Loading...
Zoning Board of Appeals Minutes 20210722UNAPPROVED CITY OF MUSKEGO ZONING BOARD OF APPEALS MINUTES 07/22/2021 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. Dyszelski, Dr. Kashian, and Mr. Schneiker Excused: Mr. Robertson and Mr. Harenda. STATEMENT OF PUBLIC NOTICE The meeting was noticed in accordance with the open meeting laws. NOTICE OF CLOSED SESSION PLEASE TAKE NOTICE that the Board of Appeals of the City of Muskego may convene, upon passage of the proper motion, into closed session pursuant to Section 19.85(1)(a) of the State Statutes for the purpose of deliberating concerning cases which were the subject of a quasi-judicial hearing; said cases being the appeals described below. The Board of Appeals will then reconvene into open session. OLD BUSINESS NEW BUSINESS Appeal # 01-2021 Petitioner: Mitch Golla on behalf of the Golla Trust Property: W180 S8091 Pioneer Drive / Tax Key No. 2222.986 REQUESTING: Under the direction of Section 400-18 of the Municipal Code (Zoning – Zoning Board of Appeals), the petitioner seeks the following variance: Chapter 400-167C.(2)(a) – Accessory Structure Size Limits (2) Area. Subject to the open space requirements of the zoning district, the total square footage of all accessory structures subject to this section is permitted as follows: (a) Square footage permitted by right: the greater of 720 square feet or 60% of the assessed floor area of the principal structure. A total accessory structure size limit on the above noted property is 720 square feet in area. The petitioner seeks to be allowed to k eep two existing accessory structures, totaling 997 square feet, on their recently split 0.459 acre property and is therefore requesting a 277 square foot variance from the maximum total allowed accessory structure size limit. Dr. Kashian swore in the following: Mitch Golla, Petiitoner, 642 East Village Green Court, Oak Creek Rick Petfalski, Mayor City of Muskego Aaron Fahl, Associate Planner Mitch Golla explained that they are petitioning for the variance in order to keep the outbuildings on a recently s plit parcel. The hardship is that they are being wrongfully penalized for having a small house. The house is only 767 square feet regulated under prior minimum housing standards as the current minimum standards are 1,100 square feet for a single-family house. The small house size does not allow for the necessary storage, where the additional outbuilding size allows for this storage area including 2 vehicles, lawnmower, snowblower, tools and other items. Being required to move the outbuildings is an unnecessary burden, or hardship. The petitioner is not asking for anything new, but to keep the existing outbuildings. Dr. Blumenfield asked if the petitioner was aware of the restrictions on lot sizes, where the petitioner stated no, he was not aware. Then the petitioner stated that when they were in process of the lot division they were informed late in the process of the restrictions. They were not aware of this issue until the second engineering review. Dr. Blumenfield asked if before the land was subdivided they were aware of the restrictions the City had. The petitioner said yes at the last minute they were made aware. Dr. Blumenfield asked if the petitioner had worked with anyone with the knowledgeable of the City regulations. The petitioner stated that he worked with their surveyor and Adam, the Planning Manager. Dr. Blumenfield asked if before the subdivision went to Council that there was an issue. The petitioner stated that they were presented with options of changing the lot lines or try for a variance in front of the Board of Appeals. The hardship is that they are being wrongfully penalized for a small house. Mr. Boschert asked for clarification of the number of outbuildings and what is being used in the outbuildings. The petitioner stated that the yard tools and various tools are one of the outbuildings and they would not fit in the other outbuilding and be organized. Dr. Kashian asked what they are looking for, which the petitioner stated they wanted to keep the outbuildings that they currently have. Dr. Kashian said that the City allowed them to subdivide the property knowing that the subsequent result is that the petitioner would need to remove an outbuilding. Dr. Kashian said that the City allowed the property to be split knowing that it was non-conforming. Dr. Kashian questioned how the City would allow this to happen and then tell them they have to tear down an outbuilding. Dr. Kashian sa id that if this was an urgent event it would be necessary prior to splitting the land. Mr. Boschert asked for a sequence of events for when the land was subdivided and when they were made aware of the city requirements. Mayor Petfalski stated that the Golla’s wished to subdivide their property and very late in the process the accessory structure issue arose. It really wouldn’t make any sense for them to redo their land division when there was an option to come before the Zoning Board of Appeals for a h opeful chance to grant the variance. Without the variance they will need to go back and redraw the property lines that may not be in the City’s best interest. The Mayor stated that when drafting the accessory structure ordinances as an alderman twenty ye ars ago the intent wasn’t to limit the amount of accessory structures but to allow for more square footage. The did not take into consideration the small footprint of some homes at that time. The argument of being penalized for a small home is actually true and if thought of at the time of drafting the ordinance it would have been taken care of and may in the future. If you look at the structures on the property now, it would be the same as what they are allowed by right if the house was built to minimum standards. The accessory structures are not causing any issues with setbacks or anything else and the reason there are accessory structure regulations is so there aren’t overly cluttered yards. Once they were made aware of the needed changes to the subdivision they could have made the changes but the mayor thought they were better off coming to the Board of Appeals to work this out. He also thought having the petitioner redraw the property lines would be a disservice to the community. Dr. Blumenfield asked if Mayor Petfalski was aware of the hardship requirement for variance approvals. Mayor Petfalski stated that he is aware of the authority of the Board and it is based on the Boards interpretation of a hardship. Mr. Boschert asked Mayor Petfalski to elaborate on the hardship. Mayor Petfalski stated that the hardship is the allowable structures for the property. The spirit of the ordinance when written for the total square footage of the overall structures, which if all square footage is added up, they are exactly where they would be if the house was built to 1,100 square feet. The other hardship is that the City allowed the CSM to go through without requiring them to tear down the accessory structure before being approved. Now that it is approved t he City is requiring them to remove square footage from the accessory structure. Mr. Boschert asked if a land division triggers enforcement of all revised building codes. Associate Planner Fahl stated that there was a two-lot Certified Survey Map that was approved and recorded and the accessory structures are more than what is allowed based on the smaller lot size. When this was a larger lot all of the accessory structures were fine. The new lot is smaller and thus only 720 square feet of accessory structures are allowed on the new lot. The two accessory structures have been there over 70 years with the house at the same timeframe. It may have been noted late that the outbuildings exceeded the limit, there is a note on the recorded Certified Survey Map about removing or reducing the footprint of the accessory structures within six months of the recording of the Certified Survey Map. As the mayor said it may have been noted later and they would need to redraw the property lines, but the note is on the recorded document so to say they were not aware is questionable. Associate Planner Fahl explained that an accessory structure bonus is allowed when the property is larger than 40,000 square feet or the house is larger than 1,200 square feet and neither condition exist on the new lot. The small existing house not allowing for storage is a self -imposed hardship. Staff did not feel there was a hardship based on the zoning code and therefore recommended denial of the appeal. Mr. Boschert asked a land division trigger enforcement of all current building codes. Associate Planner Fahl said that during a land division is when the City would look at issues like this and would enforce Zoning codes not building codes. Mr. Boschert asked that then there is no grandfathered clause. Associate Planner Fahl said that no, there is no grandfathering in this case because the recent land split. The structures were fine before the land split because of the property size bonus of 40,000 square feet or larger. The building codes back then allowed for a smaller house, but it was the lot size where the bonus comes from to meet the ordinance. The minimum lot size of 20,000 square feet does not allow for this bonus. Mr. Boschert asked if the denial goes forward, what are the other options available for the petitioner. Associate Planner Fahl said that if the appeal is denied the first option is to remove the structures or decrease the square footage and the second option is to redraw property lines that may or may not be adv antageous to the City. Dr. Kashian asked if he were to subdivide a lot and the location of the house was grandfathered in, would the City retroactively have him move the house. Associate Planner Fahl said no, the land division wouldn’t be allowed if it would make the house more non-conforming. Dr. Kashian asked how the board is making this more non- conforming. Associate Planner Fahl said that they are asking to keep the existing buildings, not add anything. Mr. Kashian said that the City is making a statement that those who own non-confirming lots cannot make improvements to their property. Associate Planner Fahl said that no, this wasn’t non-confirming before the land split. Mr. Kashian said this is a failure of administrative process. He said it is incredibly easy to look at a plat map early in the process and add up the numbers and divide early in the process. Mr. Kashian said it should have never gotten to the end of the process. Associate Planner Fahl said it was an oversight. DELIBERATIONS: Mr. Boschert wanted clarification from Mr. Kashian that because there is administrative failure that that bypasses the three-step test. Mr. Kashian said that he thinks the Board has an obligation as standards are only applicable if you es tablish the standards throughout the process. There was a failure in the process and so the board needs to make amends for it. The hardship is not self-imposed by the landowner, but it wasn’t mitigated by the community. In the future the City needs to be crystal clear in the process to guide the community before they put money on the table and go down a path that is obviously not a path they wanted to go down. They could add on to the house to have more square footage of accessory structure, but these are not solutions in the 8th or 9th inning and the Board needs to recognize this. Mr. Schneiker said that in the past topography was identified as a hardship as well as storage and asked if there is a basement. Yes, there is a basement. As for garage sizes, standards now are for two-car garages, which justifies the size of the garage. Mr. Dyszelski asked if there can be a limit on the approval, i.e. something where when the house is sold the accessory structure would need to be removed. Dr. Blumenfield said no. Mr. Boschert then said that he understands the administrative failure, but struggling with unnecessary hardship. Dr. Kashian said this meeting was unnecessary and the City needs to reflect on how the process works with guiding people so they don’t go down a path like this. They could have subdivided this without telling the City and then the City would show up and tell them they have to tear the building down. It is giving guidance to the community as soon as they can. It is a learning moment. Mr. Boschert then asked why he is being asked to play the role of legislature then. Dr. Blumenfield then said that this is a unique situat ion. She understands the house is small, but also understands what exists there according to the statement provided as the hardship and it seems as though there is a lot less being stored there and they could store in a different way if they did not get a variance. Everyone knew this was unique prior to approval and there was going to be issues with the amount of land and floor area with the two/three outbuildings, yet it went forward. It is not the Boards role if that should have been done 20 years ago or stop the subdivision process and fix the ordinance at that time. Mr. Golla said they knew the situation and they could have changed it, the City knew the issue and said they have an option to appeal the issue to the Zoning Board of Appeals. The Board is charged with finding a hardship that is not self-imposed under state law so the variance can be granted. The Board needs to find a hardship legally on behalf of the Board, City and homeowners. The Board does their best job to make sure that what they have to work with is as lenient, and acceptable to the property owners, the City and the Board as possible. So they need to find a hardship and based on the testimony, Dr. Blumenfield does not believe there is a hardship to justify voting in favor of for something that could have been changed before there was an issue. Mr. Kashian made a motion to approve Appeal #01-2021 for Mitch Golla at W180 S8091 Pioneer Drive / Tax Key No. 2222.986 to be allowed to keep two existing accessory structures, totaling 997 square feet, on their recently split 0.459 acre property and is therefore a 277 square foot variance from the maximum total allowed accessory structure size limit. Mr. Boschert seconded. Upon a roll call vote Appeal 01-2021 was approved 3-2 with Mr. Boschert, Dr. Kashian and Mr. Schneiker voting yes and Dr. Blumenfield and Mr. Dyszelski voting no. CLOSED SESSION OPEN SESSION APPROVAL OF THE MINUTES Approval of the Minutes of the June 25, 2020 Meeting. Dr. Kashian made a motion to approve the minutes of the June 25, 2020 meeting. Mr. Dyszelski seconded. Motion to approve the minutes passed unanimously. MISCELLANEOUS BUSINESS ADJOURN Mr. Dyszelski made a motion to adjourn. Mr. Boschert seconded. Motion to adjourn passed unanimously. Respectfully submitted, Aaron Fahl, AICP Associate Planner