_09082026-220

1 MINUTES OF THE BOARD OF ZONING APPEALS Tuesday, September 8, 2026 6:30 p.m. 1. The meeting was held in the Lake Vista Room and called to order at 6:30 p.m. by Chairman, Randy Gregorek. 2. On roll call the following Board members were present: Dan Jakubczyk, Richard Yerkey, Peter Wagner, Donald Garcia-Dwyer and Chairman Randy Gregorek. Also in attendance was Nic D’Amato, Planner, Kristin Laine, Director of Community Development and Karolyn Lipp, Secretary. Member Stacey Henne was absent. 3. Donald Garcia-Dwyer moved to approve, seconded by Richard Yerkey, the minutes of the August 3, 2026 meeting, Case #26-003, DSJ General Contracting, LLC, Donnie Sims. On roll call, all voted aye. 4. Case #26-004, Suzy’s Cream Cheesecakes; Joe Gomez, 9911 S. Howell Avenue is requesting a variance from Oak Creek Municipal Code Section 17.0301(b) regarding bulk and dimensional standards addressing the requirements applicable to the development or use of a lot in the M-1 Manufacturing District – Interior side yards require a minimum setback of 20 feet. If granted, the appellant will be allowed to construct a nitrogen tank and associated equipment pad located within the 20-foot building setback on the south side of the property. Secretary Lipp read the public hearing notice into the record. The Board heard sworn testimony from Katelyn Kirkendall, 1010 S. 8th St., Watertown, WI 53094 (Site Engineer with KL Engineering). Ms. Kirkendall highlighted a few of the constraints for this site as well as highlighted a few of the ways in which, if they are allowed this variance, the design would not interfere with the intent of the zoning requirements. She stated the existing utilities and easements located on the east side of the building present limitations to the placement on the site. On the north side they have the existing parking and circulation. While on the west side of the building it would be more directly visible from the public street. They do not anticipate high truck traffic. 2 Board member Wagner asked about the restrictions regarding the Greenspace along the north side of the building between the parking lot and the northwest corner. Ms. Kirkendall stated that the truck turning movements are restricting in that area. The Board also heard sworn testimony from Mark Kirchner, 1604 Ridge Ct., Wauwatosa, WI 53213. Mr. Kirchner clarified the truck traffic and the truck turning movement including the truck filling the nitrogen tank. He also stated that the nitrogen tank would be filled once a day. Mr. Kirchner stated that piping which is ½” vacuum sealed piping, is extremely expensive and if the tank had to be placed somewhere else and the piping would have to be placed up and over and down the building, it would make it non- feasible and cost several of tens of thousands of dollars minimum. Board member Garcia-Dwyer asked about the danger if someone were to drive into the tank. Is there any danger with having nitrogen in the tank? Ms. Kirkendall stated that there will be protective bollards around the concrete pad to protect the tank. The concrete pad is also a step up. The Board also heard sworn testimony from Planner Nic D’Amato regarding easements preventing construction on the west side. Mark Kirchner stated that the use of the nitrogen tank is new to the manufacturing flow at this location but not new to Suzy’s Cream Cheesecakes, just new to the building. The Board also heard sworn testimony from Joe Gomez, 2709 Pond Drive, St. Francis, WI. Mr. Gomez stated that if you look at the amount of room a truck needs to safely enter that tank area, it is actually wider than the building itself, if it is put on the back but they do believe there is an easement there as well. A truck needs to safely be able to maneuver in to that spot. On that Greenspace we also need that 20’ off property line from the residential area. Planner Nic D’Amato stated that the tank is not considered an accessory structure but part of the building. The Board also heard sworn testimony from Tebi Nsiah, 9890 S. Glenmore Ct., Oak Creek, WI 53154 in opposition. Mr. Nsiah’s concern has to do with noise which is not relevant to this variance request. Chairman Gregorek closed the public hearing at 7:20 p.m. 3 Deliberation and Findings of Fact 5. The board discussed the case and the criteria for each of “Findings of Fact” for a variance from Section 17.0301(b) as follows: a. Preservation of Intent: Construction of the nitrogen tank and associated equipment is permitted in the M-1 Manufacturing District and granting the variance would be consistent with the purpose and intent of the regulations for the District. b. Exceptional Circumstances: The Board finds that there are no exceptional circumstances in this case. There is not substantial evidence brought forward by the Appellant proving that there are no other feasible locations to place the nitrogen tank and associated equipment. c. Economic Hardship and Self-Imposed Hardship not Grounds for Variance: The Board finds that the request for the variances was largely based on economic hardship. The tank could feasibly be placed elsewhere at greater expense to the Appellant. d. Preservation of Property Rights: Granting the variance is necessary to preserve the owner’s property rights to construct a nitrogen tank and make exterior site modifications. e. Absence of Detriment: Granting this variance would not cause detriment to the adjacent property owners as this use is consistent with the land use of the property to the south. Placing it elsewhere could cause substantial detriment to neighboring property owners. 6. Chairman Gregorek made a motion to grant the variance from Section 17.0301(b), Bulk and Dimensional Standards, which states that the minimum setback for interior side yards in the M-1 Manufacturing zoning district is 20 feet allowing the applicant to install a nitrogen tank no less than 5 feet from the south lot line based on the Findings of Fact in their variance request, seconded by Donald Garcia-Dwyer. On roll call, Jakubczyk voted aye, Yerkey, nay, Wagner, nay, Garcia-Dwyer, nay and Gregorek, nay. After examining all facts presented during the Appellant’s testimony, the Board of Zoning Appeals moved to deny the variance request, on a 4 to 1 vote, from Oak Creek Municipal Code Section 17.0301(b), bulk and dimensional standards, which states that the minimum setback for interior side yards in the M-1 Manufacturing zoning district is 4 20 feet. The Board finds that the standards for both Exceptional Circumstances and Economic or Self-Imposed Hardship were not met. Chairman Gregorek made a motion to adjourn. First by Donald Garcia-Dwyer, seconded by Peter Wagner. On roll call, all voted aye. The hearing was adjourned at 8:10 p.m. ATTEST: 09/08/2026 ______________________________ __________________________ Karolyn S. Lipp Date