ZONING BOARD OF APPEALS Packet - 2/28/2019CITY OF MUSKEGO
ZONING BOARD OF APPEALS AGENDA
02/28/2019
6:00 PM
Muskego City Hall, W182 S8200 Racine Avenue
CALL TO ORDER
PLEDGE OF ALLEGIANCE
ROLL CALL
STATEMENT OF PUBLIC NOTICE
APPROVAL OF THE MINUTES
Approval of Minutes of the August 2, 2018 Meeting.
NOTICE OF CLOSED SESSION
OLD BUSINESS
NEW BUSINESS
Appeal #01-2019 Petitioner: Joe Kazmierczak of Burback Builders on behalf of
Lawrence Radosevich
Property: S70 W19078 Wentland Drive / Tax Key No. 2180.965
REQUESTING: Under the direction of Section 400-18 of the Municipal Code (Zoning –
Zoning Board of Appeals), the petitioner seeks the following variance:
Chapter 400-23 A. – Building Location
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 Wentland Drive right-of-way line. The petitioner
seeks a setback of 38.3 feet from the right-of-way line for a new landing and stairs, and
is therefore requesting a 1.7-foot variance from the required right-of-way setback.
Appeal #02-2019 Petitioner: Connie & Glenn Byal
Property: S79 W16061 Bay Lane Place / Tax Key No. 2217.989
REQUESTING: Under the direction of Section 386-28 of the Municipal Code (Floodplain
Zoning – Zoning Board of Appeals), the petitioner seeks the following variance:
Chapter 386-21 B. 4. – Nonconforming Uses - Applicability; conditions for continued use
No modification or addition to any nonconforming structure or any structure with a
nonconforming use which over the life of the structure would equal or exceed 50% of its
present equalized assessed value shall be allowed unless the entire structure is Packet Page 1
permanently changed to a conforming structure with a conforming use in compliance
with the applicable requirements of this chapter.
The fair market value/equalized value of the non-conforming structure (house) is
$77,900 and the code limits the cost of materials and labor to 50% ($38,950) of the
current equalized value for all alterations and expansions for homes within FEMA
mapped floodplain areas until the property is brought into full compliance with Chapter
386 (Floodplain Zoning Code). The petitioner requests a labor and material value not to
exceed $200,000 or 256% of the present equalized assessed value. Therefore, the
variance request is for a $161,050 over the code required 50% limit ($38,950) on
material and labor costs for alterations and expansions within FEMA mapped floodplain
areas.
CLOSED SESSION
OPEN SESSION
MISCELLANEOUS BUSINESS
ADJOURN
NOTICE
IT IS POSSIBLE THAT MEMBERS OF AND POSSIBLY A QUORUM OF MEMBERS OF OTHER GOVERNMENTAL BODIES OF
THE MUNICIPALITY MAY BE IN ATTENDANCE AT THE ABOVE-STATED MEETING TO GATHER INFORMATION; NO ACTION
WILL BE TAKEN BY ANY GOVERNMENTAL BODY AT THE ABOVE-STATED MEETING OTHER THAN THE GOVERNMENTAL
BODY SPECIFICALLY REFERRED TO ABOVE IN THIS NOTICE.
ALSO, UPON REASONABLE NOTICE, EFFORTS WILL BE MADE TO ACCOMMODATE THE NEEDS OF DISABLED
INDIVIDUALS THROUGH APPROPRIATE AIDS AND SERVICES. FOR ADDITIONAL INFORMATION OR TO REQUEST THIS
SERVICE, CONTACT MUSKEGO COMMUNITY DEVELOPMENT DEPARTMENT, (262) 679-4136.
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Unapproved
CITY OF MUSKEGO
ZONING BOARD OF APPEALS MINUTES
August 02, 2018
6:00 PM
Muskego City Hall, W182 S8200 Racine Avenue
CALL TO ORDER
Chairman Blumenfield called the meeting to order at 6:00 PM.
PLEDGE OF ALLEGIANCE
Those present recited the Pledge of Allegiance.
ROLL CALL
Present: Dr. Blumenfield, Mr. Schneiker, Mr. Le Doux, Mr Ristow and Mr. Robertson,
Excused: Mr. Petfalski and Dr. Kashian.
STATEMENT OF PUBLIC NOTICE
The meeting was noticed in acordance with the open meeting laws.
NOTICE OF CLOSED SESSION
OLD BUSINESS
NEW BUSINESS
Appeal #03-2018 Petitioner: Michael Larsen
Property: S71 W17637 Lake Drive / Tax Key No. 2193.996
REQUESTING: Under the direction of Chapter 17 Zoning Ordinance: Section 3.089(1)
Appeal Provisions, Petitioner seeks the following variance:
Chapter 17 - Zoning Ordinance: Section 15.05(9) - Walkways
Walks, drives, paved terraces, mechanical appurtenances for all single-family and two-family
structures (such as air conditioners, venting, and service panels), and purely decorative
garden accessories (such as pools, fountains, statuary, flag poles, etc.) where subject to
"permanent structure" classification shall be permitted in setback and offset areas but not
closer than 3 feet to an abutting property line other than a street line.
An offset of three (3) feet from the side lot line is required for sidewalks/walkways on the above
mentioned lot. The petitioner seeks an offset of 1.2 feet from the west side lot line to keep an
unapproved sidewalk/walkway, and is therefore requesting a 1.8-foot variance from the
required side offset.
Mr. Schneiker swore in the following:
Troy Tveitnes, S71 W17659 Lake Drive
Lisa Twinde, S71 W17659 Lake Drive
Brian Ganos, S71 W17665 Lake Drive Page 1 of 3
Approval of Minutes of the August 2, 2018 Meeting.
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Mike Larson, S71 W17637 Lake Drive
Adam Trzebiatowski, Planning Manager
Mr. Larsen explained the original retaining was failing and he hired a contractor to rebuild the
wall in the same location. After the retaining was built the wall was used as a form to pour a
new concrete walk and steps in the same location as the original walkway and steps. The
original walkway, steps, and wall were done about 26 years ago. The walkway is used as an
access to get around the house. Mr. Larsen stated he didn't know he needed a permit and the
contractors did not tell him he did.
Mr. Larsen stated his hardship is the health condition of his parents and being able to get them
around the house and down to the lake and also being able to carry oversized items around
the house. Dr. Blumenfield questioned if the parents lived with him. Mr. Larsen stated they
do not.
Mr. Schneiker questioned if Mr. Larsen hired a contractor to do the work. Mr. Larsen stated he
hired Juan and Carlos off of a referral. Mr. Larsen stated he never asked them if they took out
a permit.
Dr. Blumenfield questioned Mr. Larsen if he thought he might need a permit. Mr. Larsen stated
he did not think he would need a permit because he was replacing what was already there.
Troy Tveitnes S71 W17659 Lake Drive:
- northwest neighbor to Mr. Larsen
- work was done without a permit
- requesting if repairs are required they are done immediatly
Mr. Le Doux asked Mr. Tveitnes if the the lot level is at the same height for both properties.
Mr. Tveitnes said they are. Mr. Le Doux asked if the retaining wall is beneficial for both
properties. Mr. Tveitnes stated he isn't sure if it was built in the same spot and stated it is in
violation of the ordinance by not having a permit.
Lisa Twinde, S71 W17659 Lake Drive:
- stated her property was damaged during the construction of this project
- Mr. Larson should have known he needed permits because he is friends with a concrete
contractor
Brian Ganos, S71 W17665 Lake Drive:
- neighbor
- stated the cul-de-sac drains towards Mr. Larsen's property. The retaining wall and sidewalk
provide a place for the water to flow. If the walkway was removed, the wall could be damaged
by the drainage.
Mr. Trzebiatowski gave the city's opinion based on the zoning code. Mr. Trzebiatowski
explained in middle 2017 it came to the city's attention that work was done on a walkay without
a permit and may be in violation of the code by being too close to the lot line. The code
requires a 3-foot offset to the lot line. The property owner is requesting an offset of 1.2 feet
and would require a variance of 1.8 feet. Staf is recommending denial of the appeal and
further recommends the walkway be replaced with grass.
Deliberatons:
Mr. Le Doux made a motion to approve Appeal 03-2018 as submitted. Mr. Ristow seconded.
Dr. Blumenfiled explained she hasn't seen a hardship in this appeal. Mr. Schneiker agreed.
Upon a roll call vote Appeal 03-2018 was denied 5-0. Mr. Le Doux made a motion to require a
deadline for compliance for 6 months from the date of this meeting. Mr. Robertson seconded. Page 2 of 3
Approval of Minutes of the August 2, 2018 Meeting.
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Upon a voice vote, the motion carried 5-0.
CLOSED SESSION
OPEN SESSION
APPROVAL OF THE MINUTES FROM THE MAY 24, 2018 MEETING
Mr. Robertson made a motion to approve the minutes from the May 24, 2018 meeting. Mr. Le
Doux seconded. Motion carried unanimously.
MISCELLANEOUS BUSINESS
ADJOURN
Mr. Robertson made a motion to adjourn at 6:45 PM. Mr. Le Doux seconded. Motion carried
unanimously.
Respectfully submitted,
Kellie McMullen
Recording Secretary
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Approval of Minutes of the August 2, 2018 Meeting.
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Appeal # 01-2019
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City of Muskego
City Representative Brief
Zoning Board of Appeals Supplement 01-2019
For the meeting of: February 28, 2019
REQUESTING:
A variance from Chapter 400-23 A. – Building Location
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.
APPELLANT: Joe Kazmierczak of Burback Builders on behalf of Lawrence Radosevich
LOCATION: S70 W19078 Wentland Drive / Tax Key No. 2180.965
CITY’S POSITION PRESENTED BY: Adam Trzebiatowski AICP, City Representative
BACKGROUND
The petitioner recently obtained building permits with the City of Muskego for renovations to their existing
home. More specifically, the approved permits were for removing the existing attached garage, building a
new detached garage, adding front and side porches and completing interior remodeling. The approved
building permits are based on plans that show the new code compliant front porch with a staircase
parallel to the house that leads to the driveway (east). The front porch, or landing, meets the building
codes for size and meets the zoning code requirement of a 40-foot setback from Wentland Drive. The
issue is the direction of the staircase from the front porch, or landing, to grade. If the staircase is
constructed parallel to the house leading east to the driveway, the structure meets the 40-foot building
setback and thus a variance is not necessary. This was the original approval. The homeowner’s
preference is now to have the staircase constructed perpendicular to the house, extending straight from
the house toward the street (south). This alignment where the staircase is straight toward the street, the
stairs encroach upon the front setback thus the need for a dimensional variance.
The lot currently contains a home and one accessory structure with a permit to remove the attached
garage and build a detached garage. The parcel is zoned ERS-3, Existing Suburban Residence District.
The property is located on Wentland Drive.
The petitioner is seeking the following variance:
An exception to the required setback from the front right-of-way line for allowance of a staircase
extending toward Wentland Drive.
A setback of 40-feet is required from the Wentland Drive right-of-way line on the above
mentioned lot. The petitioner seeks a setback of 38.3-feet from the right-of-way line for a
staircase extending toward Wentland Drive, and is therefore requesting a 1.7-foot variance from
the required right-of-way setback.
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DISCUSSION
In the submittal, the applicant has stated that their hardship relates to the safety in and out of the home in
case of emergency, difficulty navigating a walker in and out and difficulty getting large objects such as
appliances, couches or appliances into the home.
The front porch, or landing, that meets building codes lies outside of the building setback and complies
with all zoning requirements. Obviously a staircase is needed from the front porch, or landing, to the
ground to make the front door a usable and viable egress. The two options for the staircase are to either
extend toward the driveway or toward Wentland Drive. Extending the staircase toward the driveway
(east), as shown in the plans used to obtain building permits, has no need for a variance. Extending the
staircase toward the road encroaches upon the building setback requiring the variance.
The builder has submitted building plans and obtained a building permit with the staircase extending
toward the driveway (east) without the need of a variance. However, the applicant is pursuing a variance
based on “improper access in case of an emergency.” The homeowner believes that a scenario where
the stairs are to the side of the front door will be unsafe for someone with a walker or for emergency
personnel to move a stretcher in or out of the house. The plans submitted show that there are two steps
needed to from the front porch, or landing, to the ground, meaning that the landing is less than two feet
from the ground.
The owner has also stated that the staircase toward the driveway would make it difficult to get large
objects such as beds, couches or appliances in the home. These are “self-imposed hardships” and are
“circumstances of the applicant”, which are not grounds for a variance per Zoning Case Law (see item #1
below).
If a variance is not approved, the homeowner will likely move forward with the staircase toward the
driveway. Therefore, not obtaining a variance will not unreasonably prevent them from using the property
of the permitted purpose and will not make entering and leaving the home unnecessarily burdensome.
Here is a summary of the variance standards that are applicable to this case (and noted above):
1. Zoning Case Law states that “self-imposed hardships” and “circumstances of the applicant” are
not grounds for granting a variance, such as wanting it a certain size for convenience, esthetics,
or for a certain configuration for landscaping ease.
2. Zoning Case Law states that “nearby violations”, even if similar to the request at hand, are not
grounds for granting a variance. Each variance request needs to be looked at based on its own
merits.
3. Zoning Case Law states that “lack of objections from neighbors does not provide grounds for
granting a variance.”
4. Zoning Case Law states that the Board may only grant the minimum variance needed, if they are
even going to grant any variance. In a case like this, the board should look at what is the least
variance that would relieve unnecessary burdens. There is an option that meets the Zoning Code
requirements that do not require any variance. This includes a 3 foot deep landing with side
stairs leading to grade to the east, toward the driveway.
Please see the applicant’s full submittal for all of the full details on their request and associated
documents.
NOTE: Please remember that the City must base their recommendation upon a valid hardship as defined
by State Law and Zoning Case Law. 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 owner(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
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render conformity with such restrictions unnecessarily burdensome. The Zoning Board of Appeals needs
to find a valid hardship in order to be able to approve a variance request.
BASED UPON THE FOREGOING, THE CITY RESPECTFULLY REQUESTS:
Denial of Appeal 01-2019 as proposed, allowing a front deck/porch with a 38.3-foot setback, a 1.7-
foot variance from the right-of-way line; citing that a deck/porch can be built with a three-foot
landing with stairs to the east side toward the driveway, which meets the Zoning Code
requirements. The hardships stated are self-imposed/self-created and not the least variance
necessary.
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MUSKEGOthe City of
Area of InterestI0130260
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Agenda Item(s)
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Zoning Districts
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LAWRENCE RADOSEVICHS70 W19078 WENTLAND DRIVE
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Appeal # 02-2019
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City of Muskego
City Representative Brief
Zoning Board of Appeals Supplement 02-2019
For the meeting of: February 28, 2019
REQUESTING:
A variance from Chapter 386-21 B. 4. – Nonconforming Uses - Applicability; conditions for continued use
No modification or addition to any nonconforming structure or any structure with a
nonconforming use which over the life of the structure would equal or exceed 50% of its
present equalized assessed value shall be allowed unless the entire structure is
permanently changed to a conforming structure with a conforming use in compliance with
the applicable requirements of this chapter.
APPELLANT: Connie & Glenn Byal
LOCATION: S79 W16061 Bay Lane Place / Tax Key No. 2217.989
CITY’S POSITION PRESENTED BY: Adam Trzebiatowski AICP, City Representative
BACKGROUND
The petitioner is proposing to alter and expand their existing non-conforming home. The home is a non-
conforming structure and a non-conforming use since it is located within the floodway portion of a FEMA
mapped floodplain. The floodway is the most highly regulated portion of the floodplain due to its high risk
of potential flooding and potential damage. No homes are allowed within the floodway. The current
home is only there now since it was built before the current floodway was mapped in this area. The
floodway designation was officially mapped in 2008. The current owners bought the home in 2013.
The applicant is now looking to alter/remodel and expand (on the 2nd floor) the legal non-conforming
home. When a property owner seeks to alter and/or expand a legal non-conforming home, the code
limits the material and labor costs of said modifications or additions to not exceed 50% of its present
equalized assessed value over the life of the structure.
The petitioner is seeking the following variance:
A use variance allowing the alteration and expansion of an existing legal non-conforming home within
a mapped floodway above the 50% limit.
The current fair market value/equalized value of the legal non-conforming structure (house) is
$77,900 and the code limits the cost of materials and labor to 50% ($38,950) of the current
equalized value for all alterations and expansions for homes within FEMA mapped floodplain
areas until the property is brought into full compliance with Chapter 386 (Floodplain Zoning
Code). The petitioner requests a labor and material value not to exceed $200,000 or 256% of the
present equalized assessed value. Therefore, the variance request is for a $161,050 over the
code required 50% limit ($38,950) on material and labor costs for alterations and expansions
within FEMA mapped floodplain areas.
NOTE: The City’s Floodplain Zoning Code is based on a model code from the DNR that is provided to all
Wisconsin municipalities for adoption. The DNR bases their model code on FEMA’s federal floodplain
regulations. As part of the City’s adoption of, and agreed enforcement of, the DNR and FEMA regulations
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in the model code, the City is allowed to be part of the National Flood Insurance Program (NFIP). The
NFIP allows all City residents the ability to purchase flood insurance if they wish. If the City does not
properly enforce the DNR/FEMA regulations that are part of the model floodplain zoning code, the City
could risk jeopardizing our positive standing in the NFIP. This would be detrimental to any City resident
wishing to purchase flood insurance.
DISCUSSION
Based upon the information submitted, staff does not see a valid hardship to allow a use variance for the
alterations and expansions proposed. Since homes are not allowed within the floodway, to allow a home
to exceed the 50% cost threshold for alterations/expansions, it needs to be demonstrated by the applicant
that the property “would have no reasonable use of the property without a variance” (per the Zoning
Board Handbook, 2nd Edition 2006). There is an existing home on the property with full time residents so
the use variance standard is not met. While the home may or may not need some maintenance, the
extensive remodel and addition are not necessary for this to continue to remain a home. Chapter 386-
21B.(1) allows maintenance without being considered an alteration. The code states that maintenance
includes painting, decorating, paneling and other nonstructural components and the maintenance, repair
or replacement of existing private sewage or water supply systems or connections to public utilities.
The owner has submitted details relating to their variance request and the reasons for said variance
request. The reasons they stated for the variance are as follows:
They will need to constantly keep doing replacements or repairs to mechanicals, roofing, gutters,
etc. that shouldn’t have to be done for 20-30 years.
The mechanicals in the utility room are not easily accessible.
Rodents are entering the utility room since it is not sealed from the outside and it is not
accessible to fix with all of the mechanicals in there.
No vents to the upper level, which includes the main bedroom, and there is no way to install
without getting into or removing walls.
The house does not appear to be insulated.
No access to pipes under the house and the toilet pipe has frozen in the past.
Existing staircase is very steep and doesn’t meet code.
The kitchen has limited cabinet space and most cabinets have limited accessibility.
There is no storage area and no basement.
There are continuous leakage problems on flat roof and where the roof lines meet.
There are light switches that the owners do not know what they control.
There are circuit breakers that trip for no known reason.
There are multiple levels on the first floor and they would like it all to be one level.
There is a water softener but they do not know what areas of the home it serves since they have
issues with rusty water.
They believe the neighbors would welcome the updates/remodel and it would not negatively
affect the neighbors. NOTE: A letter was submitted to the City from the neighbor to the west
(included in the packet) that states they have reviewed the interior alteration plan to add living
space to their home and they think this would be a benefit to the neighborhood.
The applicants noted that doing a less extensive remodel was considered but with all that they believe
needs to be done, it is just not possible without having continuous problems. They state they cannot
make the home compliant and safe within the 50% cost regulation. The owners stated that they “just
want to update EVERYTHING and make everything easily accessible and at the same time do interior
updates to make our house, our home.” The owners would prefer to rebuild and start from scratch but
they are aware there is not enough space on the lot due to the floodplain/floodway.
The owners have also stated that they are not saying that their home is not livable in the current condition
but that doesn’t mean that they believe it is not completely safe.
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Please see the applicant’s full submittal for all of the full details on their request and associated
documents.
Relating to the reasons that the applicant has noted in their application and noted above for their request,
here is a summary of the variance standards that are applicable to this case:
Use Variance –
1. The applicant needs to demonstrate, for use variances, that the property “would have no
reasonable use of the property without a variance” (per the Zoning Board Handbook, 2nd Edition
2006). Since there is an existing home on the property, the use variance standard is not met.
Further, some of the existing house issues could be repaired with maintenance that does not
need a variance.
Additional Variance Considerations –
2. Zoning Case Law states that “self-imposed hardships” and “circumstances of the applicant” are
not grounds for granting a variance, such as wanting a certain size living room or bedroom or
wanting a certain house layout, including a full second floor. The hardship needs to be the same
no matter who lives in the home, regardless of their family situation/size or how the family uses
the property. Since most of the hardship items noted relate to the utilities and the first floor, there
is no requirement that the second floor be expanded so significantly.
3. Zoning Case Law states that “lack of objections from neighbors does not provide grounds for
granting a variance.”
4. Zoning Case Law states that the Board may only grant the minimum variance needed, if they are
even going to grant any variance. The proposal is very extensive and is not just minor repairs
and or minor remodeling. The proposal is almost a full rebuild, leaving the 1st floor walls and
foundation in place. Many of the owner’s issues can be taken care of without the need for a
variance. There is no required reason that the second floor needs to be so significantly
expanded for this home to remain.
5. Zoning Case Law states that “financial hardships” are not grounds for granting a variance. The
test is not whether a variance would maximize the economic value of the property.
6. Per the Zoning Board Handbook (2nd Addition, 2006), using the three-step test which looks at
unnecessary hardship, unique property limitations, and no harm to public interest, the following
can be found:
a. Unnecessary Hardship – Unnecessary hardship exists when no reasonable use can be
made of the property without a variance. Since there is already a habitable home on the
property and many of the stated reasons for a variance can be addressed through
property maintenance without a variance, this requirement is not met.
b. Unique Property Limitations – Unnecessary hardship must be due to physical limitations
of the property. While there is floodplain/floodway on the property, there still is an
existing home that can be utilized and lived in year around. The floodway regulations do
not allow homes to be improved more than 50% of the equalized value, to be re-built
and/or built new within the floodway.
c. No Harm to Public Interest – A variance may not be granted which results in harm to
public interest. There is no harm to the public interest in the home staying as is.
NOTE: Please remember that the City must base their recommendation upon a valid hardship as defined
by State Law and Zoning Case Law. 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 owner(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. The Zoning Board of Appeals needs
to find a valid hardship in order to be able to approve a variance request.
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BASED UPON THE FOREGOING, THE CITY RESPECTFULLY REQUESTS:
Denial of a use variance under Appeal 02-2019 as proposed, allowing $200,000 (256% of the
present equalized assessed value) in labor and material costs for the alteration and expansion of
the existing legal non-conforming home located in the floodway; citing that there is a reasonable
use of the property already with the existing home. Also, the reasoning for the variance stated is
based on circumstances of the owner and is not the least variance needed.
The variance request was for $161,050 over the code required 50% limit ($38,950) on material and
labor costs for alterations and expansions within FEMA mapped floodplain areas.
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MUSKEGOthe City of
Area of InterestI0110220
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Agenda Item(s)
Properties
Zoning Districts
Right-of-Way
Hydrography
Supplemental MapAPPEAL #02-2019
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