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Zoning Board of Appeals Packet - 1/23/2014 CITY OF MUSKEGO ZONING BOARD OF APPEALS AGENDA January 23, 2014 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. APPEAL #01-2014 Petitioner: Phoenix of Milwaukee I (Kris Hanrahan) Property: W124 S8220 North Cape Road / Tax Key No. 2209.929 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 40-feet is required from the front lot line (ultimate right-of-way) on the above mentioned lot. The petitioner seeks a setback of 29.21-feet from the front (western) ultimate right-of-way line for the placement of a deck/porch, and is therefore requesting a 10.79-foot variance from the required front setback. CLOSED SESSION OPEN SESSION APPROVAL OF THE MINUTES FROM SEPTEMBER 26, 2013 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. Appeal # 01-2014 ZBA 1-23-2014 Page 1 of 3 City of Muskego City Representative Brief Zoning Board of Appeals Supplement 01-2014 For the meeting of: January 23, 2014 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: Phoenix of Milwaukee I (Kris Hanrahan) LOCATION: W124 S8220 North Cape Road / Tax Key No. 2209.929 CITY’S POSITION PRESENTED BY: Adam Trzebiatowski AICP, City Representative BACKGROUND The petitioner recently built a front deck/porch (about 128 SF in size) on a property that he bought that he was refurbishing. A permit was submitted for this deck/porch but during the permit review there were issues discovered with the distance of the deck/porch from the front base setback line (ultimate right -of- way line). The proposed deck/porch was too close to the base setback line. Due to this the permit review was put on hold and a message was left for the owner stating such. A few month s went by and it came to the City’s attention that even though the deck/porch permit was never approved and was on hold, the deck had been built anyway. As such, the petitioner is now requesting a variance to be allowed to keep the deck/porch as it currently exists. The deck/porch is required to be at least 40 feet back from the ultimate right-of-way line, but it currently is located 29.21’ from the ultimate right-of-way line. The lot currently contains a home and an accessory structure. The parcel is zoned RS-1, Suburban Residence District. The property is located on North Cape Road along Muskego’s eastern municipal boundary. Since this deck was built, the applicant sold the home to new buyers. The petitioner is seeking the following variance: An exception to the required setback from the base setback (ultimate right-of-way) line for allowance of a front deck/porch. A setback of 40-feet is required from the front lot line (ultimate right-of-way) on the above mentioned lot. The petitioner seeks a setback of 29.21-feet from the front (western) ultimate right-of-way line for the placement of a deck/porch, and is therefore requesting a 10.79-foot variance from the required front setback. DISCUSSION As noted above, the deck/porch in question was constructed without a valid permit. The owner knew a permit was needed since they applied for a permit, even though it could not be issued/approved. Given the situation at hand, the Board should look at this as if the deck/porch has not yet been built, as no legal permit has ever been issued for it. Appeal # 01-2014 ZBA 1-23-2014 Page 2 of 3 Based upon old photos, the existing home used to contain just one step out of the front door onto a concrete walkway. At some point this was removed. Now the deck/porch encompasses this area, but the new deck/porch is much larger than the old single step. In talking with the City’s Building Inspector, the current codes do require a 3 foot deep landing (in the direction of travel), but that is all. The current deck/porch is 6 feet deep (6’ x 8’ total size) in front of the front door and an additional 10’ x 8’ area to the north of the 6’ x 8’ area. This means that a significantly smaller deck/porch would have met the code requirements for egress. In any circumstance, some type of variance is/would have been needed due to the building code requirements and the need for ingress/egress in and out of the home. The question then is what is the “least variance possible”? The owner has stated that the reason that they are not pursuing a request for the least variance is due to the deck already being built. That is a “self-imposed hardship” and it is a “circumstances of the applicant”, which are not grounds for a variance per Zoning Case Law (see item #1 below). Whether the board grants the variance as proposed or requires an alteration to the deck/porch, 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 May 1, 2014 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 deck/porch meets any building codes. All building code requirements must still be met. 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 deck/porch without a permit and just not wanting to alter or relocate the deck/porch. There are specific Zoning Law 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 meet the Building Code requirements that do not require such a large variance. This includes a 3 foot deep landing with stairs leading to grade. This option still needs a variance, but the least variance possible. 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 01-2014 as proposed, allowing a deck/porch with a 29.21-foot setback, a 10.79- foot variance from the ultimate right-of-way line; citing that a deck/porch can be built 3 feet deep, which meets the Building Code requirements. The hardships stated are self-imposed/self-created. Since there is a need for ingress/egress to the home through the front door, staff is receptive to the least variance possible for access to this home. That option would be the removal or Appeal # 01-2014 ZBA 1-23-2014 Page 3 of 3 alteration of the existing deck/porch so that the only deck/porch remaining be a 3 foot deep landing, the width of the door, with the necessary stairs to grade. This meets the Zoning Case Law requirements of the least variance possible, while still providing proper access to the front door that meets the Building Code requirements. MUSKE G Othe City of Ar ea o f I nter estI080160 Feet Ag en da I tem(s ) Pr op ertie s Zonin g D istrict s Righ t-of -Way Hy dr ogr ap hy Sup plemen tal MapAppeal 01-201 4 OWN ER : Pho en ix of Milwa uk ee IADDRESS: W 12 4 S82 20 Nor th C ap e Road J A N E S V I L L E L O O M I S R D RA CIN E AV DURHAM W O O D S CO L L EG E Pre p are d by Ci ty o f M u ske g o P la n ni ng D e pa rtm en t Da te : 1 /1 6/2 0 14 Unapproved CITY OF MUSKEGO ZONING BOARD OF APPEALS MINUTES September 26, 2013 6:00 PM Muskego City Hall, Muskego Room, W182 S8200 Racine Avenue CALL TO ORDER The meeting was called to order at 6:00 PM. PLEDGE OF ALLEGIANCE Those present recited the Pledge of Allegiance. ROLL CALL Present: Dr. Barbara Blumenfield (Chairman), Henry Schneiker (Vice Chairman), Mr. Butch LeDoux, Mr. Blaise DiPronio, and Planner Trzebiatowski. Absent: Dr. Russell Kashian, Mr. Aaron Robertson, and Mr. Richard Ristow. STATEMENT OF PUBLIC NOTICE The meeting was noticed in accordance with the open meeting laws. 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 APPEAL #03-2013 Petitioner: Dan Klappa on behlaf of Ross and Edie Pokora Property: S76 W18572 Kingston Drive / Tax Key No. 2195.018 REQUESTING: Under the direction of Chapter 17 Zoning Ordinance: Section 3.08(1) Appeal Provisions, Petitioner seeks the following variance Chapter 17—Zoning Ordinance: Section 6.02 - Non-Conforming Parcels (1) Minimum Required: No building, covered structure, or impervious surface shall be placed, erected, structurally altered or relocated on a lot so as to reduce the usable open area of such lot to less than the minimum required amount as identified by the underlying zoning district or less than 75% of the total lot size The minimum open space allowed on this property is 6,437 square feet (75% of the 8,583 square foot lot). The appellant is proposing to reconstruct a portion of their home and add a small addition, resulting in 69% (5,914 square feet) of the lot area being preserved as open space, and is therefore requesting a 6% (523 square foot) variance to the Code requirement. Vice Chairman Schneiker swore in the following: Adam Trzebiatowski - City Staff Dan Klappa - Contractor Ross Pokora – Petitioner Edie Pokora - Petitioner Mr. Trzebiatowski gave the city's opinion based on the Zoning Code. When the petitioner's purchased this home they stated they were not aware of the numerous issues with this property. One of those being the existing lot layout exceeded the required amount of open space by 1,011 square feet. The owners are proposing to reconstruct an existing sun room into full living space with a basement underneath and add two additional feet to the lake side of the home. The owners are proposing to remove a concrete walkway and a concrete fire pit pad on the lot. This would leave the property approximately 523 square feet over the allowed open space amount, down from the existing 1,011 square feet. This would reclaim approximately 488 square feet of open space. Mr. Trzebiatowski added that the petitioner stated in the submittal that the hardship is based upon the small size of the lot and the past work that has been done on the property over the years that has made it non-compliant with the open space requirements. The hardship is not self-created. These are issues that were existent before they bought the property and are proposing to bring the property closer to compliance with the open space regulations. The proposal meets all setback and offset regulations so it appears there should not be a negative impact to the surrounding properties. The petitioner has included a signed letter from some of the surrounding owners stating they do not object to the proposed project. Staff is recommending approval of appeal 03-2013 allowing an exception to the required 75% open space (6,437 square feet) so that the resulting open space will be 69% (5,914 square feet) of the lot, which is a 6% (523 square feet) variance; citing the unique size of the lot and the existing open space overage that is going to be brought further into compliance as part of the proposed project. The hardship is not self-imposed since the owners are helping bring this existing property further into compliance and since it was purchased this way. The petitioner, Ross Pokora, was present and explained the hardships are the size of the lot and the house being modified before they bought it. Mr. Pokora added with the proposal they will be bringing the property more into compliance. With no further comments or questions, Chairman Blumenfield closed the public comment and the Board went into deliberations. DELIBERATION Mr. DiPronio stated the hardship was not self -created and it is unique to the property, which falls under the Boards definition of a hardship. Mr. DiPronio also stated he has no problem voting in favor of this appeal because the property owner is reclaiming about 500 square feet and will not affect the neighbors. Henry Schneiker made a motion to approve APPEAL #03-2013 as submitted. Blaise Di Pronio seconded. Motion Passed 4 in favor. CLOSED SESSION OPEN SESSION APPROVAL OF THE MINUTES FROM AUGUST 29, 2013. Henry Schneiker made a motion to approve the minutes of August 29, 2013. Butch LeDoux seconded. Motion Passed 4 in favor. MISCELLANEOUS BUSINESS ADJOURN Blaise Di Pronio made a motion to adjourn at 6:16 PM. Dr. Barbara Blumenfield seconded. Motion Passed 4 in favor. Respectfully submitted, Kellie McMullen, Recording Secretary