Zoning Board of Appeals Minutes 02282019
APPROVED
CITY OF MUSKEGO
ZONING BOARD OF APPEALS MINUTES
February 28, 2019
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,
Mr. Petfalski
Excused: 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 #01-2019 Petitioner: Joe Kazmierczak of Burback Builders on behalf of Lawrence
Radosevich
Property: S70 W19078 Wentland Drive / Tax Key No. 2180.965
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 setback of 40-feet is required from Wentland Drive right-of-way line. The petitioner seeks a
setback of 38.3 feet from the right-of-way line for a new landing and stairs, and is therefore
requesting a 1.7-foot variance from the required right-of-way setback.
Mr. Schneiker swore in the following:
Joe Kazmierczak, Burback Builders
Adam Trzebiatowski, Planning Manager
Mr. Schneiker recuses himself as petitioner is a neighbor.
Mr. Kazmierczak explained that currently there are concrete stairs extending straight out from
the home. During permitting the homeowner and contractor learned the existing concrete stairs
are past 40-foot setback and City asked for side entry. Homeowner asked contractor to pursue
variance due to hardship being access to house for furniture, large objects or in the case of an
emergency, a stretcher. Second access is on the side with smaller entrance.
Mr. Trzebiatowski gave the city's opinion based on the zoning code. Mr. Trzebiatowski
explained this issue came about during permit review and reiterated that the City advised a side
entry would meet the Code and not need a variance. There are several other lots similar in the
City. Permits were issued for the side entry. Staff reviewed this application for hardship and
whether self-imposed or a circumstance of applicant, what is the least variance needed and
whether there are options where variance not needed. Staff does not recognize a hardship and
recommends denial.
Dr. Blumenfield questioned Mr. Trzebiatowski as to whether a stretcher, a large piece of
furniture or a walker would fit up the steps if side entry. Mr. Trzebiatowski explained landing
size 36” so a walker would fit and has heard that emergency personnel will get in regardless of
any impediments that may be in the way. Stoop is only two or three steps from the ground so a
stretcher could be lifted over, but cannot speak to the turning radius of stretcher.
Dr. Blumenfield questioned Mr. Kazmierczak about the width of the kitchen door on side. Mr.
Kazierczak said it was a 2’6” door, relatively small door. Opening was previously a door to an
attached garage.
Dr. Blumenfield questioned when home was built. Mr. Kazmierczak responded with 1950’s.
Deliberatons:
Mr. Le Doux made a motion to approve variance for Appeal 01-2019. Mr. Petfalski seconded.
Mr. Petfalski explained for emergency personnel access reasons the Board has allowed a very
similar variance in the past.
Mr. Le Doux explained that safety is an issue and at least one entry should be a straight
entrance into every house. Also, if the homeowner was to raise the grade to a point where
steps were not needed a variance wouldn’t even be needed for a straight entrance.
Dr. Blumenfield explained that per State law, Board has to find a hardship and the board has in
the past granted variances for safety reasons. Upon a roll call vote Appeal 01-2019 was
approved 5-0 with Vice Chairman Schneiker recusing himself.
Appeal #02-2019 Petitioner: Connie & Glenn Byal
Property: S79 W16061 Bay Lane Place / Tax Key No. 2217.989
REQUESTING: Under the direction of Section 386-28 of the Municipal Code (Floodplain Zoning
– Zoning Board of Appeals), the petitioner seeks the following variance:
Chapter 386-21 B. 4. – Nonconforming Uses - Applicability; conditions for continued use
No modification or addition to any nonconforming structure or any structure with a
nonconforming use which over the life of the structure would equal or exceed 50% of its present
equalized assessed value shall be allowed unless the entire structure is permanently changed
to a conforming structure with a conforming use in compliance with the applicable requirements
of this chapter.
The fair market value/equalized value of the non-conforming structure (house) is $77,900 and
the code limits the cost of materials and labor to 50% ($38,950) of the current equalized value
for all alterations and expansions for homes within FEMA mapped floodplain areas until the
property is brought into full compliance with Chapter 386 (Floodplain Zoning Code). The
petitioner requests a labor and material value not to exceed $200,000 or 256% of the present
equalized assessed value. Therefore, the variance request is for a $161,050 over the code
required 50% limit ($38,950) on material and labor costs for alterations and expansions within
FEMA mapped floodplain areas.
Mr. Schneiker swore in the following:
Connie and Glenn Byal, S79 W16061 Bay Lane Place
Michelle Hase, Wisconsin Department of Natural Resources 141 W Barstow, Waukesha
Thomas Keys, S79W16099 Bay Lane Place
Cindy Salentine, S79W16111 Bay Lane Place
Dave Koscielniak, 12310 W. Waterford Ave, Greenfield, Architect
Adam Trzebiatowski, Planning Manager
Mrs. Byal explained they purchased their house in 2013 and moved in full time in 2016. This is
when they started noticing major problems with house including electrical, utility room and
leaking roof and would like to update the house but cannot due to the limited dollar amount
allowed. They cannot rebuild anywhere on lot due to the floodway so they are asking to be able
to remodel within the existing footprint. The original house was built in 1968 with two additions
and they do not believe there has been any updating of electrical and upstairs bedroom does
not have any heat vents or air vents. They would like to rebuild on the land, but it’s not possible,
so they are trying to do what they can with the house that they have.
Mr. Schneiker asked Mrs. Byal if they were aware floodplain situation when they purchased the
house in 2013. Mrs. Byal stated that they were aware of the floodplain, but naïve to what the
restrictions actually were on the property. Mrs. Byal knew they could not build on the land but
didn’t know about any restrictions for remodeling. They did obtain a variance to build a garage
on the property and wanted a sunroom, but were told they could not add onto the house, so
they are looking at remodeling.
Mrs. Byal explained that prior to purchasing the house they did have it inspected, but the
problems with the house are being found after they moved in full time. They moved in full time in
2016 permanently.
Mr. Schneiker asked Mrs. Byal what the hardship would be. Mrs. Byal explained safety is the
hardship with extension cords connecting main utilities. Mrs. Byal said these electrical issues
could be repaired, but they would need to get into the walls. The house appears to have been
built around the utility room.
Dr. Blumenfield asked when the garage was built. Mrs. Byal said 2014.
Dr. Blumenfield asked if they ever looked into upgrading the HVAC. Mrs. Byal said contractors
told her that HVAC couldn’t be replaced due to lack of walls to run ductwork. Dr. Blumenfield
said that her point was that HVAC upgrade would likely cost far less than $200,000.
Mr. Petfalski asked whether the contractors submittals where broken down. Mr. Trzebiatowski
said there are three bids submitted.
Glenn Byal stated that when they purchased the house they were told they didn’t need flood
insurance. Mr. Trzebiatowski clarified that it was the mortgage company that said this. Mr. Byal
stated that everyone is worried about the creek that doesn’t vary.
Dave Koscielniak said that the only reason they were there is because of the floodway. If
anywhere else in the city, this meeting wouldn’t be happening. The owners have been adamant
to keep the design within the existing footprint. They desire more usable space with better
systems turning a seasonal house into a full-time home. He has been able to design a house
within existing footprint with functional bedrooms and mechanical room. The footprint is actually
being decreased by removing chimney. Unfortunately, the cost exceeds allowable amount. He
would contend this house has a better chance of being destroyed by a tornado, snowplow or
fireworks. He also stated that the City of Muskego has done a terrific job with engineering and
controlling floodwater upstream in the PUD’s with stormwater management plans so the creek
has less water and is controlled. If they were able to draft agreement indemnifying the City,
FEMA and the DNR would the City be amenable was asked by Mr. Koscielniak.
Mr. Petfalski asked Mr. Koscielniak if they just addressed electrical, HVAC and other
safety/health issues, would it be more or less expensive. Mr. Koscielniak said it would be less
than what they want to do, but still exceed threshold, but would probably be about two-thirds3 of
total cost.
Michelle Hase, WDNR, regional water management engineer, works to assist local communities
with implementing their floodplain ordinance; Ms. Hase role is to provide technical assistance to
City, second role is providing oversight to City ensuring implementing flood ordinance in
accordance with State and Federal regulations.
Mr. Le Doux asked if the DNR has issues with the fifty percent cost ceiling rule. Ms. Hase
stated the fifty percent rule is in Federal regulations.
Mr. Trzebiatowski explained that the rules are federal that are passed to the state that then add
rules and then passed to the City to enforce.
Mr. Le Doux asked whether the DNR has anything to do with the development of the property.
Ms. Hase explained the DNR is the liaison between the FEMA and communities. The City of
Muskego is an active participant in the National Flood Insurance Program and voluntarily
entered into a entered into an agreement with FEMA saying the City would implement an
ordinance to reduce flood risks and reduce the loss of life and property protecting areas of high
risk. By doing so, the residents of the City are eligible for flood insurance. If the City was not in
the program, residents would not be eligible for federally backed flood insurance and left for
private flood insurance that is more expensive and difficult to obtain. The National Flood
Insurance Program coordinator provided stats and there are sixty policies for $13.7 million in
coverage in the City. FEMA expects boards to grant variances based on the criteria outlined
and protect the intent and purpose of ordinance. The DNR can review variance approvals and if
they feel the intent and spirit are not followed the DNR can suspend communities from the
National Flood Insurance Program. The DNR can also pursue enforcement against the board if
the DNR feels the variance was approved against the intent of the ordinance.
Mr. Le Doux asked if the goal was to get rid of properties in the flood zones and get them back
to natural wetlands. Ms. Hase explained the goal is to reduce the risk in high risk areas.
Mr. Le Doux asked if there was any way to only insure what exists and not insure anything new.
Ms. Hase explained there are no agreements between homeowners and FEMA to indemnify
insurance like this. She also clarified that homeowners insurance does not cover flooding.
Mr. Ristow asked how many homes have flood insurance on Bass Bay and Quietwood Creek.
Ms. Hase did not have that information. Mr. Trzebiatowski stated that not many on Bass Bay
have flood insurance as the homes are set back but there is a handful on Quietwood Creek.
Mr. Ristow said he has never heard Quietwood Creek flooding and he has been here since
1968 and floodplains and regulations are arbitrary because there are certain people that just
want to get the lands back to wetlands. Ms. Hase said the studies were completed in 2008 so
the study is fairly recent. If a homeowner wanted they could have the creek restudied, but the
onus is on the homeowner or City. Mr. Trzebiatowski said a previous owner of this property
looked into this and after talking to engineers, they decided to stop paying the mortgage as a
restudy was cost prohibitive.
Mr. Ristow stated that Quietwood Creek never had a problem. Ms. Hase stated mapping and
modeling is the best information they have.
Dr. Blumenfield asked Ms. Hase if anyone looked into how many catastrophes we’ve had. Ms.
Hase said generally 75% of national disasters are flooding instances with several declarations in
Wisconsin in the past few years.
Mr. Le Doux said that with the subdivisions development that stormwater management was
addressed to alleviate stress downstream. Mr. Trzebiatowski said those ponds are for day-to-
day rain events not flooding.
Thomas Keys submitted letter in favor of the improvements. This is a rare opportunity to
improve a property that is livable but not wonderful and will be a benefit to the City and
neighbors.
Cindy Salentine says her and husband are not opposed to this project. They live at the bottom
of two roads and they have experienced flooding in the past and they are concerned and want
to be sure that if this goes through that they do not experience any additional flooding.
Mr. Trzebiatowski explained FEMA mapping was completed in 2008 and prior to that was 1982.
He has spoken to Byal’s about remodeling and has recently understood to the degree the Byal’s
are looking to remodel their house. To clarify a previous point that the 50 percent rule doesn’t
apply anywhere else in the City is incorrect. Every property in the City with a non-conformity
has the 50 percent rule but the difference is floodplain 50 percent counts materials and labor
costs and other non-conforming properties it is just materials, but not labor costs. Also, when in
a floodplain all costs are counted where when not in the floodplain the 50 percent rule applies
only to area outside of the original footprint. Mr. Trzebiatowski also mentioned that there were
recent state law changes to make improving non-confirming properties more lenient, but nothing
changed in floodplain areas.
Mr. Trzebiatowski explained that this is a use variance because the ordinance states that in the
floodway you cannot build a house. This house is there because it was built before the
floodplain was mapped. With floodplain mapping completed in 2008, those are the regulations
we are subject to moving forward. There is case law with a use variance that says that the
applicant has to prove that property has “no reasonable use” without the variance. So the board
has to determine if there is no reasonable use for the property without a variance. The applicant
has an existing house that they have lived in for a few years. For a use variance, staff was
unable to find a hardship as there is a reasonable use of property already. Additional variance
considerations typically include whether a hardship is self-imposed or is it a circumstance of
applicant. A variance that is granted is supposed to be only the minimum variance necessary.
Financial considerations are not supposed to be considered in variance.
Mr. Petfalski asked if the applicant were to get a price and update electrical and HVAC that
were lower, is that something the board could allow while following statutes. Ms. Hase
explained that this was a use variance and not a dimensional variance. Mr. Trzebiatowski
explained that they have use of the house so nothing would change. Mr. Petfalski then asked if
it was a safety hazard, the cost to correct that would not be a case for a variance. Mr.
Trzebiatowski said that may be for an attorney to answer, but since this is a use variance, is
there a reasonable use of the property.
Dr. Blumenfield asked if they had an electrical inspector in, would they need a variance. Mr.
Trzebiatowski said that it would depend upon the value.
Mr. Petfalski reiterated if this $150,000 was to bring the house up to code could they get a
variance and then use the money in a way to achieve what they want as new is sometimes
cheaper than remodeling old. Mr. Trzebiatowski said he did not believe so, but would be a
question for an attorney.
Dr. Blumenfield asked when the fair market value was taken. Mr. Trzebiatowski said it was from
the tax bill they paid for 2018. From the tax bill they received in December 2018. Mr.
Trzebiatowski explained it was for the improved value of just the house not the property or the
outbuilding.
Mr. Le Doux asked if this would be a buildable lot now. Mr. Trzebiatowski said that if it was
vacant, you could not build a house on this lot now.
Deliberations:
Mr. Schneiker made a motion to deny variance for Appeal 02-2019. Mr. Le Doux seconded.
Mr. Petfalski stated they have federal, state and city statutes to deal with. As a former
alderman, this is the type of property the City purchased to remove the danger associated with
flooding.
Mr. Le Doux asked if they can use 50 percent now and re-assess and then use that to improve
the property. Mr. Trzebiatowski explained that it is cumulative and once 50 percent of the value
is used, that is all they can do. Mr. Le Doux asked if they remodeled and then sold the house,
what the next owners do. Mr. Trzebiatowski explained that the 50 percent stays with the
property, not the current owners.
Mr. Le Doux asked if re-roofing or painting is included in the 50 percent rule. Mr. Trzebiatowski
explained that code is specific where painting, decorating, paneling and other nonstructural
components and the maintenance, repair or replacement of existing private sewage or water
supply systems or connections to public utilities is not included but anything outside that
definition is considered structural and counts toward the 50 percent limit.
Mr. Le Doux asked if they were to take out the things that are normal maintenance could they
move forward. Dr. Blumenfield stated that they have to determine at the meeting the request of
256 percent above the present equalized assessed value whether or not a roof is included.
Mr. Petfalski stated that board has a federal statute to abide by and if the board grants this
variance that there will be a lawsuit and will likely affect every property in the city that has flood
insurance.
Mr. Ristow asked when the floodplain ordinance regulations were put into effect – ‘08. Mr.
Trzebiatowski explained that the floodplain ordinance has been in effect longer than 2008, but in
2008 the maps were changed that then affected this lot. Mr. Ristow said that they weren’t
warned about the floodplain regulations when they purchased the house in 2013. Mr. Schneiker
said that is why he asked about whether they were aware of the floodplain and what it meant
and the applicant said yes they were made aware of the floodplain being present and that is
why they had to build a garage where they did.
Mr. Le Doux asked if the applicant were to come up with a bid for the $38,000 for the remodel,
the ZBA meeting wouldn’t need to be held.
Dr. Blumenfield then said that flooding could happen in the City. They appreciate the
improvements the Byal’s want to make to their house, but unfortunately some lots have some
restrictions that we can’t overcome. When the house was purchased and the owner moved in
permanently in 2016. They stated even in their letter that the house is livable. The board has to
decide whether or not the board can vote in favor of approving a 256 percent increase over the
amount allocated for the improvements allowed to the house. The board needs to decide based
on what the laws are and abide by the strict guidelines as to what can be approved and they
need to find a hardship. The hardship is that the applicant wants a nice house, but the board
needs to comply with the law. There is no way that Dr. Blumenfield wants this board or city to
be sued because the board does something that violates law and jeopardizes other people in
the community and the flood insurance of everyone else in the city. Based on what has been
presented and testimony, Dr. Blumenfield cannot support this.
Mr. Le Doux asked if the applicant has to use the labor and materials costs because of the
floodplain. Mr. Trzebiatowski confirmed it is labor and material costs based on the floodplain
and this is a state and federal rule.
Mr. Trzebiatowski restated the motion was to deny as presented.
Upon a roll call vote Appeal 02-2019 was approved 5-0, denying the variance request.
CLOSED SESSION
OPEN SESSION
APPROVAL OF THE MINUTES FROM THE AUGUST 2, 2018 MEETING
Mr. Robertson made a motion to approve the minutes from the August 2, 2018 meeting. Mr.
Schneiker seconded. Motion carried unanimously.
MISCELLANEOUS BUSINESS
ADJOURN
Mr. Robertson made a motion to adjourn at 7:18 PM. Mr. Schneiker seconded. Motion carried
unanimously.
Respectfully submitted,
Aaron Fahl
Associate Planner