Date:      7/11/02

To:          Town Planning Commission Members

From:     Community Development Department Staff

RE:          Agenda Item 2: Variance – Richard Pataska – 1105 Appleton Rd. (Wheel Inn)


           The applicant is requesting a variance in order to construct a 24’ x 24’ addition to the existing building that would not meet the minimum street setback requirement. The parcel is zoned B-3 (General Business) and it requires a minimum 50 ft. street setback.  The applicant states that they need the additional area in order to accommodate an increase in patrons to their tavern, the Wheel Inn. The proposed addition would align with the current building and would therefore not increase the current zoning setback nonconformance. The subject property is surrounded by both commercial (to north) and residential (to east) lots in the City of Menasha.  The site plan is attached. Pictures of the subject property will be presented at the meeting. Property owners within 300 ft. have been notified of the variance request.

            Site Plan Issues:

On the submitted site plan, the applicant indicates that both the existing building and addition would be 48’6” to the edge of the road. Staff points out that the setback is measured to the front right-of-way property line, not to the road pavement. Using Geographic Information Systems (GIS), staff measured the distance to the Clovis Avenue property line, which was approximately 30 feet. The site plan does not indicate the rear property setback, which has to be a minimum of 25 feet. Again, using GIS, staff measured this rear setback (east property line) for the proposed addition, which was conforming since it was approximately 30 feet.

Furthermore, staff discovered that the applicant received a permit in 2001 for a 10’ x 12’ shed and this was not shown on the submitted site plan. This shed must be at least 10 ft. apart from the proposed addition. Also, the site plan does not indicate parking and the lot would require a minimum of 14 stalls for both the existing building and new addition.

Finally, staff points out that the only side setback (north property line) is nonconforming since it almost abuts the property line. This side setback needs to be a minimum of 7 feet. The site plan should have accurately shown all the setbacks and a revised site plan is recommended.


Variance Justifications:

Variances can be granted only if they are found to meet the following facts and conditions:


1. Exceptional Circumstances -- There must be exceptional, extraordinary or unusual circumstances or conditions applying to the lot or parcel, structure, use, or intended use that do not apply generally to other properties or uses in the same district and the granting of the variance would not be of so general or recurrent nature as to suggest that the Zoning Ordinance should be changed.


2. Preservation of Property Rights -- That such variance is necessary for the preservation and enjoyment of substantial property rights possessed by other properties in the same district and same vicinity. 


3. Absence of Detriment -- That the variance will not create substantial detriment to adjacent property and will not materially impair or be contrary to the purpose and spirit of this Ordinance or the public interest.


Staff Recommendation

 Staff cannot recommend approval of this variance request.  Staff bases this recommendation on the following:

1.       The building was built in 1958, before the zoning ordinance adoption in 1979. The building then does not meet zoning setbacks requirements of the B-3 district, which makes it a legal, nonconforming building. Being a legal, nonconforming building, the owner can only propose additions, alterations, or remodeling that do not exceed 50 percent of either the square footage or value of the existing building. The addition will most likely meet the 50 percent rule but there are still two zoning setback violations, one of the Clovis street property line (50 ft. street minimum) and the other on the north property line (7 ft. side minimum).

Therefore, the main hardship for the building comes as a result of the B-3 zoning designation, not the lot, building or use. There is other nearby B-3 zoned properties that have buildings that do not meet the 50 ft. minimum street setback. This eliminates the uniqueness of this B-3 lot as compared to nearby ones.

Staff would then recommend that the applicant propose a rezoning to B-2 (Community Business), which allows for only a 30 ft. street setback. There are many nearby B-2 zoned parcels on Appleton Road. The existing building and addition would then be conforming on the Clovis Ave. street setback. The north side yard would still be nonconforming but the nonconformance would not change on that side. A variance would still be required but it would be much easier to justify since the only nonconformance would be the existing building, not the proposed addition.

2.       The property owner currently has practical use of the property as a tavern. The addition is proposed to accommodate increased business. A financial hardship is then not a justification for a variance. Property rights are still preserved with the current use of the building.