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Zoning Board of Appeals Minutes 20191029APPROVED 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 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. 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 ADJOURN Mr. Petfalski made a motion to adjourn. Mr. Boschert seconded. Motion carried unanimously. Respectfully submitted, Aaron Fahl Associate Planner