Since things are pretty quiet right now due to the holidays, I thought it would be fun to go back and recap the November Board of Zoning Appeals meeting. I enjoy watching how variance requests play out; it’s like Appleton’s version of a courtroom reality show, admittedly with less flamboyant characters and situations.
The variance request on the docket back on 11/15/2021 was regarding 1016 E. Pacific Street. Per the agenda, “The applicant proposes to use the property for a restaurant with an occupancy of thirty (30) and provide no off-street parking. Section 23-172(m) of the zoning ordinance requires one (1) space for every three (3) people allowed per maximum capacity or, in this case, ten (10) off street parking spaces.”
The property is a small commercial property at the intersection of 3 streets smack dab in the middle of a very residential area. The property has always been commercial, most recently serving as a photography studio, and is configured in such a way that installing off street parking is not possible. The property already had a variance to allow it to operate without meeting a requirement that it have 5 off street parking spots, but the desired change in use from a photography studio to a restaurant with a capacity of 30 meant that it would be required to provide 10 off street parking spots and so needed a variance for that requirement.
The meeting got off to a slightly interesting start. Board members Kelly Sperl and Kevin Loosen were present at this meeting but not at the previous meeting, so when it came time to approve the minutes from the previous meeting there was a brief moment of questioning whether the Board members who weren’t present at the previous meeting could second the motion to approve the minutes [and, though not asked directly, I took it by extension that there were questions as to whether they could vote on the item.]
Chairman Paul McCann said, “We’re going to have to use the quorum that we have with two people who were not present at the October meeting, so, yes, you may.”
He then asked, “Is there any discussion? Recognizing that Mr. Sperl and Mr. Loosen were not in attendance at that meeting, but have had an opportunity to review the notes?”
Several community members were in attendance and Chairman McCann explained to them that, during the public hearings and appearances portion of the meeting, they could come forward with whatever questions or concerns they had. The Board would take those questions into consideration when questioning the applicant.
Residents of two houses on the other side of Pacific Street from the business spoke.
Larry and Sue said that the businesses that had been in that location before (first a furniture store and then some photography studios) had not generated a lot of on-street parking either in general or specifically in front of their houses. Per Larry, “Our concern is not just for the patrons that might come to this proposed restaurant, but in addition to that there’s gonna need to be a staff, so where’s the staff gonna park?”
Sue was concerned that the restaurant would result in more cars being parked in front of their house which would interfere with their ability to do the car juggling typical at a property with only a single car garage and would prevent family and friends from being able to conveniently visit. Beyond herself, she was concerned about the impact on the entire neighborhood because the streets were narrow, with several only having parking on one side, and parking becomes even more difficult in the winter with the snow. At the same time, she was interested in having a cute, charming restaurant in the neighborhood and expected that she would herself patronize it.
Keith also lived across Pacific Street from the property. He was specifically concerned about how parking would be impacted by delivery services and felt that the neighborhood already had issues with EatStreet and Grubhub drivers parking in areas that were supposed to have no parking. He wondered if the restaurant would have its own delivery service or if there would be a spot for 3rd party delivery services to park when they were there.
With those concerns by the public having been voiced, the board moved on to consider the item.
Adam Marty the business owner was there to answer questions and plead his case.
Chairman McCann explained to him that the board needed to hear from his what hardship the existing property would create for him to use the property.
Adam answered that the only way he could succeed in using this property would be to allow guests and patrons on the premises because that is how his business will make money. However, there was no way to create off-street parking on the property. He said they were not trying to have 100 people, but planned more for people to come get pizza and then be out 5 minutes later.
In answer to a series of questions by Chairman McCann, Adam explained that “upscale casual” was probably his best definition of their dining style. They were going to have pizza, appetizers, and salads, and planned to be open Wednesday through Saturday from 4pm to 9pm. He did not intend to get a Class A alcohol license which would allow for people to purchase alcohol to-go but he would serve beer and wine on the premises. He said they really want to be a community-based restaurant and to support the community. The goal was to cement themselves within the community and be a part of the community. “Being there for you instead of against you.”
The business would have no delivery vehicles or any kind but would offer their food for call-in and pickup or walk-up.
They anticipated seating for a maximum of 30 patrons which would require 4 employees, including Adam.
He was very amenable to doing what he could do alleviate parking issues for the surrounding residents, and, only half-jokingly, said that if he needed to, he would ride a moped through the snow in January just to reduce parking congestion.
Although the property did not have any parking that met the city’s guidelines for being considered a parking lot or going toward the number of off-street parking spots it was supposed to offer, it did have a small driveway where one, possibly two vehicles could fit, that would further reduce parking congestion by employees. The rest of his employees would probably park on Vine Street which was a little more out of the way than Pacific Street.
Chairman McCann said that the balance of the parking for their patrons was likely going to be on Pacific Street and Tonka Street.
Although it was not necessarily germane to variance request, the question of some of the building modifications did come up. Adam stated that he was not going to have a walk-in cooler, that the entrance doors of the building would remain the same, and that all of the interior modifications they were going to make would be removable if the owner asked them to after the lease expired.
Board member Engstrom asked if he anticipated any big shipments that would require any significant unloading time.
Adam said he did not. The only distributor they planned to work with was V. Marchese which had a small 20-foot-long truck, not an 18-wheeler. The truck would be coming in the middle of the day, any time between 11AM and 1PM. There would be no large vehicles taking up the street. Adam said his background was very much in getting food from farmers and gardens and the local community, and that was still his plan.
At that point, Board member Sperl checked in with the community members and asked them, after everything they had heard, did they have any really negative thoughts toward any of this?
Larry was relieved to hear that there was not going to be any delivery service. He felt that the whole thing was still an unknown for them and it would be hard to know until after a variance had been granted what the frequency of parking would be. The limited hours were positive in that respect, but, ultimately, they just didn’t know what kind of parking and traffic congestion would happen.
Sue wondered if it would be possible to reserve one space for them on Pacific Street near their house because she would hate to be locked in and not be able to sometimes use the street in front of them. She understood it might never be an issue but it might be an issue all the time. She wondered if there could be some kind of monitoring of that.
Chairman McCann said that the Board of Zoning Appeals’ job was to either grant or deny a variance. Issues as to where parking might be prohibited was a city traffic issue. If things became a problem, the residents could petition the city to make changes.
Sue was also concerned that employees would park in front of their house every day which she wouldn’t like, but Adam told her they could absolutely avoid that which she was glad to hear.
Keith’s fiancée Pajong reiterated concerns about parking and how she would hate for her elderly mom to have to park down the street and walk through the snow around the corner to get to her house. Pacific already only had parking on one side of the street and things could still feel tight. She said that they would love to see a small business in that location, but at the same time it would be a little bit more practical if there was more space. The streets and the parking were already really tight for the people living in the area, and having other people coming in from outside the neighborhood would limit a lot for the people who already live there.
Having gotten more feedback from the community members, the Board then turned back to considering the variance request.
Chairman McCann said, “So, the hardship is obviously the size of this lot does not allow for parking, and it is an existing nonconforming property. The question in front of us is whether or not we would extend that life of the non-conformance to allow you to have a different business than what’s there today.” He pointed out that it had been a grocery store when he was a kid, then a furniture repair shop and a photography studio. It had always been a commercial property.
Adam said that much of the appeal for him was that “you can’t build that now. You cannot.” If he tried to build that today the city would tell him absolutely not. “This is all I’ve been looking for for 6 years is this because of what we’re going for.” He said that he understood the concerns, “But I’ll do everything I can if you guys have issues during, you know, with my staff, with patrons, with anyone that will be there. I will be all ears. I will talk to people and I will make sure they don’t park. If you want to go to the city in a different meeting and have no parking in front of, you know, your houses, I will be there and I will support it 100%. I’d rather have patrons walk an extra block than people that live there.”
Chairman McCann pointed out that as a property on the street he was entitled to on-street parking just like everyone else, “so that’s the consideration that we have to figure through here is if it is reasonable and it meets the expectations of the people who wrote the code. That’s what we’re here to consider.”
None of the Board members had any further questions for Adam. Chairman McCann said that he would entertain a motion regarding the variance but nobody made a motion.
There was a discussion with Inspections Supervisor Kurt Craanen about what the current variance on the property was. There had been a variance for 5 parking spots granted at an earlier date.
Chairman McCann said it seemed they were basically either restricting Adam’s capacity to 15 which would likely reduce the required off-street parking to the 5 already covered by the current variance or allowing him to have a variance for an additional 5 spaces which would allow him to have a capacity of 30.
He wanted to make sure that the neighborhood residents understood that the property already had a variance for 5 spaces and all the Board would be doing if they voted to approve the current variance request would be to expand that to 10. The hardship for Adam would be that a capacity of 15 would not be a sustainable business model.
Adam was off mic but it sounded like he agreed with that assessment.
Chairman McCann asked the attendees is any of the previous businesses had caused parking issues.
Larry said they did not and that the business at the photography studio was very different than that of a restaurant. He only noticed parking at the photo studio during the summer.
Inspections Supervisor Craanen pulled the file for the previous variance. Apparently, on 08/20/2007 the Board of Zoning Appeals granted a variance for a personal services business so that they did not have to provide 5 off-street parking spots. Chainman McCann acknowledged that a personal services business was somewhat different than a commercial restaurant.
He once again asked for a motion on the variance request.
Board member Scott Engstrom made a motion to approve the variance as requested. He said that their ruling needed to be consistent with the purpose of the section of the municipal code governing the issue they were considering. According to subsection a of Section 23-172, purpose of the off-street parking ordinance was to prevent or alleviate the congestion of the public streets and promote the safety and welfare of the public by establishing minimum requirements. “I haven’t heard anything that gives me pause with respect to welfare or safety, and the congestion concerns are certainly convenience related but they also have to be balanced with what the applicant is requesting, in light of this unique property. I mean, you take a look at it and it’s clearly something that does not fit the mold of what a restaurant would look like in most instances. So, I do believe that there’s a hardship. I believe that the hardship is directly related to the nature of the building, its location, the unique shape of the lot, the unique size of the lot, the unique characteristic of the neighborhood as well with respect to the streets. I do think that the applicant has met their burden and I do believe that approving the variance is consistent with the purpose of, again, 23-172 regarding off street parking specifically the purpose identified in subsection a.”
There was no further discussion and the Board of Zoning Appeals voted 4-0 to approve the request.
Board member Engstrom asked Inspections Supervisor Craanen, now that the variance had been granted, what the appropriate venue would be to handle any parking issues going forward. He understood that the applicant wanted to work out things before they progressed to that point, but he wanted to make sure that the residents who came to express concerns knew where they should go if issues arose.
Inspections Supervisor Craanen said that he thought a parking change would be an ordinance change and that the Traffic Engineering Division usually worked with residents on individual problems. For some changes they would have to go to Common Council, but there were also some things that the traffic division could do administratively. He told them Eric Lom was the Traffic Engineer and Mike Hardy was the Assistant Engineer; those were the people they could contact.
[I did like how everybody seemed civil and understanding and the business owner seemed keen on not being too disruptive to his neighbors. This isn’t the first variance request regarding parking for a long-standing non-residential property in an otherwise residential neighborhood. These building exist and the city is not going to require they be torn down because they don’t meet the municipal code which had been enacted after they were built, and their uses may change over time. Prospective homebuyers may want to keep that in mind when they set their sights on a house across the street from a quirky, non-conforming, non-residential building.]
View full meeting details and video here: https://cityofappleton.legistar.com/MeetingDetail.aspx?ID=900636&GUID=2B051571-4153-4B23-A337-8927C738366A
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