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Zoning Board of Appeals- - Minutes 02/24/2000ZONING BOARD OF APPEALS FINDINGS OF FACTS A dimensional variance is hereby denied to Michael Mercer, by the Zoning Board of appeals of the City of Muskego to deny a Floor Area Ratio of 27.7% at W175 S7191 Lake Drive instead of the required 25,00/o, based upon the applicant having not met the specifics of the City ordinance with respect to granting variances. It was found that the variance does not preserve the intent of the Municipal Code because there is no practical difficulty, there were no exceptional conditions applying that do not generally apply to other properties. More specifically, the granting of the variance does relate to an economic or self imposed hardship because a residence can be constructed on the subject property within the parameters of the current Code, property rights of other property owners are preserved because the past precedent of this Board is not to grant variances for vacant properties, and no substantial detriment is caused to an adjacent property. Dated this 3rd day of March, 2000. Signed Signed Daniel Schepp Chairman, Zoning Board of Appeals Dustin J Wolff Assistant Plan Director BOARD OF APPEALS CITY OF MUSKEGO FEBRUARY 24, 2000 Meeting was called to order at 7:00 P.M. PRESENT: Chairman Dan Schepp, Vice Chairman Henry Schneiker, Terry O'Neil, Mike Brandt, David Conley, Barbara Blumenfield and Assistant Plan Director Dustin Wolff. ABSENT: Excused absent Chris Wiken. STATEMENT OF PUBLIC NOTICE: Secretary reported notice was given on February 11, 2000, in accordance with the Open Meeting Laws. NEW BUSINESS: Appeal #03-2000, Petitioner: Michael Mercer, Residence: W175 S7201 Lake Drive, Muskego, WI 53150 Location of Appeal: W175 S7191 Lake Drive, Tax Key No. 2193.998.001 REQUESTING: Under the direction of Chapter 17 Zoning Ordinance: Section 17:3.08(1) Appeal Provisions, Petitioner seeks the following variances: 1. Chapter 17—Zoning Ordinance: Section 5.04(2) Maximum Permitted Floor Area Ratio (F.A.R.): The maximum total floor area of the buildings on a lot shall not exceed that permitted under the floor area ration (F.A.R.) as hereinafter specified. Petitioner seeks a Maximum Permitted (F.A.R.) of 27.7% to allow the construction of a single-family residence. Code currently mandates a Maximum Permitted (F.A.R.) of 25% in the Rs-3/OLS District. Zoned: Rs-3/OLS, Suburban Residence District as modified by the Lakeshore Overlay. Henry Schnelker administered an oath to Michael Mercer, Attorney Michelle Martin and William Medrek (W174 S7184 Lake Drive) Attorney Martin Stated a variance is required for 328 square feet, the size of a 8' by 40' area. They wish to adhere to the spirit and intent of the ordinance. This is a lake lot and the intent is to have the structure aesthetically pleasing, salable and marketable. Granting this variance would not be contrary to the public safety or welfare. Mr. Mercer has worked very closely with the Planning department to create this structure that would require the least amount of variances. This will be Mr. Mercer's primary residence. The hardship is the size and the shape of the lot, a decent size structure cannot be built on this lot without exceeding the floor area ratio. Lot was purchased in October, 1999. The only other option would be to scale back the size of the bedrooms, making them unlivable. Assistant Plan Director Wolff explained the Code has two conflicting definitions of determination of a property's floor area ratio. One in Section 2 excluding basements altogether and one in Section 5 only excludes basement if less than 7 feet in height, which is not the case here, but it states that an attached garage should be excluded. Because the Code is antiquated, created in 1963, the Code contradicts itself on numerous occasions. This results in some practical difficulty in complying with the Code. The proposed structure complies with all sections of the Code except for the floor area ratio. A 2.7% increase in floor ratio is not that significant of an increase when weighted against the other issues. The current Code penalizes structures for going up even if it meets the other Code restriction. This house could be spread out over the lot and would have a far greater impact on the neighborhood. Mr. William Merdek, a neighbor, was present stating he has no objection to the proposed structure. However, he does have issue with the City when he built his home 10 years ago BOA 2/24/2000 Page 2 he was not able to have the grade he wanted because of the sewers. Staff explained that issue needs to be discussed with the City Engineer. Appeal *04-2000, Petitioner: Michael Kostecki, Residence: W196 S8303 Providence Way, Muskego, WI 53150 Location of Appeal: S75 W17461 Janesville Road, Tax Key No. 2196.957 REQUESTING: Under the direction of Chapter 17 Zoning Ordinance: Section 3.08(1) Appeal Provisions, Petitioner appeals the following Administrative Decision: Appeal of Administrative Decision, Chapter 32.02(12) SUBSTITUTION: When there are practical difficulties in complying with any section of this chapter, the Fire Chief or an appointed representative of the Fire Department may approve a substitution provided that the spirit of the ordinance shall be observed and public safety & justice secured. The substitution may include but is not limited to a monitored alarm or alternative fire suppression system. The substitution request must be submitted to the Fire Department in writing stating the reasons and substitution requested. The request shall include building plan fire load and explanation. The Fire Department must respond within 30 days. Petitioner seeks appeal of the Administrative Decision denying the request for a substitution to the Code requirement of a sprinkler system installation, per 32.02(2)(1), in an existing 2,968 square foot structure for use in a day care center. Zoned: B-3, General Business District. Henry Schneiker administered an oath to Tammy Kostecki, Michael Kostecki, Assistant Fire Chief Fred Schulz from New Berlin, Tess Corners: Chief Carl Wojnowski, Captain Mike Wojnowski, Captain Jim Mayer and Assistant Chief Ed Schaefer from Muskego Fire Company. Mr. Michael Kostecki discussed Chapter 32.02 Fire Protection. He stated the proposed building for this day care center is less than 2,000 square feet. The chart for fire protection of an Exterior Masonry Unprotected building starts at 8,500 square feet. He Stated that this building is concrete block, one level with no stove or refrigerator. They have obtained a Conditional Use Grant from the City and have met all the State licensing requirements for operating a daycare. Mr. Kostecki spoke of other daycare centers in Muskego that do not have sprinkler systems and nowhere in the Code does it make conditions for grandfathered buildings. Mr. Kostecki stated that the only daycare center with a sprinkler system is Kids Kampus. He also Stated Kingdom Care location is within 6 blocks from the fire station on a main city street and while this building was used by the former tenant, they did not even have smoke detectors in the building. The Kostecki's feel it would cause practical difficulties in complying with Section 32.02(2)(1).3 of the Code. The Code application to existing building stated.... "The Fire Chief may require compliance with this provision" If day care is an extreme hazard then why isn't Discovery Days, which is licensed for 75 children, sprinkled with multiple levels? Tammy Kostecki spoke with Grinnell Fire Protection regarding proposal for two zone fire alarm control panel, 12V batteries, Manual Pull Stations, Smoke Detectors, Horn and Strobe would be sufficient for a day care center with their capacity and three exits. A sprinkler system would have to be specially designed, tearing up the street and parking lot. They are trying to meet the Code not violate the Code. No stove or refrigerator on the premises. Barbara Blumenfield asked who stated the system would have to be specially designed for this building. Tammy Kostecki stated she spoke with Grinnell Fire Protection and U S Fire Protection Services but received two different stories on that. They have quotes for about $20,000 but does not include tearing up the streets, electrical permits nor a two inch pipe BOA 2/24/2000 Page 3 from the street. This building currently has a well. Mr. Dibb has not seen the proposal from Grinnell Fire Protection Services, this was faxed on February 24, 2000 to the Kostecki's. Barbara Blumenfield read a fax received by Kostecki's stating the City's Ordinance on Fire Code. Mr. Brandt questioned how many months they have been paying rent. Mr. Kostecki stated they have been paying rent for two months. During that time, they have been getting their conditional use grant and State licenses for 37 children and six adults in the building at all times. Mr. O'Neil questioned the wording for substitutions to the sprinklers. Mr. O'Neil questioned the four inch pipe and how that is determined. Mr. Kostecki stated the fire protection service supplies that information. Mr. Wolff indicated that Staff concurs with the petitioner. We are talking about a single story structure, 1900 square feet, surrounded by concrete with three exits and an accessible driveway on all four sides. There are numerous properties that aren't sprinkled within the community as stated by the petitioner. The Fire Department has refused any alternative methods as stated in the agenda before them. The onus is on the Fire Department as to why this building has to be sprinkled for a one room 1900 square foot building. There is sufficient practical difficulty in complying with the Code as written because a suppression system would need to be specially designed for this particular structure. Assistant Chief Ed Schaefer stated the reason the appellant was turned down was they did not submit a proper letter of substitution per Phil Dibb. Letter submitted was basically what the State Code requires for a building of that size and nature. Grinnell's proposal is only to make you aware there is a fire, there is no suppression system. New building structures involving people in them would require sprinkler. There are a number of existing buildings in City that meet the Fire Code available for rent. Assistant Chief Ed Schaefer spoke regarding how quickly a fire breaks out and the length of time that is required to remove the children from a building. No one wrote letter stating a sprinkler system was not required because they all know the liability. Chief Fred Schultz from New Berlin indicated that he had a video presentation. David Conley made a motion to view the Fire Department tape, Dan Schepp seconded. Upon roll call vote, motion carried. Mr. O'Neil questioned if fire protection systems are designed to prevent property damage and not to save lives of the occupants. Chief Schultz Stated to reduce the amount of smoke is one of the issue and to protect property damage is the other. Chief Schultz concerned about the process. Most people do not lease a property until they know it can be used for the intended purpose. Terry O'Neil asked if Chief Schultz agreed with Phil Dibb that the property should be sprinkled. Chief Schultz Stated absolutely, the building should be sprinkled. In New Berlin if you have 9 children or more it must be sprinkled. New Berlin has a "Maxi -Code", not a minimum Code like the State has. Supervision is an issue with children. Mr. Brandt questioned if there were a middle ground, Chief Schultz says sometimes there is and he tries to work with the people in his jurisdiction. The Kostecki's did not write a letter of substitution. Mr. O'Neil asked Assistant Chief Schaefer after reading Grinnell's proposal if that is adequate for the daycare center. The answer was no, there is no fire suppression. There may be BOA 2/24/2000 Page 4 systems out there that can work off of a well. Mr. Wolff indicated that a sprinkler system is not permitted to be run from a well. Captain Jim Mayer Stated the fire alarms are not a suppression system, and this Code has been in place since 1988. It is up to the Fire Department to educate the public on fire safety. Assistant Chief Ed Schaefer asked to table vote until further research could be done. State Code says hardship and money are not reason to not comply with this. Dustin Wolff undue hardship and practical difficulty are reasons to comply with decisions that have been made. Henry Schneiker administered an oath to Janet Mayer. She stated smoke alarms and extinguishers are great, but if someone is using the extinguishers, who is taking out the children. Michael Kostecki stated safety is foremost in their minds and that is why the are abiding by all the County and State Codes. REMOVED AT THE PETITIONERS REQUEST. Appeal #05-2000 Petitioner: City of Muskego Police Department Residence: W183 58150 Racine Avenue, Muskego, WI 53150 Location of Appeal: W124 510449 124th Street Tax Key No. 2301.998 REQUESTING: Under the direction of Chapter 17 Zoning Ordinance: Section 3.08{1} Appeal Provisions, Petitioner appeals the following Administrative Decision: Appeal of Administrative Decision, Chapter 32.04, requiring fire street installation for a 400 square foot structure. Zoned: I- 2, General Industrial District. 15 MINUTE BREAK DELIBERATIONS: Appeal #03-2000 Terry O'Neil made a motion to approve appeal as submitted. Barbara Blumenfield seconded. A home could be built to 25% of the lot area, this is a vacant lot right now. Hardship is practical difficulty in complying with all of the components of the Code. Past precedent of this Board is where there is a vacant lot, variances are not approved. Upon roll call vote, motion failed 3/3. Schepp, Brandt and Conley voting nay. APPEAL 04-2000 Terry O'Neil made a motion to approve as submitted. Barbara Blumenfield seconded. Barbara Blumenfield suggested Chapter 32 needs to be fixed and the Council needs to review this Chapter. A question arose among the Board members concerning the implications of approving the request as submitted. Upon recognition from the Chair, Mr. Wolf stated overturning the Administrative decision would mandate Mr. Dibb to find an alternative to the automatic fire suppression system. Upon roll call vote, motion failed 3/3. Schepp, Schneiker and Brandt voting nay. Henry Schneiker made a reconsider Appeal 04-2000. Terry O'Neil seconded. Upon roll call vote carried 6/0 Henry Schneiker made a motion to move to table until March with no monetary penalty. Dr. Blumenfield seconded. Upon roll call vote, motion failed. 3/2 Vote on approving reconsideration as submitted. Upon roll call vote, motion failed 3/3. Schepp, Schneiker and Brandt voting nay. BOA 2/24/2000 Page 5 OLD BUSINESS: Signing of decision letters for the January 27th, 2000, meeting. APPROVAL OF MINUTES OF THE JANUARY 27, 2000 MEETING: Mike Brandt made motion to approve the minutes as submitted. Terry O'Neil seconded. Upon voice vote, motion carried. Barbara Blumenfield requested clarification of alternates position on the Board of Appeals. Mike Brandt requested letter to Mayor, Alderman, Police and Fire Commission to review Chapter 32 and all other ordinances. Terry O'Neil suggested members review handbook Section 7, Appeals of Administrative Decisions. ADJOURN: Terry O'Neil made a motion to adjourn, Dr. Blumenfield seconded. Upon voice vote with no further business to come before this board, the meeting adjourned at 10:25 P. M. Respectfully submitted, Susan J. Schroeder Recording Secretary BOARD OF APPEALS AGENDA CITY OF MUSKEGO NOTICE OF PUBLIC HEARING NOTICE IS HEREBY GIVEN pursuant to Wisconsin State Statute 62.23 (7) (e) 6, that a Public Hearing will be held in the Muskego Room at the Muskego City Hall, W182 58200 Racine Avenue, at 7:00 P.M., Thursday, February 24`h, 2000, to consider the following petitions for appeals to the Zoning Ordinance of the City of Muskego: I. CALL TO ORDER 2. ROLL CALL 3. STATEMENT OF PUBLIC NOTICE 4. OLD BUSINESS Signing of decision letters for the January 27th, 2000 meeting. 5. NEW BUSINESS Appeal #03-2000 Petitioner: Michael Mercer Residence: W 175 57201 Lake Drive Muskego, WI 53150 Location of Appeal: W175 57191 Lake Drive Tax Key No. 2193.998.001 REQUESTING: Under the direction of Chapter 17 Zoning Ordinance: Section 17:3.08(1) Appeal Provisions, Petitioner seeks the following variances: 1. Chapter 17—Zoning Ordinance: Section 5.04(2) Maximum Permitted Floor Area Ratio (F.A.R.): The maximum total floor area of the buildings on a lot shall not exceed that permitted under the floor area ration (F.A.R.) as hereinafter specified. Petitioner seeks a Maximum Permitted (F.A.R.) of 27.7% to allow the construction of a single-family residence. Code currently mandates a Maximum Permitted (F.A.R.) of 25% in the Rs-3/OLS District. Zoned: Rs-3/OLS, Suburban Residence District as modified by the Lakeshore Overlay. Appeal #04-2000 Petitioner: Michael Kostecki Residence: W196 58303 Providence Way Muskego, WI 53150 Location of Appeal: S75 W17461 Janesville Road Tax Key No. 2196.957 REQUESTING: Under the direction of Chapter 17 Zoning Ordinance: Section 3.08(1) Appeal Provisions, Petitioner appeals the following Administrative BOA 2/24/2000 Page 2 Decision: Appeal of Administrative Decision, Chapter 32.02(12) SUBSTITUTION: When there are practical difficulties in complying with any section of this chapter, the Fire Chief or an appointed representative of the Fire Department may approve a substitution provided that the spirit of the ordinance shall be observed and public safety & justice secured. The substitution may include but is not limited to a monitored alarm or alternative fire suppression system. The substitution request must be submitted to the Fire Department in writing stating the reasons and substitution requested. The request shall include building plan fire load and explanation. The Fire Department must respond within 30 days. Petitioner seeks appeal of the Administrative Decision denying the request for a substitution to the Code requirement of a sprinkler system installation, per 32.02(2)(1), in an existing 2,968 square foot structure for use in a day care center. Zoned: B-3, General Business District. Appeal #05-2000 Petitioner: City of Muskego Police Department Residence: W183 S8150 Racine Avenue Muskego, WI 53150 Location of Appeal: W124 S10449 124th Street Tax Key No. 2301.998 REQUESTING: Under the direction of Chapter 17 Zoning Ordinance: Section 3.08(1) Appeal Provisions, Petitioner appeals the following Administrative Decision: Appeal of Administrative Decision, Chapter 32.04, requiring fire street installation for a 400 square foot structure. Zoned: I-2, General Industrial District. 6. APPROVAL OF MINUTES OF THE JANUARY 27, 2000 MEETING. 7. MISCELLANEOUS BUSINESS. None 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 above listed appeals. The Board of Appeals will then reconvene into open session. Detailed descriptions are available for public inspection at the Clerk's office. All interested parties will be given an opportunity to be heard. BOA 2/24/2000 Page 3 Board of Appeals City of Muskego Dan Schepp, Chairman Dated this 11'h day of February, 2000 NOTICE IT IS POSSIBLE THAT MEMBERS OF AND POSSIBLY A QUORUM OF MEMBERS OF OTHER GOVERNMENTAL BODIES OF THE MUNICIPALITY MAY BE IN ATTENDANCE AT THE ABOVE - STATED MEETING TO GATHER INFORMATION; NO ACTION WILL BE TAKEN BY ANY GOVERNMENTAL BODY AT THE ABOVE -STATED MEETING OTHER THAN THE GOVERNMENTAL BODY SPECIFICALLY REFERRED TO ABOVE IN THIS NOTICE. NOTICE "Please note that, upon reasonable notice, efforts will be made to accommodate the needs of disabled individuals through appropriate aids and services. For additional information or to request this service, contact Jean Marenda at City Hall, W182 58200 Racine Avenue, (262) 679-5625." City of Muskego Zoning Board of Appeals Supplement For the meeting of. February 24, 2000 Appeal 03-2000 REQUEST: Under the direction of Chapter 17 Zoning Ordinance: Section 17:3.08(1) Appeal Provisions, Petitioner seeks the following variances: 1. Chapter 17—Zoning Ordinance: Section 5.04(2) Maximum Permitted Floor Area Ratio (F.A.R.): The maximum total floor area of the buildings on a lot shall not exceed that permitted under the floor area ration (F.A.R.) as hereinafter specified. Petitioner seeks a Maximum Permitted (F.A.R.) of 27.7% to allow the construction of a single-family residence. Code currently mandates a Maximum Permitted (F.A.R.) of 25% in the Rs-3/OLS District. LOCATION: W175 S7191 Lake Drive (Tax Key No. 2193.998.001) NE '/a Section 9 PETITIONER: Michael Mercer PREPARED BY: Dustin Wolff - Assistant Plan Director BACKGROUND Petitioner is proposing to construct a single family residence on a newly created, vacant parcel. Property is zoned Rs-3/OLS and, as such, is afforded setback and offset bonuses. DISCUSSION The current Zoning Code is conflicting in determining FAR [17:2.02(15) and 5.04(2) and (3)). The Section 2 determination does not include the basement in its calculation, but does include attics and storage areas. The Section 5 determination does not include the attics and storage areas in its calculation, but does include half the basement area. The petitioners request has been determined using the more advantageous Code definition of Section 2. The proposed structure complies will all Code requirements (offset, setback, open space, height, etc.), except the bulk requirement limiting the overall square footage (FAR). The Zoning Code as written penalizes structures with multiple floors even if meeting the height requirement. Moreover, a structure could be constructed with only one floor which would result in a greater lot coverage and less open space. This is contrary to the desires of the community to preserve open space. The preservation of open space is to help mitigate storm water run-off concerns, especially around the lakes. STAFF RECOMMENDATION Approval of Appeal 03-2000 permitting a Floor Area Ratio of 27.7% citing practical difficulty in complying with the Code requirements. Page 1 01/24/2000 15: 31 4146795614 MUSK)=GU PLRNNiNU DWI' PAGE d4 CITY OF MUSKEGO BOARD OF APPEALS Application for Variance rrr' 2p Applicant's Name Mike Mercer Subject Property Address W 1 75 S 71 91 Lake Drive Telephone (262) 679-4832i Property Zoning: RS-3/OLS Tax Key# Part of 2193.998.001 Petitioner's relationship to property (circle applicable): owner lessee other Fee: $200.00 Date inspector denied zoning permit: 1 1 1 00 Requesting variance to Code Section 17--8-o8 (4) (Floor area ratio) To allow: a variance from the FAR > Petitioner's proposed --building lam have a FAR which exceeds the maximum b 28 -sa u are f eet A literal enforcement of the terms of the above -referenced section would result in practical difficulty and unnecessary hardship because: see attached The variance, if granted, will not be contrary to the public interest and will be in accord with the spirit of the code because: _see attached The variance, if granted, will not adversely affect public safety or jeopardize public welfare because: see attached A literal enforcement of the terms of the above -referenced section would result in practical difficulty and unnecessary hardship because the building that the petitioner desires to build on the parcel meets the set back requirements and greatly exceeds the green space requirements. In addition, it meets the other zoning requirements for RS-3/OLS. The proposed building only exceeds the maximum FAR by 328 sq. ft., which is diminimus. However, if the variance is not granted, the petitioner will not be able to build a liveable house on the parcel, in that it would be a two bedroom rather than a three bedroom house. The variance, if granted, will not be contrary to the public interest and will be in accord with the spirit of the codes because the purpose and intent of setting a maximum floor area ratio is to prevent overbuilding on small lots. Due to the configuration of this lot, a house which meets the FAR cannot be built and be a decent size building in which to live. Being a lot which abuts Little Muskego Lake, it is important that the building which is built is not too small. Public interest is served by maximizing square footage of lake property without overbuilding on it. The petitioner's proposed building does just that. The petitioner's proposed building does, in no way, violate the spirit of the code because it does not overbuild on this lot. As stated earlier, the green space requirement is greatly exceeded. The variance, if granted, will not adversely affect public safety or jeopardize public welfare because the variance which is requested is diminimus. It is only a variance of approximately 328 sq. ft. from the maximum FAR. To a member of the public seeing this building built, there will be no noticeable effect of the variance. No one will be able to tell that a variance was granted to allow the petitioner to exceed the maximum FAR. No one, except for the petitioner, will be affected by the variance. Furthermore, the variance requested by the petitioner is not the type of variance which affects public safety or jeopardizes public welfare. X. AI �r ? 2000 FL117"MilEc7o. 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