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Zoning Board of Appeals- AGENDA - 12/6/2012CITY OF MUSKEGO ZONING BOARD OF APPEALS AGENDA December 6, 2012 6:00 PM Muskego City Hall, Muskego Room, W182 S8200 Racine Avenue CALL TO ORDER PLEDGE OF ALLEGIANCE ROLL CALL STATEMENT OF PUBLIC NOTICE NOTICE OF CLOSED SESSION PLEASE TAKE NOTICE that the Board of Appeals of the City of Muskego may convene, upon passage of the proper motion, into closed session pursuant to Section 19.85(1)(a) of the State Statutes for the purpose of deliberating concerning cases which were the subject of a quasi-judicial hearing; said cases being the appeals described below. The Board of Appeals will then reconvene into open session. OLD BUSINESS None. NEW BUSINESS 1. APPEAL #03-2012 Petitioner: Thoedore E. Schwulst Property: S74 W17634 Lake Drive / Tax Key No. 2193.127 REQUESTING: Under the direction of Chapter 17 Zoning Ordinance: Section 3.02 Zoning Board of Appeals, Petitioner seeks the following variance: Chapter 17 - Zoning Ordinance: Section 5.02 - Building Location (1) Location Restricted: No building shall be hereafter erected, structurally altered or relocated on a lot except in conformity with the following locational regulations as hereinafter specified for the district in which it is located. A setback of 25-feet is required from the right-of-way (front lot line) of Lake Drive on the above mentioned lot. The petitioner seeks a setback of 7.87-feet from the right-of-way (front lot line) of Lake Drive for a detached garage, and is therefore requesting a 17.13-foot variance from the right-of-way (front lot line) setback. CLOSED SESSION OPEN SESSION APPROVAL OF THE MINUTES FROM THE SEPTEMBER 27, 2012 MEETING MISCELLANEOUS BUSINESS ADJOURN NOTICE IT IS POSSIBLE THAT MEMBERS OF AND POSSIBLY A QUORUM OF MEMBERS OF OTHER GOVERNMENTAL BODIES OF THE MUNICIPALITY MAY BE IN ATTENDANCE AT THE ABOVE-STATED MEETING TO GATHER INFORMATION; NO ACTION WILL BE TAKEN BY ANY GOVERNMENTAL BODY AT THE ABOVE-STATED MEETING OTHER THAN THE GOVERNMENTAL BODY SPECIFICALLY REFERRED TO ABOVE IN THIS NOTICE.ALSO, UPON REASONABLE NOTICE, EFFORTS WILL BE MADE TO ACCOMMODATE THE NEEDS OF DISABLED INDIVIDUALS THROUGH APPROPRIATE AIDS AND SERVICES. FOR ADDITIONAL INFORMATION OR TO REQUEST THIS SERVICE, CONTACT MUSKEGO CITY HALL, (262) 679-4100 Appeal # 03-2012 ZBA 12-6-2012 Page 1 of 3 City of Muskego City Representative Brief Zoning Board of Appeals Supplement 03-2012 For the meeting of: December 6, 2012 REQUESTING: 1. Under the direction of Chapter 17 - Zoning Ordinance: Section 5.02 - Building Location (1) Location Restricted: No building shall be hereafter erected, structurally altered or relocated on a lot except in conformity with the following locational regulations as hereinafter specified for the district in which it is located. APPELLANT: Thoedore E. Schwulst LOCATION: S74 W17634 Lake Drive / Tax Key No. 2193.127 CITY’S POSITION PRESENTED BY: Adam Trzebiatowski AICP, City Representative BACKGROUND The petitioner recently built a detached garage on their property without a permit. The new garage is 22.18’ x 22.17’ in size (491.7 SF). There was an older garage on the property that was removed and a new garage was built on the property. Since no permits were submitted for the construction of the new garage, the garage was not placed in a location that meets the Zoning Code requirements. As such, a variance is being requested to be allowed to keep the new detached garage up in its current location. The lot currently contains a home and the detached garage in question. The parcel is zoned RL-3, Lakeshore Residence District. The property is located on Lake Drive along the southeast shore of Little Muskego Lake. The petitioner is seeking the following variance: An exception to the required setback from the right-of-way/lot line along Lake Drive for allowance of a detached garage. A setback of 25-feet is required from the right-of-way (front lot line) of Lake Drive on the above mentioned lot. The petitioner seeks a setback of 7.87-feet from the right-of-way (front lot line) of Lake Drive for a detached garage, and is therefore requesting a 17.13-foot variance from the right-of-way (front lot line) setback. Former Garage New Garage Appeal # 03-2012 ZBA 12-6-2012 Page 2 of 3 DISCUSSION As noted above, the garage in question was constructed without a permit. Given the situation at hand, the Board should look at this as if the garage has not yet been built, as it has no legal permit for it. The petitioner has stated that the former garage on the property was in poor condition and not large enough for his vehicles. It was located near the road. There is no formal accurate record of its exact distance from the lot line, but it appears that it may have been located slightly closer to the road than the existing unpermitted garage. There are really two questions at hand relating to this variance request as follows: 1. Is a detached garage going to be allowed on the property? 2. If the garage is allowed, is it built with the least variance possible? Relating to #1 above, in the past the board has looked at a garage as being a typical part of a single family home site within the City. It’s normally been looked at this way as long as the garage is not excessive in size, meaning a typical two-car garage or smaller, and as long as is located in a spot that requires the least variance possible. There are some cases where there is just not enough room for a garage, but in most cases, as is in this case, there is some space available. With that being the case, the City does not have an issue with the idea of a reasonably sized garage citing that the existing house location and lot size are limiting factors. This is all subject to all proper permits being applied for and approved, fees and/or penalties being paid, and proper inspections being completed on the new garage. Since no inspections have been done at this point, we have no idea if the building meets any building codes. This then leads to question #2, which is the question of the location of the garage. The location of the old garage should not have any formal bearing on the location of the new garage as it was non-conforming and it was completely removed. The table below lists the current and proposed setback/offsets and separation distances. Garage Location As-Built Minimum Required Difference Distance from Right-of-Way 7.87’ 25’ 17.13’ Distance from West Lot Line 8.4’ 5.96’ 2.44’ Distance from House 10’ 5’ (or 0’ if attached) 5’ (or 10’ if attached) To achieve the least variance possible, the garage could be attached to the house. The City has not been provided a reason why this could not be a valid option. This would require the placement of footings under the garage. Please note that Zoning Case Law states that financial hardships cannot be grounds for granting a variance, so that cannot be figured into this case. If the garage were attached to the house it could be located 2.44 feet closer to the western lot line and 10 feet north (closer to the house). This would significantly reduce the variance required. If for some reason it is not at all possible to attach the garage to the home, then the garage could at least be placed closer to the home. If it were shifted to meet the minimum setbacks/offsets, then it could be located 2.44 feet further west and 5 feet further north (closer to the house). While this option is not the least variance possible (as compared to attaching it to the house) it still would significantly reduce the variance required. No survey has been provided to show these other options, so the City cannot determine the exact setback from the right-of-way line that would be remaining. Please note that the Board must make their decision on an exact variance distance. This means that if the board is going to require a lesser variance, then this would need to be deferred until the next regularly scheduled meeting on January 24, 2013 so that the petitioner could get an updated survey to the Board with the new dimensions and setback/offsets. Appeal # 03-2012 ZBA 12-6-2012 Page 3 of 3 If a variance is granted in some form requiring an alteration to the location of the garage, then the City recommends that a deadline be established as part of the formal decision to ensure that the alterations get done in a timely manner. The City would recommend a deadline of 6 months from the date of the decision to submit and receive the required permits and to complete any required alteration. If no variance is granted and the garage needs to be removed, then this also will be required to be done within a timeframe to be established by the City to ensure prompt compliance. This would also require a Razing Permit. If the variance would be granted in full as proposed by the petitioner, then the City would recommend that all proper permits be submitted within 1 month of the date of approval and that all inspection be completed immediately thereafter. A few additional things to note are as follows: 1. Zoning Case Law states that “self-imposed hardships” and “circumstances of the applicant” are not grounds for granting a variance, such as constructing the garage without a permit and just not wanting the garage attached to the house or closer to the house. There are specific cases relating to an owner starting construction without a permit and how that is not a hardship. 2. Zoning Case Law states that “financial hardships” do not justify granting a variance. This included the costs to alter or remove something and also how the variance would maximize the economic value of the property. 3. Zoning Case Law states that “nearby violations”, even if similar to the request at hand, are not grounds for granting a variance. 4. Zoning Case Law states that the Board may only grant the minimum variance needed. In a case like this, the board should look at what is the least variance that would relieve unnecessary burdens. NOTE: Please remember that the City must base their recommendation upon a valid hardship as defined by State Law and Zoning Case Law. Zoning Case Law states that a hardship must be unique to the property, it cannot be self-created, and must be based upon conditions unique to the property rather than conditions personal to the property owner(s). Case Law also states that a hardship should be something that would unreasonably prevent the owner from using their property for the permitted purpose or would render conformity with such restrictions unnecessarily burdensome. The Zoning Board of Appeals needs to find a valid hardship in order to be able to approve a variance request. BASED UPON THE FOREGOING, THE CITY RESPECTFULLY REQUESTS: Denial of Appeal 03-2012, allowing a detached garage with an 7.87-foot setback, a 17.13-foot variance from the front right-of-way/lot line of Lake Drive; citing the least variance possible was not pursued. The City would be receptive to the placement of a garage with the least variance possible. This means that the garage could be attached to the home or placed with the Zoning Code’s minimum required separation of 5 feet. If the Board would want to consider this, then they could defer this item until the next regularly scheduled meeting on January 24, 2013. This would give the petitioner time to have their survey and/or garage plans updated to show the least variance possible. LAKE DR P A R K D R LAKE DR P A R K D R Appeal #03-2012 Petitioner: 2193.127Thoedore E. SchwulstS74 W17648 Lake Drive Prepared by City of MuskegoPlanning Department11/20/2012 Scale: L O O MIS R D COLLEGE DURHAM NORTH CAPE JAN E SVIL LE RACINE AVE W O ODS R D ¯ Area of Interest 0 200 400100 Feet Supplemental Map L E G E N D Right-of-way Property Agenda Item(s) Structure CITY OF MUSKEGO ZONING BOARD OF APPEALS MINUTES unapproved September 27, 2012 7:00 PM Muskego City Hall, Muskego Room, W182 S8200 Racine Avenue CALL TO ORDER Meeting was called to order at 7:00 P.M. Those in attendance recited the Pledge of Allegiance. PRESENT: Chairman Dr. Barbara Blumenfield, Vice Chairman Henry Schneiker, Mr. William LeDoux, Mr. Aaron Robertson, and Planner Adam Trzebiatowski. ABSENT: Dr. Russell Kashian, Mr. Jeremy Bartlett, Mr. Richard Ristow STATEMENT OF PUBLIC NOTICE: The secretary stated the meeting was noticed on September 21, 2012 in accordance with open meeting laws. NEW BUSINESS 1. APPEAL #02-2012 Petitioner: James & Anna Edlebeck Property: W180 S6835 Muskego Drive / Tax Key No. 2174.913 REQUESTING: Under the direction of Chapter 17 Zoning Ordinance: Section 3.02 Zoning Board of Appeals, Petitioner seeks the following variance: Chapter 17 - Zoning Ordinance: Section 5.02 - Building Location (1) Location Restricted: No building shall be hereafter erected, structurally altered or relocated on a lot except in conformity with the following locational regulations as hereinafter specified for the district in which it is located. A setback of 15.5-feet is required from the right-of-way (front lot line) of Muskego Drive on the above mentioned lot. The petitioner seeks a setback of 8.4-feet from the right- of-way (front lot line) of Muskego Drive to permit the construction of an attached garage, and is therefore requesting a 7.1-foot variance from the right-of-way (front lot line) setback. Vice Chairman Schneiker swore in the following: Adam Trzebiatowski – City Staff James and Anna Edlebeck – Petitioners Ald. Neil Borgman - 3rd District Alderman Jim Foyer – S68 W18089 Island Drive John Gullo – S68 W18031 Island Drive Donald Hill – W180 S6827 Muskego Drive Ronald Wendt – W180 S6821 Muskego Drive Chairman Blumenfield noted a letter was received from Jean Helmle, W180 S6845 Muskego Drive with concerns related to water run-off. Chairman Blumenfield gave the background on the appeal. The petitioner is requesting to ZBA Minutes 9/27/2012 Page 2 remove the old detached garage and attach a new, larger garage onto the home. The garage includes space for two vehicles along with some storage space adjacent to the side of the house. The parcel is zoned RL-3, Lakeshore Residence District. The front of the property is located on Muskego Drive, just north of Island Drive with an additional access strip of land off of Island Drive that is perpendicular to the main portion of the lot. Dr. Blumenfield read the discussion from the staff supplement. The existing garage on the property is in poor condition and is small. It is located on the side of the home. The new garage would be in front of and on the side of the home. Most homes are afforded a two car garage. The proposed garage is 26’ wide and 24’ deep with a 7’4” x 12’ back storage area. The garage will be a similar distance from the road as the home/garage to the north. Mr. Trzebiatowski added there were several options that were explored and ruled out by the petitioner. The first option was to construct two separate detached garages towards the street side of the lot. One of the garages would face the street and would be located along the southern portion of the home. The other garage would face the south located along the eastern side of the home. This option may cover a few of the bedroom windows, which could then violate the natural light requirement and make the bedrooms unusable. It would also be difficult to turn into the southerly facing garage. The second option would be to construct a garage to the rear (west) of the home with a driveway off of Island Drive. There were concerns over blocking neighbor’s views of the lake, easement concerns, and existing trees that made this option not feasible by the owner. Letters were submitted by numerous neighbors stating they are against this option. Mr. Trzebiatowski added that based upon the submitted information, staff did find a valid hardship and is recommending approval. The location of the existing home and general lot layout, limit the options that are possible. The home is already set a certain distance from the road and that cannot be easily altered. The proposed garage is typical in size for a 2 car garage. Also taken into consideration were neighbor concerns relating to a garage to the rear of the home. Mr. Edlebeck explained he spent much time figuring out what is best for the neighbors. He added that he already removed the Rubbermaid type sheds that were unpermitted and existing on the property. Mr. LeDoux questioned if the old garage was closer to the lot line than the new proposed garage. Mr. Edlebeck stated that is correct the old garage is noncompliant. Mr. LeDoux added that the water run-off from the new garage will be farther from the lot line with the new building. Mr. Trzebiatowski explained that the Engineering Department reviews all addition permits for drainage. A grading plan will be required and run-off must remain on your own property till it reaches the drainage system or the lake. Ald. Borgman was present and read a copy of the letter he submitted and stated he is in favor of the appeal as requested. Jim Foyer, S68 W18089 Island Drive –  In favor of appeal  Does not want garage in back because it is a nice park-like area  Along Muskego Drive all garages face the street John Golla, S68 W18031 Island Drive –  Garage on lake side would block views of the lake and destroy a nice setting  Everyone else has garages on Muskego Drive Ronald Wendt, W180 S6821 Muskego Drive – ZBA Minutes 9/27/2012 Page 3  Shares easement – could be future problems with parking cars  Park-like setting in back  All other garages are on Muskego Drive – no problems with garage on Muskego Drive Donald Hill – W180 S6827 Muskego Drive  Referenced case numbers from Waukesha County Court prior litigations related to easements. Case numbers 38573 and 30544 - Judge ruled user of the easement may not overburden an easement  Indenture of 1936 allowed drain tile to run along four properties that is still in use and a driveway would disrupt this.  In favor of appeal With no other comments or questions the Board went into deliberations. DELIBERATIONS Appeal #02-2012 – Vice Chairman Schneiker made a motion to approve Appeal #02-2012 as submitted. Mr. Robertson seconded. Upon a roll call vote, Appeal #02-2012 is approved unanimously. OLD BUSINESS: None. APPROVAL OF THE MINUTES: Mr. Schneiker moved to approve the minutes of June 23, 2011. Dr. Blumenfield seconded. Upon a voice vote, minutes were approved unanimously. MISCELLANEOUS: Mr. Trzebiatowski explained he had been to a conference where it was discussed that a new state law went into place that cities can put a sunset clause on variances that have been granted. Mr. Trzebiatowski noted that Common Council will make the final determination but gave an example of one year from date the variance was granted the permits must be applied for and then work be completed in one permit cycle. ADJOURNMENT: With no further business to come before this Board, Mr. Robertson moved to adjourn. Mr. LeDoux seconded. Upon voice vote, meeting adjourned at 7:32 PM. Respectfully Submitted, Kellie McMullen Recording Secretary