MINUTES OF THE
Tuesday, July 8, 2003
Mayor Bolender called the meeting to order at 7:00 p.m. The following Commissioners were present at roll call: Commissioner Dickmann, Commissioner Peterson, Commissioner Marhal, Commissioner Siira, Commissioner Kopplin, Mayor Bolender, Commissioner Foeckler, Commissioner Correll and Commissioner St. John. Also present were Director of Community Development Douglas Seymour, Assistant Fire Chief George Krudop and Building Commissioner Ed Ciechanowski.
Mayor Bolender stated on page 2 paragraph four of the minutes there should be a correction to state that he would “see” if they could make a plan work. Commissioner Siira motioned to approve the minutes of the regular meeting of Monday, June 23, 2003. Commissioner Peterson stated she had a correction on page 4, the second paragraph should state that the New Berlin ordinance should be referred to legal council for review. Commissioner Kopplin seconds with the corrections as noted. Commissioner Siira concurs, all voted aye.
Mr. Seymour updated the Commissioners on the actions that were taken at the June 17, 2003, Common Council meeting.
No Comments or questions from the Commission.
Mr. Seymour explained to the Commission that a request had been made to amend the zoning code to allow massage therapy as a permitted use in the City’s commercial zoning districts. In August of 2001 the Common Council denied a similar request to allow massage therapy as a permitted use.
This item was held by the Commission at their last two meetings in order to obtain more information on the licensing and regulation of this activity and to hear from the individual requesting this text amendment.
Cindy Spitza, Licensed Massage Therapist with Aurora Health Care, 3640 E. Elm Road. Stated that she has been a licensed massage therapist for the past ten years and is a member of the Wisconsin Chapter Board for American Massage Therapy as Second Vice President. She would like to see massage therapy available in the community with guidelines.
Commissioner Kopplin questioned if Ms. Spitza had a proposed area for her proposed business. Ms. Spitza replied that she works for Aurora Health Care at this time and would like to do service to business in the form of chair massage.
Commissioner Kopplin stated that Aurora has a wellness program that the City is enrolled in and wanted to know if her position was directly employed by Aurora as part of the wellness program. Ms. Spitza stated Aurora employed her.
Commissioner Kopplin expressed her concern with the Massage Therapy being added to the B-1 zoning district because it affects the B-1, B-2 and the B-4 zoning districts. After discussions with the City Attorney she feels it is better to allow it only in the B-3 zoning districts with it specifically indicating massage therapy and bodywork. Based on the New Berlin ordinance, which is very good, it would fit in there very well.
Ms. Spitza stated that because of the benefits of massage therapy the employees of businesses would benefit from the chair massages but would not be able to receive them with the B-3 zoning limitation. Commissioner Kopplin again expressed her concern for allowing it the other zoning districts.
Commissioner Marhal wanted to know if she wanted the B-1 zoning so that she could go into businesses and do the fully clothed chair massages. If it was restricted to the B-3 zoning then the employees could only get the chair massages if they went into her facility to get the massages.
Mr. Seymour stated, as he understood it, that is how it would be interpreted.
Alderman Ann Lampe asked if it was put into the B-1 if Ms. Spitza would be allowed to do the massages in the I-1 zoning. Mr. Seymour stated that if it were in the B-1 she would be allowed in the B-1, B-2, and the B-4 zoning districts but not necessarily the I-1 zoning.
Ed Ciechanowski, Building Commissioner, stated that in regards to zoning, when things are zoned it is just where the business is located it does not restrict the person from going to an establishment performing a service.
Mr. Seymour explained that home health care workers go into houses and perform their service.
Commissioner Kopplin stated that was a far stretch in her imagination. Mr. Seymour explained that just because you live in a residential zoning district you can have a service performed that is not permitted in the district such as glass repair as long as the glass repairer has their home base in the correct zoning district. It is a parallel to what we are dealing with at this time not necessarily the answer. There is some precedent and the City Attorney should take a look at this. As a means as having it solely in B-3 as long as there are reasonable opportunities for people to establish business in those B-3 districts. If it is an accepted practice as part of wellness programs or accredited programs that there are these types of visits from certified professionals then we need to get the City Attorney to draft something that it is or is not allowable in other districts.
Commissioner Kopplin explained that if it was associated with a wellness program that is generally associated with an insurance program within your building, it might allow them to perform this service. However, with home health in most cases it is generally associated with a doctor’s certification or social worker, which would be allowed.
Mr. Seymour stated that he has no problem with it in the B-3 if the intentions are to use it as a base of operations. If the intention is to provide the service in other settings then we would need to talk to the City Attorney and the Common Council as to whether they want to allow individuals to do this off of the premises. Something in the language would have to be worked out if that is the ultimate decision of the Common Council to allow that.
Mayor Bolender wanted to know if you did not have Aurora health care and you worked in this building could you not get a massage.
Commissioner Kopplin stated that unless your doctor gave you a certificate saying that it was actually physical therapy then the physical therapist could come to you.
Ms. Spitza explained that most chair massages are not covered under insurance it is a self-pay program for wellness to prevent the back problems, carpal tunnel and stress. Because of those reasons is why they want to be able to take it into businesses to prevent those types of things and increase productivity for the employer.
Commissioner Correll stated that being able to go out into the businesses changes the scope of what the Commission has been discussing. It is a practice that has been on going in surrounding communities. Just allowing it in the B-3 district does not answer the issue.
Commissioner Marhal stated if the B-3 was the base of operations and we allow them to go into the other districts and perform the therapy he did not have a problem with that situation.
Mr. Seymour read into the record a memo received by Alderman Grabowski:
Memo To: Dimity Grabowski
5th District AldermanFrom: Dr. David L. Brown, Ph. D
First Baptist Church
10550 S. Howell Avenue
Oak Creek, WI 53154I have become aware that the Planning Commission is considering adding Message Parlors to the allowed use in the B-1 zoning. I think that would be a BIG mistake! Here’s why. The term “message parlor” is to broad of a term. It can include therapeutic message that normally would take place at a medical clinic complex, hospital or doctors office, yet also it can include message more of a general, or sensual and even erotic nature. I know from talking to you on the phone you know the “can of worms” that could be opened up if the “message” issue is no carefully looked into. I can tell you the WE DO NOT NEED nor DO WE WANT non-therapeutic message parlors in B-1 zoning.
Please pass on my concerns to the Planning Commission, the Mayor and other Aldermen.
Thank You
David L. Brown
Mayor Bolender asked Ms. Spitza that if massage therapy were allowed in the B-3 district with it not being allowed in the B-1, B-2 and B-4 and were allowed to travel to the other districts to perform the service could that be worked around.
Commissioner Kopplin stated they would need to have a legal opinion on that situation.
Commissioner Marhal did not think they could preclude them from doing that because other services are allowed to do just that.
Ed Ciechanowski stated that it would not stop the individual from just performing their services in the B zonings and technically they can perform their services anywhere. The home base would have to be based in the home district.
Carol Grundy, 9280 S. Nicholson Road, commented that a massage parlor wanted to go next to the tattoo parlor and there was concern that it would not just be massage. At that time it was decided that if it stayed in the district, such as in the chiropractic offices, then there would be some control.
Commissioner Peterson stated there are two different issues here and it is different than what has been discussed previously at the meetings. Being allowed to go into different businesses is a whole different issue this should be referred back to legal council to see if they have to have licenses in order to practice or what they would need. The building is not the issue anymore it is the providing of the service.
Commissioner Dickmann stated the key is in the licensing. If the business is associated or set at one site within the zoning and the business is going somewhere then the person would need to be controlled. The only way to do that would be to have it licensed and having them meet the requirements that are set by the State, which are very strict.
Mr. Seymour stated that the examples may not be the best examples, but there are examples out there where their primary mode of business is comparable. The key is the licensing and if the Commission can establish which zones are acceptable for the base of operations then it purely becomes a legal matter as to how they can operate out of the base.
Mayor Bolender suggested that the Commission have them licensed and get a legal opinion and make sure the application is correctly handled. He feels it should be referred back to the City Attorney for a legal opinion and set a course on what can be done to regulate and license these and make sure it can be done wherever the need is held.
Mr. Seymour stated it has been demonstrated and the City Attorney has reviewed the New Berlin ordinance. Under the proper regulation this would be acceptable in a given district. The question is purely whether or not the to allow them to practice their profession in areas other than their zoning district, which is a legal question and not something that can be answered by the Commission. The Commission should be recommending to the Common Council whether or not the base of operation should be allowed in the B-1, B-2, B-3 or B-4. Before the public hearing it can be reviewed by the City Attorney to see what his legal opinion would be regarding the practice of the profession in areas other than the zoning district that the base is allowed.
Mr. Seymour explained that the State and the professional organization feels that the State code restricts a community from restricting the practice in similar districts. The City of Oak Creek should specifically state where these types of practices are allowed. The City might want to take an affirmative stance and dictate where certified massage therapists can practice.
Commissioner Peterson wanted to know if there was no company that is operating in B-3 in the City of Oak Creek could operations from other cities come in and do their services.
Mr. Seymour stated that they are talking about two different things and he is not sure if the Plan Commission or the Common Council has any discretion over the later of the two issues.
Mayor Bolender suggested the Commission take it step by step and get a legal opinion from Larry Haskin in regards to having them licensed so they can perform their services in different areas. The second question is what B zoning does the Commission want to put the base of operation in.
Commissioner Kopplin suggested it be zoned for the B-3 and then when it comes to the Council we can get an opinion if they can operate out of that district.
Alderman Lampe suggested that a motion be made to recommend to the Common Council that licensed massage therapists or bodyworks be allowed to practice in B-3.
Commissioner Kopplin motioned that the Commission recommend to the Common Council that the Municipal Code be amended to list licensed massage therapy and body workers as a permitted use in the B-3, Office and Professional Business zoning district after a public hearing.
Commissioner Peterson seconds.
Commissioner Marhal stated he would feel more comfortable knowing the legal opinion before deciding which district it would be allowed in.
Mayor Bolender stated a legal opinion would not change the B district it would be allowed in.
Commissioner Kopplin stated that they would be amending Section 17.0314, B-3, a permitted use and under that add No. 11 licensed massage therapy and body worker.
First and second concur. Roll call, all voted aye
Mr. Seymour explained to the Commission that Ronald Karfonta was requesting that the northeast corner of 1st Street and Marquette Avenue be rezoned to allow for a day care center with an outdoor activity area. He is proposing the development of an 11,000 square foot Learning Edge Childcare and Preschool at the site.
Mayor Bolender asked what was previously on this site and wanted to know if there would be any type of ground problems associated with the site. Mr. Seymour stated it was vacant, but it is in the middle of the industrial park.
Mr. Seymour asked if a phase 1 was done on the site. Ron stated that they have a clean report on the site.
Commissioner Kopplin stated the property across the street had contaminates and she wanted the applicant to be aware of that situation.
Mr. Seymour stated it should not be a problem because the building would be a slab on grade and migration should not be a problem.
Commissioner Kopplin motioned that the Commission recommend to the Common Council that the property at 7420 S. 1st Street be rezoned from M-1, Manufacturing to B-3, Office and Professional Business and be granted a conditional use permit for a day care center with an outdoor activity area after a public hearing.
Commissioner Dickmann seconds. Roll call, all voted aye.
Mr. Seymour explained to the Commission that the Parkside Land Group, LLC was requesting approval of a proposal to rezone portions of the properties at 441 and 545 W. Ryan Road in accordance with the conceptual development plan. The proposal by the Parkside Land Group would be to exchange 11.05 acres of wooded land at the south end of their property for 10.84 acres the County owns adjacent to Ryan Road.
Commissioner Kopplin wanted to know what happened to the previous plans presented by Reinders and what the time frame was for the plans to be carried out.
Mr. Seymour stated they received an extension of time and if it had not passed already it should be pretty close.
Commissioner St. John wanted clarification if the three acres inside of the creek were part of this rezoning. Mr. Seymour stated it was not.
Mr. Mark Reinders stated it was projected to be B-4 but that he was not asking for that rezoning at this time.
Mayor Bolender wanted to know what was going by the police station.
Mr. Reinders stated in regards to the P-1 changing to B-4 he did not have a user to locate there at this time but without the zoning and final development he could not market the property. He is trying to get the zoning in place to market the property. There will not be a TIF pursued at this time. Because of the current economic conditions Reinders is unable to build a multi-million dollar facility in Oak Creek. The other reason for holding off on the original plan was that if the facility was built they could not present what is being presented at this time which in his opinion is a much better project.
Commissioner Kopplin wanted to know if Parkside Land Group owned all the land except the parkland or was it on a land contract.
Mr. Reinders stated that Parkside Land Group was the legal owner of all the M-1, CU and the three acres of M-1 on Ryan Road and all the M-1 on the back of the property. As a point of clarification he stated that he is not requesting changing the wooded area to P-1 because the county would need to do that. His agreement with the County was to trade parkland for M-1, not parkland for parkland.
Mr. Seymour explained how that would create potential problems for the Commission when asking to dispose of P-1 lands with no guarantee that comparable parkland would be replaced.
Mr. Reinders stated that the Commission would need to talk to the Parks Department and find out what they intend to do with that parcel.
Mr. Seymour wanted to know if it was the County’s intention to use that land as parkland and if he would have objections to it being included as part of this petition.
Kevin Haley, Milwaukee County Parks Department, stated it would be parkland and there would be no problem attaching it to this zoning request if it was agreeable with Mr. Reinders because he owned the property at this time.
Dimity Grabowski, 5th District Alderman, asked the Commission to consider asking the applicant to come into the City of Oak Creek to apply under a PUD. The PUD gives the City the control to see what will develop in an orderly fashion on this parcel. The new police station cost several million dollars and she would like to see the area developed in an orderly fashion. She is not in favor of the B-4 zoning but is supportive of the back of the property as a wooded area.
Commissioner Kopplin wanted to know if this has been approved by the County Board or would it still need to be approved.
Mr. Haley stated the memorandum of understanding has been approved and executed and Parkside has about one month in which to fulfill or waive the contingencies.
Mr. Reinders stated he has no objection to including the rezoning of the M-1 to P-1 so long as the rezoning takes place upon the consummation of the exchange. If the exchange does not take place he did not want to be stuck with ten acres of P-1 land. In regards to the B-4 zoning, his first preference would be the M-1, but being next to the police station B-4 would be more conducive then the M-1 zoning. He also stated that he was not interested in a PUD. At the time when he brings a perspective user or development plan to the table it should be reviewed on its own merits. More restrictions on the parcel would inhibit his ability to bring good qualified buyers or development plans to the table and make them work.
Mr. Seymour wanted to know what contingencies there were on the exchange that would likely derail the process if the rezoning were granted.
Mr. Reinders stated that if for some reason it would not happen that he could not anticipate he did not want to be sitting on ten acres of P-1 land. The zoning should become effective the date of the exchange.
Mr. Seymour stated that the City would not want P-1 changed to B-4 that would just be sitting out there if this deal fell through. Just the fact that Mr. Reinders is in the land developing business there is a certain amount of speculation that is inherent in the process and if it falls through he would need to rezone it back.
Mr. Reinders stated he is fine with the zoning becoming effective at the time the exchange is consummated. Mr. Seymour wanted to know when the exchange would take place. Mr. Reinders stated that probably sometime in September if he needed a firm date he would say October 1. At this time he is waiting for an environmental report from the County to show that the parcel is clean. If the land were not clean it would kill the deal.
Mr. Seymour explained that he would have to check with the City Attorney to see if an enforcement of an ordinance by the Common Council in abeyance until a date like that.
Commissioner Dickmann wanted to know if the land would be sold or if Mr. Reinders would be doing the development of the land in the future.
Mr. Reinders stated he could not tell the Commission with 100% certainty that he would be the developer of the parcel.
Mr. Seymour wanted to know if the County as current owners of the property would be willing to enter into discussions with the City to deed restrict the parcel for certain uses that the City and the County jointly find not compatible with the surrounding land uses.
Mr. Haley stated that the County would, however, the MOU and the Board authorization does not direct them to place deed restrictions. If it were to happen it would have to be in voluntary agreement between the two parties. As clarification, basically the contingencies the developer has about one month to either fulfill or waive the contingencies and will come to a head very soon in terms of the land swap.
Alderman Lampe wanted to know who would pay for the road adjacent to the County land. Mr. Haley stated in essence it would be the developer.
Mayor Bolender wanted to know what would be going on this parcel. Mr. Reinders replied whatever the zoning and the Commission would allow.
Mr. Seymour explained that the B-4 offered Parkside the most flexibility in terms of marketing the property. If there are uses within the B-4 that the Commission or the Council finds objectionable they should be made know to Parkside so we can negotiate with Parkside and the County to incorporate those in the deed restrictions on the parcel. That would be the way to weed out the incompatible land uses that the Commission may be concerned about.
Commissioner Kopplin stated she feels that in light of the fact that Mr. Reinders has been in front of the Commission before and they can’t do what they want because of economic conditions what is to say that because of economic conditions they can’t do what they are proposing now. If she would want anything for this parcel it would be a PUD that the Commission has more control over.
Mr. Seymour stated that PUDs work very well if there is an identified user for the property. In the past, PUDs when applied to a blank slate create some problems down the road when there are modifications to the PUD. The City would encourage the PUD but cannot require that it be applied for.
Hiram Buffington, 9651 S. Fox Run, the residents in the subdivision behind this development would like to see the parkland preserved. They have worked with Mr. Reinders and Milwaukee County on this site. The residents of the subdivision support the changes. It would be better than the trucking firm or apartments and it fits.
Mayor Bolender stated he would not have a problem with any of this if he knew what was going in there.
Mr. Haley stated that from a parks perspective the reason Milwaukee County entered into the negotiations was to do a swap of some land and get rid of commercial frontage that the Parks Department did not need and getting prime woodlands.
Don Schatzen, 9310 S. 8th Avenue, stated that this whole proposal is a bad idea and would not like to see it done.
Dimity Grabowski, 9110 E. Elm Road, 5th District Alderman, stated that she is supportive of woodlands and the preservation of them. She would like the commission to consider that this developer come forward to the City with a PUD.
Mr. Seymour stated it was important for the Commission to consider if this proposal is consistent with the vision of the future land use for this area, which he feels it is. As far as the specifics of what goes in there it can be controlled, in the absence of a PUD, is to take a look at what uses in the commercial zoning districts are objectionable and get deed restrictions on the property which prohibit them.
Mayor Bolender stated that he liked the idea of saving the wooded land. The one drawback is that he would like to know what is going on the parcel.
Mr. Reinders stated that he could appreciate the concern that it would be zoned something and then coming in with something completely different. A lot of time was spent with the County and the community making sure this was suitable for them. If I tried to tell you what was going to go in here it would be a lie.
Commissioner Marhal stated that there is a time constraint that would not allow for any type of plan to be presented. There are representatives from everyone involved and everyone concurs with the plan. He sees no reason for delaying the proposal.
Commissioner Kopplin wanted to know if the road on the site plan was a new road or was it part of the original plan. Mr. Seymour stated there was a road on the plan the question was whether it was going to be public or private.
Commissioner Dickmann compared this situation to ones in the past that required a building to be put on M-1 land before he could get a buyer and this proposal needs the zoning before it can be marketed. He feels this is a good situation and a good way to handle the trade of the land. There should be some restrictions on the land to make it compatible with the police station.
Mayor Bolender stated to make it comparable to the police station it would have to be about an eleven million dollar building.
Commissioner Dickmann stated it did not have to be as big as the police station, but that it needed to be compatible and the Commission has the ability to control that situation.
Mr. Reinders stated that the Commission has the ability to control the look of the finished product to a huge degree and can require that it looks as good as the police station.
Commissioner Correll stated that there were some things in the zoning districts that could be restricted at this time.
Ann Lampe, 3rd District Alderman, suggested that if the Commission wanted to get something that was considered a quality building on the level with the police station they should consider a B-3 zoning, Professional Office Building. She also stated that she would like to see the park as long as it had public access including the parking lot and not just access off of Trillium Terrace.
Mr. Seymour stated it would be very restrictive in terms of what can happen at the site.
Mayor Bolender stated that the Commission should be restrictive because of the eleven million-dollar police station.
Commissioner Dickmann motioned that the Commission recommend to the Common Council that the properties at 441 and 545 W. Ryan Road be rezoned from M-1, Manufacturing, M-1, CU and P-1, Park, to B-4, Highway Business and P-1, Park, and that the 10 acres to the rear be rezoned from M-1 to P-1, after a public hearing, subject to the recording of deed restrictions addressing the permitted uses of that property.
Commissioner Marhal seconds. Roll call, Dickmann, aye; Peterson, aye; Marhal, aye; Siira, nay; Kopplin, nay; Bolender, nay; Foeckler, aye; Correll, nay; St. John, nay.
Mr. Seymour explained to the Commission that Drexel Self Storage, Inc. was requesting approval of a conditional use permit that would allow for the expansion of the existing self-storage facility at 500 W. Drexel Avenue. Self-storage facilities require a conditional use permit in Manufacturing zoning districts. The current facility does not have a conditional use. As such, when a facility like this is expanded, it must apply for and receive a conditional use permit, as if it were applying as a new development.
Commissioner Kopplin wanted to know if the site had to meet the 30% green space and will the drainage from the property go directly into the Oak Creek channel or would there need to be a detention pond.
Mr. Seymour stated that it would need to meet the 30% green space requirements and because the actual increase in the impervious surface is less than a half-acre a stormwater management plan is not required under the new ordinance.
Kons Sadownikow, owner’s agent, stated that there are catch basins on the property.
Commissioner Dickmann stated that he liked that the “U” shaped building hid the typical sliding type doors.
Commissioner Kopplin wanted to know if it would be built to the architectural standards.
Mr. Sadownikow stated that they were aware of the standards and would be meeting them.
Commissioner Kopplin motioned that the Commission recommend to the Common Council that the property at 500 W. Drexel Avenue be granted a conditional use permit for self storage facilities after a public hearing, subject to conditions and restrictions that would be reviewed by the Commission at their next meeting.
Commissioner Siira seconds. Roll call, all voted aye.
Mr. Seymour explained to the Commission that Demco Wisconsin 1, LLC was requesting Plan Commission approval of a certified survey map that would redivide the property at 8201 S. Howell Avenue into parcels of 14.2 and 3 acres. The 3-acre parcel at the west end of the property along Forest Hill Avenue is being divided for sale to a manufacturing business looking to relocate to the area.
Mr. Michael DeMichelle, DeMattia Group, explained that this was an 18-acre parcel that DeMattia Group has owned for about 2.5 years. There is a company that currently is located in Milwaukee and would not like to be named at this time. They manufacture pool products for swimming pools. It would be a 30,000 square foot building initially.
Mayor Bolender wanted to know how many employees were at the company.
Mr. DeMichelle stated there were between 10 to 15 employees.
Commissioner Kopplin motioned that the Commission recommend to the Common Council that the certified survey map for the property at 8201 S. Howell Avenue be approved subject to the following conditions:
Commissioner Foeckler seconds. Roll call, all voted aye.
Commissioner Kopplin motioned to adjourn. Commissioner Dickmann seconds. Roll call, all voted aye. The meeting adjourned at 9:03 p.m.