The Board of Zoning Appeals met 04/18/2022 and took up the request from Merge, LLC for a variance at 115 E. Washington Street to place a dumpster enclosure on the south property line even though the Zoning Ordinance requires dumpster enclosures to be at least 5 feet from the side and rear property line.
The board had already spent approximately 35 minutes discussing this item at the 03/21/2022 meeting, during which the developer’s representative, Rose Schroeder, had been unable to answer the board’s multiple logistical questions regarding how the garbage was going to be collected and why the enclosure couldn’t be attached to the building. At the request of the developer’s representative, the board voted to hold the item until the April meeting to give time to provide more details and hopefully answer the board’s questions.
Long story short, the board met again, got the answers to their questions, and after some deliberation decided that a variance was warranted, though Board Member Kelly Sperl seemed very much on the fence until the end.
Given that the board had already discussed this for 35 minutes during the March meeting, I thought perhaps their discussion in April would be shorter, but the meeting ended up lasting nearly 45 minutes which means the Appleton Board of Zoning Appeals literally spent 1 hour and 20 minutes discussing the placement of a dumpster enclosure and whether the property had some sort of hardship that warranted a variance to allow the developer to put the dumpster enclosure where they wanted.
[On the one hand, this speaks highly of the board members, the respect they hold for the City Code, and the diligence with which they carry out their duties. On the other hand, holy moly, it’s a gosh darn dumpster enclosure. Generally, I enjoy running this site and following city business, but I would be lying if I said I didn’t question some of my life choices while I was watching this meeting.]
For this meeting, the board members had been provided with an updated and more readable diagram as well as information on exactly what kind of dumpsters they would be using, how those dumpsters would be collected, and why the enclosure couldn’t be attached to the building. In addition to Ms. Schroeder, two other design team members joined the meeting to help answer questions.
As I’m sure everyone dying to know, the developer planned to use 4-yard front load dumpsters with wheels. When garbage and recycling time came around, those dumpsters would be pushed out of the enclosure and pushed to the alley to the east of the building where they would be picked up.
The developer had a number of reasons for wanting to place the dumpster enclosure in the location they were proposing.
- They wanted to keep as much parking as possible on Oneida Street.
- Pushing the enclosure to the end of the property instead of connecting it to the building allowed for better pedestrian circulation around the building.
- The neighboring property had transformers located next to the proposed enclosure and the enclosure acted as some sort of blast wall between those transformers and a generator. [Although the people were knowledgeable in some areas, none of them knew a whole lot about the specifics of that so they couldn’t give many details as to what was going on there.]
- They were working with the adjacent property owner (City Center) to create some shared parking
- They were working with the adjacent property owner to create service access and an ambulance route with the connected alleys that the properties each owned.
When initially asked to describe the hardship that necessitated a variance, the design team members explained that connecting the dumpster enclosure directly to the building on the south side would impact pedestrian circulation. Moving the enclosure to the Washington Street side would negatively impact their efforts to coordinate with the City Center owner on mutually beneficial projects such as trying to create some additional parking spaces. Additionally, placing the dumpster enclosure against the building would block the space for the electrical meters, block access to the building’s retail tenants, and limit the emergency exit options.
Board member Sperl spent much of the meeting sounding unconvinced about the existence of a hardship (a necessary prerequisite to granting a variance). Working with neighbors was good but not to the point creating hardships for oneself. He felt the site was somewhat overdesigned for what would fit in a relatively small site and that they were experiencing a self-inflicted hardship as a result.
There was a bit of discussion about the pedestrian path and access to the building. Ms. Schroeder eventually said that she understood and respected what the board was tasked with. From a planning perspective, with the dimensions of the dumpster enclosure needed to be what they were,
“the only way really to get it to fit in the back would be to have it attached and we cannot attach it because of the accessible route and where the doors go and the combination of some of these other things, so I understand and I hear the opinion that the site is over designed, but literally in this envelope I don’t know physically when attached to the building where it could go and not cause other conflicts….I respect what your purpose is here but I think literally it can’t be attached to the back of the building and be compliant meeting your minimum standards while still addressing the other code related issues.”
They talked over other potential other placement options and essentially discarded all of those for various reasons. The funny thing was, if the dumpster enclosure was attached to the building, it could be located right up against the property line because there were no setback requirements for buildings on properties zoned Central Business District. The only reason it wasn’t allowed to be placed where they wanted to was because it was not part of the building. When the design team had talked about it with city staff, city staff had initially suggested that they could have a wing wall stick out and attach to the building thus meeting code, but that staff member had not thought that would be necessary and that they would probably be able to prove hardship and get a variance instead.
Board member Sperl was still on the fence, saying, “I don’t know. I mean there’s a lot of things that say this is the spot for it, but there’s—I just don’t know how to state a hardship.” He felt the site was overdesigned.
After kicking around some more things he said again, “I mean, everything says this is where it should be—I agree with everything you guys have said, but I just don’t know how to state that there’s a hardship here because this is a brand-new site in the sense of the design and everything that goes with it.”
At that point, they had had extensive discussion and the design team had no further information to provide, so Board member Engstrom who was serving as Chair asked for a motion on the variance if only for the sake of moving on to the next portion of the discussion.
Board member Karen Cain said, “I would move that based on section 23-43(f)(2), that this plan be approved as it is, and waiving that five-foot variance for the space where the dumpsters are intended to be.”
Board member Sperl asked if they had clearly defined a hardship. Board member Cain noted that they could deny the variance.
Board member Engstrom said, “Well I think what we’ve heard from the applicant—and they can correct me if I’m wrong but—what we’ve heard is that the location submitted as far as—and part of this application interview is the only place they can put it without causing other obstructions and causing other issues that might impact the neighborhood and might impact that walkway.”
A design team member responded, “I think that the kind of unusual irregularity of this particular property is a combination of the existing alley on two sides. There’s the, you know, the private alley that’s going behind City Center and the private alley that’s going along the east that needs access constantly and then kind of, with it with our typical footprint of a mixed use building to build a corridor of residential units above, that sort of sets a standard depth which leaves only a certain amount of space behind, and to create that accessible path and put all the service stuff and keep it out of the public realm it kind of limits us into where we can put it. So, I would I would define that as the hardship.”
Synthesizing all of that, Mr. Engstrom said, “So you’re citing some atypicalities and irregularities with the lot itself kind of causing some to crowding, which causes this design proposal for this space?”
The design team member agreed it was “a combination of the size and the adjacencies of those two alleys and that required circulation through it. And not to mention the—I mean the size is really the driver, but that’s compounded by the clearances required by the electrical meters and stuff.”
Board member Sperl didn’t think that the walkway and pedestrian circulation had anything to do with it. He thought the need for emergency vehicle access was a more compelling need, but if they built the building tight against the south side of the property line that would negatively impact the private drive to the south which in turn would negatively impact access by emergency vehicles. “I think that the fact that you’ve got that existing private drive to the south which has been there and been functional for quite some time, is probably your hardship.”
Board member Engstrom noted that changes to the private drive “would inhibit the use of the property as it exists.”
The board went on to vote 4-0 to grant the variance to allow the dumpster enclosure to be built up against the property line instead of adhering to the 5-foot setback rule for dumpster enclosures.
[And yet again I can barely wrap my head around the fact that I listened to a collective 1 hour and 20 minutes of discussion regarding the placement of a dumpster enclosure and I then went on to recap that discussion in written form for people to read.
My impression was that the board really wanted to find a way to grant this variance, if possible, within the bounds of their responsibility as a board. From a design standpoint, the location made the most sense, the development could bring value to downtown, and city staff were supportive of it.
I’m curious what the purpose of the underlying city code was and if it makes sense to have a setback requirement for unattached accessory buildings in situations where there is no setback requirement for the main structure. Would an update to the code be in order?]
View full meeting details and video here: https://cityofappleton.legistar.com/MeetingDetail.aspx?ID=954835&GUID=5157797D-61A2-4C32-925A-80480F26937D
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