The URL can be used to link to this page

Zoning Board of Appeals- - Minutes-08/28/2000ZONING BOARD OF APPEALS MINUTES SEPTEMBER 28, 2000 Meeting was called to order at 7:00 P.M. PRESENT: Chairman Schepp, Vice Chairman Schneiker, Terry O'Neil, Mike Brandt, David Conley, Assistant Plan Director Dustin Wolff and Recording Secretary Schroeder. ABSENT: Barbara Blumenfield STATEMENT OF PUBLIC NOTICE: Secretary reported notice was provided in accordance with the Open Meeting Laws. Appeal #08-2000 Petitioner: Diane Ruehle, Residence: S77 W18312 - 14 Janesville Road, Muskego, WI 53150 REQUESTING: Under the direction of Chapter 17 Zoning Ordinance: Section 17:3.08(1) Appeal Provisions, Petitioner appeals the following Administrative decision: Chapter 17—Zoning Ordinance: Section 4.06(2) D.1. Nonconforming Use of Land: No such use shall be expanded or enlarged. The City's Zoning Code does not permit two residential structures on a single parcel. Two single-family residences exist on the petitioner's property. These structures were constructed prior to the establishment of the City's Zoning Code, and are classified as a non -conforming use of land. It is the determination of the Zoning Administrator that an addition to a structure located on such a property would be deemed an expansion or enlargement of the non -conforming use. Petitioner seeks to construct an attached garage addition to an existing residential structure. The addition will not result in the expansion of habitable space on the property. Zoned: Rs-3/OLS, Suburban Residence District as modified by the Lakeshore Overlay. This was deferred at the August meeting to obtain a legal opinion from the City Attorney. Mr. Schneiker administered the oath to the petitioner Diane Ruehle. Ms. Ruehle reiterated that she would like consideration of the appeal to accommodate an elderly handicapped parent. Mr. Wolff reminded the Board this is an administrative interpretation; and, therefore, hardship is not an issue. The Board is to rule on whether staff made the correct interpretation of the zoning code. Mr. Wolff then referenced the legal opinion rendered by the City Attorney, and it stated that by over -ruling a correct interpretation by staff would, in effect, remove the section from the code. Removing this section of the Zoning Code will be setting a precedent for all future staff interpretations regarding non -conforming use. DELIBERATION: Mr. Brandt made a motion to approve the appeal as submitted. Mr. Schneiker seconded. A discussion ensued regarding the legal versus moral obligations of this Board regarding the appeal, and the definition of the word "use". Upon a roll call vote, motion was defeated 3 -2. Mr. Schepp and Mr. Brandt voting yes. APPROVAL OF THE MINUTES FROM THE AUGUST 24, 2000 MEETING: Mr. O'Neil made the motion to approve the minutes as submitted. Mr. Brandt seconded. Upon voice vote, minutes from August, 2000 were approved. ZBA 9/28/2000 Page 2 MISCELLANEOUS BUSINESS: None AD]OUNRMENT: At 8:45 P.M. Mr. Schneiker made a motion to adjourn. Mr. O'Neil seconded. With no further business to come before this board, meeting was adjourned on voice vote. Respectfully submitted, Susan J. Schroeder Recording Secretary ZONING BOARD OF APPEALS AGENDA *AMENDED* CITY OF MUSKEGO NOTICE OF PUBLIC HEARING NOTICE IS HEREBY GIVEN pursuant to Wisconsin State Statute 62.23 (7) (e) 6, that a *meeting* will be held in ROOM 5 at the Muskego Public Library, S73 W16663 Janesville Road, at 7:00 P.M., Thursday, September 281h, 2000, to consider the following petitions for appeals to the Zoning Ordinance of the City of Muskego: 1. CALL TO ORDER 2. ROLL CALL 3. STATEMENT OF PUBLIC NOTICE 4. OLD BUSINESS Appeal #08-2000 Petitioner: Diane Ruehle Residence: S77 W18312 - 14 Janesville Road Muskego, WI 53150 Location of Appeal: Sarre REQUESTING: Under the direction of Chapter 17 Zoning Ordinance: Section 17:3.08(1) Appeal Provisions, Petitioner appeals the following Administrative decision: 1. Chapter 17—Zoning Ordinance: Section 4.06(2)D.1. Nonconforming Use of Land: No such use shall be expanded or enlarged. The City's Zoning Code does not permit two residential structures on a single parcel. Two single-family residences exist on the petitioner's property. These structure were constructed prior to the establishment of the City's Zoning Code, and are classified as a non -conforming use of land. It is the determination of the Zoning Administrator that an addition to a structure located on such a property would be deemed an expansion or enlargement of the non -conforming use. Petitioner seeks to construct an attached garage addition to an existing residential structure. The addition will not result in the expansion of habitable space on the property. Zoned: Rs-3/OLS, Suburban Residence District as modified by the Lakeshore Overlay. 5. NEW BUSINESS None 6. APPROVAL OF THE MINUTES FROM THE AUGUST 24, 2000 MEETING ZBA 9/28/2000 Page 2 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. Board of Appeals City of Muskego Dan Schepp, Chairman Dated this 18th day of September, 2000 r-- -- 2-" SEP0 LAW OFFICES OF } ARENZ, MOLTER, MACY & RIFFLE, S.C. 720 N. EAST AVENUE P.O- BOX 1346 DALE W. ARENZ WAUKESHA. WISCONSIN 53187-1348 DONALD S, MOLTER. JR JOHN P. MACY, COURT COMMISSIONER - H. STANLEY RIFFLE. COURT CoMMIS$IONER September 19, 2000 RICK D. TRINDL ERIC J- LARSON JULIE A. AOUAVIA DYAN E. BARBEAU GRETCHEN U. STEVENS VINCENT D. M05CHELLA Mr. Dan Schepp Chairman, Board of Appeals CITY OF MUSKEGO P.O. Box 749 Muskego, WI 53150-0749 Re: Board of A eats Ruehle Dear Chairman Schepp: TELEPHONE 548.1340 FACSIMILE 548.9211 AREA CODE 262 On September 8, 2000 I received a request for a legal opinion concerning the above mentioned appeal. The facts as they have been explained to me are as follows: Petitioner, Diane Ruehle, appealed an administrative decision regarding Muskego Ordinance § 1 7:4.06(2)(d)(1 ), determination of expansion of use, a copy of the same is enclosed. I also received the enclosed drawing of the property showing two residences and the proposed garage on one lot. The specific question asked was whether or not the Board of Appeals' ruling would have application only to this property or if it would determine how the Planning Staff was to interpret the Zoning Code in the future. Answer: This is not a request for a variance, but is a request by applicant to have the Board of Appeals interpret the Zoning Code alleging that the interpretation of the Planning Staff is incorrect. "In exercising this authority, the board is not authorized to modify the zoning ordinance or to relieve the applicant from the terms of the zoning ordinance." City, Village and Town Zoning Board of Appeals Handbook Revised November, 1993, Prepared by the Wisconsin Department of Natural Resources. LAW OFFICES OF ARENZ, MOLTEN, MACY $ RIFFLE, S.C. Mr. Dan Schepp Chairman, Board of Appeals -2- Wisconsin Statute §62.23(7)(e)7 provides, in part: September 19, 2000 "The board of appeals shall have the following powers: To hear and decide appeals where it is alleged there is error in any order, requirement, decision or determination made by an administrative official in the enforcement of this section or of any ordinance adopted pursuant thereto;" In other words, there would have to be an error in the administrative interpretation of the ordinance in order to overturn his decision. The Board's ruling in an administrative appeal is not a variance as to a specific property, but an interpretation of the Zoning Code, so this ruling would have an affect on all similar decisions of the Planning Staff. Muskego Zoning Ordinance § 17:4.06(2)(d)(1) provides that as to nonconforming use of land, no such use shall be expanded or enlarged. The attached map shows that there are two principal residences on this property and § 17:4.07(2) provides for only one principal residence building on a lot. Only one principal residence is allowed by ordinance, except under the circumstances set forth under § 1 7:4.07(2), which are not present in this case. In my opinion, allowing for the addition of the attached garage would be an expansion or an enlargement of the nonconforming use of land not allowed by Muskego ordinance and not allowed by Wisconsin Statute §62.23(7)(h), nonconforming uses, which states in part, "Such nonconforming use may not be extended." Municipal Corporations by McQuillan, 3rd Revised Edition, Copyright 1994, Volume 8A, at 25.183 states, in part: "Public policy and the spirit of zoning measures are to restrict and not to increase nonconforming uses." In conclusion, in my opinion, the administrative decision of the zoning official was a correct interpretation of the Zoning Code and a ruling by the Board stating a different interpretation would apply to future interpretations of the Zoning Code by City Administrative Officials. Sincerely, DONALD S. MOLTER, JR. Donald S. Molter, Jr. DSMIpw/Enclosure cc: Mayor David L. De Angelis Ms. Jean Marenda, Clerk Mr. Dustin Wolff, Assistant Planner ZONING BOARD OF APPEALS MINUTES August 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, Barbara Blumenfield and Assistant Plan Director Dustin Wolff. ABSENT: David Conley STATEMENT OF PUBLIC NOTICE: Secretary reported notice was provided in accordance with the Open Meeting Laws. NEW BUSINESS: Appeal #08-2000 Petitioner: Diane Ruehle, Residence: S77 W18312 - 14 Janesville Road, Muskego, WI 53150 REQUESTING: Under the direction of Chapter 17 Zoning Ordinance: Section 17:3.08(1) Appeal Provisions, Petitioner appeals the following Administrative decision: Chapter 17—Zoning Ordinance: Section 4.06(2)D.1. Nonconforming Use of Land: No such use shall be expanded or enlarged. The City's Zoning Code does not permit two residential structures on a single parcel. Two single-family residences exist on the petitioner's property. These structure were constructed prior to the establishment of the City's Zoning Code, and are classified as a non -conforming use of land. It is the determination of the Zoning Administrator that an addition to a structure located on such a property would be deemed an expansion or enlargement of the non -conforming use. Petitioner seeks to construct an attached garage addition to an existing residential structure. The addition will not result in the expansion of habitable space on the property. Zoned: Rs-3/OLS, Suburban Residence District as modified by the Lakeshore Overlay. Mr. Schneiker administered the oath to petitioner Diane Ruehle and Larry Wiesner of S76 W18264 Janesville Road. Ms. Ruehle stated she has an elderly handicapped parent that she needs to provide a home for. However, there needs to be protection from the elements. Ms. Ruehle presented a letter with signatures from the two adjacent neighbors stating they have no objections to the new garage being built. Mr. Larry Wiesner stated he has a similar situation and he is here to support Ms. Ruehle. Mr. Wolff stated the addition will not result in the expansion of habitable space on the property. However, the appellant's request raises the issue whether an addition of non - habitable space is an expansion of the non -conforming use. The role of the zoning code is to eliminate non -conformity within the City. While the inability to expand or enlarge the structure may be inconvenient, it is contrary to the intent of the ordinance. The structures were originally constructed as seasonal cottages years ago and weren't intended for year round habitation. The two structures located on the property may still be utilized as residences, but may not be expanded in size or intensity per Section 4.06(2) D.1.. The scope of the Board's decision should not be whether one person can construct an addition on their property. Within the City there are numerous non -conforming uses of land and the Board's decision will govern how staff is to interpret and apply this section of the Code to ALL non -conforming uses of land. Mr. O'Neil questioned why this appeal should affect all future appeals of this nature. Mr. O'Neil suggested this appeal be dealt with on its' own merit and put language in the ZBA 8/24/2000 Page 2 approval to state the same. Dr. Blumenfield stated she feels this is being interpreted with too broad a brush. Dr. Blumenfield does not agree that in approving this appeal there would be a rash of residents requesting expansions to non -conforming uses. Mr. O'Neil requested that we obtain an attorney's opinion regarding how this appeal will affect future appeals and if the Board has latitude to use their judgment for individual sites. Dr. Blumenfield requested that the basis for the attorney's opinion and documentation be included. Mr. Wiesner stated he was very upset by the nasty words being used, such as non- conforming and the removal of all such sites. Ms. Ruehle stated she needs this to be finished. She has a sick relative that needs to be moved in and is unable to do this without the garage. She has been working on this project since spring and no one from the City had previously mentioned not being able to construct this garage. DELIBERATION: Terry O'Neil made the motion to defer Appeal #08-2000 and to seek a legal explanation regarding how any decision against the Zoning Administrator's interpretation would affect Staf 's future interpretation regarding expansion or enlargement of use. The opinion must also include basis for review and documentation for case law or State law sited. Henry Schneiker seconded. Upon roll call vote, motion carried. 5-0 Dr. Blumenfield made the motion to approve a special Board of Appeals meeting if Mr. Wolff obtains a legal opinion prior to the regularly scheduled meeting in September. Mr. Brandt seconded. Upon roll call vote, motion carried. APPROVAL OF THE MINUTES FROM THE JULY 27, 2000 MEETING. Dr. Blumenfield made a motion to approve the July, 2000, minutes as submitted. Mr. Schepp seconded. Upon voice vote, motion carried. ADJOURNMENT: With no further business to come before this board, Dr. Blumenfield made a motion to adjourn. Mr. Schneiker seconded. Upon voice vote, motion carried. Meeting adjourned at 8:30 P.M. Respectfully supmi ted, Susan J. S�rcle' r Recording Secretary ZONING 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 ROOM 5 at the Muskego Public Library, 573 W16663 Janesville Road, at 7:00 P.M., Thursday, August 241", 2000, to consider the following petitions for appeals to the Zoning Ordinance of the City of Muskego: !. CALL TO ORDER 2. ROLL CALL 3. STATEMENT OF PUBLIC NOTICE 4. OLD BUSINESS None 5. NEW BUSINESS Appeal 408-2000 Petitioner: Diane Ruehle Residence: S77 W18312 - 14 Janesville Road Muskego, WI 53150 Location of Appeal: Same REQUESTING: Under the direction of Chapter 17 Zoning Ordinance: Section 17:3.08(1) Appeal Provisions, Petitioner appeals the following Administrative decision: 1. Chapter 17—Zoning Ordinance: Section 4.06(2)D.1. Nonconforming Use of Land: No such use shall be expanded or enlarged. The City's Zoning Code does not permit two residential structures on a single parcel. Two single-family residences exist on the petitioner's property. These structure were constructed prior to the establishment of the City's Zoning Code, and are classified as a non -conforming use of land. It is the determination of the Zoning Administrator that an addition to a structure located on such a property would be deemed an expansion or enlargement of the non -conforming use. Petitioner seeks to construct an attached garage addition to an existing residential structure. The addition will not result in the expansion of habitable space on the property. Zoned: Rs-3/OLS, Suburban Residence District as modified by the Lakeshore Overlay. 6. APPROVAL OF THE MINUTES FROM THE JULY 27, 2000 MEETING. 7. MISCELLANEOUS BUSINESS. ZBA 8/24/2000 Page 2 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. Board of Appeals City of Muskego Dan Schepp, Chairman Dated this 101h day of August, 2000 City of Muskego Board of Appeals Supplement For the meeting of: August 24, 2000 Appeal 08-2000 REQUESTING: Under the direction of Chapter 17 Zoning Ordinance: Section 17:3.08(1) Appeal Provisions, Petitioner appeals the following Administrative decision: 1. Chapter 17—Zoning- Ordinance: Section 4.06(2)D.1. Nonconforming Use of Land: No such use shall be expanded or enlarged. Zoned: Rs-3/OLS, Suburban Residence District as modified by the Lakeshore Overlay. LOCATION: S77 W 18312 - 14 Janesville Road (Tax Key No. 2195.987) SW '/a Section 9 PETITIONER: Diane Ruehle PREPARED BY: Dustin Wolff - Assistant Plan Director BACKGROUND Petitioner seeks to construct an attached garage addition to an existing residential structure. Two single-family residences exist on the petitioner's property. The City's Zoning Code does not permit two residential structures on a single parcel. These structure were constructed prior to the establishment of the City's Zoning Code, and are classified as a non -conforming use of land. It is the determination of the Zoning Administrator that an addition to a structure located on such a property would be an expansion or enlargement of the non -conforming use of the land. DISCUSSION The addition will not result in the expansion of habitable space on the property. However, the appellant's request raises the issue whether an addition of non -habitable space is an expansion of the non -conforming use. The role of the zoning code is to eliminate non -conformity within the City. While the inability to expand or enlarge the structure may be inconvenient, it is contrary to the intent of the ordinance. The structures were originally constructed as seasonal cottages years ago and weren't intended for year round habitation. The two structures located on the property may still be utilized as residences, but may not be expanded in size or intensity. The score of the Board's decision should not be whether one person can construct an addition on their property. Within the City there are hundreds of non -conforming uses of land and the Board's decision will govern how staff is to interpret and apply this section of the Code to ALL non -conforming uses of land. STAFF RECOMMENDATION The Board must make the decision whether it agrees with the Code interpretation of the Zoning Administrator. CITY OF MUSKEGO BOARD OF APPEALS Appealing Administrative Decision Applicant's Name Petitioner's relationship to property (circle applicable): owner lessee other Subject Property Address Telephone Parcel Zoning: Zl9',5� g�'7 Tax Key # Ag ;; S Fee: $200.00 Appeal Administrative decision regarding: /7 ' OF E7pAIVgr,a r✓ vF l.�S� Code enforcers name: ?-`k�s?in/ ,r �irvLy,G Reason decision regarding section / � � � • d 6v 4 �,o ) is incorrect or improperly interpreted: ��G cz- �ICfcS'7� �0% e-a.- % O r�C'- C ��.PUCi�/.��f ^' i d �i�i/Dra' /. �/�.P,�•r/Gc'` �.Pa�t ,4 �.D.f' a d�'ro c`iv1/r,�olt�i �� A-1 Zaz��z ry,�y L rTT� eptF o.LY Fipd 5 ell \I./aTG'R u�0 2 f1eo" F P� 0.0 we,L� NW�Ly v./jae; rV,46.E aa`xaG �1aop �1FTa i .1 r+.� U Wf4i-Ci v/oca 44eTamw,uv 4J.sw p.�-* War `'`fir 5ia� or- w'-'0v rb'r rGE 4810 S . 76th St., Suite 2 3.2 War c FOR: Diane Ruehle ti o 3 .rtoe< -1n o,0 'zp� �0uiE2ueAD C� C,•(�� I�ru�7r vllrr� RiwEft UC Q I !','. ✓! C-,A-V-r PROPERTY ADDRESS: S77 W18 A-e.1,eT —__y LEGAL DESCRIPTION: All th. North, Range 20 East desc Beginning at a point in t: said point being the Sout Ferguson to Mary Wiesner office of the Register of page 148 and thence runni: East 20-67/100 feet; then the said road; thence Sou (� to the place of beginning \7 O Also: All that part of th. East, described as follow Beginning at a point in t: 20 feet North 67-3/40 Eas by George Ferguson to Mar, in the office of the Regi: Deeds on page 148 and the: North 55° East 20-66/100 center of said Road; then - feet to the place of begi: e bpY� V J `J - -�. 2-3�aA__r w e2or;�_ DFO /afltir�E . 4•f w�7T c�bN�� ti LF-rr�iT7'Lrr..1�`J' 1 IV L9 -�;7CA-0-1 0) 1 4.4 (Do >, d) o 41 a) N C O 0 CIn ir-iIn w C r 14-) -0 J-1 M E-I 4j d W 4-1 V 1~ ul 413 u? u 1 41 --t Z o W a) O W O (D tz `d N rA O .0 —1 4-3 U N 44 LO > N W O w 41 O r-f o k.0 !x 44 3 41 p Q1 4-4 *d v1 41 tr to 41 (n u o sv O z'1 �C) �-0 O� a ka LO r f m 4� -.r-i J4-) ' 4 U 0 �, (n to td .,..r � �. O r-0ry�A O �'aUC) - � r� 41 C 4J p � In 4-Ja,WO 4Ui.�v 'rO11 Q3a��w c n a) o O 4-4 `o C) Ri m oo Lf)Oa C`� Oo O-�'�� 3 �' x`a�a'd �4 (1)Z .� U V) (1) Sa ra : Qs z4 OZU)344 .0 — (1)U)ra p, t4 ro ON o � 44 � C 2: 0 w �J rt W m 44 � m o v ro r� � on � r°ri � .yq z ry) 0 a .� 0 . t� V) • a) N � U U) 44 4-4 4-�- 1 t 0 r{ O p o�po0�o ��,�a N to 0 N . tC) U O p N w %3 � 41 � pz > q)LO J-� `fl O>, a�UUo-0-04-) UZ CL a `o O u1 (1) o) al V1 �4 {� c o (z oo -)rb�•� .� 4)wrb -w�4Q)1'a Z O� O W G �' o 44 o H ��,M CO(1)0)ln� 44 3-t N 5:: 134 H � O-U O C: - U O C a)w Unw Sul N� zEq 0) r I E= w m� rz-W 0a-,a n Ol 0 A .x O F; U) O V) of ra H u) 1-I V Q) r (1) }-I Q! a) ri H a i m V 3 a� a�3o�x U (� C� J-) Q1 U) - P V) - 0) 0 W 44 m -H .0 rri CO 0 �l oo n O r0 a a O U 3-WWr 0EOT20 'A 1 1 1 1 1 1 i 1 0 e 1 1 1 I 1 I I I w o° 4 oo sz ° Oi6x s+ X t OJ � w0 .r+ - . - - (*jsyQ)oo'cfo OOZZ rs� a �oozr k -- ghzi ro G cole _ (siryJY)00%poo- - -- r " i O Sa la - - - CSYYJY199'96I--- Sywoo 8�z r0 I I 1 i q qm A IalgofJlll� S-- - - :1 z