you know, owner wants to hear—and I’m sorry—but a house could be built on this property, so there is an alternative use for it. That’s staff’s opinion on this case.”
The city’s zoning code and comprehensive land use map was voted on by the Common Council which decided they wanted this neighborhood to be zoned residential. Rather than having the Board of Zoning Appeals circumvent the vote of the Council by giving the applicant a use variance, “The more appropriate action would be to go to the city council and rezone the property.”
Curt did not think that the property was well suited to have a house on it. Part of that seemed to spring from what, to me, appeared to be a faulty understanding of the shape of the lot. He seemed to think the lot was “pie shaped”, but while the lot directly next to his is pie shaped, his lot appears to be basically rectangular.
An option would be to have a residential business on the property, but that meant (a) the potential buyers would have to live there and (b) a house would have to be built on the land. The potential buyers, however, already lived in a home just a couple of blocks away and only wanted to use this as a workspace for their 3D printing business. What they were before the board that day asking was to be allowed to continue to use the property in the manner it had been used for the last 22 years. They didn’t want to create any noise; their business was primarily online so they would create minimal traffic; and, given that they lived only a couple blocks away, they cared about the neighborhood. They had wanted to do the right thing, hence talking to the city and asking questions, but they didn’t want to be penalized for having done the right thing.
The potential buyers also wondered if the other Quonset huts in the area had legal non-conforming use. The answer to that was interesting. Strictly speaking, the legal status of other Quonset huts was not what was before the board that evening, and they handled matters on a case-by-case basis so would not be aware of what exists elsewhere.
At the same time, there was reason to suspect that there might be other Quonset huts in the area in a similar illegal situation. Chairman McCann talked about his understanding of the history of the huts in that neighborhood. Outagamie County Airport had been located along Ballard Road, and there were all sorts of Quonset huts on the airport property. When the airport was closed, those huts ended up being purchased at low prices by people who took them from the airport property and moved them to blighted or vacant parcels peppered throughout the nearby neighborhood where they ended up being used as hangars and maintenance shops. He noted a lot on Owaissa Street next to the tracks with Quonset huts on it as well as a property on Ullman Street with a double-wide hut on it. [There’s also one on the corner of Wisconsin and Charlotte Street. My impression was that he was not suggesting that these particular properties had illegal uses, but just pointing out that given the history of how the huts came to be spread throughout the neighborhood it was not unlikely that there were others that were technically illegal. In fact,…]
Inspections Supervisor Craanen agreed that there were probably some others in this same situation where the properties were owned by hobbyists working on their cars. He did not know if they had ever gotten permits for all of them. “These may have the same problem—that they could never show us that this was a legal business. And I don’t think they ever even tried to say ‘well we’re a business’ because they’re for the most part just hobby shops.” Some of those properties could, however, provide a certificate of occupancy from the 1950s. The specific property before the board that even did not have anything showing that it had ever been legal. Inspection’s Supervisor Craanen did feel that was an unfortunate situation for the owner.
Realistically speaking, however, given the close proximity to the railroad tracks, the lot was not a particularly desirable location for a house. Chairman McCann commented, “It’s not impossible to put a house there, but I think it’s not particularly attractive to be able to do that.” He thought the only success there had been with other similarly situated properties in the city was when Habitat for Humanity had been willing to put a house on them.
Inspections Supervisor Craanen commented that he remembered several years ago that the owner of a property along the tracks in that area had requested a variance to erect a fence that was taller than permitted by code to serve as a noise buffer.
Alderperson Meltzer who was the alderperson for the district where the property was located was in attendance and Chairman McCann took the opportunity to ask, “So you’re on the Council and they would—they’re the ones who put us here basically by, with a stroke of a pen, calling this a residential lot when rezoning was done. In your opinion—and I’m only asking for your opinion […] I’m not asking for your vote or anything as an alderperson, but—what would the best use of this property be for your constituents?”
Alderperson Meltzer responded, “I think that this sounds like a good use for it. I would be very concerned about putting a residential property on that so close to the railroad tracks, and I just feel like there would be a lot of quality-of-life concerns and hardships related to how close it is to the train tracks and the existing sort of shape of the depth of the lot and things like that. I think that something that is quiet and clean and not obtrusive, I think, in my opinion would be the best use for this property.”
Chairman McCann also asked the applicants if they could explain what the hardship would be if the board did not approve the use variance.
The wife of the potential buyer responded that she understood the board didn’t consider the financial obligation of constructing a new building, but she thought that was a big part of this situation. Tearing down the structure currently on the property in order to build a house would be a big financial change for the owner. It also seemed like a waste to tear down what was there in order to build a house when the property could continue to be used as it has been for the last 20+ years. She realized that legally that did not fall under the definition of a “hardship” in this situation, but she still considered it one.
Board member Kelly Sperl felt it was an awkward scenario because the zoning had bounced back and forth and it just happened to land on a zoning that made the situation non-conforming. It looked like it had essentially been used as a private garage without a residence on the property, which was something that could not be built today. He leaned toward approving the variance because the lot was not a positive location for a house and, given the fact that it was a non-conforming garage without a residence, there wasn’t really anything that it could be used for currently. Additionally, even though there was no record of a legal occupancy permit ever having been issued, the zoning had bounced back and forth between residential and commercial. “It walks like a duck; it quacks like a duck; I think it’s a duck for the most part.”
The neighbor who had attended the meeting had no issue with the type of use but rather with the cleanliness of the lot. Although they couldn’t tie cleaning up the lot to the variance, board member Sperl hoped that the owner would get the message that the property needed to be cleaned up.
The board ended up approving the variance request but instead of approving a blanket light manufacturing use they tailored the variance to more narrowly apply to the specifics of the prospective purchaser’s business by stating it was “to allow a use of light manufacturing for a business that does computer-based design and 3D printing only.”
The approval of the variance brought up a secondary issue. With a light manufacturing use, the property would be required by city code to have a suitable number of off-street parking spots, which in this situation would be one for every employee plus three visitor parking spots. Because there would only be one employee, that worked out to four spots. There was enough space on the land to provide that; however, by code those spots would be required to be properly paved and marked with the correct number of handicapped stalls.
Inspections Supervisor Craanen asked the board members if they wanted to go ahead and grant a variance for the parking requirements in addition to the use variance they had already approved. Although the applicants had not made the request, notice had been given to the neighbors that the board was considering something related to the property, and, based on previous discussions with the Attorney’s Office, Inspections Supervisor Craanen believed that if a variance that was not on the agenda was close enough to one that was on the agenda it was legal to go ahead and approve it.
The board did end up approving a variance waiving the parking requirements for the property while it was operating under the terms of the use variance they had just granted. Board member Scott Engstrom was the one who made the motion and he stated that he believed there was a sufficient nexus between the original issue and the parking issue to warrant a variance. He also believed that waiving the parking requirements but tying that waiver to the limitations they had placed on the use of the property would disincentive any further use of the property beyond the “computer-based design and 3D printing” they had allowed. [So basically, I took him to be suggesting that requiring the new owners to install a proper parking lot would make the parcel a more desirable location for future businesses that may be larger, noisier, or result in more traffic than the present business. Not requiring the parking helped maintain the residential feel of the neighborhood.]
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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