ZONING BOARD OF APPEALS Packet - 10/29/2019CITY OF MUSKEGO
ZONING BOARD OF APPEALS AGENDA
10/29/2019
6:00 PM
Muskego City Hall, W182 S8200 Racine Avenue
CALL TO ORDER
PLEDGE OF ALLEGIANCE
ROLL CALL
STATEMENT OF PUBLIC NOTICE
APPROVAL OF THE MINUTES
Approval of Minutes of the February 28, 2019 Meeting.
NOTICE OF CLOSED SESSION
OLD BUSINESS
NEW BUSINESS
Appeal #03-2019 Petitioner: Tatianna Hansen
Property: W179 S6765 Muskego Drive / Tax Key No. 2174.922
REQUESTING: Under the direction of Section 400-18 of the Municipal Code (Zoning –
Zoning Board of Appeals), the petitioner seeks the following variance:
Section 400-167 I. -
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, flagpoles, etc.),
where subject to "permanent structure" classification, shall be permitted in setback and
offset areas but not closer than three feet to an abutting property line other than a street
line.
An offset of 3-feet is required from the side lot lines for any driveways and
walkways/sidewalks. The petitioner seeks an offset of 1-foot from the side lot line to be
able to leave a portion of an existing unpermitted walkway, and is therefore requesting a
2-foot variance from the required side offset.
CLOSED SESSION
OPEN SESSION
MISCELLANEOUS BUSINESS
ADJOURN
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NOTICE
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Unapproved
CITY OF MUSKEGO
ZONING BOARD OF APPEALS MINUTES
February 28, 2019
6:00 PM
Muskego City Hall, 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. Le Doux, Mr Ristow and Mr. Robertson,
Mr. Petfalski
Excused: Dr. Kashian.
STATEMENT OF PUBLIC NOTICE
The meeting was noticed in acordance with the open meeting laws.
NOTICE OF CLOSED SESSION
OLD BUSINESS
NEW BUSINESS
Appeal #01-2019 Petitioner: Joe Kazmierczak of Burback Builders on behalf of Lawrence
Radosevich
Property: S70 W19078 Wentland Drive / Tax Key No. 2180.965
REQUESTING: Under the direction of Section 400-18 of the Municipal Code (Zoning – Zoning
Board of Appeals), the petitioner seeks the following variance:
Chapter 400-23 A. – Building Location
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 Wentland Drive right-of-way line. The petitioner seeks a
setback of 38.3 feet from the right-of-way line for a new landing and stairs, and is therefore
requesting a 1.7-foot variance from the required right-of-way setback.
Mr. Schneiker swore in the following:
Joe Kazmierczak, Burback Builders
Adam Trzebiatowski, Planning Manager
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Mr. Schneiker recuses himself as petitioner is a neighbor.
Mr. Kazmierczak explained that currently there are concrete stairs extending straight out from
the home. During permitting the homeowner and contractor learned the existing concrete stairs
are past 40-foot setback and City asked for side entry. Homeowner asked contractor to pursue
variance due to hardship being access to house for furniture, large objects or in the case of an
emergency, a stretcher. Second access is on the side with smaller entrance.
Mr. Trzebiatowski gave the city's opinion based on the zoning code. Mr. Trzebiatowski
explained this issue came about during permit review and reiterated that the City advised a side
entry would meet the Code and not need a variance. There are several other lots similar in the
City. Permits were issued for the side entry. Staff reviewed this application for hardship and
whether self-imposed or a circumstance of applicant, what is the least variance needed and
whether there are options where variance not needed. Staff does not recognize a hardship and
recommends denial.
Dr. Blumenfield questioned Mr. Trzebiatowski as to whether a stretcher, a large piece of
furniture or a walker would fit up the steps if side entry. Mr. Trzebiatowski explained landing
size 36” so a walker would fit and has heard that emergency personnel will get in regardless of
any impediments that may be in the way. Stoop is only two or three steps from the ground so a
stretcher could be lifted over, but cannot speak to the turning radius of stretcher.
Dr. Blumenfield questioned Mr. Kazmierczak about the width of the kitchen door on side. Mr.
Kazierczak said it was a 2’6” door, relatively small door. Opening was previously a door to an
attached garage.
Dr. Blumenfield questioned when home was built. Mr. Kazmierczak responded with 1950’s.
Deliberatons:
Mr. Le Doux made a motion to approve variance for Appeal 01-2019. Mr. Petfalski seconded.
Mr. Petfalski explained for emergency personnel access reasons the Board has allowed a very
similar variance in the past.
Mr. Le Doux explained that safety is an issue and at least one entry should be a straight
entrance into every house. Also, if the homeowner was to raise the grade to a point where
steps were not needed a variance wouldn’t even be needed for a straight entrance.
Dr. Blumenfield explained that per State law, Board has to find a hardship and the board has in
the past granted variances for safety reasons. Upon a roll call vote Appeal 01-2019 was
approved 5-0 with Vice Chairman Schneiker recusing himself.
Appeal #02-2019 Petitioner: Connie & Glenn Byal
Property: S79 W16061 Bay Lane Place / Tax Key No. 2217.989
REQUESTING: Under the direction of Section 386-28 of the Municipal Code (Floodplain Zoning
– Zoning Board of Appeals), the petitioner seeks the following variance:
Chapter 386-21 B. 4. – Nonconforming Uses - Applicability; conditions for continued use
No modification or addition to any nonconforming structure or any structure with a
nonconforming use which over the life of the structure would equal or exceed 50% of its present
equalized assessed value shall be allowed unless the entire structure is permanently changed Page 2 of 7
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to a conforming structure with a conforming use in compliance with the applicable requirements
of this chapter.
The fair market value/equalized value of the non-conforming structure (house) is $77,900 and
the code limits the cost of materials and labor to 50% ($38,950) of the current equalized value
for all alterations and expansions for homes within FEMA mapped floodplain areas until the
property is brought into full compliance with Chapter 386 (Floodplain Zoning Code). The
petitioner requests a labor and material value not to exceed $200,000 or 256% of the present
equalized assessed value. Therefore, the variance request is for a $161,050 over the code
required 50% limit ($38,950) on material and labor costs for alterations and expansions within
FEMA mapped floodplain areas.
Mr. Schneiker swore in the following:
Connie and Glenn Byal, S79 W16061 Bay Lane Place
Michelle Hase, Wisconsin Department of Natural Resources 141 W Barstow, Waukesha
Thomas Keys, S79W16099 Bay Lane Place
Cindy Salentine, S79W16111 Bay Lane Place
Dave Koscielniak, 12310 W. Waterford Ave, Greenfield, Architect
Adam Trzebiatowski, Planning Manager
Mrs. Byal explained they purchased their house in 2013 and moved in full time in 2016. This is
when they started noticing major problems with house including electrical, utility room and
leaking roof and would like to update the house but cannot due to the limited dollar amount
allowed. They cannot rebuild anywhere on lot due to the floodway so they are asking to be able
to remodel within the existing footprint. The original house was built in 1968 with two additions
and they do not believe there has been any updating of electrical and upstairs bedroom does
not have any heat vents or air vents. They would like to rebuild on the land, but it’s not possible,
so they are trying to do what they can with the house that they have.
Mr. Schneiker asked Mrs. Byal if they were aware floodplain situation when they purchased the
house in 2013. Mrs. Byal stated that they were aware of the floodplain, but naïve to what the
restrictions actually were on the property. Mrs. Byal knew they could not build on the land but
didn’t know about any restrictions for remodeling. They did obtain a variance to build a garage
on the property and wanted a sunroom, but were told they could not add onto the house, so
they are looking at remodeling.
Mrs. Byal explained that prior to purchasing the house they did have it inspected, but the
problems with the house are being found after they moved in full time. They moved in full time in
2016 permanently.
Mr. Schneiker asked Mrs. Byal what the hardship would be. Mrs. Byal explained safety is the
hardship with extension cords connecting main utilities. Mrs. Byal said these electrical issues
could be repaired, but they would need to get into the walls. The house appears to have been
built around the utility room.
Dr. Blumenfield asked when the garage was built. Mrs. Byal said 2014.
Dr. Blumenfield asked if they ever looked into upgrading the HVAC. Mrs. Byal said contractors
told her that HVAC couldn’t be replaced due to lack of walls to run ductwork. Dr. Blumenfield
said that her point was that HVAC upgrade would likely cost far less than $200,000.
Mr. Petfalski asked whether the contractors submittals where broken down. Mr. Trzebiatowski
said there are three bids submitted.
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Glenn Byal stated that when they purchased the house they were told they didn’t need flood
insurance. Mr. Trzebiatowski clarified that it was the mortgage company that said this. Mr. Byal
stated that everyone is worried about the creek that doesn’t vary.
Dave Koscielniak said that the only reason they were there is because of the floodway. If
anywhere else in the city, this meeting wouldn’t be happening. The owners have been adamant
to keep the design within the existing footprint. They desire more usable space with better
systems turning a seasonal house into a full-time home. He has been able to design a house
within existing footprint with functional bedrooms and mechanical room. The footprint is actually
being decreased by removing chimney. Unfortunately, the cost exceeds allowable amount. He
would contend this house has a better chance of being destroyed by a tornado, snowplow or
fireworks. He also stated that the City of Muskego has done a terrific job with engineering and
controlling floodwater upstream in the PUD’s with stormwater management plans so the creek
has less water and is controlled. If they were able to draft agreement indemnifying the City,
FEMA and the DNR would the City be amenable was asked by Mr. Koscielniak.
Mr. Petfalski asked Mr. Koscielniak if they just addressed electrical, HVAC and other
safety/health issues, would it be more or less expensive. Mr. Koscielniak said it would be less
than what they want to do, but still exceed threshold, but would probably be about two-thirds3 of
total cost.
Michelle Hase, WDNR, regional water management engineer, works to assist local communities
with implementing their floodplain ordinance; Ms. Hase role is to provide technical assistance to
City, second role is providing oversight to City ensuring implementing flood ordinance in
accordance with State and Federal regulations.
Mr. Le Doux asked if the DNR has issues with the fifty percent cost ceiling rule. Ms. Hase
stated the fifty percent rule is in Federal regulations.
Mr. Trzebiatowski explained that the rules are federal that are passed to the state that then add
rules and then passed to the City to enforce.
Mr. Le Doux asked whether the DNR has anything to do with the development of the property.
Ms. Hase explained the DNR is the liaison between the FEMA and communities. The City of
Muskego is an active participant in the National Flood Insurance Program and voluntarily
entered into a entered into an agreement with FEMA saying the City would implement an
ordinance to reduce flood risks and reduce the loss of life and property protecting areas of high
risk. By doing so, the residents of the City are eligible for flood insurance. If the City was not in
the program, residents would not be eligible for federally backed flood insurance and left for
private flood insurance that is more expensive and difficult to obtain. The National Flood
Insurance Program coordinator provided stats and there are sixty policies for $13.7 million in
coverage in the City. FEMA expects boards to grant variances based on the criteria outlined
and protect the intent and purpose of ordinance. The DNR can review variance approvals and if
they feel the intent and spirit are not followed the DNR can suspend communities from the
National Flood Insurance Program. The DNR can also pursue enforcement against the board if
the DNR feels the variance was approved against the intent of the ordinance.
Mr. Le Doux asked if the goal was to get rid of properties in the flood zones and get them back
to natural wetlands. Ms. Hase explained the goal is to reduce the risk in high risk areas.
Mr. Le Doux asked if there was any way to only insure what exists and not insure anything new.
Ms. Hase explained there are no agreements between homeowners and FEMA to indemnify
insurance like this. She also clarified that homeowners insurance does not cover flooding.
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Mr. Ristow asked how many homes have flood insurance on Bass Bay and Quietwood Creek.
Ms. Hase did not have that information. Mr. Trzebiatowski stated that not many on Bass Bay
have flood insurance as the homes are set back but there is a handful on Quietwood Creek.
Mr. Ristow said he has never heard Quietwood Creek flooding and he has been here since
1968 and floodplains and regulations are arbitrary because there are certain people that just
want to get the lands back to wetlands. Ms. Hase said the studies were completed in 2008 so
the study is fairly recent. If a homeowner wanted they could have the creek restudied, but the
onus is on the homeowner or City. Mr. Trzebiatowski said a previous owner of this property
looked into this and after talking to engineers, they decided to stop paying the mortgage as a
restudy was cost prohibitive.
Mr. Ristow stated that Quietwood Creek never had a problem. Ms. Hase stated mapping and
modeling is the best information they have.
Dr. Blumenfield asked Ms. Hase if anyone looked into how many catastrophes we’ve had. Ms.
Hase said generally 75% of national disasters are flooding instances with several declarations in
Wisconsin in the past few years.
Mr. Le Doux said that with the subdivisions development that stormwater management was
addressed to alleviate stress downstream. Mr. Trzebiatowski said those ponds are for day-to-
day rain events not flooding.
Thomas Keys submitted letter in favor of the improvements. This is a rare opportunity to
improve a property that is livable but not wonderful and will be a benefit to the City and
neighbors.
Cindy Salentine says her and husband are not opposed to this project. They live at the bottom
of two roads and they have experienced flooding in the past and they are concerned and want
to be sure that if this goes through that they do not experience any additional flooding.
Mr. Trzebiatowski explained FEMA mapping was completed in 2008 and prior to that was 1982.
He has spoken to Byal’s about remodeling and has recently understood to the degree the Byal’s
are looking to remodel their house. To clarify a previous point that the 50 percent rule doesn’t
apply anywhere else in the City is incorrect. Every property in the City with a non-conformity
has the 50 percent rule but the difference is floodplain 50 percent counts materials and labor
costs and other non-conforming properties it is just materials, but not labor costs. Also, when in
a floodplain all costs are counted where when not in the floodplain the 50 percent rule applies
only to area outside of the original footprint. Mr. Trzebiatowski also mentioned that there were
recent state law changes to make improving non-confirming properties more lenient, but nothing
changed in floodplain areas.
Mr. Trzebiatowski explained that this is a use variance because the ordinance states that in the
floodway you cannot build a house. This house is there because it was built before the
floodplain was mapped. With floodplain mapping completed in 2008, those are the regulations
we are subject to moving forward. There is case law with a use variance that says that the
applicant has to prove that property has “no reasonable use” without the variance. So the board
has to determine if there is no reasonable use for the property without a variance. The applicant
has an existing house that they have lived in for a few years. For a use variance, staff was
unable to find a hardship as there is a reasonable use of property already. Additional variance
considerations typically include whether a hardship is self-imposed or is it a circumstance of
applicant. A variance that is granted is supposed to be only the minimum variance necessary.
Financial considerations are not supposed to be considered in variance.
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Mr. Petfalski asked if the applicant were to get a price and update electrical and HVAC that
were lower, is that something the board could allow while following statutes. Ms. Hase
explained that this was a use variance and not a dimensional variance. Mr. Trzebiatowski
explained that they have use of the house so nothing would change. Mr. Petfalski then asked if
it was a safety hazard, the cost to correct that would not be a case for a variance. Mr.
Trzebiatowski said that may be for an attorney to answer, but since this is a use variance, is
there a reasonable use of the property.
Dr. Blumenfield asked if they had an electrical inspector in, would they need a variance. Mr.
Trzebiatowski said that it would depend upon the value.
Mr. Petfalski reiterated if this $150,000 was to bring the house up to code could they get a
variance and then use the money in a way to achieve what they want as new is sometimes
cheaper than remodeling old. Mr. Trzebiatowski said he did not believe so, but would be a
question for an attorney.
Dr. Blumenfield asked when the fair market value was taken. Mr. Trzebiatowski said it was from
the tax bill they paid for 2018. From the tax bill they received in December 2018. Mr.
Trzebiatowski explained it was for the improved value of just the house not the property or the
outbuilding.
Mr. Le Doux asked if this would be a buildable lot now. Mr. Trzebiatowski said that if it was
vacant, you could not build a house on this lot now.
Deliberations:
Mr. Schneiker made a motion to deny variance for Appeal 02-2019. Mr. Le Doux seconded.
Mr. Petfalski stated they have federal, state and city statutes to deal with. As a former
alderman, this is the type of property the City purchased to remove the danger associated with
flooding.
Mr. Le Doux asked if they can use 50 percent now and re-assess and then use that to improve
the property. Mr. Trzebiatowski explained that it is cumulative and once 50 percent of the value
is used, that is all they can do. Mr. Le Doux asked if they remodeled and then sold the house,
what the next owners do. Mr. Trzebiatowski explained that the 50 percent stays with the
property, not the current owners.
Mr. Le Doux asked if re-roofing or painting is included in the 50 percent rule. Mr. Trzebiatowski
explained that code is specific where painting, decorating, paneling and other nonstructural
components and the maintenance, repair or replacement of existing private sewage or water
supply systems or connections to public utilities is not included but anything outside that
definition is considered structural and counts toward the 50 percent limit.
Mr. Le Doux asked if they were to take out the things that are normal maintenance could they
move forward. Dr. Blumenfield stated that they have to determine at the meeting the request of
256 percent above the present equalized assessed value whether or not a roof is included.
Mr. Petfalski stated that board has a federal statute to abide by and if the board grants this
variance that there will be a lawsuit and will likely affect every property in the city that has flood
insurance.
Mr. Ristow asked when the floodplain ordinance regulations were put into effect – ‘08. Mr.
Trzebiatowski explained that the floodplain ordinance has been in effect longer than 2008, but in
2008 the maps were changed that then affected this lot. Mr. Ristow said that they weren’t
warned about the floodplain regulations when they purchased the house in 2013. Mr. Schneiker Page 6 of 7
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said that is why he asked about whether they were aware of the floodplain and what it meant
and the applicant said yes they were made aware of the floodplain being present and that is
why they had to build a garage where they did.
Mr. Le Doux asked if the applicant were to come up with a bid for the $38,000 for the remodel,
the ZBA meeting wouldn’t need to be held.
Dr. Blumenfield then said that flooding could happen in the City. They appreciate the
improvements the Byal’s want to make to their house, but unfortunately some lots have some
restrictions that we can’t overcome. When the house was purchased and the owner moved in
permanently in 2016. They stated even in their letter that the house is livable. The board has to
decide whether or not the board can vote in favor of approving a 256 percent increase over the
amount allocated for the improvements allowed to the house. The board needs to decide based
on what the laws are and abide by the strict guidelines as to what can be approved and they
need to find a hardship. The hardship is that the applicant wants a nice house, but the board
needs to comply with the law. There is no way that Dr. Blumenfield wants this board or city to
be sued because the board does something that violates law and jeopardizes other people in
the community and the flood insurance of everyone else in the city. Based on what has been
presented and testimony, Dr. Blumenfield cannot support this.
Mr. Le Doux asked if the applicant has to use the labor and materials costs because of the
floodplain. Mr. Trzebiatowski confirmed it is labor and material costs based on the floodplain
and this is a state and federal rule.
Mr. Trzebiatowski restated the motion was to deny as presented.
Upon a roll call vote Appeal 02-2019 was approved 5-0, denying the variance request.
CLOSED SESSION
OPEN SESSION
APPROVAL OF THE MINUTES FROM THE AUGUST 2, 2018 MEETING
Mr. Robertson made a motion to approve the minutes from the August 2, 2018 meeting. Mr.
Schneiker seconded. Motion carried unanimously.
MISCELLANEOUS BUSINESS
ADJOURN
Mr. Robertson made a motion to adjourn at 7:18 PM. Mr. Schneiker seconded. Motion carried
unanimously.
Respectfully submitted,
Aaron Fahl
Associate Planner
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Appeal # 03-2019
ZBA 10/29/2019
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City of Muskego
City Representative Brief
Zoning Board of Appeals Supplement 03-2019
For the meeting of: October 29, 2019
REQUESTING:
1. Under the direction of Chapter 400-167 Accessory uses and structures
(I) 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, flagpoles, etc.), where
subject to "permanent structure" classification, shall be permitted in setback and offset
areas but not closer than three feet to an abutting property line other than a street line.
APPELLANT: Tatianna Hansen
LOCATION: W179 S6765 Muskego Drive / 2174.922
CITY’S POSITION PRESENTED BY: Adam Trzebiatowski AICP, City Representative
BACKGROUND
In September 2018 the neighbor to the south of the lot in question obtained a Zoning Permit to install a
fence to extend along their northern lot line. They had the lot line surveyed to be sure the fence was
installed correctly but it was found that the Appellants driveway, shed and concrete slab were not only up
to the lot line, but actually crossed over the lot line preventing the fence installation along the property
line. The Appellant has also had a survey completed identifying the same encroachment of the shed and
driveway over the property line, not offset from the lot line three (3) feet as required by code.
The owner has indicated that the accessory structure, or shed, will be moved to 4.89-feet from the
property line to meet the required side offset for a shed in the RL-3 Zoning District. Therefore, the owner
is not requesting any exceptions to the Zoning Code for the location of the shed. The shed relocation will
need an after-the-fact permit to ensure proper code requirements are met.
The lot currently contains a home and one accessory structure. The parcel is zoned RL-3, Lakeshore
Residence District. The property is located on Muskego 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 concrete
driveway/walkway along the south side of the home.
An offset of three (3) feet from the side lot line is required for sidewalks, driveways/walkways on
the above mentioned lot. The petitioner seeks an offset of 1-foot from the south side lot line to
keep an unapproved driveway/walkway, and is therefore requesting a 2-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
driveway/walkway to remain with a 1-foot side offset. A fully functional walkway can exist with the
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required 3-foot offset as at least 3.99 feet of walkway would remain, based on the survey dimensions
provided. A typical walkway in most applications is 3 feet wide. Some portions of the walkway will be
wider than 3.99 feet, but that is the allowed width at the narrowest point.
The owner has stated in their submittals that they believe they need the walkway in this location for the
following reasons:
The owners inherited the issue as the shed, concrete slab and driveway were present when they
purchased the house. (Staff note: The existing driveway and shed were not approved by the
City).
Driveway/walkway has a steep incline for safe passage down or up the incline.
Removing the concrete will expose additional ground risking potential erosion.
The concrete directs all water away from the owner’s house protecting their basement from water
issues.
The owners mentioned to staff that the variance is needed for access to the lake side of the
property.
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
how the owners use the property. The driveway/walkway being present when they purchased the
home is a circumstance of the applicant and a 3-foot wide walkway is very typical. There would
be 3.99 feet of walkway width remaining at the narrowest point. Most of the walkway would be
even wider than 3.99 feet, which would allow normal walking access down the walkway.
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 3.99-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 3.99-foot walkway on
the property.
Pertaining to the grade of the walkway as identified by the applicant, the concrete width reduction would
not impact the slope of the concrete in any way. The slope is already established and would remain the
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same from front to back. The applicant will only be removing the required width of the concrete and will
not be subject to any grading changes.
The applicant states that the concrete directs water away from their house protecting their basement from
water issues and erosion along the property line. If the concrete was removed, there would be additional
area for water to infiltrate into the ground, which would reduce the possibility of water in their basement.
Drain tile could be installed in this new open area if the owner was concerned with drainage/runoff. With
proper plantings and/or ground cover, erosion should not be an issue. Also, there is a concrete vertical
face curb along the deck/house side of the walkway, which does and will prohibit water from flowing
at/towards the house.
Related to the applicant’s access to the lake side of the property, a fully functional concrete walkway will
remain as a viable means of access to the lake side of the property. A 3.99-foot or greater walkway
would still be more than some lake lot owner currently have for paved access.
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:
Denial of Appeal 03-2019 as proposed, allowing a walkway with a 1-foot offset from the side lot
line, a 2-foot variance from the south side lot line; citing that a walkway with a width of 3.99 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 initially.
NOTE 1: Regardless of the outcome of this case, the applicant must have their property surveyed
after the concrete is removed to ensure that the shed has been relocated and the concrete has
been removed according to the decision rendered by the Zoning Board of Appeals.
NOTE 2: With any possible outcome from this variance request, a time frame needs to be
established for the concrete to be removed. As such, staff recommends a deadline of May 1, 2020
to remove the concrete as decided by the Zoning Board of Appeals.
NOTE 3: After the concrete is removed per the decision by the Zoning Board of Appeals, the area
where the concrete was removed can be filled with decorative stone, mulch, landscaping or lawn.
NOTE 4: The shed will need a permit to make sure all Building and Zoning Codes can be met.
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MUSKEGOthe City of
Area of InterestI060120
Feet
Agenda Item(s)
Properties
Zoning Districts
Right-of-Way
Hydrography
Supplemental MapAPPEAL #03-2019
Tatianna HansenW179 S6765 Muskego Drive
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Prepared by City of Muskego Planning Department Date: 10/23/2019
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