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Zoning Board of Appeals Minutes 20200625UNAPPROVED CITY OF MUSKEGO ZONING BOARD OF APPEALS MINUTES 06/25/2020 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. Robertson, Dr. Kashian and Mr. Harenda Excused: Mr. Schneiker, Mr. Boschert 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 #02-2020 Petitioner: Robert Hoelzl (of LBJ Muskego Realty, LLC) Property: S73 W16555 Janesville Road / Tax Key No. 2198.978 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 side offset of 10-feet is required from the eastern side lot line. The petitioner seeks an offset of 9.8 feet from the east side lot line for the continued allowance of a portion of an existing commercial building and is therefore requesting a 0.2 -foot variance from the required side offset. Dr. Kashian swore in the following: Mike van Someren, Davis & Kuelthau, S.C., 111 E. Kilbourn Avenue, Milwaukee Robert Hoelzl, 1461 South River Road, New Berlin Adam Trzebiatowski, Planning Manager Mr. van Someren, representing Mr. Hoelzl explained that his client acquired the building to remodel and include a laundromat. During this process, they determined that it made more sense to expand the footprint for the project, meaning knocking down a portion of the building. A survey was completed and made a reasonable assumption that the building met the current zoning. The survey shows the building exceeding the offset by 0.2 feet. The first visit to the Plan Commission didn’t have any footprint change. The second visit to the Plan Commission found included demolishing portions of the building at which time the offset infraction was discovered. Mr. Hoelzl then decided to seek a variance for the offset. Plans were submitted to move the easternmost wall 0.2 feet to meet the 10-foot side yard offset. The hardship would be the number of things in addition to normal construction process which may include another variance for the masonry requirements. Additionally, substantial landscaping would be a much bigger impact to the property. Asking for the car wash bay to remain. Dr. Kashian asked if Mr. van Someren had the case law indicated in submittal. Mr. van Someren did not have the case law on hand, but this is also part of the hardship. Mr. Harenda asked whether the initial plans were to demolish and then changed to remodel. Mr. van Someren explained it was the opposite in that the first plans were to renovate and then the plans changed to expand the footprint with demolishing a portion of the building. Due to expanding the footprint then the non-conforming structure rules come into effect with the 50 percent rule. Dr. Kashian asked if it was 50 percent of value. Mr. van Someren said that it was 50 percent of square footage. Dr. Blumenfield read a portion of the hardship explanation in the submittal that states that Wisconsin Law indicates that where a municipality fails to detect a mistake in the location of an improvement, failing to detect a setback encroachment during inspections by the municipality during construction, requiring a property owner to demolish and relocate a structure constitutes a hardship that is unique to an owner’s property. Planner Trzebiatowski explained the overview of the submittals that were reviewed by the Plan Commission. He clarified that the 50 percent rule for non-conforming structures applies to the cost of the materials, not labor, to expand the building outward, upward or rebuilt. So when this was a remodel project, there weren’t any, or minimal costs that would apply. When the project became a rebuild project, this is when the 50 percent rule would be applicable. Planner Trzebiatowski also mentioned that there was a memo from the City Attorney from his review of the case law and agreed that parts of the case that applied and parts that did not. Planner Trzebiatowski wanted to be clear that there was no negligence by the City as Muskego, along with most communities, do not recertify the foundations of additions. Building inspectors are not surveyors and are not licensed to determine the distance of the building from the property line. By law, a certified surveyor would be required to record these measurements. The Plan Commission was involved as originally the resolution for the rebuild project noted that the wall must be moved 0.2 feet to meet the offset. The applicant then requested the Plan Commission amend the resolution to allow for the applicant to seek a variance for the 9.8-foot offset. The Plan Commission granted the amended resolution and wanted to convey to the Board of Appeals that they were in favor of the variance and thought it was a good project for Janesville Road and the City. Staff recommends approval of the variance based on the fact that the building is currently there and the new portions of the building will be fully compliant. Mr. Harenda asked if there was any way that would have prevented this. Planner Trzebiatowski explained the history of recertification’s for foundations of new homes and fairly recently new commercial construction also recertify the foundations. A way to prevent this in the future would be to require the foundations be recertified for any commercial projects, not just new construction. If the Board would like to suggest this change, staff can certainly pass along to City Administration for a change. Mr. Harenda asked if there have been any comments from neighbors. Planner Trzebiatowski explained that a couple questions were asked from neighbors about what the project entailed, but no concerns specifically about this variance request. Deliberations: Dr. Blumenfield stated that this is a unique property and this happened twenty years ago. If this could have been measured or recertified back then, this wouldn’t be an issue. Dr. Blumenfield appreciates that they are trying to improve the City. Whether or not neighbors object or support the project is not relevant as the Board has to make a decision based on the facts and a hardship. Based on the information in the packet, there were some issues in the past concerning the construction and measurement and asking the owner to move the wall two inches through no negligence of their own or doing something just to get it done would be a hardship. This is a unique situation and appreciate the diligence of the applicant and staff to present the facts. Mr. Harenda made a motion to approve Appeal #02-2020 for Robert Hoelzl at S73 W16555 Janesville Road / Tax Key No. 2198.978 for a 0.2-foot variance to the 10-foot offset requirement from the eastern property line based on the fact that asking the current property owner to move a wall two inches through no negligence of their own would be a hardship. Mr. Robertson seconded. Upon a roll call vote Appeal 02-2020 was approved unanimously 4-0. CLOSED SESSION OPEN SESSION APPROVAL OF THE MINUTES Approval of Minutes of the May 28, 2020 Meeting. Dr. Kashian made a motion to approve the minutes of the May 28, 2020 meeting. Mr. Robertson seconded. Mr. Harenda noted a correction was needed. Dr. Kashian made a motion to amend the minutes. Mr. Harenda seconded. Motion to approve the amended minutes passed unanimously. MISCELLANEOUS BUSINESS ADJOURN Dr. Kashian made a motion to adjourn. Mr. Harenda seconded. Meeting adjourned at 6:25 PM. Respectfully submitted, Aaron Fahl, AICP Associate Planner