Zoning Board of Appeals- - Minutes - 9/27/2001
ZONING BOARD OF APPEALS MINUTES
CITY OF MUSKEGO
SEPTMEBER 27, 2001
ATTENDANCE: Chairman Dan Schepp, Terry O’Neil, David Conley, Horst Schmidt and Assistant Plan
Director Dustin Wolff.
ABSENT: Henry Schneiker, Barbara Blumenfield, and Mike Brandt
STATEMENT OF PUBLIC NOTICE: Meeting was noticed in accordance with the Open Meeting Laws.
OLD BUSINESS: None
NEW BUSINESS: APPEAL #06-2001, Petitioner: Richard Knudsen
Residence: W198 S7380 Hillendale Drive Location of Appeal: S73 W17650 Janesville Road / Tax Key
No. 2198.984.005 REQUESTING: Under the direction of Chapter 17 Zoning Ordinance: Section 3.08(1)
Appeal Provisions, Petitioner seeks to appeal an administrative decision made by Staff regarding the
following Code Section:
6.12 TIME RESTRICTIONS FOR PLAN COMMISSION APPROVALS Plan
commission approvals granted for building, site and operation plans, signs, second
garage structures, temporary structures and sketch land divisions in which the
petitioner has not commenced construction activity or preparation of the land, or has
not submitted a Certified Survey Map or Preliminary Plat within the past 24 months of
the date of approval, said approval will expire and reapplication will be required. A
reapplication shall be limited solely to reasonable compliance with current design,
locational, and operational requirements. A reapplication shall not involve the basic
permissibility of the use where such use is permitted by right at the time of
reapplication. The Plan Commission may grant one six-month extension if requested
30 days prior to the pending expiration date provided that the applicant demonstrates
a valid cause. This section shall be in force and effect for all applications filed after
the date of adoption and publication of Ord. #966. (Ord. #966 – 08-20-98)
Mr. O’Neil administered the oath to Richard Knudsen and Attorney Tom Kreul. Mr. Knudsen gave a brief
explanation to the Board members of what took place in 1988. His original project was to divide property
owned by Larry Thompson (Dairy Queen). Mr. Knudsen then presented the Plan Commission with a
Certified Survey Map and a business site and operation plan. He intended to construct a 20’ x 90’
building with two units and an option to add two additional units at a later date. Mr. Knudsen presented
Resolution #P.C. 87-88 Approval of Certified Survey Map Knudsen – NW ¼ Section 10 and (Amended)
Resolution #P.C. 88-88 Approval of Building, Site and Operation Plan Knudsen – Janesville Road. Upon
receiving these two approvals, he purchased the property from Larry Thompson.
Chairman Schepp asked what steps were taken at that time to develop this property? Mr. Knudsen
stated he had assembled bids and had soil borings done. Mr. O’Neil asked if there was a time limit
given? Prior Plan Director Matt Sadowski had informed Mr. Knudsen that there were new fire codes to
deal with. Mr. Phil Dibb of the Fire Department stated in November of 1997 that if there was going to be a
basement a sprinkler system would be required. Mr. Knudsen stated that there was no mention of a time
restriction at that time from the Plan Department.
Attorney Tom Kreul spoke regarding Ordinance #966. Attorney Kreul feels that Mr. Knudsen’s plan
predates this ordinance. The first Mr. Knudsen was informed of a problem was July 2001 and at that time
he was informed of the permit application’s deficiencies in writing. Attorney Kreul stated he was not
aware of any project being given a time limit.
Mr. Schmidt asked Mr. Knudsen how much money he has invested in this project. Mr. Knudsen replied
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he has $10,000 invested and if unable to proceed with application his investment is lost.
Mr. Conley asked for the date of the soil borings. Mr. Knudsen replied Giles Engineering did them on
June 6, 1988.
Assistant Plan Director Dustin Wolff presented the City’s opinion regarding Section 17: 6.12 of the
Municipal Code. The Code Section plainly states “Plan Commission approvals …in which the petitioner
has not commenced construction activity or preparation of land, a Certified Survey Maps or Preliminary
Plat with the past 24 months of the date of approval, said approval will expire and reapplication will be
required.” Mr. Knudsen’s plan has not moved forward in 13 years, and no effort has been made to
construct a building on this site. Mr. Wolff stated that when the City enacts an ordinance it requires a
Class 2 notice per State Statute and as such, individuals are not noticed. This ordinance in question was
adopted over a year after Mr. Knudsen’s conversation with Mr. Sadowski and Mr. Dibb.
Mr. Wolff informed the Board members that their role is to decide if the Plan Department has interpreted
Section 17:6.12 properly. Mr. Knudsen is of the opinion that because approval predates Section 17:6.12,
it does not apply to him. Staff contends it was the intent of the Plan Commission and Common Council to
“sunset” all previous approvals where permits have not be applied for or a good-faith effort has not be
made to begin construction. By instituting a time limit for approvals, the City can ensure that development
meets with current Codes and aesthetic requirements. The City has many properties that have received
BSO approvals prior to this date and the ramifications could be great if Board of Appeals decides that
Staff’s interpretation should be overturned. The Plan Department, in the future, will have no choice but to
approve all plans received with prior Plan Commission approval.
Chairman Schepp questioned how many properties were are talking about. Mr. Wolff stated there were
as many as 5 within the last two and one-half years he has been here, which could project to 20 or more
in the past decade.
Mr. Schmidt questioned why there was no sunset clauses placed within approvals prior to 1998 by Plan
Commission or Council. Mr. Wolff stated that Plan Department interpretation is that Section 17:6.12
addresses all previous approvals by noting construction activity must occur within 24 months.
Mr. Conley questioned the current zoning of this site. Mr. Wolff stated the zoning has not changed, is it
B-4/OPD.
Mr. Schmidt questioned if the Board of Appeals uphold the Plan Department’s interpretation would Mr.
Knudsen receive approval? Mr. Wolff said he would not receive approval as proposed, but that is not to
say a structure could not be built at that site.
Mr. O’Neil questioned the DNR requirements and the 100 Year Flood Plain. Mr. Wolff stated those items
are engineering questions not addressed by the Plan Department. The Plan Department typically is
concerned with the footprint and setbacks; bulk requirements. The setback required from the ordinary
high water mark in 1988 is the same as was required in 1964. The only hurdle foreseeable is compliance
with the Storm Water Management ordinance adopted in 1999.
Mr. O’Neil questioned if petitioner resubmitted the plan to Plan Commission would it be re-approved. Mr.
Wolff replied no, there are outstanding issues with setbacks and storm water.
Mr. O’Neil questioned if the Engineer approved this 1988 plan? Mr. Wolff stated the documentation on
file does not indicate the plans got to that point.
Mr. Knudsen rebutted that in 1988 Ruekert and Mielke was the City’s engineering consultants and prior to
Plan Commission approval that it was reviewed for 100-year flood plain. The only approval it did not
receive was State Building Approval and only because it was not submitted to the State. Mr. Knudsen
said he paid for Ruekert & Mielke review. They also approved of ingress and egress.
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Attorney Tom Kreul stated the last sentence in Section 17:6.12 should be looked at is …”This section
shall be in force and effect for all applications filed after the date of adoption and publication of Ordinance
#966. (Ord. #966 8-20-98).” Mr. Knudsen’s approvals were prior to that date and his approvals should
stand. It is his client’s understanding the plans must be to code and that can be taken care of.
Mr. Schepp called for a five minutes recess at 8:25 P.M.
DELIBERATION:
Mr. Schmidt stated the two issues here are the fact that construction has not commenced and the
interpretation of the last sentence of Section17: 6.12. Mr. O’Neil stated that if the administrative decision
made by staff were overturned, the site would still need to comply with all current zoning codes, building
codes, and engineering requirements. Terry O’Neil moved to overrule the administrative interpretation
made by staff based on Section 17:6.12 not applying to predated approvals. Discussion ensued. Mr.
O’Neil rescinded his own motion.
Mr. O’Neil moved to overturn Staff’s administrative decision to the interpretation due to the last sentence
in Section 17:6.12, only BSO Plan applications filed after 8-20-98 must comply with Section 17:6.12. Mr.
Conley seconded. Upon roll call vote, motion carried unanimously.
APPROVAL OF THE MINUTES: Horst Schmidt moved to approve the minutes from August 23, 2001
meeting. Terry O’Neil seconded. Upon voice vote, motion carried.
ADJOURNMENT: With no further business to come before this board, Horst Schmidt moved to adjourn
at 9:10 P.M. Terry O’Neil seconded. Upon voice vote, meeting was adjourned.
Respectfully submitted,
Susan J. Schroeder
Recording Secretary