The Board of Zoning Appeals met 02/20/2023. They took up three variance requests, two of which related to the city’s relatively new Accessory Dwelling Unit regulations and one of which related to a request to tear down and rebuild an existing 2 story garage.
The two ADU variance requests related to the fairly restrictive set-back requirements currently laid out in city code. Currently ADUs must meet the set-back requirements of a principal residential structure which is 25 feet from the rear lot line. The residents wanting to build these structures, however, wanted to position them to the edge of their lots more like one would locate a garage. [I would think that this desire would probably be very common among people hoping to build ADUs and was not unique to these applicants.] Both of the ADU related variance requests were denied because the Board felt that the zoning ordinance was very clear about the setback requirements, and that, particularly in light of how new the ADU rules were, it was more appropriate for the Common Council to make changes legislatively than for the Board of Zoning Appeals to be granting variances.
The board did end up granting a variance to the property owner wanting to rebuild his garage. His existing garage was built around 100 years ago and was 2 stories tall. Around 15 years ago, the city banned the construction of two story garages in the city. Ironically, it was noted that if he had wanted to build an ADU, he would not have been limited to one story, but because he was wanting to rebuild a garage there was a height/story restriction.
A PDF transcript of the complete meeting is available for download.
PACIFIC STREET ADU REQUEST:
Normally, I don’t use the full name of private people who speak at meetings or make variance requests; however, this variance request was brought by someone you may recognize, Andrew Dane a commissioner on the City Plan Commission.
He wanted to build an ADU so his mother or another relative could move onto his property. It was possible for him to build a unit that conformed to code, but doing so would break up the yard into a patchwork of sections that was less usable for himself and less aesthetically pleasing both for himself and his neighbors.
If he wanted to build a garage of the size he was proposing, he would be able to do that because the setback requirements for a garage were only 3 feet from the rear lot line and 3 feet from the side lot line; however, if he wanted to construct an ADU of that size the setback requirements became 6 feet from the side lot line and 25 feet from the rear lot line.
One of his neighbors wrote an email opposing the variance saying, “The neighborhood is full of old historic homes, many of which are very closely located to one another. Adding another small home to one of the backyards would be nothing but an eyesore to an already full neighborhood.”
Alderperson Vered Meltzer, the alderperson for District 2 where the house was located, appeared on Mr. Dane’s behalf and encouraged the board to grant the variance, saying, “I do believe that there is a real hardship that the applicant is facing. I think that with the way that the setbacks are required and what one would be able to do with a garage versus this accessory dwelling unit, the contradictions there create a hardship as far as placement of the property so that it’s available for a functional and compatible use with the other structures on the property.”
The board ended up voting unanimously against granting the ordinance. Board member Scott Engstrom said he did not see the hardship given that there were two compliant options for placing the ADU. “I don’t think it’s really our place as a board to be making a modification to something that would be more appropriately changed through the local legislative process. It’s not that we don’t want to allow people to provide these options and allow people to age in place. It’s certainly a valid intent as outlined in the code. But in this particular instance, it’s self-created in that it’s a new unit that’s being added to the property. We’ve heard no indication here on the record that not having this ADU will harm the use of the property. So I personally don’t see the hardship here. I think that the applicant made some very, very good points. But points that are probably better addressed through the local legislative process.”
PERSHING STREET ADU REQUEST:
The property owner wanted to tear down their existing garage and replace it with a two story structure that was a garage on the first floor and an ADU on the second floor.
This request was opposed by two neighbors. One neighbor, Mark, showed up in-person, and opposed the variance request pretty strongly. He was worried that the ADU was going to be very close to his property and ruin his “nice, park-like backyard.” He mentioned that the property owners seeking the variance already ran a bed and breakfast out of the lower level of their split level home and he didn’t want more families living on that property. He was also somewhat irate at the way he felt he had been treated and the fact that he had not been able to see the project design until that evening.
Alderperson Chris Croatt, the alderperson for District 14 where this property was located, appeared in support of Mark and noted that the staff report on the variance request indicated that the applicant had no demonstrated a dimensional limitation on the lot that created a hardship, something that was key to granting a variance, and that the lot could still be used for its intended purpose without the variance.
Finally, a neighbor named Clarence emailed the board regarding the variance and asked for a determination to be delayed, saying, “With a variance of this type, I believe a plan of construction should have been available to those for at least seven days before any meeting. Since there is no plan, I recommend that this request be rejected until more information is available.”
Honestly, the proceedings for this variance request were a little painful to watch at times. As indicated in Clarence’s letter, the actual plans for the ADU were not available until the day of the meeting. Greg, the contractor for the project appeared on behalf of the resident requesting the variance.
He started out by saying that his company specialized in granny pods and ADUs and that they were experiencing difficulties with Appleton’s code because the setbacks currently in the code were the same setbacks as for the primary dwelling which was very limiting. He thought they should consider amending the ordinance so that property owners could push ADUs toward the outside of their lots.
In terms of the specific variance he was requesting that evening, his argument was that there were four unique factors that, each on their own, might not be considered unique or extraordinarily limiting but, when considered together, resulted in a hardship. Those problems were:
- The lack of depth to the lot.
- A 25 foot rear-yard set-back being enforced on both the rear yard and the side yard because it was a corner lot. This issue turned out to not be an issue; one of the yards was considered a side-yard which only had a 6 foot set-back, while the other yard was considered the rear-yard with a 25 foot set-back.
- The lot overall was relatively small.
- The principal building and the garage were pushed further toward the back of the lot than they otherwise would because of the setback required by the sidewalk in front of the house. This statement didn’t seem to make sense to any of the board members, and Chairman Paul McCann tried to explain to Greg that that sidewalk was not located on the owner’s property but was on land owned by the city and the front-yard setback would be based on the edge of the private property and would not be impacted by the sidewalk. In watching the meeting, I could not be sure if Greg understood what he was trying to explain.
At any rate, two of the four factors Greg mentioned turned out to not be relevant. Additionally, he did not seem to be as prepared as he could have been. He told the board that the new garage/ADU would be 4-8 feet higher than the existing structure; however, he didn’t have a complete design available and was not able to tell them exactly how high it would be. He did say, “My opinion, I think it’s gonna be a pretty normal looking garage.”
Also, when the board asked Greg about the possibility of building an attached garage with an ADU on the second floor as opposed to a detached unit, he seemed to have kind of a hard time understanding their questions and parsing out whether or not such a unit could be built within the setback limits.
Ultimately, the board voted against the variance request. Board member Michael Babbitts noted that he did not see anywhere in the Municipal Code that said lots were entitled to have ADUs built upon them, additionally, it would be possible to just add on to the house instead of building a detached unit.
Board member Engstrom said he did not think that the lot was abnormally sized nor did it have an extraordinary lack of depth compared to other lots in the city.
Greg asked if it would be possible, because it was a corner lot, to change which side of the lot was considered the rear yard versus the side yard. That was a novel idea that seemed to pique the board’s interest a bit, but in the case of this property specifically, it would not work because the principal dwelling was less than 25 feet from the side yard, so changing the side yard to the rear yard would make the building no longer conform to city code because it would no longer meet the 25’ rear setback requirement.
BADGER STREET GARAGE REQUEST:
No concerns or opposition to this variance were raised by neighbors. Matt, the property owner, had a two-story garage that was built around 1920 that, after many years, was in disrepair. He wanted to tear it down and rebuild it in essentially the same place and around the same size as it currently was. Currently it was closer to the side-yard than was allowable by city code so he wanted to bump it over a foot to bring it into compliance. The dimensions would also not be exactly the same, but they would be comparable.
The existing garage had 1 ½ floors. He wanted to maintain that so that he could continue using the second level for storage. Unfortunately, about 15 years ago, city code was changed to ban the construction of 2 story garages.
The board asked him about other options that would be within code such as building a wider 1 story structure. The main issue was that there were some major drainage issues in the area of the yard in which an expanded garage would fit. Not only did water from his own house drain to that area, but water from his neighbor’s property as well. In spring, a two car garage would be sitting in water. Additionally, his property was somewhat irregularly shaped which impacted the buildable area.
Oddly enough, if he wanted to build an ADU in that general location and of the size and dimensions he desired, he would have been able to do so because it would meet the ADU setback requirements and ADUs are allowed to be 2 stories tall.
In the end, the board voted to approve the request for a variance. They struggled a little because the drainage issues probably could have been dealt with to some degree; however, as board member Karen Cain said, “water typically wins in most situations.”
Board member Michael Babbitts summed up his reason for voting in favor of the variance by saying, “I think there’s hardship with the site that’s been identified and even a bit beyond, with it being kind of the angular shape. That really does limit the buildable area. And the best buildable footprint is in the back and collecting water. While that is able to be addressed, I think it’s in the best interest that that we allow the variance here.”
The board encouraged the two alderpersons in attendance to review the issues that came up in the meeting and look into enacting legislative changes.
Alderperson Meltzer acknowledged that there was room for improvement to the existing city code regarding ADUs. “You have to start from somewhere. So some parameters were put together. And I think that, you know, certainly since this hasn’t been allowed before, this is sort of like a trial run. And certainly, you know, there might be things that were significantly flawed about the way that that ordinance was written, because it was the creation of something new. And so, going through a scenario like this, I think is a learning experience. And I’m here taking notes as far as, you know, what, what could be problematic, what could be kind of self-imposing of hardships about the ordinance itself.”
[And, yes, I would say there is definitely room for improvement to the code surrounding both ADUS and also garages. It does not make sense to me that the height of a structure would be limited by its purpose. The fact that you could build a 2-story ADU in one place but be limited to only a 1 story garage in that exact same place seems unfair and needlessly complicated. Likewise, if you can build a garage in one place, an ADU does not seem so very different.
If the city wants to enact some sort of heigh limit maybe it would make more sense to set the limit based on setback. For example, if you want to build a 2 story ADU or garage, you would have to build that 25 feet from the back yard lot line. If you want to build a 1 story ADU or garage then you could build it closer to the lot line.
Or maybe they could let two story structures be built closer to the lot line. Either way, it doesn’t make sense to be differentiating between accessory buildings and playing favorites with them based on usage.]
View full meeting details and video here: https://cityofappleton.legistar.com/MeetingDetail.aspx?ID=1067316&GUID=C0CEE0C6-1AA5-4ED3-AF33-67AA901E3B8D
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