ZONING BOARD OF APPEALS Packet - 11/7/2018CITY OF MUSKEGO
ZONING BOARD OF APPEALS AGENDA
11/07/2018
7:00 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 August 2, 2018 Meeting
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 #04-2018 Petitioner: Forrest and Erin Sirovina
Property: S82 W13115 Acker Drive / Tax Key No. 2209.956
REQUESTING: Under the direction of Chapter 400 Zoning: Section 400-13 Appeals, the
petitioner seeks the following variance:
Chapter 400 - Zoning Ordinance: Section 400-31B.(1) – Adequate Drainage Required
Adequate drainage required. No principal building shall be erected, structurally altered,
or relocated on land which is not adequately drained at all times nor which is subject to
periodic flooding, nor so that the lowest floor level is less than two feet above the
highest anticipated seasonal groundwater level. An occupancy permit and zoning permit
shall not be issued for any lot where the grading plan approved for that lot at the time of
its platting has not been accomplished.
The lowest floor of a home is required to have a vertical separation of two (2) feet above
the highest anticipated seasonal groundwater level. The petitioner is requesting to be
allowed to be 2.82 feet below the highest anticipated seasonal groundwater level with
the construction of a new home, and is therefore requesting a 4.8-foot (vertical) variance
from the required highest anticipated seasonal groundwater level separation.
CLOSED SESSION
OPEN SESSION
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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
August 02, 2018
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,
Excused: Mr. Petfalski and 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 #03-2018 Petitioner: Michael Larsen
Property: S71 W17637 Lake Drive / Tax Key No. 2193.996
REQUESTING: Under the direction of Chapter 17 Zoning Ordinance: Section 3.089(1)
Appeal Provisions, Petitioner seeks the following variance:
Chapter 17 - Zoning Ordinance: Section 15.05(9) - Walkways
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.
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.
Mr. Schneiker swore in the following:
Troy Tveitnes, S71 W17659 Lake Drive
Lisa Twinde, S71 W17659 Lake Drive
Brian Ganos, S71 W17665 Lake Drive Page 1 of 3
Approval of Minutes of the August 2, 2018 Meeting
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Mike Larson, S71 W17637 Lake Drive
Adam Trzebiatowski, Planning Manager
Mr. Larsen explained the original retaining was failing and he hired a contractor to rebuild the
wall in the same location. After the retaining was built the wall was used as a form to pour a
new concrete walk and steps in the same location as the original walkway and steps. The
original walkway, steps, and wall were done about 26 years ago. The walkway is used as an
access to get around the house. Mr. Larsen stated he didn't know he needed a permit and the
contractors did not tell him he did.
Mr. Larsen stated his hardship is the health condition of his parents and being able to get them
around the house and down to the lake and also being able to carry oversized items around
the house. Dr. Blumenfield questioned if the parents lived with him. Mr. Larsen stated they
do not.
Mr. Schneiker questioned if Mr. Larsen hired a contractor to do the work. Mr. Larsen stated he
hired Juan and Carlos off of a referral. Mr. Larsen stated he never asked them if they took out
a permit.
Dr. Blumenfield questioned Mr. Larsen if he thought he might need a permit. Mr. Larsen stated
he did not think he would need a permit because he was replacing what was already there.
Troy Tveitnes S71 W17659 Lake Drive:
- northwest neighbor to Mr. Larsen
- work was done without a permit
- requesting if repairs are required they are done immediatly
Mr. Le Doux asked Mr. Tveitnes if the the lot level is at the same height for both properties.
Mr. Tveitnes said they are. Mr. Le Doux asked if the retaining wall is beneficial for both
properties. Mr. Tveitnes stated he isn't sure if it was built in the same spot and stated it is in
violation of the ordinance by not having a permit.
Lisa Twinde, S71 W17659 Lake Drive:
- stated her property was damaged during the construction of this project
- Mr. Larson should have known he needed permits because he is friends with a concrete
contractor
Brian Ganos, S71 W17665 Lake Drive:
- neighbor
- stated the cul-de-sac drains towards Mr. Larsen's property. The retaining wall and sidewalk
provide a place for the water to flow. If the walkway was removed, the wall could be damaged
by the drainage.
Mr. Trzebiatowski gave the city's opinion based on the zoning code. Mr. Trzebiatowski
explained in middle 2017 it came to the city's attention that work was done on a walkay without
a permit and may be in violation of the code by being too close to the lot line. The code
requires a 3-foot offset to the lot line. The property owner is requesting an offset of 1.2 feet
and would require a variance of 1.8 feet. Staf is recommending denial of the appeal and
further recommends the walkway be replaced with grass.
Deliberatons:
Mr. Le Doux made a motion to approve Appeal 03-2018 as submitted. Mr. Ristow seconded.
Dr. Blumenfiled explained she hasn't seen a hardship in this appeal. Mr. Schneiker agreed.
Upon a roll call vote Appeal 03-2018 was denied 5-0. Mr. Le Doux made a motion to require a
deadline for compliance for 6 months from the date of this meeting. Mr. Robertson seconded. Page 2 of 3
Approval of Minutes of the August 2, 2018 Meeting
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Upon a voice vote, the motion carried 5-0.
CLOSED SESSION
OPEN SESSION
APPROVAL OF THE MINUTES FROM THE MAY 24, 2018 MEETING
Mr. Robertson made a motion to approve the minutes from the May 24, 2018 meeting. Mr. Le
Doux seconded. Motion carried unanimously.
MISCELLANEOUS BUSINESS
ADJOURN
Mr. Robertson made a motion to adjourn at 6:45 PM. Mr. Le Doux seconded. Motion carried
unanimously.
Respectfully submitted,
Kellie McMullen
Recording Secretary
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Approval of Minutes of the August 2, 2018 Meeting
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Appeal # 04-2018
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City of Muskego
City Response to Variance Application
Zoning Board of Appeals Supplement 04-2018
For the meeting of: November 7, 2018
REQUESTING:
A variance from Chapter 400 - Zoning Ordinance: Section 400-31B.(1)
Adequate drainage required. No principal building shall be erected, structurally altered, or
relocated on land which is not adequately drained at all times nor which is subject to
periodic flooding, nor so that the lowest floor level is less than two feet above the highest
anticipated seasonal groundwater level. An occupancy permit and zoning permit shall not
be issued for any lot where the grading plan approved for that lot at the time of its platting
has not been accomplished.
APPELLANT: Forrest & Erin Sirovina
LOCATION: S82 W13115 Acker Drive / Tax Key No. 2209.956
CITY’S POSITION PRESENTED BY: Adam Trzebiatowski AICP, City Representative
BACKGROUND
First off, it is important to note that the applicant includes details for two separate appeal requests within
their submittal. First, they are asking for an administrative appeal based on the City interpretation/opinion
of our code and state codes (Uniform Dwelling Code – UDC). Second, they are asking for a dimensional
variance to be allowed to build below the highest anticipated seasonal groundwater level (further identified
as HASGL).
The overall request relates to the City’s code requiring that the lowest floor of a home be built at least two
feet above the HASGL. The applicant’s builder had asked the City some questions before a building
permit was applied for, at which time the groundwater separation was brought up. At this time it is
believed that the current applicant may have already purchased the lot. The applicant applied for a new
home permit back in August 2018 and it was placed on HOLD by the Engineering Department since the
proposed elevation of the lowest floor, which is the basement, of the home was not two feet above the
HASGL. Before this time, on May 16, 2018, the applicant’s father-in-law (Scott Schulpius) contacted the
State of Wisconsin Department of Safety and Professional Services (DSPS) because they believed that
the City was being more restrictive than the State’s Uniform Dwelling Code (UDC), which is not allowable.
Initially, Jenny Roets, a UDC Consultant with DSPS, sent an email to Scott Schulpius on May 18, 2018
and stated that she believed that the City was being too restrictive. The City did not then receive this info
until after the permit was applied for in August 2018. When the City received this correspondence, one of
the City’s Building Inspectors, Jared Stawicki, reached out to Jenny Roets via phone to discuss this
concern on August 30, 2018. Per Jared Stawicki, Jenny Roets from DSPS stated that this topic was not
her area of expertise and that she suggested that we talk with her supervisor, Michael McNally for more
details/info. Per that recommendation, two separate City staff members, Scott Kroeger – Public Works &
Development Director and Jared Stawicki – Building Inspector, then reached out to Michael McNally via
phone. Scott and Jared both had very similar conversations with Michael McNally. In those conversations
Michael McNally stated that while he can see this situation both ways, the only way that he and his
department could make a formal determination would be to have the applicant file a formal
complaint/review through DSPS. This same info was eventually provided to the City in an email
correspondence between Michael McNally and the applicant. Per the City’s knowledge to this point, we do
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not believe that a formal complaint/review through DSPS has been applied for yet. It is our understanding
that since that DSPS review can possibly take up to or over a year, the applicants are not pursuing that
option and are trying to proceed through the Zoning Board of Appeals option instead.
The City also mentioned to the applicant that if they feel there are any questions and/or discrepancies with
the soil test that they have already had done, then they are welcome to have further tests/exploration
done.
The lot is currently vacant and is zoned RSE, Suburban Estate District. The property is located on Acker
Drive.
The petitioner is seeking the following requests:
1. Administrative Appeal – Appealing the City interpretation of our code and how it follows the UDC
requirements:
The applicant believes the City and its code relating to the highest anticipated
seasonal groundwater level separation is stricter than the UDC, which is not allowable.
2. Dimensional Variance - An exception to the lowest floor being 2 feet above the HASGL for the
allowance of a new home:
The lowest floor of a home is required to have a vertical separation of two (2) feet above the
highest anticipated seasonal groundwater level. The petitioner is requesting to be allowed to
be 2.82 feet below the highest anticipated seasonal groundwater level with the construction of
a new home, and is therefore requesting a 4.8-foot (vertical) variance from the required
highest anticipated seasonal groundwater level separation.
DISCUSSION
Request #1 - Administrative Appeal
Review of the City Codes and the UDC on this topic by the City’s Engineering staff, Planning staff and
Building Inspection staff all come to the same conclusion that the two foot above the HASGL requirement
is valid and needs to be followed. This requirement was placed in the code as a safeguard for the
homeowners so that they do not have to contend with the issues that can come up with building homes
in/below the groundwater. This type of separation requirement is common in many portions of
southeastern Wisconsin. Some of the government agencies that have such regulations include
Waukesha County, Town of Mukwonago, Town of Vernon, Village of Menomonee Falls, and Town of
Lisbon, just to name a few. These government agencies require a distance above the HASGL between
one to three feet.
One of the concern with a home is placed within the groundwater is where all of the discharged
groundwater goes once it is pumped to the surface. This water has the potential of being pumped 24/7
and all of that water has to flow somewhere. This could mean possible concerns with ditches and culverts
being able to handle this potentially constant flowing water. This could even possibly lead to potential
flooding of adjacent lands and/or the need for further public improvements to handle a possible constant
flow and/or pooling of water.
The above noted City staff members all interpret the UDC to not specifically regulate the height above
groundwater but rather state that if the house is below the groundwater level that sump pumps are then
required. The UDC never states that houses have to be allowed below the groundwater level and the
UDC never states that a municipality cannot regulate the height above groundwater level. This is similar
to when the UDC states that if a building had over two stories that it has to have a certain type of egress,
but that does not mean that the City has to allow a building that is over two stories tall. Or when the UDC
states that a dwelling can be located with no lot line setback if certain fire rated construction occurs, that
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does not mean that that City has to allow a dwelling with no setback as we are allowed to have our own
setback/offset regulations.
For the Administrative Appeal portion of this request, staff does not see any incorrect interpretations of the
City code and/or of the UDC. The City suggests that if the applicant really feels there is some type of
misinterpretation or incorrect application of the code, then the applicant should seek proper formal review
from DSPS as the DSPS opinions they have provided to this point are noted to not be construed as a
formal code interpretation.
Request #2 - Dimensional Variance
Based upon the information submitted, staff does not see a valid hardship to allow the lowest level of the
home 2.8 feet below the HASGL. There are other design options that can be pursued that do not require
a home to be built into the groundwater. A home can be built without a basement, a split level home could
possibly be built, and/or the home may be able to be brought out of the ground partially. As convenient as
basements can be, there are some homes in Muskego that do not have them due to groundwater
concerns. Additional surface level storage can be built to accommodate a storage need that the
basement may have achieved. Also, if there are storm safety concerns, appropriately protected rooms
can be built on the main floor of the home in case of a weather emergency.
The owner has stated in their submittal that they believe the home should be allowed below the HASGL
for the following reasons:
• The elevation of the home, if the code would be followed, would be too high.
• Raised decks, stairways, and landings would be required if the home were built two feet above the
HASGL.
• Soil tests should only be required to determine bearing capacity of the soil, not to determine
“anticipated seasonal” high ground water.
• The soil test only notes an “anticipated” – but not truly known – ground water elevation.
• Compliance with City code would force a redesign of the home that would eliminate the basement
and build a slab on grade home. This would then cause a larger footprint to make up for loss of
storage.
• The original design is aesthetically appealing and provides a negligible impact to the neighboring
properties.
• This is an established lot that used to contain a home, which was previously destroyed by fire.
This means there are adjacent homes that limit the extent of grading.
• When the owners purchased the lot, they asked about building restrictions and were referred to
the website and handouts. At that time they were not specifically told a soil test may be required.
• The applicants did have 36 people (some of which are from the same household) in the general
area of their proposed home site sign a sheet that states “Please see attached for signatures of
citizens of the City of Muskego in supports of the new home construction building plans for S82
W13115 Acker Drive. The new home construction plans we’re reviewed by these citizens and
enclosed signatures represent endorsement of proposed build.”
NOTE - Please see the applicant’s full submittal for full details on their request as the above noted info is a
summary.
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 and some staff
comments relating to the applicants statements as noted above and in their application/submittal:
• Zoning Case Law states that “self-imposed hardships” and “circumstances of applicant” are not
grounds for granting a variance, such as not being open to designing a home that works with the
code requirements adopted by code. If alterations to the original design can occur, then that
option should be pursued.
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• Zoning Case Law states that “lack of objections from neighbors does not provide grounds for
granting a variance”, if applicable. Even though there was a document submitted that was signed
by neighbors in the area, the document does not make any reference to the elevation of the
home, the groundwater concerns, and/or the possible pumping that could result from the home
being located within the groundwater level. This brings up the question of did the residents that
signed the document fully understand what might actually be proposed in this case.
• 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, there are other options that could be looked
at that do not require the home to be 2.82 feet below the groundwater level. As is noted above,
there are options that can require less of a variance or no variance at all.
• Zoning Case Law states that “financial hardship” does not justify granting of a variance. The cost,
if any, to alter the design of the home to accommodate the groundwater level should not figure
into the variance decision. There may even be the case to be made that if the house ends up not
having a basement, there may be cost savings there to help with ground level storage, if needed.
• Per the Zoning Board Handbook (2nd Addition, 2006), to qualify for a variance, an applicant has
the burden of proof to demonstrate that all three criteria in the statutes are met (unnecessary
hardship, unique property limitations, and no harm to public interest). Below is a breakdown of
the three items:
o 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”. If the two foot
separation above the HASGL were followed per City code, there still could be a home
built on this lot, it just may look a little different in design and/or stature. There still is the
ability to build a single-family home on this property.
o Unique Property Limitations – Unnecessary hardship must be due to physical limitations
of the property. While the soil test shows that the HASGL is higher on this property, this
is not the only property in the City that has this situation. Some lot owners in this situation
have chosen to build upward and some of them have chosen to not have basements.
o No Harm to Public Interest – A variance may not be granted which results in harm to
public interest. If the home is built into the groundwater there could possibly be concerns
with yard flooding (on this lot or others), ditches being full, possible basement flooding if
sump pumps fail or can’t keep up, and/or culverts not being able to handle the pumped
water.
• The integrity of the grades on this lot still need to be maintained, regardless of if there is a
basement or not.
• Possible continuing groundwater discharge, via the sump pump, could be problematic to the
neighborhood if the home is placed within the groundwater. This could lead to possible issues
with yard flooding (on this lot or others), ditches being full, possible basement flooding if sump
pumps fail or can’t keep up, and/or culverts not being able to handle the pumped water.
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 04-2018 Item #1 (Administrative Appeal) as proposed. City staff and does not feel
that the City’s code relating to height above the HASGL is more strict than the UDC as the UDC
does not specifically talk about what the elevation of the lowest floor in relation to the HASGL. If
the applicant truly feels that the City is more restrictive that the UDC, then the applicant should
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follow the proper steps to have DSPS formally review this issue and make a formal ruling. At this
time DSPS has not made a formal ruling and has specifically stated that any opinions they (DSPS)
have provided to this point are noted to not be construed as a formal code interpretation. Once
DSPS has come to a formal conclusion, then the City will have to either uphold the code as written
or issue a permit per DSPS and State Statute requirements, depending on the outcome of the
DSPS review.
Denial of Appeal 04-2018 Item #2 (Dimensional Variance) as proposed, allowing a home with a
basement that is located 2.82 feet below the HASGL, a 4.82 foot variance from the code required
vertical separation; citing that a City code compliant home can still be built on this lot with some
alterations to the plans. The hardships stated are self-imposed/self-created and are not the least
variance necessary. A home can be built without a basement, a split level home could possibly be
built, and/or the home may be able to be brought out of the ground partially.
NOTE - If the Board is going to approve the requested variance(s), then the City Attorney suggests
that a waiver of claim and a hold harmless agreement be established prior to permits being issued
so that there is no liability to the City if/when flooding of this home and/or other home/yards
occur.
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MUSKEGOthe City of
Area of InterestI0150300
Feet
Agenda Item(s)
Properties
Zoning Districts
Right-of-Way
Hydrography
Supplemental MapAPPEAL #04-2018
Forrest & Erin SirovinaS82 W13115 Acker Drive
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Prepared by City of Muskego Planning Department Date: 10/30/2018
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