Zoning Board of Appeals Minutes 20200528UNAPPROVED
CITY OF MUSKEGO
ZONING BOARD OF APPEALS MINUTES
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
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, Dr. Kashian, Mr. Schneiker and Mr.
Wallner and Mr. Harenda
Excused: None
STATEMENT OF PUBLIC NOTICE
The meeting was noticed in accordance with the open meeting laws.
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
garage and is therefore requesting a 3.1-foot variance from the required north side
offset.
Mr. Schneiker swore in the following:
Phillip Jakubowski
Adam Trzebiatowski, Planning Manager
Phillip Jakubowski explained that the reason for the variance is because the existing 2.5-car
garage is in disrepair and needs to be rebuilt. The variance is new to extend the garage back
toward the house and attach to the house. The setbacks of the new garage in the variance are
the same we when initially constructed in 1976. In 1995-1996 the garage was rebuilt. A tree
was removed and with the roots rotting, the foundation has failed. The lot is on the inside of the
bend of the road. They looked at moving the garage back to meet the current setbacks, but
there wouldn’t be enough room to park a car in the garage. The same setbacks would be used
as the 1976 variance. Included was letters from the neighbors regarding this proposal. For
safety reasons, would be nice to not have to walk around where ice problems are found and
they don’t like to use salt due to the proximity of the lake. A new footing is needed, thus the
need for a new variance.
Mr. Jakubowski explained the hardship as the safety issue, the tree being removed by the City.
There is also a drainage issue on neighboring property when the street being repaved. Need to
replace the garage, not their fault, and understand they can rebuild as it sits, but would like to
extend back to the house. Anyone that lives in the house would have the same unique
circumstances they are dealing with. They could rebuild but after consulting with the gas
company they said they would need to do a road cut to reconnect the gas. Asked all neighbors
to review the plans and provide insight. Decreasing the depth would not be feasible to fit an
average vehicle.
Mr. Schneiker asked if there will be an open space issue. Mr. Jakubowski said there is an open
space issue and will replace asphalt with paving bricks to meet the open space requirements.
Only became aware of the open space issue when the Board of Appeals packet arrived.
Mr. Schneiker asked that safety is the hardship being stated and truck doesn’t fit. Does that
mean the truck must be parked on the road? Mr. Jakubowski responded that no, could still park
in the driveway then it would shade the walkway more which causes more ice buildup. Mr.
Jakubowski said they park toward the end to reduce the ice. With the location of the lot
neighbors cannot see traffic past his vehicles.
Mr. Schneiker asked to clarify that the garage was rebuilt in 1996. Mr. Jakubowski said it was
rebuilt and to raise the garage and add a gable roof. The footprint stayed the same.
Mr. Wallner asked about a correction to the supplement. Planner Trzebiatowski confirmed and
explained the typo.
Mr. Wallner asked about the shed structure on the side of the house. Mr. Jakubowski explained
that yes they have a shed and is needed to fit gardening tools, but could be removed if needed.
Mr. Wallner asked about the contacts for the neighbors and if this is a precedent setting matter.
Dr. Blumenfield stepped in and explained this is only about this petition and not about anyone
else.
Mr. Boschert asked if it is possible to move the garage away from the road and property line.
Mr. Jakubowski said they could, but only fit one vehicle due to proximity of the house. Because
of the attachment to the house, significant construction would need to take place for egress
reasons and believes they would only be able to fit one vehicle. Additionally the gas meter
issue comes into play. Trying to do this to maintain the character of the neighborhood as well.
Dr. Blumenfield wanted to clarify how many times people have been hurt due to the ice issue.
Mr. Jakubowski explained a lot of people have fallen and described several serious injuries.
Dr. Blumenfield asked if the gas meter is attached to the garage. Mr. Jakubowski said it was
originally on the house, but was moved to the garage and they are trying to eliminate the gas
company work and road cut.
Dr. Kashian asked if they chose to do nothing, the gas insufficient gas lines would remain. Mr.
Jakubowski said that was correct.
Dr. Blumenfield asked whether or not the variance is granted the garage needs to be rebuilt.
Mr. Jakubowski confirmed the garage has to be rebuilt due to the state of disrepair.
Planner Trzebiatowski reiterated that neighbors have submitted letters in support of the project.
Also the City received a call from Jackie Cloud, S66 W18557 Jewell Crest Drive, and she is in
favor of the variance being approved and the garage is an eyesore. An additional email from
Mike Lembezeder, W186 S6743 Jewel Crest Drive, who had questions regarding the purpose of
setbacks, which the City responded. Mr. Lembezeder is in support of the variance.
Planner Trzebiatowski explained the open space and that those numbers are not typically
reviewed until a survey is submitted. If any option is moved forward with, the open space
review will take place. The shed is not accounted for on the survey. The shed does need a
permit if it will stay and will be accounted for during permitting.
Planner Trzebiatowski explained that each case should be looked at on its own merits. Planner
Trzebiatowski also explained to the neighbor that each case is its own.
Planner Trzebiatowski understands there is a drainage issue and there are plenty of options to
correct the drainage issues that would help the icing.
Planner Trzebiatowski explained that staff has become aware of the old variance during our due
diligence for this and they could rebuild with the same footprint. The new proposed garage is no
closer to the road or to the side property line.
Planner Trzebiatowski mentioned that there is case law that the Board should keep in mind and
the first is that the hardship cannot be self-imposed and circumstances of the applicant. An
example would be that they want more storage space. Hardship has to be the same regardless
of who lives there. Another item to keep in mind is any other options. Back in 1976 the
variance was result was a compromise of what was asked and what was granted. The Board is
also tasked with granting the minimal variance to grant a waiver. Financial hardship cannot be
grounds to grant a variance. Any other nearby violations or lack of objections are not grounds
to grant a variance. Planner Trzebiatowski discussed the three-step test including the hardship,
unique property limitations, and public interest.
Planner Trzebiatowski explained the recommendation is to deny the variance because there is
already a variance for a two-car garage that can be rebuilt. Additional notes include the open
space that must come into compliance and that permits are needed moving forward.
Dr. Kashian explained that the variance is already there. This is about installing a pad to
connect the existing space to the house. Does that existing space violate any of the set-aside
rules today? Planner Trzebiatowski explained that the literature states that if any of the
variables change such as wanting a larger building, it must be looked at completely new. From
a practical standpoint they are not getting any closer to the front or the side from where the
garage was previously.
Dr. Kashian did nothing, would the community enforce open space requirements now. Planner
Trzebiatowski explained that open space is applied at the time of permits. The City does not
drive around looking for violations. The exception is when there is a complaint.
Mr. Boschert asked whether the safety issues fall under any of the three test categories.
Planner Trzebiatowski explained that public interest that is not defined. Is this the general
public or whomever.
Mr. Boschert asked is if it was fair to say that if something is attached there is significantly
reduced safety risk than if detached. Planner Trzebiatowski explained that practically it would
be safer but nothing in the code discusses this.
Mr. Harenda asked the speed limit, 25? And has public safety or DPW looked at regarding the
traffic or accidents. Planner Trzebiatowski is not aware if this was a topic in front of the Public
Safety Committee. Direction now would be to discuss with their Alderman.
Mr. Harenda understands this will not affect the garage being built, but it was brought up as an
issue. Also, the drainage issue, is this on the property or by the road. Planner Trzebiatowski
and Phil Jakubowski explained that there is a drain on his property due to the drainage issues.
This cause additional issues and the drain was raised. The neighbor has had ongoing
discussions with DPW regarding the drainage issues.
Mr. Harenda wanted confirmation that the homeowner is responsible for the area between the
property line and the roadway. Planner Trzebiatowski confirmed.
Deliberations:
Dr. Kashian made motion to approve Appeal 01-2020 for Phillip Jakubowski at W185 S6710
Jewel Crest Drive / Tax Key No. 2174.066 with the hardship of public safety. Mr. Schneiker
seconded.
Dr. Kashian wanted to clarify that if reduced to if the Board would approve rebuilding the garage
on the same slab. He would approve immediately. The question is connecting to the house.
Open space will be an issue that the homeowner needs to address.
Mr. Schneiker said that in 1976 this was not requested to be attached to the house. If it were
requested to attach to the house and is fairly certain if attaching the garage to the house was
asked for it would have been granted. The setback is the same, offset is the same so this is just
a matter of the few feet between the house and garage. Variances based on safety issues have
been granted in the past.
Mr. Robertson agrees with tying the safety issue to the public interest test. He doesn’t see any
other hardship. Would be comfortable based on granting the variance based on a safety issue.
He is also confident that if the garage was proposed attaching to the house back in 1976 it
would have been approved.
Dr. Blumenfield said that in 1976 the variance and the community were far different that they are
now. Lake lots are extremely unique and there are different parameters on those lots. Dr.
Blumenfield says the safety issue is and has been an extremely important issue as no one
should be putting their life in danger and serious injuries are not something that we want to
happen to anyone in the City. This can be concluded as a hardship and appreciates that Mr.
Jakubowski is willing to rebuild the garage regardless of the outcome, but how much safer will it
be if his family doesn’t have to risk injury to get into the house. Could modify the parameters of
the request, but that would not be in the interest of the applicant or the City. The hardship of
safety is what should be stressed. Would like an amendment to include open space and
permits in the motion for clarity.
Mr. Boschert wanted clarification that open space is an issue during permitting and not now. Dr.
Blumenfield confirmed.
Dr. Kashian wants to be clear that they don’t want Mr. Jakubowski to come forward with an
open space variance request. Dr. Blumenfield said that is another issue.
Dr. Robertson wanted clarification that ice on a private property is considered a safety issue.
Dr. Blumenfield believes that they have lived there a long time and there have been instances
where safety is an issue and the Board has found in the past that safety of the homeowner is
applicable.
Dr. Kashian amended the motion to approve Appeal 01-2020 for Phillip Jakubowski at W185
S6710 Jewel Crest Drive / Tax Key No. 2174.066 based upon safety related issues and that
open space must come into compliance and permits are required for all work. Mr. Schneiker
seconded the amended motion. Upon a roll call vote Appeal 01-2020 was approved
unanimously 5-0.
CLOSED SESSION
OPEN SESSION
APPROVAL OF THE MINUTES
Approval of Minutes of the October 29, 2019 Meeting.
Mr. Boschert made a motion to approve the minutes of the October 29, 2019 meeting. Mr.
Robertson seconded. Motion to approve passed unanimously.
MISCELLANEOUS BUSINESS
ADJOURN
Mr. Schneiker made a motion to adjourn. Mr. Wallner seconded.
Meeting adjourned at 7:10 PM.
Respectfully submitted,
Aaron Fahl
Associate Planner