The Board of Zoning Appeals met 06/20/2022 and took up a variance request from a property owner on Linwood Avenue to build a detached garage in front of the existing principal building even though Section 23-43(f)(1)(e) of the city’s Zoning Ordinance prohibits accessory buildings in the front yard.
Staff analysis determined that because of the small size and unique shape of the lot (a triangle with two frontages), the request met the review criteria for a variance.
Despite the staff analysis, the Board of Zoning Appeals ended up not approving the variance request due to visibility and safety issues related to a 6’ tall fence on the perimeter of the property and concern that a garage would exacerbate those issues. The possibility was held out that the property owner could work with the Inspections Department and the City Attorney’s Office to figure out a way to permanently reduce the size of the fence at which point the board would be open to revisiting the request for a variance regarding the garage.
This variance request brought up some interesting legal issues, although the meeting itself was not as entertaining to watch as some because Glenn, the applicant, did not speak into a microphone and very few of his words were picked up for the video.
The main issue that came up in regards to the variance request was the fact that the fence along the outside of the property was nonconforming in a couple different ways. First, it was around 6 feet tall while code requires front yard fences to be no more than 3 feet tall. It also provided no visibility through it, while code requires front yard fences to be 50% open.
Glenn’s neighbor Joe came to the meeting and told the board that he was not opposed to the garage but he was concerned about visibility issues. Due to the existing fence, he already had a difficult time backing out of his driveway and had come close to hitting pedestrians and bicyclists on occasion. He wanted to make sure that when the garage was constructed it would not exacerbate the already existing visibility issues.
The board too was concerned about the visibility issues, not only for the neighbor but for Glenn as well. It sounded like his vehicle was a high-profile truck out of which he could see better than his neighbor, but any variance granted would remain in place for the life of the property regardless of who owned it or what kind of vehicle they drove.
Complicating matters was the fact that the non-conforming fence had been erected legally. A permit for a 6’ high fence had been issued in 2001, and the application had referenced a Board of Zoning Appeals meeting from April of 1976 in which a variance had had been granted for a 6’ fence. Per the minutes from that meeting, “The board’s reason for granting the request is that the shape and configuration of the lot make it difficult to provide any amount of rear-yard privacy for this dwelling without the fence located along Badger Avenue. There would be no vision obstruction at this point because no vehicular driveways are located in close proximity.”
The board was not sure how to legally interpret that. At the time the variance for the fence was granted, the property in question had only had one driveway on the Linwood side of the house. Currently it had two driveways, the one on the Linwood Avenue side and another on the Badger Avenue side where the tall fence was located. The house belonging to Joe the neighbor had a driveway in place in 1976 when the fence variance had been granted. It wasn’t entirely obvious why the Board of Zoning Appeals in 1976 had referenced the lack of driveways in close proximity when the neighbor’s driveway was right there. It also wasn’t clear whether the board in 1976 would have granted the variance to begin with if the property’s second curb cut had existed at the time of the request. Finally, allowing the erection of a garage which would face Badger Avenue seemed like it would only create additional traffic issues which the board in 1976 had appeared to want to avoid.
There was discussion about the feasibility of having the garage face Linwood, but there were issues with that. A large tree would have to be taken down to make space for that, and any garage would not be able to utilize the existing curb cut on that side of the house but would need a new curb cut. It was unlikely the city would allow a third curb cut for the property, but it was possible that they could work with the city to eliminate one curb cut to allow a new one to be made.
There was another discussion about the possibility tying a variance for the garage to reducing the size of the fence. Given the fact that variances stay with a property for the life of the property, there were concerns that doing that would be legally problematic and would not result in a permanent reduction in the height of the fence. The board did not know how the variance for the fence would interact with a variance for the garage. If they granted a variance that said the garage could be built dependent on the fence being reduced to 3 feet tall with 50% visibility would the property owner be able to, at some point after the garage was built, use the 1976 variance to go get a permit to rebuild a 6’ tall fence? Glenn, the applicant, was willing to lower the fence, but the variance would stay with the property even when it changed ownership, and the board had no idea what future owners might do.
Ultimately, the board seemed to generally think that the current situation of a 6’ tall fence and two driveways was not particularly safe and that the situation would be made much safer if the garage could be installed and the fence lowered to three feet. However, the situation would become even less safe if the garage were erected and the fence remained 6’ tall.
They did not want to inadvertently make things worse by granting a variance that resulted in legal ambiguity and ultimately created a less safe situation. As a result, they voted 0-4 against granting the variance request.
Although they didn’t grant the variance, they did ask City Inspections Supervisor Kurt Craanen to talk to the City Attorney’s Office to get a better idea of the legal issues and if there was a way to get around the 1976 variance for the fence. It was also suggested that if the applicant was able to come up with a new configuration for the garage and come back with a revised proposal that addressed the safety issues, the board would be open to approving that.
[Every once in a while, when I’m watching Board of Zoning Appeals meetings, I think a question that’s raised sounds like something that might be best answered by an attorney, but the board usually makes it through and reaches a reasonable conclusion even without an attorney present to answer questions. In this case, however, I think they made the right decision to not try to wing it without talking to a lawyer first. I’m curious how the meeting would have gone if one of the city’s attorneys had been in attendance and able to answer questions as they arose.]
View full meeting details and video here: https://cityofappleton.legistar.com/MeetingDetail.aspx?ID=984108&GUID=63566C9C-D871-4DAC-AEA0-294DD311CFE3
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