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Zoning Board of Appeals - MINUTES - 9/30/2004 ZONING BOARD OF APPEALS MINUTES CITY OF MUSKEGO SEPTEMBER 30, 2004 Meeting was called to order at 7:08 P.M. PRESENT: Chairman Dan Schepp, Vice Chairman Henry Schneiker, Dr. Barb Blumenfield, Mr. Horst Schmidt, Dr. Russ Kashian, Mr. William Le Doux, and Associate Planner Adam Trzebiatowski. ABSENT: Mr. Steve Whittow STATEMENT OF PUBLIC NOTICE: The Secretary stated the meeting was noticed on June 18, 2004, in accordance with Open Meeting Laws. NEW BUSINESS: APPEAL #06-2004 Petitioner: Terry Hooper S70 W13108 Woods Road/Tax Key 2164.996.001. REQUESTING under the direction of Chapter 17 Zoning Ordinance: Section 3.08(1) Appeal Provisions, Petitioner seeks the following variances: Chapter 17 Zoning Ordinance: Section 4.05(2)(B) Accessory Structures and Uses (2) Area: Subject to the open space requirements of the zoning district, the total square footage of all accessory structures subject to this Section are permitted as follows: square footage permitted by right: The greater of 720 square feet, or 60% of the assessed floor area of the principal structure. Bonus square footage permitted for additional side yard offset above the district minimum, provided that no such bonus shall exceed 300 square feet. For the lot in concern, the petitioner is allowed a total of 790 square feet of accessory structures. The parcel contains two accessory structures totaling 1,203 square feet, which exceeds the allowed 790 square feet. The petitioner seeks a 413 square-foot variance to allow both accessory structures to remain on the parcel. Mr. Jim Bergmann stated he will be speaking on behalf of Mr. Hooper. Mr. Bergmann’s address is 11864 W. Elmwood Dr, Franklin, WI. Mr. Schneiker administered the oath to Mr. Terry Hooper and Mr. Jim Bergmann. Mr. Bergmann explained on May 20, 2004, a permit was issued for a 24X24 foot garage using the survey that was on file with the Assessor’s office. In 1986 Mr. Hooper purchased the property from Mr. Silas Anderson. Mr. Hooper has never sold off any of his land. On July 28, 2004, Mr. Hooper received a letter from the City of Muskego stating there was an additional structure on the property. Mr. Bergmann advised Mr. Hooper to have a current survey of his property done. Mr. Hooper did have a survey done and the lot on the new survey is considerably smaller than the original survey. Mr. Bergmann further explained the accessory building to the rear is only used for storage as there is no drive to the building. Mr. Bergmann explained Mr. Hooper would not have built a new garage if he knew he had to tear the old one down. The new garage would better the neighborhood by allowing him to park his cars inside. The building has passed all inspections, and the neighbors have not had any problems with the new accessory building. Mr. Bergmann also believes Mr. Hooper is paying more in taxes than for the land that he actually owns. Mr. Schepp asked if Mr. Hooper thought of attaching the garage to the house. Mr. Hooper did not consider this option but possibly would have if he had known there would have been any problems. Dr. Blumenfield questions if there was currently a garage attached to the house. Mr. Bergmann stated no. Mr. Schneiker asked how the lot became smaller. Mr. Bergmann stated he does not know the answer. Mr. Schneiker asked if this was the survey he received at the closing. Mr. Hooper stated he did not receive a survey. Adam Trzebiatowski explained the City’s maps show the survey the old, incorrect way. The City receives updated information from Waukesha County. Mr. Trzebiatowski further explained land must have been deeded to the neighbor before Mr. Hooper purchased the property. At the time the ZBA Minutes 9/30/2004 Page 2 transfer was made, as long as you are not creating a new parcel, a survey is not required. The paperwork should have been updated at Waukesha County and then forwarded to the City. The survey that was used was not a plat of survey but a certified survey map, which is only used to divide property. Mr. Trzebiatowski also explained when someone comes in to apply for a permit the City will try to use the survey on file so the property owner will not have to go through the expense of having a new survey completed. The Assessor’s Office reviewed the survey after the permit was issued, as a normal procedure, and brought the layout to the attention of the Planning Department. Mr. Trzebiatowski stated the permit was approved based upon the incorrect survey. A letter was sent with options for the property owner. Mr. Trzebiatowski also stated other residential lots are not able to have an increased amount of accessory structures and hence, according to the zoning code the exception should not exist in the case as well. The City recommends denial of this appeal and possible removal of a structure to meet the code requirements. Mr. Le Doux questioned the 790 sq ft. Mr. Trzebiatowski explained the additional 70 feet is a bonus figured from the distance to the lot line. Mr. Hooper stated if he knew there would have been a problem he would not have continued. The neighbors do not have any complaints with the accessory building. Mr. Hooper also stated all the neighbors have garages. APPEAL #07-2004 Petitioner: Dean & Carla Modglin S96 W13105 Linksway Court/Tax Key No. 2257.179. REQUESTING: Under the direction of Chapter 17 Zoning Ordinance: Section 3.08(1) Appeal Provisions, 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. An offset of 30 feet is required from the rear property line. The petitioner seeks an offset of 25.8 feet from the rear property line to permit a deck, and is therefore requesting a 4.2-foot variance from the rear property line. Mr. Schneiker swore in Dean and Carla Modglin. Mr. Modglin explained in June 2004, they bought a new construction home. The back of the house faces the fairway of the Muskego Lakes golf course. They would like the deck to view the fairway. The kitchen and sliding glass doors are off the back east end of the house where the deck would be located. Mr. Modglin stated the builder has left a board on the house for the future deck to be attached to the house in the proposed location. Mrs. Modglin explained she would like enough room on the deck for tables and chairs to move comfortably. The house has an exposed basement, which makes the deck necessary for the sliding doors off of the kitchen. Mr. Schneiker questioned if they had considered shortening the deck and lengthening it to the west. Mrs. Modglin explained at the west end of the house is a rec room. If the deck were placed further to the west it would block sunlight to the windows below. Mrs. Modglin further explained other homes along the golf course have shallower lots and have decks that are within the 30- foot setback. Mr. Modglin stated the hardship would be not being able to have a deck. Mr. Schmidt asked if they could extend the deck to the west. The Modglins stated yes, but the cost would be higher because of the additional square footage. Mrs. Modglin explained they want the deck to look pleasing to the neighbors and the golf course. Mrs. Modglin explained there is also a steep slope to the east end of the house and if they wrapped the deck around the east corner they could have the staircase come off the side of the house and not the back end of the house. Mr. Trzebiatowski gave the City’s opinion. The Reserve at Champions Village subdivision is part of the Planned Development that was approved by the Plan Commission. One of the restrictions set forth by ZBA Minutes 9/30/2004 Page 3 the developer with this planned development was the 30-foot rear yard offset. The City must enforce the developer’s setbacks. The lot does appear to be one of the smaller lots in the area, but the building pad is larger than some of the other lots in the immediate vicinity. Staff believes, that due to the rear yard offset that the planned development established, the variance should be denied in order to keep with the intentions of the planned development. Staff recommends denial of this appeal, allowing the proposed deck with a 25.8-foot offset, a 4.2-foot variance, from the rear property line; citing that the variance does not preserve the intent of the Zoning Ordinance because there are not exceptional conditions applying to the parcel that do not apply to other properties. Mr. Trzebiatowski also noted, if the appeal were to be granted it would not have an adverse affect on the neighbors, as there is a cart path on one side and the golf course is to the rear of the house. DELIBERATIONS: APPEAL 06-2004 – Mr. Schneiker moved to approve appeal 06-2004, as submitted. Dr. Kashian seconded. Mr. Schneiker stated he moved for approval because the garage was approved based on a survey that all parties thought was correct, and the garage was built in good faith. Mr. Schepp added he understands how this could happen and agrees with keeping the costs down for the residents if a survey is available. Mr. Schepp does not feel the appellant should be penalized. Dr. Blumenfield suggested a implementing a procedure to prevent his situation from happening in the future. Dr. Blumenfield also stated it is a bonus to the neighborhood to have the cars parked inside. Because Mr. Hooper followed all the requirements of obtaining a permit and inspections, Dr. Blumenfield feels Mr. Hooper should not be penalized. Dr. Blumenfield then called for the question. Upon a roll call vote Appeal 06-2004 was approved 5-0. APPEAL 07-2004 – Mr. Schmidt moved to approve appeal 07-2004, as submitted. Seconded by Mr. Schneiker. Mr. Schepp stated he did feel the hardship was self-imposed. The offsets for this subdivision were established by the developer and the City. If Board of Appeals made an exception, that would set a precedent for others in a planned development to receive a variance to the offsets. Mr. Schneiker felt there are too many options to build the deck other than what is proposed. Dr. Kashian explained his concerns of the deck being built without a permit and not being caught when the house is sold. Dr. Kashian is also concerned the deck will be allowed to remain because it is not the new owners fault. Mr. Schepp agreed that the deck, if found nonconforming, should be torn down or re-built to conform. Mr. Le Doux explained when a developer proposes a planned development with larger setbacks there is usually more open space or conservancy land in the development. Upon a roll call vote Appeal 07-2004 was denied 5-0. APPROVAL OF THE MINUTES: Mr. Schmidt moved to approve the minutes from June 24, 2004. Seconded by Mr. Le Doux. Upon voice vote, motion carried. MISCELLANEOUS: None. ADJOURNMENT: With no further business to come before this Board, Dr. Blumenfield moved to adjourn. Mr. Schmidt seconded. Upon voice vote, meeting adjourned at 8:33 PM. Respectfully Submitted, Kellie Renk, Recording Secretary