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Zoning Board of Appeals Packet - 1/25/2018 CITY OF MUSKEGO ZONING BOARD OF APPEALS AGENDA January 25, 2018 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 # 01-2018 Petitioner: Ener-Con Companies, Inc. Property: S74 W17000 Janesville Road / Tax Key No. 2198.984.014 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 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 10-feet from the right-of-way was required for the construction of the first new apartment building within the Parkland Towne Center development. The petitioner seeks a setback of 8-feet from the right-of-way line to be allowed the existing placement of the first apartment building within the Parkland Towne Center development, and is therefore requesting a 2-foot variance from the required right-of-way setback. CLOSED SESSION OPEN SESSION APPROVAL OF THE MINUTES FROM DECEMBER 13, 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 # 01-2018 ZBA 1-25-2018 Page 1 of 2 City of Muskego City Representative Brief Zoning Board of Appeals Supplement 01-2018 For the meeting of: January 25, 2018 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: Ener-Con Companies, Inc. LOCATION: S74 W17000 Janesville Road / Tax Key No. 2198.984.014 CITY’S POSITION PRESENTED BY: Adam Trzebiatowski AICP, City Representative BACKGROUND In 2017 the petitioner completed construction of the first of three 30-unit apartment buildings within the Parkland Towne Center development. After the first apartment building was completed, the surveyor was working on a Condo Plat and realized that there was a surveying error which resulted in the placement of the building being 8 feet from the lot line, rather than 10 feet from the lot line as required. The surveyor has included a letter explaining how the error occurred and they included a map showing the issue. The letter explains that there was a rotational error in the surveying/CAD and there were also som e bad survey points used. It was stated that the building location is actually the same distance from roadway edge as originally proposed, but due to the survey errors, additional right-of-way was provided which lessened the setback distance that remained. The surveyor has noted that since the time this error was discovered there have been corrections made to other affected lots via plan alterations and completion of Affidavits of Corrections. All site improvements remain in the same location relative to each other. The overall Parkland Towne Center development is zoned PD-50, Parkland Towne Center Planned Development District. The development is located along Janesville Road and Lannon Drive. The Specific apartment building in question faces Lannon Drive. The petitioner is seeking the following variance: An exception to the required setback from the western right-of-way line for the continued allowance of an existing apartment building. A setback of 10-feet from the right-of-way was required for the construction of the first new apartment building within the Parkland Towne Center development. The petitioner seeks a setback of 8-feet from the right-of-way line to be allowed the existing placement of the first apartment building within the Parkland Towne Center development, and is therefore requesting a 2-foot variance from the required right-of-way setback. Appeal # 01-2018 ZBA 1-25-2018 Page 2 of 2 DISCUSSION The request at hand is a very unique request. Based on all of the initial survey work, approved plans and the recertification’s done for the footings and foundations, everything indicated to the City that the building was located properly. As the surveyor explains in their letter, there were surveying errors that occurred that caused this location error. The applicant believes that there are no feasible alternatives to this problem as the only options would involve the physical relocation and/or removal of this already built apartment building. The removal and/or relocation of the building of this size would be unnecessarily burdensome. The petitioner has stated that the hardship for this request is that there was a survey error that was beyond their control that was not discovered until the building was already started. Here is a summary of the variance standards that are applicable to this case: Using the three-step test which looks at unnecessary hardship, unique property limitations, and no harm to public interest, it appears that these items can be met as follows: a. Unnecessary Hardship – Compliance with the code would render conformity unnecessarily burdensome due to the large building already existing. It would not be practical to relocated or remove this building at this point. b. Unique Property Limitations – The overall development was approved as part of an overall master plan. The building is in the same basic location as originally proposed and other site features were installed around the built location of this building. c. No Harm to Public Interest – As of this time the City has not heard any opposition to this request from the public or neighbors. There were some questions about how the survey error occurred, but this was all. It’s stated that the building location is actually the same distance from roadway edge as originally proposed, but due to the survey errors, additional right-of-way was provided which lessened the setback distance that remained. 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 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: Approval of Appeal 01-2018 as proposed, allowing the existing building to remain with an 8-foot setback, a 2-foot variance from the right-of-way line, citing that compliance with the 10-foot setback on this lot at this point (with the building already being completed) is unnecessarily burdensome and creates an unnecessary hardship. With this variance request there would be no harm to public interest as the applicant has stated that the location of the building is physically located the same distance from the roadway edge as shown on the plans, but the right -of-way just shifted towards the building. MUSK EG Othe Ci ty of Ar ea o f Inte restI0280560 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 1-2 018 En er -Con C om pan ies, I nc. W1 71 S74 52 L an no n Dr ive 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 : 1 /1 0/2 0 18 Unapproved CITY OF MUSKEGO ZONING BOARD OF APPEALS MINUTES December 13, 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: Dr. Blumenfield, Mr. Schneiker, Mr. Robertson, and Mr. Le Doux. Excused: Dr. Kashian, Mr. Petfalski, and Mr. 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 NEW BUSINESS 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. Mr. Schneiker swore in the following: Attorney Gerald Boisits, representing Dennis Herdeman Dennis Herdeman, S74 W21052 Field Drive Adam Trzebiatowski, Lead Planner Kurt Fifer, S74 W21140 Field Drive Dr. Blumenfield, Mr. Le Doux, and Mr. Robertson all stated they have no conflict with Attorney Boisits and there will be no impact on objectively hearing this appeal. Attorney Boisits’ explained Mr. Herdeman is requesting a 1,078 square foot variance. Mr. Herdeman made a mistake on building accessory structures over the size limit without building permits. Mr. Herdeman owns a vacant parcel behind his property that he could parcel off a piece of the vacant land but would still need a variance. As a last option he could combine the parcels to resolve the issue with the square footage overage. He would still need a variance for the setback issue. Mr. Fifer stated he is a neighbor and has no problem with this appeal and there is no infringement to his property. Mr. Herdeman explained he was trying to make the property useful and screened the buildings from the neighbors by planting 500 trees. He made a mistake by not taking out permits and realizes that now. Mr. Schneiker questioned why there were no permits taken out when the building was added on to. Mr. Herdeman stated he was busy with work and didn’t think of it. He needed a separate place to store his diesel tractor that he uses for snowplowing closer to the house so he just did the work. Mr. Schnieker noted these reasons are self-imposed, which the board cannot consider. Mr. Schneiker also noted there was already an appeal granted in the past so the process should have been familiar. Dr. Blumenfield questioned what the hardship is. Attorney Boisits stated his inability to walk to the structure with the tractor at the bottom of the hill in winter was a safety issue. He needed a building closer to the house to store the tractor. Mr. Trzebiatowski stated there are two options which the recommendation of denial are based on. The buildings could be altered to attach one building to the house, which would not count against the accessory building square footage requirement. The other option would be to combine the parcel with the vacant parcel. Mr. Trzebiatowski noted size variances have never been granted but location variances have been granted if there is a proper hardship. Deliberations: Mr. Le Doux made a motion to approve Appeal #04-2017 (Part 1 – Size) as submitted. Mr. Robertson seconded. Dr. Blumenfield stated while the buildings and the property look nice, buying a diesel tractor and not taking out the proper permits are self-imposed hardships and doesn’t feel this should be approved. Upon a roll call vote, Appeal #04-2017 (Part 1 - Size) is denied 0-4. Mr. Le Doux made a motion to approve Appeal #04-2017 (Part 2 – Location) as submitted with options to resolve the size issue presented to the City within 60 days and work completed within six months of decision to finish. Mr. Robertson seconded. Upon a roll call vote, Appeal #04-2017 (Part 2 – Location) is approved 3-1 with Dr. Blumenfield voting no. CLOSED SESSION OPEN SESSION APPROVAL OF THE MINUTES FROM Aaron Robertson made a motion to approve of the minutes from September 28, 2017. Henry Schneiker seconded. Motion Passed 4 in favor. MISCELLANEOUS BUSINESS ADJOURN The meeting adjourned at 7:08 PM. Respectfully submitted, Kellie McMullen, Recording Secretary