ZONING BOARD OF APPEALS Packet - 6/28/2018CITY OF MUSKEGO
ZONING BOARD OF APPEALS AGENDA
06/28/2018
6:00 PM
Muskego City Hall, W182 S8200 Racine Avenue
CALL TO ORDER
PLEDGE OF ALLEGIANCE
ROLL CALL
STATEMENT OF PUBLIC NOTICE
NOTICE OF CLOSED SESSION
OLD BUSINESS
NEW BUSINESS
Appeal #03-2018 Petitioner: Michael Larson
Property: S71 W17637 Lake Drive/ Tax Key No. 2193.996
REQUESTING: Under the direction of Chapter 17 Zoning Ordinance: Section 3.08(1)
Appeal Provisions,
Petitioner seeks the following variance:
Chapter 17 - Zonig Ordinance: Section 15.05(9) -Walkways
Walks, drives, paved terraces, mechanical apurtenances for all single-family and two-
family structures (such as air conditioners, venting, and service panels), and purely
decorative garden accessories (such as pools, fountains, statuary, flag poles, ets.),
where subject to "permanent structure" classification shall be permitted in setback and
offset areas but not closer than 3 feet to an abutting property line other than a street
line.
An offset of three (3) feet from the side lot line is required for sidewalks/walkways on the
above mentioned lot. The petitioner seeks an offset of 1.2-feet from the west side lot
line to keep an unapproved sidewalk/walkway, and is therefore requesting a 1.8-foot
variance from the required side offset.
CLOSED SESSION
OPEN SESSION
APPROVAL OF THE MINUTES
Approval of the minutes from the May 24, 2018 meeting.
MISCELLANEOUS BUSINESS
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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.
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Appeal # 03-2018
ZBA 08/02/2018
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City of Muskego
City Representative Brief
Zoning Board of Appeals Supplement 03-2018
For the meeting of: August 2, 2018
REQUESTING:
1. Under the direction of Chapter 17 - Zoning Ordinance: Section 15.05
(9) Walks, drives, paved terraces, mechanical appurtenances for all single-family and two-
family structures (such as air conditioners, venting, and service panels), and purely
decorative garden accessories (such as pools, fountains, statuary, flag poles, etc.), where
subject to “permanent structure” classification shall be permitted in setback and offset
areas but not closer than 3 feet to an abutting property line other than a street line.
APPELLANT: Michael Larson
LOCATION: S71 W17637 Lake Drive / Tax Key No. 2193.996
CITY’S POSITION PRESENTED BY: Adam Trzebiatowski AICP, City Representative
BACKGROUND
In the second half of 2017 the petitioner had a retaining wall and walkway installed along their
northwestern lot line. They also were in the process of having a driveway replaced. The walkway and wall
were installed without a permit and the City become involved, due to complaints, before the new driveway
was poured. The petitioner had a survey done showing the installed location of the walkway and the
retaining wall. That survey showed that the wall was located on the petitioner’s property but it also showed
that the walkway was not installed with a 3-foot offset, as required by code. The walkway that previously
existed was never permitted either so its location was not legal either if it was located in the same location.
The lot currently contains a home and one accessory structure. The parcel is zoned RL-3, Lakeshore
Residence District. The property is located on Lake Drive on Little Muskego Lake.
The petitioner is seeking the following variance:
An exception to the required 3-foot offset from the side lot line for allowance of a non-permitted walkway
along the northwest side of the home.
An offset of three (3) feet from the side lot line is required for sidewalks/walkways on the above
mentioned lot. The petitioner seeks an offset of 1.2-feet from the west side lot line to keep an
unapproved sidewalk/walkway, and is therefore requesting a 1.8-foot variance from the required
side offset.
DISCUSSION
Based upon the information submitted, staff does not see a valid hardship to allow the non-permitted
walkway to remain with a 1.2-foot side offset. A fully functional walkway can exist with the required 3-foot
offset as at least 3.4 feet of walkway would remain. A typical walkway in most applications is 3 feet wide.
Some portions of the walkway will be wider than 3.4 feet, but that is the allowed width at the narrowest
point.
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The owner has stated in their submittals that they believe they need the walkway in this location for the
following reasons:
Need a way to get to the lake side of the home.
Need space to get large objects and elderly people around the house.
The previous walkway was in this area. (Staff note: That previous walkway was not approved by
the City and was placed too close to the lot line).
The walkway helps stabilize the wall.
Contractors never told him he needed a permit.
The applicant has also mentioned that he is and/or may be willing to place a planter on the
walkway to 3 feet from the lot line. He also mentioned that he is and/or may be willing to cut the
concrete walkway to be 3 feet from the lot line, but would keep the stairs for the stability of the
wall.
Relating to the reasons that the applicant has noted in their application and noted above for their request,
here is a summary of the variance standards that are applicable to this case:
1. Zoning Case Law states that “self-imposed hardships” and “circumstances of the applicant” are
not grounds for granting a variance, such as wanting a certain size walkways or location for
convenience. The hardship needs to be the same no matter who lives in the home, regardless of
their entertainment needs or how the family uses the property. A 3-foot wide walkway is very
typical and they would have 3.4 feet and great of walkway width remaining.
2. Zoning Case Law states that “lack of objections from neighbors does not provide grounds for
granting a variance”, if applicable.
3. 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, since there are options that meet the goal of
a walkway to the rear yard without a variance, then there are not grounds for granting said
variance.
4. Zoning Case Law states that “financial hardship” does not justify granting of a variance. The test
is not whether a variance would maximize economic value of a property.
5. Zoning Case Law states that “nearby violations”, if applicable, do not provide grounds for granting
a variance.
6. Per the Zoning Board Handbook (2nd Addition, 2006), using the three-step test which looks at
unnecessary hardship, unique property limitations, and no harm to public interest, the following
can be found:
a. Unnecessary Hardship – Unnecessary hardship exists when compliance would
unreasonably prevent the owner from using the property for the permitted purpose
(leaving the property owners without any use that is permitted for the property) or would
render conformity with such restrictions “unnecessarily burdensome”. In the case of this
request, the proposal is for something that is above and beyond what is needed for
normal use of this house/property. There are other options that can also work without a
variance being needed, such as reducing the walkway width.
b. Unique Property Limitations – Unnecessary hardship must be due to physical limitations
of the property. There are no property limitations to allowing a 3.4-foot walkway which
would still be functional on the lot.
c. No Harm to Public Interest – A variance may not be granted which results in harm to
public interest. There is no harm to the public interest in allowing a 3.4-foot walkway on
the property.
As to the placement of a planter on the walkway, that does not still change the fact that there is a
walkway/sidewalk surface within 3 feet of the lot line. Staff does not feel that meets the intensions on the
Zoning Code. Also, relating to concrete being placed against the base of the wall, proper wall installations
do not require a concrete base against the bottom of it. Typically when retaining walls fails, they usually
fail from the top downward.
Please see the applicant’s full submittal for full details on their request.
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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 03-2018 as proposed, allowing a walkway with a 1.2-foot offset from the side lot
line, a 1.8-foot variance from the northwest side lot line; citing that a walkway with a width of 3.4
feet is very functional, and typical, which would leave 3 feet or greater of side offset, which meets
the code requirements. The hardships stated are self-imposed/self-created, do not consider the
parcel-as-a-whole, and are not the least variance necessary. If a permit would have been issued
before any work was started, as required, then this could have been installed correctly right away.
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MUSKEGOthe City of
Area of InterestI090180
Feet
Agenda Item(s)
Properties
Zoning Districts
Right-of-Way
Hydrography
Supplemental MapAPPEAL #03-2018
MICHAEL LARSON S71 W17637 LAKE DRIVE
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Prepared by City of Muskego Planning Department Date: 6/20/2018
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