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Zoning Board of Appeals Packet - 8/24/2017 CITY OF MUSKEGO ZONING BOARD OF APPEALS AGENDA August 24, 2017 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 # 04-2017 Petitioner: Gerald S. Boisits on behalf of Dennis Herdeman Property: S74 W21052 Field Drive / Tax Key No. 2185.996 REQUESTING: Under the direction of Chapter 17 Zoning Ordinance: Section 3.08(1) Appeal Provisions, Petitioner seeks the following variances: Chapter 17 - Zoning Ordinance: Section 15.05 – Accessory Uses and Structures (3) B. Area: Subject to the open space requirements of the zoning district, the total square footage of all accessory structures subject to this Section are permitted as follows: Square Footage Permitted for Large Parcels: Parcel sizes in excess of 40,000 square feet are allowed a maximum total floor area of all accessory structures to not exceed two percent (2%) of the total parcel area. A maximum total accessory structure size limit of 3,495 square feet is allowed on the above mentioned lot, with a proposed land transfer/lot line adjustment. The petitioner seeks a total accessory structure size limit of 4,573 square feet to be allowed to keep some unpermitted accessory structures at their current size, and is therefore requesting a 1,078 square foot variance from the allowed maximum total accessory structure size limit. AND 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 side offset of 40-feet is typically required from the west lot line on the above mentioned lot but a variance was previously granted allowing this garage to be located 29-feet from the west lot line. The petitioner now seeks an offset of 25.6-feet from the west lot line to be allowed to keep an unpermitted garage addition, and is therefore requesting a 14.4-foot variance from the required west lot line offset. CLOSED SESSION OPEN SESSION APPROVAL OF THE MINUTES FROM MAY 25, 2017 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 # 04-2017 ZBA 8-24-2017 Page 1 of 3 City of Muskego City Representative Brief Zoning Board of Appeals Supplement 04-2017 For the meeting of: August 24, 2017 REQUESTING: Appeal #1 - Under the direction of Chapter 17 - Zoning Ordinance: Section 15.05 – Accessory Uses and Structures (3) B. Area: Subject to the open space requirements of the zoning district, the total square footage of all accessory structures subject to this Section are permitted as follows: Square Footage Permitted for Large Parcels: Parcel sizes in excess of 40,000 square feet are allowed a maximum total floor area of all accessory structures to not exceed two percent (2%) of the total parcel area. AND Appeal #2 - 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: Gerald S. Boisits on behalf of Dennis Herdeman LOCATION: S74 W21052 Field Drive / Tax Key No. 2185.996 CITY’S POSITION PRESENTED BY: Adam Trzebiatowski AICP, City Representative BACKGROUND The property owner has three existing accessory structures on their property. Two of the buildings had permits issued but unpermitted additions were added to the buildings and the third building was built without a permit. The first of the two permitted accessory structures was built as originally approved but an enclosed lean-to was added onto the structure at some point without permits being issued. This addition added about 507 square footage to the building and the addition was placed closer to the side lot line than the Zoning Code allows and closer than a past variance allowed. The second of the two permitted accessory structures was built at a size that was larger than the City approved. These two buildings, as they exist today, exceed the allowed accessory structure limit without even accounting for the third unpermitted structure that was recently built. The accessory structures are sized as follows: 1. Accessory structure near house – 2,466 SF 2. Accessory structure in the back of the lot – 1,960 SF 3. Accessory structure near pool – 147 SF TOTAL SIZE – 4,573 SF The current property is about 161,229 SF (3.7 acres) in area. 2% of a lot can be allowed for accessory structure(s). Based on this lot size, the lot is allowed 3,224 SF for accessory structures. The current structures are over this limit by 1,349 SF. The property owner has stated that as part of their variance Appeal # 04-2017 ZBA 8-24-2017 Page 2 of 3 request that they are willing to add a portion of an adjacent lot that they own to this lot to allow more square footage on the lot in question. The newly proposed lot size would be 174,754 SF (4 acres), which then allows 3,495 SF for accessory structure(s). Based on the information noted above the petitioner is seeking the following variances: Appeal #1 – An exception to the required maximum accessory structure size limit to be able to keep unpermitted accessory structures at their existing size(s). A maximum total accessory structure size limit of 3,495 square feet is allowed on the above mentioned lot, with a proposed land transfer/lot line adjustment. The petitioner seeks a total accessory structure size limit of 4,573 square feet to be allowed to keep some unpermitted accessory structures at their current size, and is therefore requesting a 1,078 square foot variance from the allowed maximum total accessory structure size limit. Appeal #2 – An exception to the required side offset from the west side lot line to be able to keep an unpermitted accessory structure in its existing unpermitted location. A side offset of 40-feet is typically required from the west lot line on the above mentioned lot but a variance was previously granted allowing this garage to be located 29-feet from the west lot line. The petitioner now seeks an offset of 25.6-feet from the west lot line to be allowed to keep an unpermitted garage addition, and is therefore requesting a 14.4-foot variance from the required west lot line offset. DISCUSSION The main things to note in this case are that there were two additions and a full building built without permits. The choice of the owner to expand these buildings, and build a new building, without permits is self-imposed. Also, the owner “needing” more accessory structure space is strictly a circumstance of the applicant. Furthermore, claiming hardship just because construction already started or was finish ed without permits is not valid. “Self-imposed hardships” and “circumstances of the applicant” are not grounds for granting a variance per the Zoning Board Handbook. If the owner would have discussed these possible additions beforehand with the City and/or pulled permits these overages could have been avoided when the City would have advised the owner of the limits. The owner clearly showed that he was aware of permitting requirements in general by applying for permits for the first two buildings, before their sizes were modified. In considering alternatives, the owner has stated that if the board does not grant the size variance requested he would reluctantly combine both full parcels into one large lot, which would then be large enough to support the accessory structures as they exist today. Since there is this valid option/alternative that does not require a variance, the board should have the owner proceed down that path. This is a simple solution that alleviates the need for a variance relating to size. Also, it was discussed that it would be a financial burden to remove or alter the buildings and/or also a financial burden to combine the two lots to create one big lot. Financial burdens are not grounds for granting a variance and they are situations of the owner, which are also not grounds for granting a variance. As such this should not be considered as a hardship per zoning case law. Lastly, zoning case law states that lack of objections from neighbors does not provide grounds for granting a variance. Please see the applicant’s full submittal for full details on their request. 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 Appeal # 04-2017 ZBA 8-24-2017 Page 3 of 3 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 04-2017 - #1 as proposed, allowing the accessory structures to remain at a total size of 4,573 SF, a 1,078 SF variance from the allowed maximum limit of 3,495 SF, citing that there are no hardships found that are not self -imposed, circumstances of the applicant, or financial based. There are options to solve the size issue such as removing/altering the non-compliant structures and/or combining the two lots owned by the owner. Denial of Appeal 04-2017 - #2 as proposed, allowing a detached garage with a 25.6-foot offset, a 14.4-foot variance from the side line, citing that the previously granted variance allowing an offset of 29 feet showed that that was the least variance necessary for t he construction of an accessory structure on this property. Once that variance was granted and the original building was built at the allowed size, it was then established that no further variances were necessary. The City of Muskego Attorney, Jeff Warchol, has reviewed this document and this case with City staff and concurs with the facts and recommendations listed in this supplement. NOTE 1: Regardless of the outcome of this case, permits are needed for any razing’s, additions, new building, and/or alterations, along with the applicable inspections to ensure compliance with the codes. If any structures are allowed to remain, triple permit fees may also be assessed since work was done without permits, per City policy. NOTE 2: With any possible outcome from this variance request, a time frame needs to be established to ensure compliance with the proper codes. As such, staff recommends a thirty (30) day time limit to alter or remove the buildings or to combine the two full lots if the variance is not granted. If the variance is granted, then permits must be applied for and inspected within the same time frame. MUSK EG Othe Ci ty of Ar ea o f Inte restI0220440 Fee t Ag en da Item(s) Pr op er tie s Zon in g D istr ic ts Rig ht -o f-Way Hy dr og rap hy Supp lem ental MapAppeal #0 4-2 017 De nnis He rd ema nS74 W 210 52 F ield D rive 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 LL EG E Pre p ar ed b y C ity o f Mu ske g o P la n n in g D e p ar tm e nt Da te : 8 /1 8/2 0 17 Unapproved CITY OF MUSKEGO ZONING BOARD OF APPEALS MINUTES May 25, 2017 6:00 PM Muskego City Hall, Muskego Room, 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: Chairman Blumenfield, Vice Chairman Schneiker, Mr. Robertson, Mr. Le Doux, Mr. Ristow and Mr. Petfalski. Excused: Dr. Kashian 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 # 03-2017 Petitioner: Lawrence William Wiesner Property: S76 W18264 Janesville Road / Tax Key No. 2195.989 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 5.08(2) – Only One Principal Residence Building on a Lot (2) Except as specifically otherwise provided herein for attached single family dwellings, apartment, farms, or planned development projects only one principal residence building shall be permitted on a lot, provided however that the Board of Appeals may grant an exception to permit more than one principal building on a lot where such grant would not be contrary to the spirit or intent of the Ordinance or to the regulations applicable to the specific district, and provided that a sufficient lot area is provided and the buildings so located as to permit individual compliance in the case of future division with the lot size, density, building location, and open space requirements of the district in which located. There are currently two single-family homes on this property which were granted a variance in 2015 to deem them both as conforming uses so that future improvements could have possibly occurred to the existing home(s). The owner would now like to remove one of the homes and re-built it, which would require a variance to possibly be allowed two-homes on the lot, one an existing home and one a new home. Mr. Schneiker swore in the following: Lawrence William Wiesner, S76 W18264 Janesville Road Maria Wiesner, S76 W18264 Janesville Road Jeff Trendel, S77 W18300 Janesville Road Adam Trzebiatowski, Lead Planner City of Muskego Mr. Wiesner explained a couple years ago a variance was granted for this property to do repairs to the home. Once Mr. Wiesner moved into the home and began work on the home it was discovered there was a lot more work to be done than initially budged for. This appeal is to raze the home and rebuild on the property with another existing home. There is a provision within the code to allow a second home on a lot with the Board approval. Mr. Wiesner stated the homes would only be for the family’s use and would not be rented for income purposes. Mr. Wiesner stated an approval would not be contrary to the spirit or intent of the ordinance according to the code: high land value, lake shore nuisance, adverse effect on property value, pollution of lake, overuse. This will be used as personal property and the use will not change. Mr. Wiesner explained there is no stated hardship because one is not needed for this type of appeal. Dr. Blumenfield questioned why they do not want to divide the property. Mr. Wiesner explained being the sole owner he does not see it necessary due to where they want the house to be located and because of family history with the property. He stated he would like to keep everything as is as much as possible. Mr. Scheniker stated the properties can be divided and then an appeal would not be needed and Mr. Wiesner could be owner of both properties for as long as he wants to, the way it should be. Mr. Wiesner explained the code allows two homes if it can be proven the second home can be subdivided off. Maria Wiesner, Lawrence William Wiesner's mother, stated she has lived at S76 W18264 and S76 W18282 Janesville Road, both homes on the property. Generations of Wiesners have lived in both of these houses. The family has protected the land for 100 years. Three generations of Wiesners have lived in these houses. Mrs. Wiesner explained they have gone to great lengths to own/pay for the property. The homes have never been rented out and have never been transferred out of the family. Jeff Trendel, direct neighbor to the Wiesner property, stated the Wiesners are trying to improve the property and he has no objection. Mr. Trzebiatowski explained this is the first time this has been requested and this property may be the only property on the lake with division potential. Mr. Trzebiatowski explained the City Attorney’s opinion was requested for this appeal and the City Attorney explained in the supplement that the code is vague and doesn't feel this request is contrary to the code. Mr. Trzebiatowski clarified that the City isn't requiring the property to be divided but it is an option. Mr. Trzebiatowski noted if the appeal were approved the property cannot be rented separately. Also due to problems with water in basements a new requirement is now in place to help identify ground water issues before a home is built. The city requires the lowest floor be located two feet above any ground water. A ground water test must be done or the elevation of the lake could be used. Deliberations: Mr. Le Doux made a motion to approve Appeal #03-2017 as submitted with this approval being contingent upon the homes never being rented seperately and never being occupied by residents that are not related to the owners of the other home through blood, marriage, or adoption. Mr. Ristow seconded. Mr. Schneiker stated the original variance was granted because there were two houses already existing. There are other options such as dividing the property or take the home down to the footings and rebuild to make it more conforming. Dr. Blumenfield explained this is a totally unique situation. Mr. Le Doux noted they can split this property at any time in the future but what they are requesting at this time seems very appropriate. Mr. Petfalski and Mr. Robertson agreed there is no rush to divide this property today. Upon a roll call vote, Appeal #03-2017 is approved 4-1, with Mr. Schneiker voting no. CLOSED SESSION OPEN SESSION APPROVAL OF THE MINUTES FROM FEBRUARY 23, 2017 Aaron Robertson made a motion to approve the minutes of February 23, 2017. Butch LeDoux seconded. Motion Passed 6 in favor. MISCELLANEOUS BUSINESS ADJOURN Butch LeDoux made a motion to adjourn at 7:05 PM. Aaron Robertson seconded. Motion Passed 6 in favor. Respectfully submitted, Kellie McMullen, Recording Secretary