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Zoning Board of Appeals Packet - 8/29/2013 CITY OF MUSKEGO ZONING BOARD OF APPEALS AGENDA August 29, 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 NEW BUSINESS 1. 1. APPEAL #02-2013 Petitioner: Arthur J. Takishian Property: W190 S7522 Richdorf Drive / Tax Key No. 2189.232 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. An offset of 10-feet is required from one of the side lot lines on the above mentioned lot. The petitioner seeks an offset of 3-feet from the side (southeastern) lot line for the placement of an accessory structure, and is therefore requesting a 7-foot variance from the required side offset. CLOSED SESSION OPEN SESSION APPROVAL OF THE MINUTES FROM JUNE 27, 2013. Generated by PDFKit.NET Evaluation Click here to unlock PDFKit.NET 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) 679-4100. Generated by PDFKit.NET Evaluation Click here to unlock PDFKit.NET Appeal # 02-2013 ZBA 8-29-2013 Page 1 of 3 City of Muskego City Representative Brief Zoning Board of Appeals Supplement 02-2013 For the meeting of: August 29, 2013 REQUESTING: 1. Under the direction of 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. APPELLANT: Arthur J. Takishian LOCATION: W190 S7522 Richdorf Drive / Tax Key No. 2189.232 CITY’S POSITION PRESENTED BY: Adam Trzebiatowski AICP, City Representative BACKGROUND The petitioner recently built an accessory structure on their property without a permit. The new accessory structure is 16.6’ x 10.6’ in size (176 SF). The owner stated there was an older accessory structure on the property, but the City’s records do not show any record of that or permits for any previous accessory structures. Since no permits were submitted for the construction of the new accessory structure, the accessory structure was not placed in a location that meets the Zoning Code requirements. As such, the petitioner is requesting a variance to be allowed to keep the new accessory structure on the property. It currently is located 0.9’ over the lot line, onto the neighbor’s lot (see Exhibit C attached). The petitioner’s variance request is to be able to relocate the accessory structure 3 feet away from the side lot line (see Exhibit A attached). The lot currently contains a home and the accessory structure in question. The parcel is zoned RL-2, Lakeshore Residence District. The property is located on Richdorf Drive along the west shore of Little Muskego Lake. The petitioner is seeking the following variance: An exception to the required offset from side lot line for allowance of an accessory structure. An offset of 10-feet is required from one of the side lot lines on the above mentioned lot. The petitioner seeks an offset of 3-feet from the side (southeastern) lot line for the placement of an accessory structure, and is therefore requesting a 7-foot variance from the required side offset. DISCUSSION As noted above, the accessory structure in question was constructed without a permit. Given the situation at hand, the Board should look at this as if the accessory structure has not yet been built, as no legal permit has ever been issued for it, or for any shed in the past. The petitioner stated that the former accessory structure, which was not legally placed (since it never had a permit either), was destroyed in 2010 by a storm. Since we do not have any records of the old shed we do not know its location but the owner has stated that it was located near where the accessory structure is Generated by PDFKit.NET Evaluation Click here to unlock PDFKit.NET Appeal # 02-2013 ZBA 8-29-2013 Page 2 of 3 today, which is over the neighbors lot line. The owner has stated that the neighbor “ok’d” the placement of the new accessory structure, but that does not waive any legal Zoning Code requirements or the need to get a permit from the City. There is Zoning Case Law that states that lack of objection from neighbors does not constitute grounds for a variance. The existing home contains a two-car attached garage. There are many properties in the City with a 2-car attached garage that do not have an accessory structure on the lot. The existing basement in the home and the 2-car garage provide areas for storage. The City’s codes though do allow an accessory structure, as long as they meet the code requirements. Since this accessory structure was put up without looking into any code requirements and without permits, the owner created a self -imposed hardship, not a hardship that is unique to the lot, which is not grounds for a variance. The owner has stated that the cost to remove and replace the accessory structure slab is cost-prohibitive. Zoning Case Law states that financial hardships cannot be grounds for granting a variance, so that cannot be figured into this case. Plus, the owner is already offering to relocate the shed to be located 3 feet onto the property, which will still require the removal of part of the existing slab and an expansion of the existing slab. Relating to the proposed location, with a 3-foot offset from the side lot line, this is not the least variance possible. Zoning Law states that the board may only grant the minimum variance needed. For this lot the setback and offsets are as follows:  Front (street side) – 25’  1 side – 10’  Other side – 13.3’  Ordinary High Water Mark (lake side) – 50’ The petitioner has stated that in his eyes the shed cannot be located anywhere else on the lot due to existing mature trees, the existing driveway location, the street and lake offsets, existing well cap location, and a lot line dispute along the northern lot line. Staff has reviewed these items and while these items are truly features of the lot, you can see based on the setback/offset lines drawn on Exhibit B that there is plenty of area outside of the setback/offsets that the shed could be located too. The red lines drawn on this exhibit indicate the proper setback/offsets. There is a 5 foot separation requirement (zoning requirement) between any two structures (i.e. house and accessory structure). Even with that being applicable, there is still plenty of other space on this lot for an accessory structure. If any variance was to be granted for something on this lot, a variance to the 5-foot structure separation should be more acceptable than the proposed variance as it has no impact on neighboring properties and only an impact to the owners own home. The Building Code would allow this, if certain building code requirements would be followed. Note: There are still options that do not require any variance at all. Relating to the topic of the lot line dispute between the petitioner and the lot owner to the north, while there is a pending court case along the northern lot line, the disputed lot line would not make the petitioners lot any smaller. If the petitioner was to prevail in the court case it would make the lot even larger, which could leave even more space for the placement of the shed. As such, this should not affect the decision of the variance request at hand. Whether the board grants the variance as proposed (with a 3-foot offset) or requires the accessory structure to be relocated to a conforming or more conforming location on the lot, the City recommends that a deadline be established as part of the formal decision of the board to ensure that the proper permits and alterations (if applicable) get done in a timely manner. The City would recommend a deadline of two months from the date of the decision to submit and receive the required permits and to complete any required alterations. Please note that since no inspections have been done at this point, we have no idea if the building meets any building codes. All building code requirements must still be met. Generated by PDFKit.NET Evaluation Click here to unlock PDFKit.NET Appeal # 02-2013 ZBA 8-29-2013 Page 3 of 3 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 constructing the accessory structure without a permit and just not wanting the accessory structure in a certain location. There are specific cases relating to an owner starting construction without a permit and how that is not a hardship. 2. Zoning Case Law states that “financial hardships” do not justify granting a variance. This included the costs to alter or remove something. 3. Zoning Case Law states that “nearby violations”, even if similar to the request at hand, are not grounds for granting a variance. 4. Zoning Case Law states that “lack of objections from neighbors does not provide grounds for granting a variance.” 5. 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 are other options that do not require any variance at all. 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. BASED UPON THE FOREGOING, THE CITY RESPECTFULLY REQUESTS: Denial of Appeal 02-2013, allowing an accessory structure with a 3-foot offset, a 7-foot variance from the side lot line; citing that there are other locations on the lot where the accessory structure can be built without a variance. The hardships stated are self-imposed/self-created, financial based, and not unique to this property. There are other non-variance options on this lot for the placement of an accessory structure. 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Those in attendance recited the Pledge of Allegiance. PRESENT: Dr. Barbara Blumenfield (Chairman), Henry Schneiker (Vice Chairman) Dr. Russell Kashian, Mr. Richard Ristow, Mr. Aaron Robertson, Mr. Blaise Di Pronio and Planner Adam Trzebiatowski. ABSENT: Mr. William LeDoux STATEMENT OF PUBLIC NOTICE: The secretary stated the meeting was noticed on June 21, 2013 in accordance with open meeting laws. OLD 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) – W etland 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 Generated by PDFKit.NET Evaluation Click here to unlock PDFKit.NET ZBA 6/27/2013 Page 2 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, 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. Vice Chairman Schneiker swore in the following: Adam Trzebiatowski – City Staff Brian and Marilyn Buck – Petitioners Mr. Trzebiatowski gave a brief history of how the 15 foot wetland setback was established in 2009. Mr. Trzebiatowski noted that structures and hard surfaces are not allowed within the 15’ wetland setback. Mr. Trzebiatowski further explained a new home was planned for the vacant lot in the Stonebridge Subdivision. An original wetland delineation was done in 2000 when the subdivision was developed. Wetland delineations are only valid for 5 years, per the DNR requirements, and due to that they were re-delineated this spring and it was found that they expanded. The petitioner, Brian Buck, explained he purchased the lot and new home plans designed for this lot in January 2013. There were no issues at the time of purchase. Mr. Buck stated he talked to the City to make sure the house would fit and everything was fine. Mr. Buck added that he feels the lot was poorly graded when the subdivision was developed which caused the wetlands to encroach. Mr. Buck stated his hardship is having to redesign the house so narrow it will not fit in with the high end neighborhood. Having a house with the flat back would look institutional and would have no character. Marilyn Buck, petitioner, stated the hardship is having to design a home that would be 30 feet wide and fit with the slope of the lot and the wetlands. The original design fit the lot when the wetland setbacks were only 10 feet. Mr. Di Pronio questioned when the petitioner bought the lot. Mr. Buck stated January 14, 2013. Dr. Blumenfield questioned if Mr. Buck tried to find a different house for this lot. Mr. Buck stated if he searched the internet he could probably find one, but this one doesn’t fit by only 18 inches. Dr. Blumenfield questioned if he was concerned that in the future the house may sink. Mr. Buck stated he did the engineering and that would not be the case. Mrs. Buck added the Generated by PDFKit.NET Evaluation Click here to unlock PDFKit.NET ZBA 6/27/2013 Page 3 soil tests came back with no issues. Mr. Trzebiatowski gave the City’s opinion based on the Zoning Code. Mr. Trzebiatowski stated the following three variances are being requested: A. House Location – The location of the house will require a 2.55 foot variance from the wetland protection offset. Staff did not find a valid hardship. This is new construction and the house could be designed to fit the lot such as a two story or a narrower footprint. Mr. Trzebiatowski added the plans had not received city approval. When Mr. Buck stopped in with the plans it appeared the plan would work. When the formal review was done after permits were applied for, it was found there was an issue with the wetland setback. With certainty Mr. Trzebiatowski stated he knew the offset was 15 feet from the wetlands since 2009. B. Patio – 8.77 foot variance from the wetland protection offset. Staff did not find a valid hardship. While a patio is desirable, the code does not require one to be allowed. C. Deck – 4.82 foot variance from the wetland protection offset. Staff did not find a valid hardship. While only two post holes will be impacting the offset, the perimeter of the deck is what the code looks at. Also, the code does not require a deck or patio door for access. Staff is recommending denial of Appeal #01-2013 A, B, and C; citing a non-self-imposed hardship is not found for the appeal. Dr. Blumenfield questioned if the wetlands could be impacted if approved. Mr. Trzebiatowski stated that could be argued. The city requires the 15 foot offset to ensure protection of the wetlands. Mr. Schneiker questioned if there are subdivision covenants. Mr. Buck stated there are. Mr. Schneiker noted that could be a hardship having to design a house to meet the subdivision requirements. Mr. Trzebiatowski added a house should be designed to meet both the city and subdivision’s requirements. Discussion took place over the process for changing the wetland setback offset in 2009. Dr. Blumenfield questioned if the Bucks were informed of the offset requirements. Mr. Trzebiatowski explained they first came in with the original survey that had a 10 foot offset. When the full permit came in more detail was given to the pond area and the wetlands needed to be re-delineated. At that time also, it was found that the setback offset was incorrect and should be 15 feet. With no other comments or questions Chairman Blumenfield closed public comment and the Board went into deliberations. DELIBERATIONS Appeal #03-2012 – Vice Chairman Schneiker made a motion to approve Appeal #01-2013 as submitted. Mr. Robertson seconded. Mr. Schneiker stated the way the house is laid out there doesn’t seem to be a lot of impact, but Mr. Schneiker added he doesn’t see a valid hardship because the house could be re-designed, Generated by PDFKit.NET Evaluation Click here to unlock PDFKit.NET ZBA 6/27/2013 Page 4 although, the covenants on the property may require a bigger house if it were a two story. Feels the deck is not impacting the area with 2-3 posts or the patio because it is drainable. Mr. Robertson stated he doesn’t see a hardship. The house may be their dream home but there are other options. Mr. Di Pronio explained discretion must be used. Mr. Di Pronio stated he agrees with the principle that there is no proven hardship, but it does not seem to be harmful to the wetland and the petitioner was misled along the way. This should be given some consideration because it is only 2 feet and would not hurt anybody. Dr. Kashian stated this is a hard variance because the changing wetlands rules caught this property in a trap, but there is a failure to prove a hardship. Dr. Kashian further stated that the topography of this property causes issues and if left untreated wetlands will grow larger. Dr. Blumenfield noted there could be hardships being the shape of the lot, the 10-15 foot change in wetland setback requirements in 2009, and being unaware of the water on the back of the lot encroaching. Mr. Ristow explained Mr. Buck did his due diligence and added that the City not telling them about the 15 foot setback when they first came in is a hardship. Dr. Kashian stated the grade issue with a wet spring is a hardship. Upon a roll call vote, Appeal #01-2013 was approved 4-1 with Mr. Robertson abstaining. Dr. Blumenfield noted this decision was reached with a great amount of difficulty and staff’s work on this was not suspect for any reason and the circumstance and the information presented are the grounds the decision was made as done in the past based on the uniqueness of the situation. NEW BUSINESS: None. APPROVAL OF THE MINUTES: Dr. Kashian moved to approve the minutes of January 16, 2013. Vice Chairman Schneiker seconded. Upon a voice vote, minutes were approved unanimously. MISCELLANEOUS None. ADJOURNMENT: With no further business to come before this Board, Dr. Kashian moved to adjourn. Vice Chairman Schneiker seconded. Upon voice vote, meeting adjourned at 7:32 PM. Respectfully Submitted, Kellie McMullen Recording Secretary Generated by PDFKit.NET Evaluation Click here to unlock PDFKit.NET