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Zoning Board of Appeals - MINUTES - 8/23/2007 Z ONING BOARD OF APPEALS MINUTES CITY OF MUSKEGO Approved August 23, 2007 Meeting was called to order at 7:07 P.M. Those in attendance recited the Pledge of Allegiance. PRESENT: Chairman Dan Schepp (7:13 PM), Acting Chairman Henry Schneiker, Dr. Barb Blumenfield, Mr. Horst Schmidt, Dr. Russ Kashian, Mr. Richard Ristow and Planner Adam Trzebiatowski. ABSENT: Mr. William Le Doux STATEMENT OF PUBLIC NOTICE: The secretary stated the meeting was noticed on August 9, 2007 in accordance with open meeting laws. NEW BUSINESS: Appeal #04-2007 – Petitioner: John Karides, S65 W18718 Onyx Drive / Tax key No. 2174.107. 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 5.05 – Lot Size (1) Minimums Required. No building shall be erected on a lot of less area or of minimum average width less than hereinafter specified by the regulations of the district in which such building is located, and (4) Reduction. No lot area shall be reduced by any means so as to create a lot of less than the required size or so that the existing offsets, setbacks, open space or lot area would be reduced below that required by the regulations for the district in which such lot is located. A minimum lot size of 15,000 square feet is require per lot for any new land divisions within the ERS-3 zoning district. The property owner is proposing to divide the lot in question into two lots. Lot 2 will contain 15,000 square feet, while lot 1 will only contain 11,392 square feet. The petitioner seeks approvals to have one lot under the allowed size minimum to be able to create a new lot, and is therefore requesting a 3,608 square foot variance from the minimum lot size requirement. Dr. Blumenfield swore in John and Geraldine Karides, Alderman Neil Borgman, and Planner Adam Trzebiatowski. Mr. Karides explained in 1977 he received approval for a land division and was told a Certified Survey Map was not required and was under the understanding the second lot was approved. The tax bill he received listed lots 1 and 2 of block 13 in the description. Two years ago Mr. Karides went to the Plan Department to see what he needed to do to sell the second lot and was told the land division was never recorded and therefore not divided. Mr. Karides stated he had to start the land division process all over again. The surveyor who did the survey showed a 40-foot right-of-way, which under today’s requirements should be a 60-foot right-of-way. Mr. Karides stated he trusted the City to help divide his property in 1977, which they did on one lot and they were able to sell. Mr. Karides stated the property is becoming too hard to maintain and is requesting the City waive the Chapter 17 requirement. The neighbors are not opposed to the land division and would rather see a house built than a vacant lot. Mr. Karides added the lot ZBA Minutes 8/23/2007 Page 2 with the house is under the size requirement and it fits in with the rest of the subdivision. All the lots are around 12,000 – 13,000 in size. Mr. Karides also noted he was told the City would record the documents for them and guided them through the process. Mr. Schneiker questioned who told Mr. Karides they would record the documents. Mr. Karides stated the City told him they would record the documents. Mr. Karides stated for the first land division the City did record the document. Mr. Ristow stated it was the property owner’s responsibility to record the documents with the courthouse. Mr. Karides stated he was told by the City that the City would record it. Mr. Trzebiatowski clarified a corner lot was split off in 1977. This lot was recorded and is shown as an existing parcel on the current survey. Mr. Trzebiatowski also clarified the description on the tax bill. On the tax bill it states “pt of lots 1 and 2”, which means part of lots 1 and 2. Originally the lots were divided through the middle into two long lots and the house was built on two lots. At the time of the first land division the lot line was adjusted to split off the corner lot. A certified survey map was not required to just reconfigure the lot lines. Mr. Karides stated the first land division for his daughter was done in 1977. Mr. Trzebiatowski explained, if approved at Board of Appeals, the property owner will have to show to Plan Commission that the lot is buildable outside of the 100 year floodplain. Alderman Neil Borgman explained he has been working with the Karides family for over a year on this issue. Ald. Borgman stated this is a confusing process and he wouldn’t have known that each tax key has a separate tax bill. Onyx Drive and Diamond Drive are small streets and there is no foreseeable situation where the City would have to come in and improve this street. The lot may be nonconforming, but it is not nonconforming with the area. The property owners have thought for many years they followed through with the Plan Commission requirmements and have the documentation. Dr. Blumenfield questioned Ald. Borgman on what the hardhship is. Ald. Borgman stated the age of the property owners and financial burdens are hardships. Mr. Karides further stated they are not claming a financial hardship. Dr. Kashian expressed concern with taxes that were not paid over the past 30 years. Two lots would be more valuable than one piece of property. Mr. Trzebiatowski gave the City’s opinion based on the Zoning Code. Mr. Trzebiatowski explained the parcel is zoned ERS-3, Existing Suburban Residence District. Any lot wishing to divide with the ERS-3 district must follow the RS-3 zoning restrictions. The ERS districts were established to bring existing parcels in conformity since they were divided under the original Zoning Code or prior. The RS-3 district requires minimum lot sizes of 15,000 square feet and average lot widths of 100 feet. The petitioner seeks a variance of 3,608 square feet from the minimum lot size requirement. Based upon the submitted information staff has not been able to find a valid hardship that meets State Law and Zoning Case Law guidelines and rulings. Zoning Case Law states that a hardship must be unique to the property, it cannot be self-created, and must be based upon conditions unique to the property rather than conditions personal to the property owners(s). Case Law also states that a hardship should be something that would unreasonably prevent the owner from using their property for the permitted purpose or would render conformity with such restrictions unnecessarily burdensome. ZBA Minutes 8/23/2007 Page 3 The petitioner has stated a few reasons for their variance request in their submittal. The reasons include the following: 1. “We cannot maintain the property because of our age and health problems. It would be a blight in the neighborhood. We don’t think it would be fair to the neighbors for the eyesore.” Not a hardship; Self-Imposed/Circumstances of Applicant are not grounds for a variance. 2. “The lot would be similar to other lots in the neighborhood. It would be larger than most other lots in the subdivision. The zoning laws have been changed since these lots were originally platted.” (Quoting the petitioners submittal application) Not a hardship; Nearby Violations/Previous Divisions are not grounds for granting a variance. 3. The belief that they already had this lot split according to Resolution PC 141-77 from September 20, 1977 which stated, “WHEREAS this is a re-division of two lots joined by construction, and a certified survey map is not required.” Not a hardship; A formal CSM was never done, approved, and recorded to divide off the additional lot. They have only been paying one (1) tax bill for the past 30+ years. Two lots would have to have two separate tax bills. Also, a typo in the Resolution does not waive or incorrectly grant some type of approval. The Planning Commission did conceptually make a motion to waive the Chapter 18 (Land Division) requirements relating to this issue at hand at its June 5, 2007 meeting. It was a 5 in favor and 1 against vote. The difference between the Planning Commission and the Zoning Board of Appeals is that the Planning Commission does not need to look for hardships, while the Zoning Board of Appeals can only base their decision upon a valid hardship(s). If the variance is granted a formal Certified Survey Map (CSM) must be submitted and approved by the Planning Commission and Common Council. There also is a question relating to the 100-year floodplain being located on a fair portion of Lot 2 (the proposed vacant lot). The possible granting of any variance does not guarantee that the division will be allowed due to the floodplain on the lot. A suitable building site outside of the floodplain must be demonstrated for Lot 2 at the time of a formal CSM submittal, if a variance is approved. Staff respectfully recommends denial of Appeal 04-2007, allowing the division of one existing lot into two lots, with one of the lots not meeting the minimum lot size requirement and being 11,392 square feet in area, a 3,608 square foot variance; 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. Also, a non-self imposed hardship is not found for the appeal. Mr. Trzebiatowski noted it has already been determined by the Public Works committee that the full 60 feet must be dedicated for right-of-way. Even without the full 60 feet of dedication the lot would still be under the minimum lot size requirement. Dr. Kashian questioned if Mr. Karides spoke to former Mayor Wayne Salentine who made the original motion to approve the land division at Plan Commission in 1977. Mr. Karides stated he did speak to him and stated Mr. Salentine couldn’t understand why the City did not record the document. Mr. Karides explained he started this process by talking to the building inspector, Jerry Lee, who originally told him he didn’t have enough land to divide into three lots. At that time he divided off one lot for his daughter. Mr. Karides stated he then went back to the City and asked to go before the Plan Commission for approval. Mr. Karides stated Plan Commission granted the approval. ZBA Minutes 8/23/2007 Page 4 Mr. Schneiker questioned if Mr. Karides had the right expectations that the City would record the paperwork. Mr. Trzebiatowski noted three months after the second request for a land division the first land division was recorded, which the Karides had to sign, and only separated off the lot that was sold to their daughter. Mr. Schmidt noted the first lot had to be recorded for the mortgage company to sign off on the daughter building a new home, which wasn’t the same issue with the second land division. DELIBERATIONS Appeal #04-2007 – Dr. Kashian moved to table this item to request former Mayor Wayne Salentine to speak on this item. Motion died for lack of a second. Dr. Kashian withdrew his motion. Mr. Schepp moved to approve as submitted. Seconded by Mr. Schmidt. Dr. Kashian stated it is the responsibility of the property owner to follow through on their assets and also noted the foregone taxes that were not collected for 30 years. Dr. Blumenfield explained the board is bound by State Statutes based on hardship. Age, finances, and lack of action are not considered hardships. Dr. Blumenfield stated she cannot find a hardship with this appeal within the parameters of the state law and will vote against. Mr. Schepp stated because the tax bill listed lots 1 and 2 and he would also think that the lots were divided. Mr. Schepp also added the proposed lots were larger than the lot that was split off for his daughter in 1977. Mr. Schepp questioned if the average person should know all the legal paperwork and have expectations of the City if the City told him the paperwork would be filed. Mr. Schneiker explained at some point the property owner should expect two tax bills for two tax keys. Dr. Blumenfield called for the question. Upon a roll call vote appeal 04-2007 is denied 4-1. Mr. Schepp voted yes citing the hardship being incompetence of the City in 1977 in filing the proper paperwork. OLD BUSINESS: none. APPROVAL OF THE MINUTES: Dr. Blumenfield moved to approve the minutes of June 28, 2007. Seconded by Mr. Schepp. Upon a voice vote, the motion carried. MISCELLANEOUS ADJOURNMENT: With no further business to come before this Board, Mr. Schneiker moved to adjourn. Dr. Blumenfield seconded. Upon voice vote, meeting adjourned at 8:40 P.M. Respectfully Submitted, Kellie Renk Recording Secretary