Zoning Board of Appeals - MINUTES - 4/27/2006
ZONING BOARD OF APPEALS MINUTES
CITY OF MUSKEGO
APRIL 27, 2006
Meeting was called to order at 7:09 P.M
Those in attendance recited the Pledge of Allegiance.
PRESENT: Chairman Dan Schepp, Mr. William Le Doux, Mr. Richard Ristow, Mr. Horst Schmidt and
Associate Planner Adam Trzebiatowski.
ABSENT: Dr. Barb Blumenfield (excused), Dr. Russ Kashian, Mr. Henry Schneiker
STATEMENT OF PUBLIC NOTICE: The recording secretary stated the meeting was noticed on April 20,
2006, in accordance with open meeting laws.
OLD BUSINESS:
APPEAL #08-2005—Petitioner: Michael A. Birkley, W144 S7931 Durham Drive, Muskego WI/Tax Key
#2213-984. 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 6.03 Conditional Uses
(1) A. Approval Required: Uses listed as permitted by conditional grant may be permitted in the
district in which listed upon petition for such grant to the Plan Commission and subject to the
approval of the commission and to such other conditions as hereinafter designated. A conditional
use grant was denied for the above-mentioned property on September 6, 2005 for the operation of
a tree service/landscape business. The petitioner is seeking an appeal regarding the Plan
Commission denial of the conditional use grant.
Chairman Schepp noted that the petitioner was not present, therefore, he swore in Associate Planner
Trzebiatowski to give his testimony on the City of Muskego’s position.
Associate Planner Trzebiatowski stated that the petitioner was notified. As the supplement stated, this
item was deferred at the last five Board of Appeals’ meetings. The Board of Appeals stated at their April
27 meeting, they would be making their decision hopefully pending a solution. He stated there was a
solution with the court’s stipulation which is really unrelated to the Board of Appeals, as what was being
appealed had nothing to do with the stipulation. In general, the issue has come to a close for the most
part, at least as of now. Upon talking with the city’s attorney, for this to come to a close, there are two
options that could have happened. The petitioner had to submit a signed letter to the Planning
Department stating his withdrawal of the appeal, then there would be no action taken. In talking with the
city attorney, who did talk with Mr. Birkley’s attorney a week or two ago, that attorney was trying to get a
letter from Mr. Birkley and obviously the department has not received anything yet so that did not go
anywhere for whatever reason. Per the city attorney’s advice, the Board still does have to make a ruling
on this. For any ruling that is made, the reasons for approval or denial has to be stated. Along with that,
the court’s stipulation should have nothing to do with that reasoning. The reasoning should be based
upon either what the petitioner has stated up to this point or what staff has recommended since the item
being appealed, the conditional use grant, the code states cannot be appealed. Any reasons for the
appeal have to be based upon facts brought up at the meetings, not relating to the stipulation because
technically that is an unrelated issue. Other than that, the petitioner did request a conditional use grant
variance appealing the Plan Commission’s decision which denied his conditional use grant. The code
specifically states that conditional use grants cannot be appealed, so that is one reason for denial and the
other reason that staff recommends for denial is because the initial appeal was submitted after the
deadline in which the ordinances and the rules and the procedures do state for the Board of Appeals. As
such, staff recommends denial of Appeal 08-2005.
Referring to the discussion section of the brief, “The board must make their determination of the appeal
based upon the information presented up until this point, not based upon the settlement that has been
reached with the court.,” Mr. Schmidt inquired if this was from discussion with the attorney. Associate
Planner Trzebiatowski affirmed that he had spoken with two of the city attorneys on separate occasions
and they stated the things that were appealed and the things that were discussed by this Board are the
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4/27/2006
Page 2
only things that should be used to figure into the variance and since he was not questioning the items
related to the court citation, that should not figure into this at all. The attorney said it should be based
upon facts that either staff presented at the meetings which were reiterated in the supplement or the facts
that Mr. Birkley or his attorney presented. Mr. Schmidt said the two key elements were the missed time
deadline for the appeal and the other about a setback? Associate Planner Trzebiatowski said the first
one was Section 3.08 which states in summary that the following decisions of the Plan Commission
cannot be appealed and one of those is the conditional use grant request and the other one is the
timeline deadline. Mr. Schmidt said the reason it cannot be appealed is because it is not under the Board
of Appeals jurisdiction? Associate Planner Trzebiatowski responded according to the zoning code that
was correct.
DELIBERATIONS:
APPEAL 08-2005—Mr. Schmidt moved to approve the conditional use grant of the petitioner. Mr.
LeDoux seconded. Mr. LeDoux’s opinion was the Plan Commission is saying the Board of Appeals has
no jurisdiction over appealing zoning changes that they want the Board of Appeals to deny the appeal
based on that information. When it comes to the timeframe, etc., it gets summed up in the first comment
that states the Board does not have the jurisdiction to appeal a zoning change like this. Chairman
Schepp said it wasn’t so much the Plan Commission as the zoning regulations. Mr. LeDoux stated the
city’s codes and the Plan Commission’s determination to deny it and the Board does not have jurisdiction
to change the zoning requirement. The Board of Appeals is giving a recommendation more than making a
determination as the Board of Appeals. Associate Planner Trzebiatowski said the Board could decide
differently. They could decide if that holds up or does that not. Mr. LeDoux continued that they are
saying that the Board of Appeals has no jurisdiction over this type of issue, however, we want you to deny
this issue based on the fact you have no jurisdiction over it. He would look at denying this petition based
on the fact that the City of Muskego and the Plan Commission are telling the Board of Appeals that they
have no jurisdiction over this type of appeal. Associate Planner Trzebiatowski said it should be because
of the code requirement, not the Plan Commission. Mr. LeDoux asked if the Board of Appeals could say
that the City of Muskego and the Plan Commission is wrong and they could give the petitioner the
variance based on the fact that they are the Board of Appeals. Associate Planner Trzebiatowski said the
Board could do so but he did not think in any case it would solve an issue. If they were to overturn the
conditional use grant denial, there are other underlying issues like building, operational site plans and
zoning issues that wouldn’t apply. The Board would have to say why they are turning it over. Mr. LeDoux
inquired if the Board was a quasi-judicial system that can change the variances and the codes in the best
interest of the citizen or the city. Chairman Schepp shared that one-time before the Board of Appeals
overturned the decision of the Plan Commission with the result that the city sued the Board of Appeals. In
the end of that other case, the appellant received what he wanted and the city had litigation fees including
the fees for the Board of Appeals’ attorney. Upon a roll call vote, Chairman Schepp voting no, Mr.
Schmidt voting no, Mr. LeDoux voting no, Mr. Ristow voting no, the motion was denied 4-0,
because the Plan Commission determinations regarding conditional use grants cannot be
appealed by the Board of Appeals.
Associate Planner Trzebiatowski shared that the court stipulation stated he had a certain amount of time
to get the trucks off the property and no more business operations. He is still allowed to store some logs.
It’s fenced in so it is mostly screened. The biggest concern of the neighbors was the noise from the
trucking.
NEW BUSINESS: None
APPROVAL OF THE MINUTES: Mr. Schmidt moved to approve the minutes of March 23, 2006,
Seconded by Mr. LeDoux . Upon a voice vote, the motion carried.
MISCELLANEOUS: Associate Planner Trzebiatowski shared that the zoning code is in the process of
being rewritten. Once the Plan Commission reviews the draft, it will also be brought to the Board of
Appeals.
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Page 3
ADJOURNMENT: With no further business to come before this Board, Mr. Schmidt moved to adjourn.
Mr. LeDoux seconded. Upon voice vote, meeting adjourned at 7:29 p.m.
Stella Dunahee, CPS
Recording Secretary