MINUTES OF THE
TUESDAY, OCTOBER 24, 2006
Mayor Bolender called the meeting to order at 7:00 p.m. The following Commissioners were present at roll call: Commissioner Dickmann, Commissioner St. John, Commissioner Sokol, Commissioner Siira, Commissioner Kopplin, Mayor Bolender, Commissioner Grabowski, Commissioner Correll and Commissioner Peterson. Also present were Doug Seymour, Director of Community Development, Jeff Fortin, Planner, Pete Wagner, Zoning Administrator, City Attorney Larry Haskin and Assistant Fire Chief George Krudop.
Commissioner Dickmann moved to approve the minutes of the October 11, 2006 Plan Commission meeting. Commissioner Grabowski seconds. Roll call, all voted aye. The minutes were approved as submitted.
Report on Significant Common Council Actions
Mr. Jeff Fortin, Planner updated the Commissioners on the actions that were taken at the October 17, 2006 Common Council meeting. There were no comments or concerns from the Commissioners.
Planned Unit Development and Resolution Amendment for Meadowmere Village and Resolution Amendment for Oak Park Apartments
8720, 8739, 8767, 8873, and 8828 S. Oak Park Drive and 701 E. Puetz Road
Tax Key No.: Multiple
Mr. Fortin explained to the Commission the applicant was returning from the October 11, 2006 Plan Commission meeting where the item was held to get a legal opinion from the City Attorney. The City Attorney has provided an opinion in which he indicates that the City of Oak Creek Zoning Ordinance Section 17.0325 covers property maintenance. Staff recommends that text taken directly from the zoning ordinance be added to Resolution numbers 592-041663 & 563-030663. In regards to Section 7 of Resolution number 592-041663, the City Attorney questions the legality of a provision that would give the City the right to consent to any transfer or assignment of a property. Staff recommends this section should be eliminated.
Commissioner Peterson questioned as they may make the change for Meadowmere what would apply to Oak Park Apartments. City Attorney Larry Haskin explained what would apply to Oak Park would be what has applied to them for the last forty some years which is the conditions and restrictions imposed by the resolution that was adopted back in 1963.
Commissioner Sokol questioned the legality with respect to Section 7. He understood there was no case law to suggest that the agreement is contrary to the law. C.A. Haskin did not conduct extensive research on the issue and in the brief research done he has not seen a case where a city has a condition on a piece of land that says you shall not sell this land or this property without the consent of the city. It is his impression that from a legal perspective he has a concern from a legal standpoint that it might be violative of several constitutional provisions. Commissioner Sokol questioned if Quarles and Brady found any case law that would support their position. Ms. Liz Perry, Quarles and Brady representing Banner Acquisitions, explained they did not do extensive research because at this point they would like to move forward and cooperate. It is their feeling this could violate some constitutional issues such as takings or substantive due process but they did not brief the issue in depth. Commissioner Sokol stated he was surprised that she did not come up with any cases to support their position given the hearings at this time. Ms. Perry stated the recommendations that were made were acceptable to them and they would like to move forward with it in that form. Commissioner Sokol commented it was his view a contract was made by Atty. Perry’s client that was agreed to with representation of council some forty-three years ago and now they want to change that. He was not sure what the City of Oak Creek would be getting out of this. If they want to breach the contract what would the consideration be for the City of Oak Creek? Atty. Perry explained their concern as a buyer was that their lenders will not approve of a situation where there is a resolution that requires consent in order to sell. This purchase cannot go forward if there is that situation. Commissioner Sokol stated her client did agree to this. Mr. Fortin explained Atty. Perry was representing the buyers. Atty. Perry could not speak to what was agreed to forty years ago but her client was concerned that the consent provision is in there because their lenders will not go forward with financing with the provision on the record.
Commissioner Sokol questioned if the property holder should be making the petition. C.A. Haskin stated it was perfectly acceptable and it is seen all the time, for contract purchasers to enter into development agreements or asking for modifications to land use regulations. Commissioner Sokol questioned if the owner was present. Atty. Perry commented she requested that a representative of the owner be present but she did not believe anyone did make the meeting. C.A. Haskin clarified they were talking about city government being in a position to consent to a sale of property. What would the criteria be? Where would they draw the line? What are we going to be accused of if we say no to a sale to a particular entity? What kind of potential discriminatory issues are involved in saying no and who is the entity that is buying? What are the criteria to say yes or no to? He did understand this was an agreement but this was not two private parties entering into an agreement. This is government and is in a different position than two private entities that enter into a contract and are trying to change the conditions of a contract.
Mayor Bolender questioned why this was written the way it even was forty years ago and does the City really want to get involved in this at this time. C.A. Haskin commented this was a groundbreaking type of thing forty years ago and the City may have been looking to impose whatever restrictions it could on this given the experimental nature of what was being done.
Commissioner Sokol explained his concerns were with the school. It is not that he does not want this to be sold but he has concern for the high school which is located across the street and he believes that a unified management of those properties is the best for the City and the adjacent school. To make sure that there are no problems with crime and gangs in the City. Mayor Bolender assured Commissioner Sokol that any problems with the apartments would be taken care of immediately. Commissioner Sokol suggested if they would like to breach the contract perhaps some sort of a contribution to the City’s crime prevention fund might be in order. They did not ask them to breach the contract; they were bringing that to the City. Atty. Perry stated the recommendations would be acceptable. They would require a single ownership or a single management. Mayor Bolender stated they would not and will not tolerate gang activity or a loss of law and order in the community and he felt they should let the transaction take place.
Commissioner Grabowski asked for clarification on whether or not the City of Oak Creek had any vested ownership in this property. C.A. Haskin stated they did not.
Commissioner Kopplin explained the restrictions were written the way they were to ensure the entire property developed and that has been done.
(The following three items were taken as one motion)
Commissioner Peterson moved that the Plan Commission recommends that the Common Council amend Ordinance number 1799 to correct the legal description so it excludes the Oak Park Apartments property from the Meadowmere Planned Unit Development, after a public hearing.
That the Plan Commission recommend to the Common Council that they adopt a resolution, after a public hearing, amending Resolution No. 563-030663 by amending Section 8 to read: “The entire project shall be held in single or corporate ownership or control or shall be managed by a property owner’s association or other appropriate managing mechanism to assure that any common facilities are properly maintained. A copy of the bylaws of the management association shall be provided to the City.”
That the Plan Commission recommend to the Common Council that they adopt a resolution, after a public hearing, amending Resolution No. 592-0401663 by deleting Sections 3, 4, and 7, and adding the following language: “The entire project shall be held in single or corporate ownership or control or shall be managed by a property owner’s association or other appropriate managing mechanism to assure that any common facilities are properly maintained. A copy of the bylaws of the management association shall be provided to the City.”
Commissioner Grabowski seconds. Roll call, all voted aye. Motion carries.
Sign Appeal Hearing – Dunn Brothers Coffee
2345 W. Ryan Road
Tax Key No.: 903-9008
Mr. Fortin explained the applicant was requesting approval of a sign variance that would allow Dunn Brothers Coffee to place an additional wall sign on the east elevation of the multi-tenant retail center at 2345 W. Ryan Road.
Mr. Fortin swore in Mr. Paul Pedersen, Dunn Brothers Coffee.
Commissioner Correll commented he felt they should approve based on the same approval be granted to Starbucks just down the street for the same reasons.
Commissioner Sokol questioned what Mr. Pedersen meant by it being difficult for customers seeing the store coming from I-94. Mr. Pedersen explained without the side sign customers may not notice his business until they saw the front sign which by that time it would be to late for them to be able to turn into his business.
Commissioner Sokol questioned if there was a physical structure in front of the business that would prevent people from seeing the sign in the front of the store. Mr. Pedersen stated eventually the trees would probably grow.
Mr. Doug Seymour, Director of Community Development, commented the building was designed and it is clear in looking at the building and the way it was approved that it was set up for a dual sign ban at that location. In this very competitive world why would the Plan Commission deliberately put a business at a competitive disadvantage before they even open their doors?
Commissioner St. John questioned if Mr. Pedersen was aware that owner of the mall was denied signage on both side before he rented. Mr. Pedersen was aware of that situation. Commissioner St. John questioned if there was a cross access easement with Tri City Bank. Mr. Fortin did not believe there was an access easement at this time. Commissioner St. John commented if they wanted to level the playing field they should allow them to have a forty foot sign so when the people see the Starbucks sign coming off of I-94 they see Dunn Brothers at the same time. Right? Because we are all about leveling the playing field on competitive advantage. Mr. Seymour clarified he did not say competitive advantage he was against giving some one a competitive disadvantage.
Mr. Pedersen was willing to compromise on the signage and remove the drive thru disc on the side sign.
Commissioner Peterson questioned if they were aware of the 6” clearance between the top and bottom that staff was requesting. Mr. Pedersen was aware and did not have a problem with that request. Commissioner Peterson did not have a problem with the sign considering this was on a corner and when the property was first developed they did not know what was going to be there so it did not make sense to approve anything at the time.
Mayor Bolender called three times and then closed the public hearing.
Commissioner Grabowski moved to close the public hearing. Commissioner Dickmann seconds. Roll call, all voted aye. Motion carries.
Sign Appeal – Dunn Brothers Coffee
2345 W. Ryan Road
Tax Key No.: 903-9008
Commissioner Peterson moved to approve the request for a variance to place an additional wall sign on the east elevation of the multi-tenant retail center at 2345 W. Ryan Road with a minimum of 6 inches of clearance between the top and the bottom of the sign and the edge of the EIFS surface on which it is located.
Commissioner Correll seconds.
Roll call, Dickmann; aye, St. John; nay, Sokol; nay, Siira; aye, Kopplin; aye, Bolender; aye, Grabowski; aye, Correll; aye, Peterson; aye. Motion carries.
Certified Survey Map – FR/Cal Oak Creek, LLC (First Industrial Oak Creek)
305 E. Mahn Court & 7466 S. Howell Avenue
Tax Key No.: 766-9028 & 766-9990
Mr. Fortin explained to the Commission the applicant was requesting approval of a certified survey map that would incorporate the property at 7466 S. Howell Avenue into the property at 305 E. Mahn Court and split that property into two parcels. Parcel 1 will be 5.4 acres and Parcel 2 will be 8.4 acres. Lots in the M-1, Manufacturing District require a minimum lot are of 1 acre and a minimum lot width of 200 feet. Each of these lots exceeds these requirements.
Commissioner Dickmann questioned if both parcels would have enough greenspace. Mr. Fortin stated they both would have enough greenspace.
Commissioner Dickmann moved that the Plan Commission recommend to the Common Council that the certified survey map for the properties at 305 E. Mahn Court & 7466 S. Howell Avenue be approved subject to the following conditions:
- That the applicant establishes a cross-access easement along the shared property line in the truck bay driveway for the benefit of both properties and that the easement is shown on the certified survey map prior to recording.
- That any technical corrections are made prior to recording.
Commissioner Kopplin seconds. Roll call, all voted aye. Motion carries.
Certified Survey Map – Opus North
10101 S. Howell Avenue
Tax Key No.: 924-9006
Mayor Bolender directed this item held until a representative from Opus North was available for questioning.
Rezoning – Bluffs of Oak Creek
4201 E. Fitzsimmons Road and 10150 S. Chicago Road
Tax Key No.: 917-9999 and 917-9988-002
Mr. Fortin explained to the Commission the applicant was requesting some minor changes in the zoning boundaries to accommodate design modifications. The request does not change any of the plans submitted by the applicant for the Bluffs of Oak Creek Subdivision; it would only modify some of the zoning boundaries within the development.
Mr. Steve Bruskiewicz, Mariner Land Corporation, explained they were just trying to clean up some of the zoning lines.
Commissioner Siira moved that the Plan Commission recommend to the Common Council that the portions of the properties at 4201 E. Fitzsimmons Road and 10150 S. Chicago Road are rezoned as depicted in Exhibit A, after a public hearing.
Commissioner Grabowski seconds. Roll call, all voted aye. Motion carries.
Sign Ordinance Discussion
Mr. Pete Wagner, Zoning Administrator gave a presentation on temporary signs currently in violation and suggested some policy and ordinance changes. Mayor Bolender suggests Mr. Wagner work with two members of the Plan Commission (Commissioner Peterson and Commissioner Dickmann) to come up with some changes for the temporary sign code.
Commissioner Peterson moved to adjourn. Commissioner Correll seconds. Roll call, all voted aye. The meeting adjourned at 8:20 p.m.