Zoning Board of Appeals- - Minutes - 2/24/2000
BOARD OF APPEALS
CITY OF MUSKEGO
FEBRUARY 24, 2000
Meeting was called to order at 7:00 P.M.
PRESENT: Chairman Dan Schepp, Vice Chairman Henry Schneiker, Terry O’Neil, Mike
Brandt, David Conley, Barbara Blumenfield and Assistant Plan Director Dustin Wolff.
ABSENT: Excused absent Chris Wiken.
STATEMENT OF PUBLIC NOTICE: Secretary reported notice was given on February 11,
2000, in accordance with the Open Meeting Laws.
NEW BUSINESS: Appeal #03-2000, Petitioner: Michael Mercer, Residence: W175
S7201 Lake Drive, Muskego, WI 53150 Location of Appeal: W175 S7191 Lake Drive,
Tax Key No. 2193.998.001 REQUESTING: Under the direction of Chapter 17 Zoning
Ordinance: Section 17:3.08(1) Appeal Provisions, Petitioner seeks the following variances:
1. Chapter 17—Zoning Ordinance: Section 5.04(2) Maximum Permitted Floor Area Ratio
(F.A.R.): The maximum total floor area of the buildings on a lot shall not exceed that
permitted under the floor area ration (F.A.R.) as hereinafter specified. Petitioner seeks a
Maximum Permitted (F.A.R.) of 27.7% to allow the construction of a single-family
residence. Code currently mandates a Maximum Permitted (F.A.R.) of 25% in the Rs-
3/OLS District.
Zoned: Rs-3/OLS, Suburban Residence District as modified by the Lakeshore Overlay.
Henry Schneiker administered an oath to Michael Mercer, Attorney Michelle Martin and
William Medrek (W174 S7184 Lake Drive)
Attorney Martin Stated a variance is required for 328 square feet, the size of a 8’ by 40’
area. They wish to adhere to the spirit and intent of the ordinance. This is a lake lot and
the intent is to have the structure aesthetically pleasing, salable and marketable. Granting
this variance would not be contrary to the public safety or welfare. Mr. Mercer has worked
very closely with the Planning department to create this structure that would require the
least amount of variances. This will be Mr. Mercer’s primary residence. The hardship is
the size and the shape of the lot, a decent size structure cannot be built on this lot without
exceeding the floor area ratio. Lot was purchased in October, 1999. The only other option
would be to scale back the size of the bedrooms, making them unlivable.
Assistant Plan Director Wolff explained the Code has two conflicting definitions of
determination of a property’s floor area ratio. One in Section 2 excluding basements
altogether and one in Section 5 only excludes basement if less than 7 feet in height, which
is not the case here, but it states that an attached garage should be excluded. Because
the Code is antiquated, created in 1963, the Code contradicts itself on numerous
occasions. This results in some practical difficulty in complying with the Code. The
proposed structure complies with all sections of the Code except for the floor area ratio. A
2.7% increase in floor ratio is not that significant of an increase when weighted against the
other issues. The current Code penalizes structures for going up even if it meets the other
Code restriction. This house could be spread out over the lot and would have a far greater
impact on the neighborhood.
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Page 2
Mr. William Merdek, a neighbor, was present stating he has no objection to the proposed
structure. However, he does have issue with the City when he built his home 10 years ago
he was not able to have the grade he wanted because of the sewers. Staff explained that
issue needs to be discussed with the City Engineer.
Appeal #04-2000, Petitioner: Michael Kostecki, Residence: W196 S8303 Providence
Way, Muskego, WI 53150 Location of Appeal: S75 W17461 Janesville Road, Tax Key
No. 2196.957 REQUESTING: Under the direction of Chapter 17 Zoning Ordinance:
Section 3.08(1) Appeal Provisions, Petitioner appeals the following Administrative Decision:
Appeal of Administrative Decision, Chapter 32.02(12) SUBSTITUTION: When there are
practical difficulties in complying with any section of this chapter, the Fire Chief or an
appointed representative of the Fire Department may approve a substitution provided that
the spirit of the ordinance shall be observed and public safety & justice secured. The
substitution may include but is not limited to a monitored alarm or alternative fire
suppression system.
The substitution request must be submitted to the Fire Department in writing stating the
reasons and substitution requested. The request shall include building plan fire load and
explanation. The Fire Department must respond within 30 days.
Petitioner seeks appeal of the Administrative Decision denying the request for a
substitution to the Code requirement of a sprinkler system installation, per 32.02(2)(l), in
an existing 2,968 square foot structure for use in a day care center.
Zoned: B-3, General Business District.
Henry Schneiker administered an oath to Tammy Kostecki, Michael Kostecki, Assistant Fire
Chief Fred Schulz from New Berlin, Tess Corners: Chief Carl Wojnowski, Captain Mike
Wojnowski, Captain Jim Mayer and Assistant Chief Ed Schaefer from Muskego Fire
Company.
Mr. Michael Kostecki discussed Chapter 32.02 Fire Protection. He stated the proposed
building for this day care center is less than 2,000 square feet. The chart for fire
protection of an Exterior Masonry Unprotected building starts at 8,500 square feet. He
Stated that this building is concrete block, one level with no stove or refrigerator. They
have obtained a Conditional Use Grant from the City and have met all the State licensing
requirements for operating a daycare. Mr. Kostecki spoke of other daycare centers in
Muskego that do not have sprinkler systems and nowhere in the Code does it make
conditions for grandfathered buildings. Mr. Kostecki stated that the only daycare center
with a sprinkler system is Kids Kampus. He also Stated Kingdom Care location is within 6
blocks from the fire station on a main city street and while this building was used by the
former tenant, they did not even have smoke detectors in the building. The Kostecki’s feel
it would cause practical difficulties in complying with Section 32.02(2)(1).3 of the Code.
The Code application to existing building stated…. “The Fire Chief may require compliance
with this provision” If day care is an extreme hazard then why isn’t Discovery Days, which
is licensed for 75 children, sprinkled with multiple levels?
Tammy Kostecki spoke with Grinnell Fire Protection regarding proposal for two zone fire
alarm control panel, 12V batteries, Manual Pull Stations, Smoke Detectors, Horn and
Strobe would be sufficient for a day care center with their capacity and three exits. A
sprinkler system would have to be specially designed, tearing up the street and parking
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Page 3
lot. They are trying to meet the Code not violate the Code. No stove or refrigerator on the
premises.
Barbara Blumenfield asked who stated the system would have to be specially designed for
this building. Tammy Kostecki stated she spoke with Grinnell Fire Protection and U S Fire
Protection Services but received two different stories on that. They have quotes for about
$20,000 but does not include tearing up the streets, electrical permits nor a two inch pipe
from the street. This building currently has a well. Mr. Dibb has not seen the proposal
from Grinnell Fire Protection Services, this was faxed on February 24, 2000 to the
Kostecki’s.
Barbara Blumenfield read a fax received by Kostecki’s stating the City’s Ordinance on Fire
Code.
Mr. Brandt questioned how many months they have been paying rent. Mr. Kostecki stated
they have been paying rent for two months. During that time, they have been getting
their conditional use grant and State licenses for 37 children and six adults in the building
at all times.
Mr. O’Neil questioned the wording for substitutions to the sprinklers. Mr. O’Neil questioned
the four inch pipe and how that is determined. Mr. Kostecki stated the fire protection
service supplies that information.
Mr. Wolff indicated that Staff concurs with the petitioner. We are talking about a single
story structure, 1900 square feet, surrounded by concrete with three exits and an
accessible driveway on all four sides. There are numerous properties that aren’t sprinkled
within the community as stated by the petitioner. The Fire Department has refused any
alternative methods as stated in the agenda before them. The onus is on the Fire
Department as to why this building has to be sprinkled for a one room 1900 square foot
building. There is sufficient practical difficulty in complying with the Code as written
because a suppression system would need to be specially designed for this particular
structure.
Assistant Chief Ed Schaefer stated the reason the appellant was turned down was they did
not submit a proper letter of substitution per Phil Dibb. Letter submitted was basically
what the State Code requires for a building of that size and nature. Grinnell’s proposal is
only to make you aware there is a fire, there is no suppression system. New building
structures involving people in them would require sprinkler. There are a number of
existing buildings in City that meet the Fire Code available for rent.
Assistant Chief Ed Schaefer spoke regarding how quickly a fire breaks out and the length
of time that is required to remove the children from a building. No one wrote letter stating
a sprinkler system was not required because they all know the liability.
Chief Fred Schultz from New Berlin indicated that he had a video presentation. David
Conley made a motion to view the Fire Department tape, Dan Schepp seconded. Upon roll
call vote, motion carried.
Mr. O’Neil questioned if fire protection systems are designed to prevent property damage
and not to save lives of the occupants. Chief Schultz Stated to reduce the amount of
smoke is one of the issue and to protect property damage is the other.
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Page 4
Chief Schultz concerned about the process. Most people do not lease a property until they
know it can be used for the intended purpose. Terry O’Neil asked if Chief Schultz agreed
with Phil Dibb that the property should be sprinkled. Chief Schultz Stated absolutely, the
building should be sprinkled. In New Berlin if you have 9 children or more it must be
sprinkled. New Berlin has a “Maxi-Code”, not a minimum Code like the State has.
Supervision is an issue with children. Mr. Brandt questioned if there were a middle
ground, Chief Schultz says sometimes there is and he tries to work with the people in his
jurisdiction. The Kostecki’s did not write a letter of substitution.
Mr. O’Neil asked Assistant Chief Schaefer after reading Grinnell’s proposal if that is
adequate for the daycare center. The answer was no, there is no fire suppression. There
may be systems out there that can work off of a well. Mr. Wolff indicated that a sprinkler
system is not permitted to be run from a well.
Captain Jim Mayer Stated the fire alarms are not a suppression system, and this Code has
been in place since 1988. It is up to the Fire Department to educate the public on fire
safety.
Assistant Chief Ed Schaefer asked to table vote until further research could be done. State
Code says hardship and money are not reason to not comply with this. Dustin Wolff undue
hardship and practical difficulty are reasons to comply with decisions that have been made.
Henry Schneiker administered an oath to Janet Mayer. She stated smoke alarms and
extinguishers are great, but if someone is using the extinguishers, who is taking out the
children.
Michael Kostecki stated safety is foremost in their minds and that is why the are abiding by
all the County and State Codes.
REMOVED AT THE PETITIONERS REQUEST. Appeal #05-2000 Petitioner: City of
Muskego Police Department Residence: W183 S8150 Racine Avenue, Muskego, WI
th
53150 Location of Appeal: W124 S10449 124 Street Tax Key No. 2301.998
REQUESTING: Under the direction of Chapter 17 Zoning Ordinance: Section 3.08(1)
Appeal Provisions, Petitioner appeals the following Administrative Decision: Appeal of
Administrative Decision, Chapter 32.04, requiring fire street installation for a 400 square
foot structure. Zoned: I-2, General Industrial District.
15 MINUTE BREAK
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DELIBERATIONS:
Appeal #03-2000 Terry O’Neil made a motion to approve appeal as submitted. Barbara
Blumenfield seconded. A home could be built to 25% of the lot area, this is a vacant lot
right now. Hardship is practical difficulty in complying with all of the components of the
Code. Past precedent of this Board is where there is a vacant lot, variances are not
approved. Upon roll call vote, motion failed 3/3. Schepp, Brandt and Conley voting nay.
APPEAL 04-2000 Terry O’Neil made a motion to approve as submitted. Barbara
Blumenfield seconded. Barbara Blumenfield suggested Chapter 32 needs to be fixed and
the Council needs to review this Chapter. A question arose among the Board members
concerning the implications of approving the request as submitted. Upon recognition from
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Page 5
the Chair, Mr. Wolf stated overturning the Administrative decision would mandate Mr. Dibb
to find an alternative to the automatic fire suppression system. Upon roll call vote, motion
failed 3/3. Schepp, Schneiker and Brandt voting nay.
Henry Schneiker made a reconsider Appeal 04-2000. Terry O’Neil seconded. Upon roll call
vote carried 6/0
Henry Schneiker made a motion to move to table until March with no monetary penalty.
Dr. Blumenfield seconded. Upon roll call vote, motion failed. 3/2
Vote on approving reconsideration as submitted. Upon roll call vote, motion failed 3/3.
Schepp, Schneiker and Brandt voting nay.
OLD BUSINESS: Signing of decision letters for the January 27th, 2000, meeting.
APPROVAL OF MINUTES OF THE JANUARY 27, 2000 MEETING: Mike Brandt made
motion to approve the minutes as submitted. Terry O’Neil seconded. Upon voice vote,
motion carried.
Barbara Blumenfield requested clarification of alternates position on the Board of Appeals.
Mike Brandt requested letter to Mayor, Alderman, Police and Fire Commission to review
Chapter 32 and all other ordinances.
Terry O’Neil suggested members review handbook Section 7, Appeals of Administrative
Decisions.
ADJOURN: Terry O’Neil made a motion to adjourn, Dr. Blumenfield seconded. Upon
voice vote with no further business to come before this board, the meeting adjourned at
10:25 P.M.
Respectfully submitted,
Susan J. Schroeder
Recording Secretary