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ZONING BOARD OF APPEALSMINUTES - 12/6/2012CITY OF MUSKEGO ZONING BOARD OF APPEALS MINUTES Approved December 6, 2012 6:00 PM Muskego City Hall, Muskego Room, W182 S8200 Racine Avenue CALL TO ORDER Meeting was called to order at 6:08 P.M. Those in attendance recited the Pledge of Allegiance. PRESENT: Mr. Jeremy Bartlett, Dr. Barbara Blumenfield (Chairman), Mr. Aaron Robertson, Henry Schneiker (Vice Chairman) and Planner Adam Trzebiatowski. ABSENT: Dr. Russell Kashian, Mr. Richard Ristow, and Mr. William LeDoux (excused). STATEMENT OF PUBLIC NOTICE: The secretary stated the meeting was noticed on December 3, 2012 in accordance with open meeting laws. NEW BUSINESS Chairman Barbara Blumenfield read the appeal notice as follows: 1. APPEAL #03-2012 Petitioner: Theodore 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. Vice Chairman Schneiker swore in the following: Adam Trzebiatowski – City Staff Theodore E. Schwulst – Petitioner John Barnes – W175S7494 Park Drive Mel Schwulst – S74W17648 Lake Drive Donna Ferguson – W175S7440 Park Drive James Mortle – W176S7408 Lake Drive Planner Adam Trzebiatowski gave the background on the appeal and presented the City of Muskego’s position on the appeal. The petitioner recently built a detached garage on their ZBA Minutes 12/6/2012 Page 2 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. Further, 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. 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 ZBA Minutes 12/6/2012 Page 3 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 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. Mr. Trzebiatowski added, staff recommends denial of Appeal 03-2012, allowing a detached garage with a 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. Chairman Blumenfield noted a petition was received from the neighbors in favor of Mr. Schwulst’s request as well as letters addressed to the Board in favor from: Paul DeAngelis, Jr., S68W18053 Island Dr., Jeanne Struck, Lake Dr., James Karniewski, W175S7468 Park Dr., Herberts, W175S7430 Park Dr., Michael/Donna Ferguson, W175S7440 Park Dr., Joseph Farmerie, S74W17660 Lake Dr., John Barnes, S7494 Park Dr., Scott/Peggy Cureton, S74W17634 Lake Dr., Glenda Holm, S74W17676 Lake Dr. Chairman Blumenfield opened the meeting for residents to address the Board on the appeal. Ted Schwulst presented his argument to the Board citing collapsing of the old garage when he tried to repair it, two separate heights of concrete, need for a garage for storage as his home ZBA Minutes 12/6/2012 Page 4 has no basement or attic, need sheltered parking for vehicles and flooding causing water damage to items. He further asked for their forgiveness for not following procedures in building the new garage, including not getting proper permits for the garage. He also stated that he is pretty much willing to do anything to be able to keep the garage up. The following people then spoke: John Barnes  In favor  Fixed up house real nice  Old garage was in poor shape and built garage matches the house  Sufficient space to park a car now  Need for garage/attic for storage as no basement Mel Schwulst  In favor  Need a garage for storage  Previous water flooding from the street into the old garage  Only one affected by garage being there, blocks view of the street Donna Ferguson  In favor  Positive improvement to the property  Complementary to the neighborhood  Enhances the neighborhood  In these economic times, seems frivolous to tear down the garage  It should be grandfathered in  Previously no parking for the family because of the road design, now there is creating less congestion on the street James Mortle  Not in favor  Illegal garage  Not follow procedures  Precedent setting  Nothing unique  Not the least possible variance  New structure should meet current setbacks  7 feet from face of the road instead of the 25 feet setback  Can’t park in front of the garage, creating a road hazard  Not fixed the storage problem as he noticed enclosed trailer, camping trailer, pontoon boat and other items scattered in adjacent lot  No different in size than any other lot in the neighborhood  Nothing unique about the lot Vice Chairman Schneiker questioned who helped Mr. Schwulst build the garage and did they tell him he needed a permit to do it. Mr. Schwulst stated friends helped with the building and they never discussed permits. Chairman Blumenfield inquired if any were in the building trades. Mr. Schwulst stated they were. He said the issue of the garage collapsing happened so fast and ZBA Minutes 12/6/2012 Page 5 he needed a garage. Chairman Blumenfield asked when the garage went down and when did the new one go up. Mr. Schwulst said the old garage collapsed in August and the new one was up in September. Discussion continued with Mr. Schwulst on the Board of Appeals stand on hardship. Chairman Blumenfield stated 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 Board needs to find a valid hardship in order to be able to approve a variance request. Vice Chairman Schneiker continued to discuss what other options were available relating to the placement of the garage. It was noted that if a lesser variance was to be granted that a new survey would need to be submitted so that the exact setback from the front lot line could be known. It was also noted that if the board was going to proceed the direction of having the garage relocated that this item should be tabled and brought back once that new survey was produced. Mr. Schwulst then stated that he did have a survey with him that illustrated the proposed location the garage could be relocated to in order to be 5 feet from the house and 5.9 feet from the west side lot line. NOTE - 5.96’ is required from the west lot line. Mr. Schwulst passed out the new survey and noted that one problem could be that the sewer lateral cleanout would be located near the back wall of the garage if it were to be relocated. Questions were asked if the sewer cleanout could be relocated. Planner Trzebiatowski didn’t know how/if cleanouts can relocated. With no other comments or questions Chairman Blumenfield closed the public comment and the Board went into deliberations. DELIBERATIONS Appeal #03-2012 – Vice Chairman Schneiker made a motion to approve Appeal #03-2012 for discussion purposes. Mr. Robertson seconded. Upon a voice vote, the motion carried. Mr. Bartlett stated that the existing location of the garage is not the least variance possible. A few of the board members agreed that not having a garage could be a hardship and storage needs are typical on a residential property. Chairman Blumenfield explained that if this variance would have come to them before the garage was built, the garage would not have been allowed to have been built in the location that it currently sits. The board then discussed how to proceed. Since there were concerns relating to the location of the sewer cleanout and if it could be relocated or not, the board discussed if it would be best to table this to have those questions and concerns answered. Planner Trzebiatowski stated that if it is going to be tabled the petitioner should look into the possibility of relocating the cleanout. He also stated that he was going to check with the City Building Inspectors to see if this is possible. Once the owner would have more information, then he could provide staff with the new information and then this can be brought back to the Board for continued discussion. Vice Chairman Schneiker amended his motion to table Appeal #03-2012 until the next meeting. Mr. Robertson seconded. Upon a voice vote, the motion carried. ZBA Minutes 12/6/2012 Page 6 OLD BUSINESS: None. APPROVAL OF THE MINUTES: Mr. Robertson moved to approve the minutes of September 27, 2012. Vice Chairman Schneiker seconded. Upon a voice vote, minutes were approved unanimously. MISCELLANEOUS ADJOURNMENT: With no further business to come before this Board, Vice Chairman Schneiker moved to adjourn. Mr. Robertson seconded. Upon voice vote, meeting adjourned at 7:08 PM. Stella Dunahee, CPS Recording Secretary