ZONING BOARD OF APPEALS Packet - 5/28/2020CITY OF MUSKEGO
ZONING BOARD OF APPEALS AGENDA
05/28/2020
6:00 PM
Electronic Meeting, W182 S8200 Racine Avenue
PLEASE TAKE NOTICE that the Board of Appeals of the City of Muskego will hold a meeting at 6:00 PM on
Thursday, May 28, 2020, via an online digital Zoom meeting. This meeting will not be held at Muskego City Hall.
This is in efforts to protect the health of the public, City leaders and staff due to the fact that the City of Muskego has
declared a state of emergency as a result of the COVID-19 virus pandemic. The Board of Appeals meeting, and the
associated Public Hearing, will however be available to the public for live streaming via the City of Muskego channel
at www.youtube.com . Any Board of Appeals/Public Hearing comments which the public wish to make relating to this
variance request may be communicated to the City via email at citizencomments@cityofmuskego.org or via phone at
414-376-8022. Any email and phone comments for this Public Hearing must be received by 4:30 PM on the date of
the meeting. All received comments will be read to the Board of Appeals as part of the Public Hearing. Interested
parties may also observe in the meeting directly by downloading the ZOOM app located at http://zoom.us and utilize
this unique ID to join: 817 1425 1370.
CALL TO ORDER
PLEDGE OF ALLEGIANCE
ROLL CALL
STATEMENT OF PUBLIC NOTICE
APPROVAL OF THE MINUTES
Approval of Minutes of the October 29, 2019 Meeting.
NOTICE OF CLOSED SESSION
OLD BUSINESS
NEW BUSINESS
Appeal #01-2020 Petitioner: Phillip Jakubowski
Property: W185 S6710 Jewel Crest Drive / Tax Key No. 2174.066
REQUESTING: Under the direction of Section 400-18 of the Municipal Code (Zoning –
Zoning Board of Appeals), the petitioner seeks the following variances:
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.
1. A setback of 25-feet is required from Jewel Crest Drive right-of-way line. The
petitioner seeks a setback of 18.9 feet from the right-of-way line for the construction of
an attached garage and is therefore requesting a 6.1-foot variance from the required
right-of-way setback.
2. An offset of 5.6-feet is required from the north side lot line. The petitioner seeks
an offset of 2.5 feet from the north side lot line for the construction of an attached Packet Page 1
garage and is therefore requesting a 3.1-foot variance from the required north side
offset.
CLOSED SESSION
OPEN SESSION
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) 679-4136.
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UNAPPROVED
CITY OF MUSKEGO
ZONING BOARD OF APPEALS MINUTES
10/29/2019
6:00 PM
Muskego City Hall, W182 S8200 Racine Avenue
CALL TO ORDER
Chairperson 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. Boschert, Mr. Robertson and Mr. Petfalski
Excused: Dr. Kashian, Mr. Schneiker and Mr. Wallner
STATEMENT OF PUBLIC NOTICE
The meeting was noticed in accordance with the open meeting laws.
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.
Mr. Robertson swore in the following:
- Tatianna Hansen, W179 S6765 Muskego Drive
- Stacy Kaiser, W179 S6769 Muskego Drive
- Adam Trzebiatowski, Planning Manager
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Approval of Minutes of the October 29, 2019 Meeting.
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Ms. Hansen stated that they purchased the house and didn’t realize the concrete and shed were
over the property line. The neighbor had a survey that showed the overage and so they tried to
get a survey to confirm. They are asking for a one foot offset from the property line for less
disruption to their narrow lot, the hill with the erosion and it would make the whole lot more
manageable. They are willing to compromise and will move the shed to meet the ordinance and
then cut the concrete to one-foot from the property line.
Mr. Petfalski asked how they found out the concrete was over the property line. Ms. Hansen
explained the neighbor had a survey done to put in a fence.
Dr. Blumenfield asked when they purchased the house. Ms. Hansen said in May 2017.
Dr. Blumenfield asked if they received a survey when they purchased the house. Ms. Hansen
said they did not.
Dr. Blumenfield asked if their lender suggest they get a survey. Ms. Hansen said they did not.
Dr. Blumenfield asked when the last time they purchased a house and if they received a survey.
Ms. Hansen said they bought a house last year and did not receive a survey.
Dr. Blumenfield asked when they requested a survey. Ms. Hansen said they wanted a survey
when the neighbor wouldn’t negotiate or agree to the location of where her fence could be
installed. This happened in July 2019.
Mr. Boschert asked the current width of the walkway. Ms. Hansen said at the narrowest point it
is eight feet.
Mr. Boschert asked to confirm whether the entire length from the driveway to the shed is out of
compliance. Ms. Hansen said yes and the overage varies the entire length, but they are asking
for the two-foot variance the entire length.
Ms. Kaiser said she just wants to set her fence along the north side of the property line and it
has been difficult to install the fence with the concrete on her property. She has kids and pets
that she would like to keep on her property. Would also like a timeline for having the concrete
removed so she can have the fence installed.
Dr. Blumenfield asked if anything changed between May 2017 and May 2019 that a decision
was made to get a fence and if Ms. Kaiser received a survey. Ms. Kaiser said she did go
through a broker and broker did not suggest a survey but she did not have a lender.
Mr. Trzebiatowski explained that a complaint came through from the Alderman and also clarified
that the requested concrete removal is for the encroachment in addition to one-foot from the
property line. The code requires a three foot offset from the property line for driveways and
walkways. Mr. Trzebiatowski also explained past cases and three feet is a typical width of a
walkway. The survey shows 6.99 feet from the lot line to the closest point of the deck and
removing three feet of walkway would leave approximately 3.99 feet for the walkway. A
concrete curb is located along the length of the driveway adjacent to the house to prevent any
water from flowing towards the house. Mr. Trzebiatowski then discussed past case law
regarding reasons for granting a variance. Staff recommends denying the proposal for a one-
foot offset noting that a three-foot offset would leave a very functional walkway. A couple other
notes, regardless of the outcome, are as follows: staff suggests an as-built survey to ensure the
work was completed, staff suggests a May 1,, 2020 deadline to complete the work, and staff
recommends that the area where the concrete is removed is replaced with decorative stone,
landscaping or lawn to prevent erosion. Finally, it was noted that a building permit is needed for
moving the shed.Page 2 of 4
Approval of Minutes of the October 29, 2019 Meeting.
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Mr. Petfalski asked where the applicant is as far as impervious surface requirement. Mr.
Trzebiatowski explained that could be an issue and without a complete survey with the ordinary
high water mark identifying the legal lot size open space cannot be calculated at this time. The
applicant is aware and with the complete survey the impervious surface will be calculated. In
the RL-3 Zoning District either 6,666 square feet or 75% of the lot must remain as open space,
depending on which calculation works in favor of the applicant, will be enforced.
Mr. Boschert asked the definition of a self-imposed hardship or circumstance of the applicant.
Mr. Trzebiatowski said that a circumstance of the applicant would be something the applicant
has control over and this instance the width of the walkway is something the applicant can
control. Self-imposed hardship would be someone creating something where they need a
variance. In this case they inherited the issue but there is nothing prohibits them from fixing the
issue.
Dr. Blumenfield stated that any financial issues cannot be recognized as a hardship.
Mr. Petfalski asked what happens if a variance is granted and the applicant is over the
impervious surface limit. Mr. Trzebiatowski explained that if the applicant is over the limit, they
will be able to remove additional area to meet the requirements or try for a separate variance.
The open space regulation is a separate issue independent from this application.
Mr. Boschert asked if the variance is denied what the options are for the property owner. Mr.
Trzebiatowski said by default the applicant must meet the Zoning Ordinance in the timeframe
provided by the Board. Mr. Trzebiatowski then explained that the options for the Board are to
approve the variance as presented, deny the variance and apply the Code or something
between the two.
Deliberations:
Dr. Blumenfield made a motion to deny Appeal 03-2019 as submitted. Mr. Robertson
seconded. Dr. Blumenfield explained she hasn't seen a hardship in this appeal. Mr. Boschert
said asked that if they applicant completes everything and there is an erosion issue, does the
City bear any financial responsibility. Dr. Blumenfield responded that she does not believe so.
Mr. Trzebiatowski added that if they are not confident they can do it contacting a professional
may be needed. Upon a roll call vote Appeal 03-2019 was denied 4-0.
Mr. Petfalski asked for reconsideration to add dates to the decision. Seconded by Dr.
Blumenfield. Motion passed unanimously.
Dr. Blumenfield made a motion to amend the original motion to state denial of Appeal 03-2019
by May 1, 2020 and to have property surveyed after concrete is removed. Dr. Blumenfield said
that if there are any issues weather or otherwise, that the applicant come back to the Zoning
Board of Appeals. Mr. Petfalski seconded. Motion 03-2019 amended unanimously. Upon a roll
call vote Appeal 03-2019 was denied 4-0.
CLOSED SESSION
OPEN SESSION
APPROVAL OF THE MINUTES OF THE FEBRUARY 28, 2019 MEETING
Mr. Robertson made a motion to approve the minutes from the February 28, 2019 meeting. Dr.
Blumenfield seconded. Motion carried unanimously with Mr. Boschert abstaining.
MISCELLANEOUS BUSINESS Page 3 of 4
Approval of Minutes of the October 29, 2019 Meeting.
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ADJOURN
Mr. Petfalski made a motion to adjourn. Mr. Boschert seconded. Motion carried unanimously.
Respectfully submitted,
Aaron Fahl
Associate Planner
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Approval of Minutes of the October 29, 2019 Meeting.
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Appeal # 01-2020
ZBA 5/28/2020
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City of Muskego
City Representative Brief
Zoning Board of Appeals Supplement 01-2020
For the meeting of: May 28, 2020
REQUESTING:
1. Under the direction of 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.
APPELLANT: Phillip Jakubowski
LOCATION: W185 S6710 Jewel Crest Drive / 2174.066
CITY’S POSITION PRESENTED BY: Adam Trzebiatowski AICP, City Representative
BACKGROUND
The owner has a detached garage that is in disrepair and would like to rebuild the garage in the same
location and add an extension to the garage and made it an attached garage. The existing garage is 18.9
feet from the right-of-way and the City requires a 25-foot setback. Additionally, the garage has a 2.5-foot
offset from the side property line and the district requires 5.6 feet based on the width of the lot.
On May 27, 1976 the City of Muskego Board of Appeals denied an 11-foot setback variance request, but
granted a variance for a seven foot variance to the setback and 3.5-foot variance to the offset to construct
a 24’ by 22’ detached garage. The Board of Appeals also noted that the garage would be located within
four feet of the house and thereby granted a variance for the separation between the garage and house
with a requirement that they install a proper firewall on the garage. The basis of the variance was due to
the shape and size of the lot.
The lot currently contains a home and one accessory structure (detached garage). The parcel is zoned
RL-3, Lakeshore Residence District. The property is located on Jewel Crest Drive on Little Muskego
Lake.
The petitioner is seeking the following variances:
1. A setback of 25 feet is required from Jewel Crest Drive right-of-way line. The petitioner seeks a
setback of 18.9 feet from the right-of-way line for the construction of an attached garage and is
therefore requesting a 6.1-foot variance from the required right-of-way setback.
The garage is proposed with a setback that meets the 1976 variance that was granted. Typically,
if a garage was simply being rebuilt the same as the structure that was granted a variance, a new
appeal would not be needed. However, the garage is being expanded back (away from the road)
so a new variance is required.
2. An offset of 5.6 feet is required from the north side lot line. The petitioner seeks an offset of 2.5
feet from the north side lot line for the construction of an attached garage and is therefore
requesting a 3.1-foot variance from the required north side offset.
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Appeal # 01-2020
ZBA 5/28/2020
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The existing detached garage is currently located 2.5 feet from the property line based on the
variance granted in 1976. The expanded garage would maintain the 2.5-foot offset the length of
the structure.
DISCUSSION
Based upon the information submitted, staff does not see a valid hardship, based on case law and State
Statutes, to allow the addition onto the existing attached garage. The property already contains a two-car
attached garage, which can be rebuilt with the same footprint and is typical for most homes in the City.
Having an attached garage is not a requirement or standard for many homes in the City.
The owner has stated in their submittals that they believe there are several hardships causing the need
for the variance including:
Due to the ground settling caused by a street tree being removed has resulted in the garage slab
cracking and sinking up to six inches in a section of the garage. The garage needs to be rebuilt
whether the variance is granted or not, but at this time would like a new variance to allow them to
attach the garage to the house.
The owners are looking to keep the garage in the same location to keep the parking area and
walkway undisturbed. Additionally, a gas meter is attached to the corner of the garage.
It is stated that due to being located on the inside curve of Jewel Crest Drive and the unique
shape of the lot will not allow for the current setback to be increased as the depth of the garage
decreasing would render the garage partially unusable.
Finally, removing and replacing the garage will allow them the ability to hire a tree service to
remove a very large, dying tree located behind the garage that they have been unable to hire in
the past due to the location of the garage.
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. The detached garage is a suitable size (two-car) and if
rebuilt with a new foundation allowed per the 1976 variance, the garage would be usable again.
2. The hardship needs to be the same no matter who lives in the home, regardless of how the
owners use the property. There are many homes on the lake that have detached garages. With
appropriate construction including a new fire wall due to the distance between the homes would
not present an inherent danger.
3. Zoning Case Law states that the parcel-as-a-whole must be looked at when deciding these
cases. In this request the board needs to not only look at why the garage cannot be re-built with
the same footprint on the lot, but also why moving the garage back away from the road and away
from the property line is not a valid option.
4. Zoning Case Law states that “lack of objections from neighbors does not provide grounds for
granting a variance”, if applicable. Several neighbors have stated that they approve and/or do
not object to these plans, but this is not grounds to grant 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 where a variance has been granted
previously for a similar project, which could be considered the minimum variance needed for a
usable garage. The option of rebuilding the garage where located or moving the garage toward
the house away from the street and side property line are options that meet the goal of having a
garage, then there are not grounds for granting said variance.
6. 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.
7. Zoning Case Law states that “nearby violations”, if applicable, do not provide grounds for granting
a variance.
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8. 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/continued use of this house/property. There are other options that can work,
such as rebuilding a detached garage at the size/location previously granted.
b. Unique Property Limitations – Unnecessary hardship must be due to physical limitations
of the property. There are no property limitations to rebuilding the garage with the same
footprint utilizing the initial 1976 variance.
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 the garage to be
constructed attached to the house maintaining the offset of the previous variance.
Pertaining to garage sinking due to the decaying roots of the tree as identified by the applicant, the
garage and foundation could be rebuilt in the same location previously approved by the Board of Appeals.
The new foundation would be constructed in a manner that will prevent such sinking in the future.
The applicant states that they wish to keep the existing footprint so the surrounding concrete sidewalk
and parking slab can remain undisturbed in addition to the utilities that are attached to the corner of the
garage. If the garage was rebuilt with the same footprint the goal of maintaining the parking slab,
walkway and utility location will remain being on the of goals of the project.
As for the applicants property being located on the inside curve of Jewel Crest Drive and the unique
shape of the lot will not allow for the current setback, since 1976 when the original variance was
approved, the applicant and/or relatives have lived in the house with the garage as built. The lot and/or
the curve of Jewel Crest Drive has not inhibited the use of the property since the garage had been built.
Related to the applicant’s ability to hire a tree service to remove a dying tree, during the demolition phase
of the existing garage, this tree would be very accessible for any tree removal service.
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 01-2020 as proposed, allowing a 18.9-foot setback and 2.5-foot offset from the
side lot line, a 6.1-foot setback variance and 3.1-foot offset variance from the north side lot line;
citing that the two-car garage can be rebuilt with the same footprint as the existing garage
utilizing the Board of Appeals variance granted on May 27, 1976 which is a functional and typical
garage within the City. The hardships stated are self-imposed/self-created, do not consider the
parcel-as-a-whole, and are not the least variance necessary.
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NOTE 1: Regardless of the outcome of this case, the applicant must apply for proper building
permits to rebuild and/or expand the garage according to the decision rendered by the Zoning
Board of Appeals.
NOTE 2: As part of the City’s detailed review of this request as part of the preparation of this
document, it has come to the city’s attention that with any possible outcome from this variance
request, if/when any permits are applied for, the open space requirement has been exceeded and
will require additional hardscape to be removed or replaced with materials considered to be
permeable and applied as open space. Pursuant to the RL-3 Zoning District, 6,666 square feet of
the lot must remain in open space leaving 3,802 square feet able to be hardscape (building
footprint, concrete, asphalt, etc.). The current layout of the property exceeds the minimum open
space requirement by 358 square feet and the new variance proposal exceeds the open space by
799 square feet.
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MUSKEGOthe City of
Area of InterestI060120
Feet
Agenda Item(s)
Properties
Zoning Districts
Right-of-Way
Hydrography
Supplemental MapAPPEAL #01-2020
PHILLIP JAKUBOWSKIW185 S6710 JEWEL CREST DRIVE
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Prepared by City of Muskego Planning Department Date: 5/18/2020
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