Zoning Board of Appeals - MINUTES - 6/28/2007
Z ONING BOARD OF APPEALS MINUTES approved
CITY OF MUSKEGO
June 28, 2007
Meeting was called to order at 7:07 P.M.
Those in attendance recited the Pledge of Allegiance.
PRESENT: Chairman Dan Schepp (7:15 PM), Dr. Barb Blumenfield, Mr. Horst Schmidt, Mr.
William Le Doux, Dr. Russ Kashian, Mr. Richard Ristow and Planner Adam Trzebiatowski.
ABSENT: Vice Chairman Henry Schneiker
STATEMENT OF PUBLIC NOTICE: The secretary stated the meeting was noticed on June 19,
2007 in accordance with open meeting laws.
NEW BUSINESS:
Appeal #03-2007 – Petitioner: Andrew Castona, lot 2 of Weatherwood Courts Subdivision on
Weatherwood Court / Tax key No. 2257.184. REQUESTING: Under the direction of Chapter
17 Zoning Ordinance: Section 3.02 Zoning Board of Appeals, Petitioner seeks the following
variances:
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 40-feet is required from any right-of-way lines on the above mentioned lot. The lot
in question has right-of-way along the front of the parcel and the rear of the parcel. The
petitioner seeks a setback of 38-feet from the eastern (front) right-of-way line and a setback of
37.15-feet from the western (rear) right-of-way line to permit the construction of a new home,
and is therefore requesting a 2-foot variance from the eastern (front) right-of-way line and a
2.85-foot variance from the western (rear) right-of-way line.
Acting Chairman Blumenfield swore in Mr. and Mrs. Castona and Adam Trzebiatowski. Mr.
Castona explained he and his wife had been looking at lots and house designs for over a year.
The house they designed does not fit on the lot and therefore they are requesting a variance.
Mr. Castona stated they knew they would not have a large backyard but their main concern is a
place for their child to be able to play that is safe and away from the streets that are in the front
and rear of the property. Mr. Castona further stated he needs a three-car garage to park his
work vehicle, which cannot be parked on the driveway according to the Homeowner
Association’s restrictions.
Mr. Castona stated the lot was purchased in December of 2006 and the house is custom
designed. Mr. Castona stated he knew what the setbacks were when he purchased the house.
Mr. Schmidt questioned Mr. Castona if he considered redesigning the house to fit within the
setbacks. Mr. Castona stated he would be agreeable to removing the garage bump out, but
does not want to move the house because it would take away from the side yard, the only place
his child could safely play.
The Board discussed other options including reducing the bump out in the kitchen and
cantilevering the fireplace. Mr. Castona stated he is requesting the bump out in the kitchen to
make the kitchen larger, with patio doors and a kitchen table it could be crowded to move
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6/28/2007
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around. Mr. Castona added the Homeonwner’s Association requires fireplaces to be footed and
not hanging.
Mr. Trzebiatowski gave the City’s opinion based on the Zoning Code. The petitioner has
submitted for a variance request to be able to construct a new single-family house on lot 2 in
Weatherwood Courts Subdivision on Weatherwood Court. This is a vacant lot in a newer
subdivision. The front of the property is located on Weatherwood Court and the rear of the
property is on North Cape Road. A setback of 40-feet is required from any right-of-way lines.
The lot in question has right-of-way along the front of the parcel and the rear of the parcel. The
petitioner seeks a setback of 38-feet from the eastern (front) right-of-way line and a setback of
37.15-feet from the western (rear) right-of-way line to permit the construction of a new home,
and is therefore requesting a 2-foot variance from the eastern (front) right-of-way line and a
2.85-foot variance from the western (rear) right-of-way line.
Based on the submitted information staff has not been able to find a valid hardship that meets
State Law and Zoning Case Law guidelines and rulings. This is a vacant lot and the petitioner
has willingly purchased this lot knowing there were streets on both sides and also aware of the
front and rear setbacks. Further, new home construction allows complete custom design to fit
the lot and meet the needs of the owners. There are other options to allow construction of a
new home on this lot. The front bump out of the garage and rear kitchen bump out can be
removed, or by shifting the house and/or garage this could even create a larger front yard
leaving more play area for the petitioners children.
Included in the packets are final subdivision plats for Weatherwood Court and Prairie Meadows.
Both of these subdivisions have very similar characteristics and the same zoning requirements.
Prairie Meadows has four homes built meeting the same code requirements on similar lots with
a road on both sides and Weatherwood Court has three lots that are similar to the lot in
question, one with a house already built on it.
Mr. Trzebiatowski added there is quite a distance from the house to the road, however, there is
a large triangle that is dedicated County right-of-way for possible future road expansion and
vision corner. The property owners do not own this piece.
Staff respectfully requests denial of 03-2007, 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, especially since there are similar property layouts in
the general area. Also, a non-self imposed hardship is not found for the appeal. This is a
vacant lot and a home should be designed to fit on it or a new lot site should be chosen that this
house would fit on.
Dr. Kashian stated he is not in favor of the way developers design and market the lots as
affordable lots. The lots are designed too small to allow for an affordable house to be build on
them.
DELIBERATIONS:
Appeal #03-2007 – Mr. Schmidt moved to approve the variances on the east and west as
submitted. Seconded by Mr. Le Doux. Dr. Blumenfield stated this is a unique situation, but
the Board must follow State Law. This appeal does not meet the obligations for a hardship
because there are other options. Dr. Blumenfield stated she couldn’t support approving this
variance. Chairman Schepp stated the Board has never approved a variance on a vacant lot
and by doing so would be a disservice to those who would have liked a bigger house, but made
them fit on the lot. Mr. Schmidt stated he reviewed the Zoning Handbook and could not find an
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argument for a hardship. Mr. Le Doux cited case law from the Zoning Handbook and noted a
growing family and a need for a larger garage are not grounds for a variance. The surveyor
should have been able to make the house fit, and by taking out the garage and kitchen bump
outs this could be accomplished. Upon a roll call vote Appeal 03-2007 is denied 5-0.
OLD BUSINESS: none.
APPROVAL OF THE MINUTES: Dr. Kashian moved to approve the minutes of April 26,
2007. Seconded by Chairman Schepp. Upon a voice vote, the motion carried.
MISCELLANEOUS:
Mr. Trzebiatowski explained in the packets is the Zoning Board Handbook, which was produced
by the Center for Land Use Education at the University of Wisconsin – Stevens Point. Mr.
Trzebiatowski noted Chapter 15- Variances, there is legal information regarding the basis for
granting variances. This guide is the most comprehensive guide that staff is aware of and every
board member should become familiar with it.
ADJOURNMENT: With no further business to come before this Board, Dr. Kashian moved to
adjourn. Mr. Schmidt seconded. Upon voice vote, meeting adjourned at 8:00 P.M.
Respectfully Submitted,
Kellie Renk
Recording Secretary