June 24, 2002

Note: Cheryl Hentz is a member of the city of Oshkosh Board of Zoning Appeals. Recently, the Board rejected by a 3-1 vote a variance request from Oshkosh developer Ben Ganther. The three votes to deny the request were Hentz, Joel Klussendorf, and Edward Wilusz. Appeals Board Chair Don Krueger was the lone vote in support of the request. Board members Carl Ameringer, Fred Dahl, and John Schorse were excused from the meeting.

The vote to deny the request provoked a bitter editorial in the Oshkosh Northwestern, with the writer singling out Board member Hentz for especially harsh criticism and arguing that the Oshkosh Common Council " . . . would be well advised to take more care in future appointments to ensure potential members understand the scope and limitations of their review." They also accused the Board of showing "disdain for its proper role." Since the newspaper includes no comments from Hentz or the other aye voters, and since the editorial is completely one-sided and hostile, I decided to ask Hentz to respond to some questions. The questions and her responses are below. --Tony Palmeri

Question #1: What are the responsibilities of the Oshkosh Board of Zoning Appeals?

Hentz Response: The responsibilities are somewhat wide-ranging and detailed, but in summary: (A) We hear and decide appeals where a property owner alleges there has been an error made in an order, ruling, requirement, decision or determination made by the Director of Community Development or the director's designee; (B) We authorize variances to the current zoning codes; (C) We permit the extension of a district where the boundary line of a district divides a lot held in single ownership; (D) We interpret the provisions of the zoning ordinances; (E) We vary height and area regulations where there is an exceptional or unusual physical condition of a lot, specifically when the condition is not generally prevalent in the neighborhood and where it would present a reasonable or sensible arrangement of structures on the lot; (F) We vary parking regulations under certain conditions and following specific criteria.

The Board of Zoning Appeals -- sometimes simply referred to as the Board of Appeals -- is a quasi-judicial body, meaning that only a court of law can overturn a majority decision rendered by our board.

Question #2: Please describe the Bay Shore Drive proposal and explain why you voted against it.

Hentz Response: This will be a lengthy answer, albeit a complete one. The applicant and owner of the property, Ben Ganther, requested a variance to allow for a 5-foot front yard setback to Bay Shore Drive for an off-street parking area and a variance to permit a 39-unit multi family structure (age restricted to 55 years and up) that would be 54-feet tall (four stories), whereas the city zoning ordinance requires a 25-foot front yard setback and a maximum height of 45-feet for multi-family structures.

In considering variance requests, the city requires we examine four things: Is there an unusual or unique characteristic about the property that creates a hardship? Is the hardship self-created? Is the variance being requested the least possible needed to remove any hardship? And, will the granting of the variance have a considerable adverse impact on the neighboring properties?

There were two main reasons I voted against the variances for this project -- failing to see a hardship and the adverse impact I believe it would cause to neighboring properties. But several factors played into those two decisions. And contrary to the Northwestern editorial board which claimed I "blurted" out a reply about the viability of such a project, I listened to comment from all parties, then considered that, in conjunction with my own research. As a result, I gave very thoughtful, well-founded and calm rationale as to why I was not going to support the variance requests. Also contrary to the Northwestern's editorial, my reasons went well beyond simply what I felt was a lack of viability of the project.

Unfortunately, the paper only printed a small portion of my reasoning and that is what the editorial board keyed in on rather than being objective and looking at the entire project and all the reasons for the variance denials. But for the benefit of visitors to your Web site, here are my reasons in their entirety.

Reason #1. I could not see the hardship for Mr. Ganther. While I understand the property is somewhat limited in what can be built because of space constraints and so forth, it seems that part of that is self-created. The entire parcel of land at the corner of Bowen and Bay Shore is owned by Mr. Ganther. The property has evidently been divided into three smaller parcels and in the middle section, he previously built a three-unit condominium project. That means he now has to try fitting something in on either or both sides of that building. I am not a developer, but it seems to me that it would have made more sense to build something on one or the other of the two ends, then work toward the other end.

Moreover, Mr. Ganther stated that he could and would build his project with or without the variances, but that a re- design would require a flat roof instead of a pitched one and would use more green space for surface parking than originally planned. The project would, however, apparently remain at four stories and still house 39 units. Since he had other options which did not require the variance, it did not seem that the granting of the variances would be the least possible action necessary to remove any hardship Mr. Ganther felt he had.

Reason #2. Roof height measurements are calculated by city staff at the halfway mark between the peak and the eave, which would result in the peak actually being higher than the 54-feet listed in the request. According to information presented to us during the meeting, the project would in actuality have been 61 feet from peak to ground. That is far in excess of the 45-feet maximum currently allowed within the ordinance for multi-family structures. That could have an adverse impact on neighboring properties, especially considering the condos immediately next to the site for this proposed project are only about 32-feet tall.

Reason #3. While I felt a project to develop more housing for the aging members of our community had merit, I did not then nor do I now see the viability of such a project in this particular location. Because of that, I felt strongly that, if approved, it would end up having a long-term adverse impact on the neighboring properties were it to be unsuccessful and began to sit partially or totally vacant. I considered the following facts in making that determination: When I asked Mr. Ganther about a market study or feasibility study, he did not provide any specifics about what the study bore out. I asked him if the rents "in excess of $2,000 per month" as reported in the newspaper were accurate. He replied that, in fact, the rents would probably be closer to $3,000 per month, but adding it would include a provision of 2 meals a day and housekeeping services, plus a live-in staff person and doorman.

Mr. Ganther compared the rent of his proposed project to that of Centennial Inn on North Main Street, adding that they also charge around $3,000 a month. However, the proposed project and Centennial Inn are not like projects in any shape, form or fashion. Centennial Inn is a community-based residential facility which is licensed by the state and provides 24-hour care for its residents. This is quite different from the Bay Shore Drive project which is nothing more than upscale apartments that people could have the option to purchase after a year of residency.

Reason #4. Parking was another major concern for the neighbors and board members. City staff pointed out that in a 55 and up project only one parking space per unit was required. However, staff also said that once people begin purchasing their units, a court COULD consider the project to be condominiums as a retirement community, in which case the requirement would be at least two spaces for each unit. If eventually determined to be a condo project, there would not be enough space for adding that kind of additional parking. On an immediate basis, there is already a parking problem in that area, primarily during summer months, with people launching their boats, then parking their vehicles and trailers along the street. It seemed that a project of this magnitude, with the potential for needing more parking stalls at a later date, could further exacerbate the existing problem. I also found it hard to believe that people 55 and older in a financial position to pay $3,000 a month rent would only have one car. They likely will have two cars and perhaps a boat, meaning not only would the underground assigned parking be used, but also the 13 or so short-term spaces in the surface parking lot. Overflow parking would spill onto already congested surrounding streets. All of these things had the very real possibility of having an adverse impact on the neighboring properties.

Reason #5. Mr. Ganther did not even present a complete plan to us. His drawings showed three sides of the building, with the side facing the north missing. When I asked Mr. Ganther about this he said the northern side would have windows, but that it had not been drawn yet. I feel that in considering the variance requests, the neighbors and the board had a right to see what the northern side of the building was going to look like, especially since that is the side which would face the neighbors on the other side of Bay Shore Drive. I did not understand why Mr. Ganther would have three sides of a building drawn instead of all four.

Reason #6. I was not comfortable with the term "intensified landscaping" for the 5-feet of green space along Bay Shore Drive, as set forth by city staff as a condition for approval. Oftentimes, we are given recommendations to approve something with landscaping provided as a buffer between one project and another residence or business. But in my time on the board, this was the first time I ever heard of "intensified landscaping" and I really was unable to get a clear-cut answer as to what exactly that was.

There were other things I questioned. One, for example, was the question of whether or not sidewalks would be installed for pedestrian safety. Sidewalks already exist on the north side of Bay Shore and I felt that with a project of this size with people in an age group that clearly enjoy walking, sidewalks should be installed if this were going to be built. For obvious safety reasons, I further believed sidewalks should be ordered installed at the time the building was constructed. But with all due respect to city staff, this question could not be answered with any certainty, primarily because sidewalks are voted on by the city council.

I did not like the arrogance and disrespect of Mr. Ganther toward the neighbors. They expressed willingness to work with him and stated that (a) they recognized that something was going to be built there, and (b) they would even be able to accept something with only three stories. I asked Mr. Ganther if he would be willing to work with the neighbors, as I have seen many developers do. He replied that he would be more than willing to work with them, provided we approved his variances. What a preposterous response! If his variances had been approved, what could possibly be left to discuss or work with the neighbors about? He also stated that if his variance requests were not approved, he would build a project that would meet all the existing zoning codes but would likely not be as aesthetically pleasing to the neighbors. That kind of veiled threat did not sit well with me or the neighbors. It also gave me the distinct impression that Mr. Ganther does not seem to care much what his neighbors think, and that making money and as much of it as possible is the most important thing, even if it is at the expense of the neighbors and their property values.

I also questioned how a subject property address of 31 Bowen Street was assigned to this project when no such address exists on the street itself, at least not visibly. It is a vacant lot, for all intents and purposes. And with the design as presented by Mr. Ganther, the short-term surface parking lot would be located at the Bowen Street address with the building itself located on Bay Shore Drive and Mill Street. Some of the neighbors who attended the meeting said they had not received notices of the variance requests and it is quite possible that this was a direct result of the subject address being listed as on Bowen rather than Mill or Bay Shore, thereby possibly eliminating the notification of some of the neighbors.

Question #3: The Oshkosh Northwestern editorial board argues that the current Board of Zoning appeals has shown "disdain for its proper role" and that the Oshkosh Common Council should "take more care in future appointments to ensure potential members understand the scope and limitations of their review." What do say to these criticisms?

Hentz Response: I couldn't disagree more with the Oshkosh Northwestern saying the board of zoning appeals has shown "disdain for its proper role." Quite the contrary. The entire board listened to comment on this one issue for nearly two hours, and we each gave a great deal of consideration to the variance request, as we do with every request before us. Likewise, in making the decision we made, we considered the very things we are supposed to consider when deciding whether or not to grant variance requests, irrespective of how influential an applicant may be, how much or how little money they may have or who they may know in positions of power or authority. It seems to me the disdain being shown is by the Northwestern's editorial board staff for their apparent disregard in looking at all the reasons this project's variances were voted down. Rather, they instead chose to focus on one or two points that they felt were the issues our decision was centered around.

As far as their suggestion that the city council take more care in making future appointments to ensure appointees understand the scope and limitations of their review, I would respectfully suggest that perhaps the Northwestern needs to have a better understanding of what the board's scope and limitations are. We all understand what our job is and we take it very seriously. But simply because this board (or any other city-appointed commission or board) makes a decision with which the Northwestern does not agree, does not mean we have overstepped our authority.

Question #4: What would have to happen for the Appeals Board to reconsider its decision on the Ganther proposal?

Hentz Response: An applicant can submit the same basic variance request three times in any 12 month period, provided something with respect to the character of the original request has changed. However, based on Mr. Ganther's own remarks on the record, it would not appear he will be back before our board on this particular issue.

In conclusion, while the Northwestern said the Board of Zoning Appeals historically has had a good reputation for doing its job dispassionately, I can say with every degree of certainty that the Ganther variance requests were voted on dispassionately, as well. To quote the editorial board's own words, we heard the request, "weighed the merits against city ordinance" and made a decision.

While it is true that I, for one, looked at the viability of the project, I consider that my responsibility in determining potential adverse impact on the neighboring properties. I would have been remiss in my duty had I not considered everything, including that. But as any prudent person can see, my decisions were based on a number of reasons, not just whether the project was a viable one or not. And it had nothing to do with not liking Mr. Ganther's business plan. It is too bad that the Northwestern editorial board, in all of its infinite wisdom, cannot see how potential vacant buildings that are detrimental for neighborhoods, not to mention the city overall, are relevant to the board's responsibility.

The Northwestern said decisions like this one could cause further development in Oshkosh to be stunted. Nothing could be further from the truth. But zoning ordinances exist to help maintain orderly planning and development, and in asking for variances, every developer should consider how their request, if granted will affect their neighbors.

The Northwestern's editorial board can rest assured that Mr. Ganther will still be "scratching his head over how much lumber to buy." He has already said he WILL do the project.

Finally, the Northwestern said, "Where the future of Oshkosh business is at stake, this city lacks room for bullies on the block." I couldn't agree more.

Cheryl Hentz can be reached at writeus@athenet.net

Return to Commentary