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Zoning Board of Appeals- Agenda - 6/27/2013CITY OF MUSKEGO ZONING BOARD OF APPEALS AGENDA June 27, 2013 6:00 PM Muskego City Hall, Muskego Room, W182 S8200 Racine Avenue CALL TO ORDER PLEDGE OF ALLEGIANCE ROLL CALL STATEMENT OF PUBLIC NOTICE NOTICE OF CLOSED SESSION PLEASE TAKE NOTICE that the Board of Appeals of the City of Muskego may convene, upon passage of the proper motion, into closed session pursuant to Section 19.85(1)(a) of the State Statutes for the purpose of deliberating concerning cases which were the subject of a quasi-judicial hearing; said cases being the appeals described below. The Board of Appeals will then reconvene into open session. OLD BUSINESS None. NEW BUSINESS 1. APPEAL #01-2013 Petitioner: Brain Buck Property: Vacant Lot – Lot 36 Stonebridge Subdivision / Tax Key No. 2258.065 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(7) – Wetland Protection Offset (7) (Ord. #1290 – 04-23-2009) Wetland Protection Offset: No building or structure shall hereafter be erected, structurally altered, or relocated so that it is located closer than the distances listed below to a delineated wetland area. The purpose of this protection offset is to preserve the wetland areas themselves and the environmentally sensitive areas immediately around the wetland areas. These Wetland Protection Offsets are separate and different from any DNR wetland requirements. Any DNR restrictions relating to wetlands and wetland offsets apply in addition to these regulations. A. Wetland Protection Offsets Distances: The offset distance is fifteen (15) feet from any delineated wetland. All wetland delineations must receive DNR concurrence. B. Protection Offset Restrictions: No building or structure shall hereafter be erected, structurally altered, or relocated within the Wetland Protection Offsets. This includes, but is not limited to, any building (including sheds and accessory structures), deck, pool, any hard surface (asphalt, concrete, pavers, gravel, etc.), or any other feature deemed a structure or building by Community Development Director or his/her designee. Landscape features (including, but not limited to fences, retaining walls, planting beds, plantings, etc.) are allowed within the Wetland Protection Offset area as long as they do not cross into and/or impact the wetlands. Grading, excavation, and filling are allowed within the Wetland Protection areas as long as they do not cross into and/or impact the wetlands. Per the discretion of the Community Development Director or his/her designee, the only exceptions to these requirements shall be work associated with approved DNR wetland disturbance activities (examples: wetland board walks, wetland crossings). 1. The petitioner seeks an offset of 12.45-feet from the wetland to construct a new home, and is therefore requesting a 2.55-foot variance from the required wetland protection offset, 2. And, the petitioner seeks an offset of 6.23-feet from the wetland to construct a new permeable paver patio, ZBA 6/27/2013 Page 2 and is therefore requesting a 8.77-foot variance from the required wetland protection offset, 3. And, the petitioner seeks an offset of 10.18-feet from the wetland to construct a new deck, and is therefore requesting a 4.82-foot variance from the required wetland protection offset. CLOSED SESSION OPEN SESSION APPROVAL OF THE MINUTES FROM THE JANUARY 16, 2013 MEETING 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 CITY HALL, (262) 679-4100 Appeal # 01-2013 ZBA 06-27-2013 Page 1 of 4 City of Muskego Staff Representative Brief Zoning Board of Appeals Supplement 01-2013 For the meeting of: June 27, 2013 REQUESTING: Under the direction of Chapter 17 - Zoning Ordinance: Section 5.02(7) – Wetland Protection Offset (7) (Ord. #1290 – 04-23-2009) Wetland Protection Offset: No building or structure shall hereafter be erected, structurally altered, or relocated so that it is located closer than the distances listed below to a delineated wetland area. The purpose of this protection offset is to preserve the wetland areas themselves and the environmentally sensitive areas immediately around the wetland areas. These Wetland Protection Offsets are separate and different from any DNR wetland requirements. Any DNR restrictions relating to wetlands and wetland offsets apply in addition to these regulations. A. Wetland Protection Offsets Distances: The offset distance is fifteen (15) feet from any delineated wetland. All wetland delineations must receive DNR concurrence. B. Protection Offset Restrictions: No building or structure shall hereafter be erected, structurally altered, or relocated within the Wetland Protection Offsets. This includes, but is not limited to, any building (including sheds and accessory structures), deck, pool, any hard surface (asphalt, concrete, pavers, gravel, etc.), or any other feature deemed a structure or building by Community Development Director or his/her designee. Landscape features (including, but not limited to fences, retaining walls, planting beds, plantings, etc.) are allowed within the Wetland Protection Offset area as long as they do not cross into and/or impact the wetlands. Grading, excavation, and filling are allowed within the Wetland Protection areas as long as they do not cross into and/or impact the wetlands. Per the discretion of the Community Development Director or his/her designee, the only exceptions to these requirements shall be work associated with approved DNR wetland disturbance activities (examples: wetland board walks, wetland crossings). APPELLANT: Brain Buck LOCATION: Vacant Lot – Lot 36 Stonebridge Subdivision / Tax Key No. 2258.065 CITY’S POSITION PRESENTED BY: Adam Trzebiatowski AICP, City Staff Representative BACKGROUND The petitioner is requesting to construct a new home on a vacant lot. As part of the new home construction the petitioner is also requesting to be able to install a permeable paver patio and a deck along the rear of the home. There are wetlands located on the rear portion of this property. As noted above there is a 15 foot wetland protection buffer along any delineated wetland area. Wetland delineations are only valid for a period of five years. If wetland markings/delineations are older than five year old and if work is being done near a possible wetland protection offset area, then a new wetland delineation needs to be completed. This was the case on this property. The original wetlands were delineated in 2000. Due to the age of this delineation and the proposed construction, as part of the formal permit review it was determined that an updated delineation was required. The wetlands were re- delineated in May 2013 for this specific property. The new delineation showed that the wetland boundary has changed and expanded. This is possible and common in some areas. Wetlands do change and that is why delineations are only valid for five years. Appeal # 01-2013 ZBA 06-27-2013 Page 2 of 4 Back at the time this development was originally approved, the wetland protection offset was 10 feet. This was based upon some older DNR stormwater requirements. Back in early 2009 the City realized that there were concerns and questions with the DNR stormwater requirements and when they were applicable so the City’s Common Council decided to review this topic and propose a City regulation relating to protection areas around wetlands. There was a lot of discussion at that time relating to what the requirements should cover and how large the protection area should be. Some Alderman believed that the protection offset should be larger, up to 50 feet was one proposal, and others were leaning towards a lesser requirement. In the end the common agreement identified a 15 foot wetland protection offset. The parcel is zoned PD-38, Stonebridge Planned Development District. This property is located on Kramer Court in the Stonebridge Subdivision. The petitioner is seeking the following three (3) variances: An exception to the required 15 foot wetland protection offset for the construction of a new home, a new paver patio, and a new deck. (A) The petitioner seeks an offset of 12.45-feet from the delineated wetlands to permit the construction of a new home, and is therefore requesting a 2.55-foot variance from the wetland protection offset. And, (B) The petitioner seeks an offset of 6.23-feet from the delineated wetlands to permit the construction of a new paver patio off the rear of the new home, and is therefore requesting an 8.77-foot variance from the wetland protection offset. And, (C) The petitioner seeks an offset of 10.18-feet from the delineated wetlands to permit the construction of a new deck off the rear of the new home, and is therefore requesting a 4.82-foot variance from the wetland protection offset. DISCUSSION (A) The petitioner has stated that changing the design of the home would change the entire structure of the home and they believe that this would not look as architecturally appealing. The petitioner has also stated that altering the home could be expensive due to redesigns, it wouldn’t meet their personal preferences, and would make the home narrower. They have stated that they do not want a two-story home and they do not want the rooms made smaller. Please read the petitioners submittal paperwork for more details on their request. 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 for this request. When a new home is being constructed is should be designed to fit with the constraints of the lot and the lots features (i.e. current wetland boundary). Even though the wetlands have changed, a home can still be designed to fit on the lot. There are much smaller, narrower, and/or shallower lots in the City that have homes built on them without a variance. There are the options of designing a two-story home, since they consume a smaller footprint typically or to alter or design the current plan of the ranch home to jog outside of the wetland offset. For example, if the 2-foot rear bump out were bumped inward 3 feet from its current location (1 foot in from the rest of the rear of the home) then it appears that the home would fit without any variance. The reasons for not altering the home design appear to be self-imposed and/or financial based. These do not appear to be hardships related to the property, but rather circumstances and/or preferences of the owner. (B) The petitioner has stated that they would like a permeable paver patio off of the rear of the home from their exposed basement to access the back yard. They have stated they reduced the size to 6 feet to Appeal # 01-2013 ZBA 06-27-2013 Page 3 of 4 lead to the side yard to a possible future sitting area outside of the wetland offset. Their stated reasoning for this request is so that they can enjoy the backyard. 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 for this request. Since staff did not find a hardship that applied to the home variance, then that lack of hardship transfers to the patio. One possible option could be that the home could be altered to accommodate the placement of a patio. There is also no code requirement that requires the placement of a patio. Additional, if there would be any type of patio considered, the board may only grant “the minimum variance needed”. (C) The petitioner has stated that they would like a deck for access out their rear patio doors to lead to a side deck (that would be located outside of the wetland protection offset). 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 for this request. Since staff did not find a hardship that applied to the home variance, then that lack of hardship transfers to the deck too. One possible option could be that the home could be altered to accommodate the placement of a deck. There is already access to the side deck through a door on the other side of the kitchen. This means that the requested rear access deck would not be required due to existing access being provided to the side deck. Additionally, the submitted house plans do not show any patio doors on the main level along the rear of the home. The plans just show windows along the rear of the home. There is no code requirement that requires the placement of a deck or patio doors along the main level along on the rear elevation of the home. 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 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. 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 STAFF REPRESENITIVE RESPECTFULLY REQUESTS: Denial of Appeal 01-2013 (A) - Allowing the construction of a new home with a 12.45-foot wetland protection offset, a 2.55-foot variance; citing that the variance does not preserve the intent of the Zoning Ordinance because this is new construction and there are not exceptional conditions applying to the parcel that do not apply to other properties, especially since slight alterations could be made to the design of the home to make it comply with code requirements. A non-self- imposed hardship is not found for the appeal. The Zoning Board Handbook states that lack of objection from neighbors, circumstances of the applicant (wanting a certain design of a home), and financial hardship are not legal grounds for granting a variance according the extensive zoning case law that have been determined by the Courts. Denial of Appeal 01-2013 (B) - Allowing the construction of a permeable paver patio with a 6.23- foot wetland protection offset, a 8.77-foot variance; citing that the variance does not preserve the intent of the Zoning Ordinance because this is new construction and there are not exceptional conditions applying to the parcel that do not apply to other properties. A non-self-imposed hardship is not found for the appeal. The home design could be altered to accommodate the patio placement and there are no code requirement that requires the installation of a patio. Denial of Appeal 01-2013 (C) - Allowing the construction of a rear deck with a 10.18-foot wetland protection offset, a 4.82-foot variance; citing that the variance does not preserve the intent of the Appeal # 01-2013 ZBA 06-27-2013 Page 4 of 4 Zoning Ordinance because this is new construction and there are not exceptional conditions applying to the parcel that do not apply to other properties. A non-self-imposed hardship is not found for the appeal. The home design could be altered to accommodate the deck placement and there are no code requirements that require the installation of a deck in this location. There also is already access to the side deck planned via a door in the kitchen and the submitted building plans for the building permit do not show patio doors out of the back of the home, but instead they show windows along the back of the home. K R A M E R CT STONEBRIDGE W A Y K R A M E R CT STONEBRIDGE W A Y Appeal #01-2013 Petitioner: 2258.065Brian BuckVacant Lot - Lot 36Stonebridge Subdivision Prepared by City of Muskego Planning Department 6/21/2013 Scale: L O O M I S R D COLLEGE DU R H A M NORTH CAPE J A N E S V I L L E RACINE AVE W O O D S R D ¯ Area of Interest 0 200 400100 Feet Supplemental Map L E G E N D Right-of-way Property Agen da Ite m(s) Structure CITY OF MUSKEGO ZONING BOARD OF APPEALS MINUTES unapproved January 16, 2013 6:00 PM Muskego City Hall, Muskego Room, W182 S8200 Racine Avenue CALL TO ORDER Meeting was called to order at 6:00 P.M. Those in attendance recited the Pledge of Allegiance. PRESENT: Mr. Jeremy Bartlett, Dr. Barbara Blumenfield (Chairman), Henry Schneiker (Vice Chairman) Dr. Russell Kashian, and Mr. William LeDoux and Planner Adam Trzebiatowski. ABSENT: Mr. Aaron Robertson and Mr. Richard Ristow. STATEMENT OF PUBLIC NOTICE: The secretary stated the meeting was noticed on January 11, 2013 in accordance with open meeting laws. OLD BUSINESS Chairman Barbara Blumenfield read the appeal notice as follows: 1. APPEAL #03-2012 Petitioner: Theodore E. Schwulst Property: S74 W17634 Lake Drive / Tax Key No. 2193.127 REQUESTING: Under the direction of Chapter 17 Zoning Ordinance: Section 3.02 Zoning Board of Appeals, 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. A setback of 25-feet is required from the right-of-way (front lot line) of Lake Drive on the above mentioned lot. The petitioner seeks a setback of 7.87-feet from the right-of-way (front lot line) of Lake Drive for a detached garage, and is therefore requesting a 17.13-foot variance from the right-of-way (front lot line) setback. Vice Chairman Schneiker made a motion to bring tabled appeal #03-2012 back to the floor for consideration. Mr. Bartlett seconded, motion carried unanimously. All board members stated they read the minutes from the last meeting. Vice Chairman Schneiker swore in the following: Adam Trzebiatowski – City Staff Theodore E. Schwulst – Petitioner Mel Schwulst – S74W17648 Lake Drive Brian Cook – W180 S6663 Muskego Drive ZBA Minutes 1/16/2013 Page 2 Paul DeAngelis – S68 W18053 Island Drive and S74 W17622 Lake Drive Ald. Eileen Madden Mr. Trzebiatowski explained at the end of the last meeting the Board considered having the petitioner relocate the garage but needed more information relating to the location of the sewer lateral and clean out. The new survey shows if the garage were shifted 6 feet from the side lot line and 5 feet from the home, the sewer clean out and lateral will not be located under the garage. This would leave a front setback of 13.4 feet, which then requires a variance of 11.6 feet. Mr. Trzebiatowski added that based upon the newly submitted information staff recommendation remains the same of denial of appeal 03-2012 citing the least varaiance possible was not pursued. However, the City would be receptive to the placement of the garage 5 feet from the house and a front setback of 13.4 feet with the least possible variance of 11.6 feet from the front right of way/Lake Drive. The petitioner, Mr. Schwulst, was present and distributed pictures taken of the garage with cars parked behind it. He stated there is enough room to park a car between the garage and the road. Mr. Schwulst also noted that 4 of the 7 houses on Lake Drive do not have the proper setbacks for the garages. Mr. Schwulst explained if he moved the garage it would be very close to the sewer lateral and could possibly cause damage to the lateral. If the lateral ever broke it would be hard to get equipment in to fix it. Also, if the garage were moved it would block his daughter’s bedroom window from getting natural sun light. Mr. Schwulst added that he was considering fencing in the area between the garage and house for the children his wife babysits to play safely. Mr. Schwulst stated the hardship is a need for a garage for storage. The following people then spoke: Brian Cook There is nonconformity around the lake The least variance possible still requires a variance In 1998 a variance was granted for a garage that was not the least variance possible Built beautiful garage Not blocking daughter’s window for natural sunlight Paul DeAngelis Jr. No problem with location Other neighbors are closer to the road Mel Schwulst Would like it to stay where it is If it had to move it would be closer to his house and would crowded Would have less view out of his kitchen and dinette windows With no other comments or questions Chairman Blumenfield closed the public comment and the Board went into deliberations. DELIBERATIONS ZBA Minutes 1/16/2013 Page 3 Appeal #03-2012 – Mr. LeDoux made a motion to approve Appeal #03-2012 as submitted. Dr. Kashian seconded. Mr. LeDoux explained he is in favor of the variance because a variance will be necessary even if the garage is moved. Also, if the garage were attached it would block a window from natural sunlight. Mr. LeDoux added it is also good to have more room between the house and garage in case of a garage fire. Dr. Kashian was also in favor of granting the appeal stating the parameters are reasonable and he has no problem with the petitioner having a garage. Mr. Bartlett explained because of the location of the sewer lateral he is in favor of granting the appeal. Vice Chairman Schneiker stated if the garage were moved 5 feet or 2 feet it would still be nonconforming and feels there is a valid hardship of needing room for storage. Chairman Blumenfield explained the lots along the lake are unique and the City tries to work with property owners to come to a resolution that still satisfies State Law. Extenuating circumstances do exist with the location of the sewer lateral. If the garage were moved closer to the lateral and it ruptured it would be hard to make repairs. Mr. LeDoux made motion to amend his motion to include a one month deadline to apply for building permits and 6 months to have inspections completed or citations will be issued. Dr. Kashian seconded. Upon a roll call vote, Appeal #03-2012 was approved unanimously. NEW BUSINESS: None. APPROVAL OF THE MINUTES: Mr. Bartlett moved to approve the minutes of December 6, 2012. Vice Chairman Schneiker seconded. Upon a voice vote, minutes were approved unanimously. MISCELLANEOUS ADJOURNMENT: With no further business to come before this Board, Dr. Kashian moved to adjourn. Mr. LeDoux seconded. Upon voice vote, meeting adjourned at 6:30 PM. Respectfully Submitted, Kellie McMullen Recording Secretary