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Zoning Board of Appeals- - Minutes 04/27/2006ZONING BOARD OF APPEALS FINDINGS OF FACTS An administrative decision appeal is hereby denied to Michael Birkley, by the Zoning Board of Appeals of the City of Muskego in Appeal #08-2005 to overturn the decision of the Plan Commission's denial of the Conditional Use Grant for the operation of a Tree Service/Landscape business at W144 S'931 Durham Drive 1 Tax Key Number 2213.984, This denial is 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 preserves the intent of the Municipal Code because the Municipal Code does not allow appeals relating to Conditional Use Grant determinations made by the Plan Commission. is 2nd day of May 2 6. Signed Dan Schepp Chairman, Zoning Board of Appeals Signed /Lit, Kellie Renk Recording Secretary ZONING BOARD OF APPEALS MINUTES CITY OF MUSKEGO APRIL 27, 2006 Meeting was called to order at 7:09 P.M Those in attendance recited the Pledge of Allegiance PRESENT: Chairman Dan Schepp, Mr. William Le Doux, Mr. Richard Ristow, Mr. Horst Schmidt and Associate Planner Adam Trzebiatowski, ABSENT: Dr. Barb Blumenfield (excused), Dr. Russ Kashian, Mr. Henry Schneiker STATEMENT OF PUBLIC NOTICE: The recording secretary stated the meeting was noticed on April 20, 2006, in accordance with open meeting laws. OLD BUSINESS: APPEAL #08-2005—Petitioner: Michael A. Birkley, W144 S7931 Durham Drive, Muskego WI/Tax Key #2213-984. REQUESTING: Under the direction of Chapter 17 Zoning Ordinance: Section 3.08(1) Appeal Provisions, Petitioner seeks the following variance: Chapter 17—ZOnlnq Ordinance: Section 6,03 Conditional Uses (1) A. Approval Required: Uses listed as permitted by conditional grant may be permitted in the district in which listed upon petition for such grant to the Plan Commission and subject to the approval of the commission and to such other conditions as hereinafter designated. A conditional use grant was denied for the above -mentioned property on September 6, 2005 for the operation of a tree service/landscape business. The petitioner is seeking an appeal regarding the Plan Commission denial of the conditional use grant. Chairman Schepp noted that the petitioner was not present, therefore, he swore in Associate Planner Trzebiatowski to give his testimony on the City of Muskego's position. Associate Planner Trzebiatowski stated that the petitioner was notified. As the supplement stated, this item was deferred at the last five Board of Appeals' meetings. The Board of Appeals stated at their April 27 meeting, they would be making their decision hopefully pending a solution. He stated there was a solution with the court's stipulation which is really unrelated to the Board of Appeals, as what was being appealed had nothing to do with the stipulation. In general, the issue has come to a close for the most part, at least as of now. Upon talking with the city's attorney, for this to come to a close, there are two options that could have happened. The petitioner had to submit a signed letter to the Planning Department stating his withdrawal of the appeal, then there would be no action taken. In talking with the city attorney, who did talk with Mr. Birkley's attorney a week or two ago, that attorney was trying to get a letter from Mr. Birkley and obviously the department has not received anything yet so that did not go anywhere for whatever reason. Per the city attorney's advice, the Board still does have to make a ruling on this. For any ruling that is made, the reasons for approval or denial has to be stated. Along with that, the court's stipulation should have nothing to do with that reasoning. The reasoning should be based upon either what the petitioner has stated up to this point or what staff has recommended since the item being appealed, the conditional use grant, the code states cannot be appealed. Any reasons for the appeal have to be based upon facts brought up at the meetings, not relating to the stipulation because technically that is an unrelated issue. Other than that, the petitioner did request a conditional use grant variance appealing the Plan Commission's decision which denied his conditional use grant. The code specifically states that conditional use grants cannot be appealed, so that is one reason for denial and the other reason that staff recommends for denial is because the initial appeal was submitted after the deadline in which the ordinances and the rules and the procedures do state for the Board of Appeals. As such, staff recommends denial of Appeal 08-2005. Referring to the discussion section of the brief, 'The board must make their determination of the appeal based upon the information presented up until this point, not based upon the settlement that has been reached with the court.," Mr. Schmidt inquired if this was from discussion with the attorney. Associate Planner Trzebiatowski affirmed that he had spoken with two of the city attorneys on separate occasions and they stated the things that were appealed and the things that were discussed by this Board are the ZBA Minutes 4/27/2006 Page 2 only things that should be used to figure into the variance and since he was not questioning the items related to the court citation, that should not figure into this at all. The attorney said it should be based upon facts that either staff presented at the meetings which were reiterated in the supplement or the facts that Mr. Birkley or his attorney presented. Mr. Schmidt said the two key elements were the missed time deadline for the appeal and the other about a setback? Associate Planner Trzebiatowski said the first one was Section 3.08 which states in summary that the following decisions of the Plan Commission cannot be appealed and one of those is the conditional use grant request and the other one is the timeline deadline. Mr. Schmidt said the reason it cannot be appealed is because it is not under the Board of Appeals jurisdiction? Associate Planner Trzebiatowski responded according to the zoning code that was correct. DELIBERATIONS: APPEAL 08-2005—Mr. Schmidt moved to approve the conditional use grant of the petitioner. Mr. LeDoux seconded. Mr. LeDoux's opinion was the Plan Commission is saying the Board of Appeals has no jurisdiction over appealing zoning changes that they want the Board of Appeals to deny the appeal based on that information. When it comes to the timeframe, etc., it gets summed up in the first comment that states the Board does not have the jurisdiction to appeal a zoning change like this. Chairman Schepp said it wasn't so much the Pian Commission as the zoning regulations. Mr. LeDoux stated the city's codes and the Plan Commission's determination to deny it and the Board does not have jurisdiction to change the zoning requirement. The Board of Appeals is giving a recommendation more than making a determination as the Board of Appeals. Associate Planner Trzebiatowski said the Board could decide differently. They could decide if that holds up or does that not. Mr. LeDoux continued that they are saying that the Board of Appeals has no jurisdiction over this type of issue, however, we want you to deny this issue based on the fact you have no jurisdiction over it. He would look at denying this petition based on the fact that the City of Muskego and the Plan Commission are telling the Board of Appeals that they have no jurisdiction over this type of appeal. Associate Planner Trzebiatowski said it should be because of the code requirement, not the Plan Commission. Mr. LeDoux asked if the Board of Appeals could say that the City of Muskego and the Plan Commission is wrong and they could give the petitioner the variance based on the fact that they are the Board of Appeals. Associate Planner Trzebiatowski said the Board could do so but he did not think in any case it would solve an issue. If they were to overturn the conditional use grant denial, there are other underlying issues like buiiding, operational site plans and zoning issues that wouldn't apply. The Board would have to say why they are turning it over. Mr. LeDoux inquired if the Board was a quasi-judicial system that can change the variances and the codes in the best interest of the citizen or the city. Chairman Schepp shared that one-time before the Board of Appeals overturned the decision of the Plan Commission with the result that the city sued the Board of Appeals. In the end of that other case, the appellant received what he wanted and the city had litigation fees including the fees for the Board of Appeals' attorney. Upon a roll call vote, Chairman Schepp voting no, Mr. Schmidt voting no, Mr. LeDoux voting no, Mr. Ristow voting no, the motion was denied 4-0, because the Plan Commission determinations regarding conditional use grants cannot be appealed by the Board of Appeals. Associate Planner Trzebiatowski shared that the court stipulation stated he had a certain amount of time to get the trucks off the property and no more business operations. He is still allowed to store some logs. It's fenced in so it is mostly screened. The biggest concern of the neighbors was the noise from the trucking. NEW BUSINESS' None APPROVAL OF THE MINUTES: Mr. Schmidt moved to approve the minutes of March 23, 2006, Seconded by Mr. LeDoux . Upon a voice vote, the motion carried. MISCELLANEOUS: Associate Planner Trzebiatowski shared that the zoning code is in the process of being rewritten. Once the Plan Commission reviews the draft, it will also be brought to the Board of Appeals. Z.18A Minutes 4/27/2006 Page 3 ADJOURNMENT: With no further business to come before this Board, Mr. Schmidt moved to adjourn. Mr. LeDoux seconded. Upon voice vote, meeting adjourned at 7:29 p.m. J . IDa., cps Recording Secretary CITY OF MUSKEGO ZONING BOARD OF APPEALS AGENDA April 27, 2006 7:00 PM Muskego City Hall, Muskego Room, W182 S8200 Racine Avenue CALL TO ORDER PLEDGE OF ALLEGIANCE ROLL CALL STATEMENT OF PUBLIC NOTICE 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 appeals described below. The Board of Appeals will then reconvene into open session. OLD BUSINESS 1. APPEAL #08-2005 Petitioner: Michael A. Birkley Property: W144 S7931 Durham Drive 1 Tax Key No. 2213.984 REQUESTING: Under the direction of Chapter 17 Zoning Ordinance: Section 3.08(1) Appeal Provisions, Petitioner seeks the following variance: Chapter 17—Zoning_ Ordinance: Section 6.03 Conditional Uses (1)A. Approval Required: Uses listed as permitted by conditional grant may be permitted in the district in which listed upon petition for such grant to the Pian Commission and subject to the approval of the Commission and to such other conditions as hereinafter designated. A conditional use grant was denied for the above -mentioned property on September 6, 2005 for the operation of a Tree Service/Landscape business. The petitioner is seeking an Appeal regarding the Plan Commission denial of the Conditional Use Grant. Detailed descriptions are available for public inspection in the Planning Department. All interested parties will be given an opportunity to be heard. NEW BUSINESS None. CLOSED SESSION OPEN SESSION APPROVAL OF THE MINUTES FROM THE MARCH 23, 2006 MEETING. ZBA 4/27/2006 Page 2 MISCELLANEOUS BUSINESS None. 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. Also, 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 Janice Moyer, City Clerk/Treasurer at Muskego City hall, (262) 679-5625. City of Muskego Staff Representative Brief Zoning Board of Appeals Supplement 08-2005 For the meeting of. April 27, 2006 REQUESTING: Under the direction of Chapter 17—Zoning Ordinance: Section 6.03 Conditional Uses (1)A. Approval Required: Uses listed as permitted by conditional grant may be permitted in the district in which listed upon petition for such grant to the Plan Commission and subject to the approval of the Commission and to such other conditions as hereinafter designated. APPELLANT: Michael A. Birkley LOCATION: W144 S7931 Durham Drive 1 Tax Key No. 2213.984 CITY'S POSITION PRESENTED BY: Adam Trzebiatowski, City Staff Representative BACKGROUND The petitioner was denied a Conditional Use Grant for the above -mentioned property on September 6, 2005 for the operation of a Tree Service/Landscape business. The petitioner is seeking an Appeal regarding the Plan Commission denial of the Conditional Use Grant. The petitioner has submitted an application, a narrative, a letter from the Planning Department, and three (3) surveys/site plans. DISCUSSION This item was deferred at the last five (5) Zoning Board of Appeals meetings due to the requested adjournment/deferral from the appellant and his attorney(s). At the last meeting the board stated that they were going to defer this item until the April Board of Appeals Meeting. As such, this items need to be acted upon at the April 27, 2006 meeting. There has been a settlement relating to the citations that have been issued for this property in regards to the commercial truck parking and the unsightly outdoor storage. The property has come into compliance with the court stipulation and all that remains on the property are some screened woodpiles, which are allowed according to the court stipulation. The petitioner has had the option to retract their request for a variance at any time but has not done so yet. If there is a retraction submitted in writing by the appellant, there does not need to be a meeting to decide the outcome of this variance request. If the petitioner does not retract their variance request in writing the board must still meet to decide the formal outcome of the variance request. The board must make their determination of the appeal based upon the information presented up until this point, not based upon the settlement that has been reached with the court. As stated at previous meetings, based upon the foregoing, the city staff representative respectfully requests: Denial of Appeal 08-2005, allowing the reconsideration of a Conditional Use Grant denied by the Planning Commission on September 6, 2005. Since the required submittal time frame has elapsed Appeal # 08-2005 ZBA 04-27-2006 Page 1 of 3 and because the Planning Commission determinations regarding Conditional Use Grants can not be appealed, the appeal needs to be denied. Below is the information that was provided for the previous meetings. As stated above, the petitioner was denied for a Conditional Use Grant and has since applied for an appeal to the determination of the Plan Commission. Chapter 17 Zoning Ordinance, Section 3.08(2) relating to the Board of Appeals states the following: Unless a variance from the basic zoning regulations is sought (e.g. a request for a 30 foot building setback where a 50 foot setback is required by the regulations of the applicable zoning district), this section shall not apply to decisions of the Plan Commission relating to the following: Building, Site and Operational Plans; Signs of a temporary or permanent nature; Residential Outbuildings; Conditional Use requests. In a case where a variance from the basic zoning regulations is sought, the Plan Commission may file a recommendation with the Board of Appeals outlining its opinion and findings as they relate to the issue(s) being appealed. The part of this code section that states "...this section shall not apply to decisions of the Plan Commission relating to the following. Building, Site and Operational Plans; Signs of a temporary or permanent nature; Residential Outbuildings; Conditional Use requests," does not allow appeals relating to Conditional Use Grant determinations made by the Plan Commission. Based upon this code section, the requested item can not be appealed Additionally, the Board of Appeals and Zoning Board of Appeals - Rules of Procedure, Section 4(a) states the following: Time of Appeal. An application for appeal shall be filed with the Planning Department within twenty days from the date of refusal of a permit or from the date of the making of any order, ruling, decision or determination from which an appeal is taken. The date of the decision of the Building Inspector or other such officer shall not be counted, but the date of filing the appeal and Sundays and holidays shall be counted. If the last day to file an appeal falls on a Sunday or legal holiday the time for filing shall be extended to the next working day. Also, the Administrative Appeal application/handout (which was filled out and signed by the petitioner) states the following: Time of Appeal. Application for appeal shall be filed with the Planning Department within twenty days from the date of refusal of a permit or from the date of the making of any order, ruling, decision or determination from which an appeal is taken. The date of the decision of the Building inspector or other such officer shall not be counted, but the date of filing the appeal and Sundays and holidays shall be counted, except that if the last day fails on a Sunday or iegai holiday the time for filing shall be extended to the next secular day. Since the Plan Commission denied the Conditional Use Grant on September 6, 2005, the last day to apply to the Zoning Board of Appeals would have been September 26, 2005. The application, the submittal fee, and the first set of documents were submitted on September 30, 2005. Additional documents were submitted on October 3, 2005. Since the initial submission was four (4) days after the required date, the appeal is not valid according the adopted Zoning Board of Appeals Rules of Procedure. BASED UPON THE FOREGOING, THE CiTY STAFF REPRESENITIVE RESPECTFULLY REQUESTS: Appeal # 08-2005 ZBA 04-27-2006 Page 2 of 3 Denial of Appeal 08-2005, allowing the reconsideration of a Conditional Use Grant denied by the Planning Commission on September 6, 2005. Since the required submittal time frame has elapsed and because the Planning Commission determinations regarding Conditional Use Grants can not be appealed, the appeal needs to be denied. Appeal # 08-2005 ZBA 04-27-2006 Page 3 of 3 Appeal #08-2005 LEGEND Agenda Item(s) Property Right-of-way Hydrography CITY QF Prepared by City of Muskegs I&_M_USY,EGJ, Planning Department e a12MOG6 Supplemental Map Petitioner: 2213.984 Michael Birkley W144 S7931 Durham Drive s� 3 0 M% � CITY OF MUSKEGO BOARD OF APPEALS APPLICATION FOR ADMINISTRATIVE DECISION APPEAL tMUSKEG" n+ ",\ININ Time of Appeal. Application for appeal shall be filed with the Planning Department within twenty days from the date of refusal of a permit or from the date of the making of any order, ruling, decision or determination from which an appeal is taken. The date of the decision of the Building Inspector or other such officer shall not be counted, but the date of filing the appeal and Sundays and holidays shall be counted, except that if the last day falls on a Sunday or legal holiday the time for filing shall be extended to the next secular day. Appellant's Name: MiCHAEL BIRKLEY Subject Property Address:, W144 S7931 Durham Drive Telephone: Day: Evening: Property Zoning: Tax Key: Petitioner's relationship to property (circle applicable): Owner Lessee Other Date inspector denied zoning permit: Requesting variance to Code Section Administrative Officer's Name: Appeal Administrative decision regarding: __ - -- -- P 1 err t t s�i� R d e n i a 4 ofClJprioati e^ Reason decision regarding Code Section improperly interpreted: is incorrect or The duulsloll ---L.:) arbit�rary and not based an the fak-ILzi involving my property or business use_ I relied an inforation given to me by the City when buying the property and making the app ica ion- S:ICITYFIALLIPlanninglFORMSIBOA-Adman Appeai Applicabon.doc Last printed 6/24/2004 8:20 AM SUBMITTAL REQUIREMENTS FOR ADMINISTRATIVE APPEAL REQUESTS All information or materials related to the Administrative Appeal is required to be submitted with the application (10 copies of each). This information may include: ■ For an appeal related to a parcel of land, a Plat of Survey or accurate architectural / engineering drawing must be submitted. A City cadastral or zoning map will not be accepted. The Plat / drawing must contain the following: The parcel in question with dimensions. 2. Abutting streets, properties, lakes and/or rivers, etc. 3. Location and size (with dimensions and area) of any existing buildings or structures. 4. Ordinary High-water Mark, 100-year Flood Elevation, 2-foot about the 100- year Flood Elevation, or Easements, if applicable to the appeal. 5. Location and size of culverts, ditches, trees, wells, septic system, retaining walls, driveways, sidewalks, patios, or any other items pertinent to the variance requested —including area calculations, if applicable to the appeal. 6. Elevations at corners of parcel, building corners, grade breaks and any other elevations pertinent to the variance requested, if applicable to the appeal. 7. Proposed building, structure or appurtenance for which the variance is being requested, if applicable to the appeal. • The scaled construction drawings of the appurtenance, addition, or structure for which the appeal is being requested. ■ Fee in the amount of $200.00 Account # 100.01.18.03.4327 SIGNATURE OF APPELLANT �i�Gr--� .� DATE -3C) SIGNATURE OF OWNER (if different) DATE PLEASE BE INFORMED THAT ANY LEGAL, ENGINEERING AND ADMINISTRATIVE FEES INCURRED BY THE CITY, IN THE PROCESS OF REVIEWING A PROPOSAL OR APPLICATION, BUT NOT INCLUDED IN THIS FEE SCHEDULE, WILL BE CHARGED BACK TO THE PETITIONER / APPLICANT / OWNER 1 DEVELOPER FOR 100% RECOVERY. (Ch. 3.085/Ord. #909) S:\CITYHALL1Planning\FORMS%BOA-Admin Appeal Appficabon.doc Last printed 6/24/2004 8:20 AM CITY OF MUSKEGO BUILDING. SITE AND OPERATION PLAN ■ Michael Andrew Birkiey W 144 S7931 Durham Drive Muskego. WI 53150 (414) 422-0176 ■ Edgew•ood Engineering Group. Inc. W230 S8735 Clark Street Big Bend WI 53103 (262)662-5002 • RS-2 / OHS • Current business is Tree service/ landscape and is primarily work off site. ■ Current land uses: Park trucks on property. cut and split fire wood mill logs into lumber, • Outside storage of large logs and firev,-ood. • Proposed screen on north property of OHS - locust trees and evergreen trees, size - small, ■ Proposed land uses: Above use, lawn and garden center/ nursers. • Projected number of residents I, employees 1-5 part time, and daily customers ? • Operational considerations: hours weekdays- 7 am till dark, Saturday 8 am till dark. Water and septic loadings less than a single family. • Traffic generation: 60 cars per week? ■ Operational considerations: Observe local noise ordinance. Traffic visibility - clear necessary trees near street. Parking - on west side of house and garage. Proposed future additional parking near street and near proposed new building. Exterior storage - fire wood and logs to be milled. goal is that in 2 years from when building is up that logs will be gone and at that point only a minimal number of logs will be on site. ■ Possible future expansion. Put up a building ASAP to park trucks and equipment inside. store milled lumber inside. In a few years possibly put a green house up. • Proposed building 125 feet by 60 feet by 20 feet high. building. • Considerations for building: Fire safety. fits in the neighborhood well, structural strength. cost of building. • Reason for 20* high building. Need height for trucks and equipment. In the future l would be able to mill logs inside the building, ■ Why I think a this building would fit. There is a quonset but across the street and down 2 houses along with a block building. Also a steel building (approximately 136 x. 44) is on the same side of the street on the next lot south. along with a barn and out building at the street that have been sided and roofed with steel. Neighbor to the north has an attached garage that is block and has no overhang. My house is sided and has about a 4-6- overhang on the gable end and 1" on the hip end. Other buildings in the neighborhood have little or no overhang and are steel, steel sided, steel roofed. or block. The proposed site for the building is well screened from Durham Dr. and the end that will be exposed to Schultz Ln. has windows. Please see photos. SEP 3 0 M LEGAL DESCRIPTION: Being a part of the NE 1/4 of Section 14, T 5 N. R 20 E, in the City of Muskego, Waukesha County, Wisconsin, bounded and described as follows: Cam-encing at the Northwest Corner of said NE 1/4 Section 14; thence N87°50'16"E, 933.31 feet; PLAT F S U RV EY thence S02009'44"E, 144.99 feet to the place of beginning of the lands to be described: thence N87°50'16"E, 398.43 feet; thence S46105 55"E along the Southwesterlyy line of Durhan Drive, 8.56 feet; thence S01e05'55"E along the West line of Schultz Lane. 312.57 feet; thence S87°54'05"W, 398.57 feet; thence NO2e09'44"W, 318.24 feet to the place of beginning. Said lands containing 2.94 acres, more or less. NW CORNER NE 114 14-5-201— "VA7 O 0 O 01 01 cnI N/L OF SE 114 SEC 14 T51V, R20E ^— -- e— -- N 87"50'16" E 933.78' SCALE.- / / I 1 I hereby certify that I have surveyed the abore described property and the ebore map is a true representation thereof and spoors the size and location of the property, its exterior boundaries, the location of all visible structures and dimensions of all principal buildings th*reon, boundary fence; apparent easements roadway and visible encroachments if any. This survey is made for the presen owners of the property, and also thole who purchase, mortgage, or guarantee, the title thereto 171 one (1 f year fry date hereof. r� ^ IN Signed j tl CHRLSTO H R J. KUNKEL REGISTERED LAND-SUWWYOii? S 1755 as ti.. PREPARED FOR: M I CHAEL B I RKL.EY W144 S7931 DURHAM DRIVE MUSKEGO, WI. 53150 (#1+)422-0176 N 87054'05" E 846.30' O W f.., O F--� c0 Cp co c� OUTSIDE STMACE AREA Z6 S 87050' 16" W 398.43' Rs -210 H s EXIST. of DWELLING ,�.I PARf(� NG 41.55' aK i He #ROPOSED 60' X 125'� of BUILDING EXIST. ! _ 125-t10� 140-50' I GAR. \\ N 87054'05" E 494.16' O \ \ O \ C J1 \ •'v / -e MitSilDAf fE1 W KUNKEL -� S-1755 / O WAUKESM& TM IS AN OWINAL PRINT ONLY IF SFALWMPRINTED IN RED d t31 CA Ut CAD 12 �I �I �I �I �I NI I �I I� �I II I JUNE 30, 2005 I WAU-352 � �:r�ol•r o�c. oltll aneneMns .land eali►e]las mite pteanlaQ un 7zM= PAIN "API &M 5 -190 mm. 7MMHMi "10$ (W2)6=-W= = f�x (xa2�az 6oiE Memo To: Mayor Charles Damaske From: Adam Trzebiatowski Date: September 21, 2005 Re: Complaints regarding Businesses on the Kurer Property Per the direction of the Mayor, the Planning Department has reviewed the property file folders for the Kurer Property looking for information regarding approved business activities. Upon reviewing the files it was found that the larger buildings that are located on the south side of Durham Drive have an OOS overlay upon them. The current Zoning map illustrates that only one of the three larger buildings is within the OOS overlay area. Further review of the files show a legal description and map that show the actual area that was rezoned, which includes all three of the large buildings. This means that all three larger building do current have the COS overlay. The rezoning was approved under Resolution P.C. 33-89. In regards to the uses on the site, there have been at least three different BSO's and BSO Amendments that applied to the use of these buildings. The Resolution numbers are as follows: P.C. 226-97 P.C. 123-92 P.C.39-89 The approvals that currently are on this site allow the storage of boats, cars, recreational vehicles, personal belongings and livestock. The Resolution for the largest building that is set back from the road does state that the accessory structure may not be used for the operation or conduct of any business related activity. This still means that they do have approvals to store vehicles. Thank you, �1 Adam Tr7t�biatowski Associate Planner Fri A! OCT - 3 200S t ,i Sunday. Apri 17, 2005 Jeff Muenke.] W7182 S8200 ILIcitie _ \ cnuc \lus-�egc�, WI 53150 Rc: ,Y our letter to me re: a BSO at IV' 44 57931 Durham Drive/Tax Key No. 22.13.984 Dear Mr. Muenkel: The landscape business is not run daily from the parcel. In your letter you stated that a letter was attached that states what type of 10rne occupations may be allowed considering home occupations on the site, io letter was attached n Your letter Nou said "tire PEaitrruig Depantnent reeogtrizis that roU. I. Ila%e best2 ill Conversation for some time regarding a possible BSO for the property." This is 1 rue. "2. have known of the need for a BSO since before the property was <<cquired." This is false, my understanding was that I needed a BSO if I put a building up. Before I purchased the property I indicated that my desire was to put a building up to park vehicles and equipment in, you said I would need BSO for that. My understanding was it was OK to move in and run my t usine-ss and that if I put a building up that I would need to submit a BSO. ",. Know that a complaint from surrounding property owners or an elected cfficial could stop your business " I was told that one person or even several omplaints would not be able to stop my business. Had 1 have known that I ..eded a BSO after moving in I would have had it to you last fall. My i nderstanding was cleared up around Easter this year. -A.s I stated earlier you didn't include home occupation materials or an a: tacked letter - perhaps the miscommunication is not the only thing that was left ou-. i.e.. the time a BSO or home occupation is required, or that a BSO is required even if a building is not erected. i tave exercised my community spirit by searching for a legitimate legal site tc run my business. Jeff, you said that my business would fit on that parcel before I purchased it even to the extent of having a garden center/ nursery in a ldition to landscape/ tree service. I specifically ask you about placement of cogs, and showed you on a map where I was going to place them. i have met s ith a_i architect to see where the best place to put a building would be - he is A always in town. I have been in business for 21 years and haven't had a ,:)mplaint such as this. I had come to you and ask if certain parcels would fit :i ry bu iiness (which I explained to you) and nothing seemed to fit until This parcel came about. I relied on your assurance that this propeTt would be s Atable for my business: landscape/ tree sen-ice, fire wood processing, F ortat le saw null operation. You stated at least twice that the property is zoned for "intense use in the neighborhood," and that my use would fit I: is my hope to have a good friendly working relationship with you and the c itv. Mncei ely, 'alike Birklev Owner, Summertime Companies MWMlftW FAX I A L 0 to r- In eq Z cm f.D x — IX At c"A C%A fp QD to C14 "gloom QOU2 Ln � N,7 oo.cl 7L A.\ RS,L2/0'. ( - . - --- ---------- -- - ---------- - -------- --- N ---------------------- N 2213-985 3 422. y3' e&t7' Fmffim---ol LM a 174 05' M 70' # CUG 9 - 2213-997-001 "\ v , N, N ;t RS-2/u m 2213-988 278.77' 3-997 278.77' 3-996 199.10, 'D ca 2C 00 \0000" 91 RS-,24/, 0 221 r. 3-nl I ............. 65 A, z k,vrcr 7 wl ;CoNSlN ELECTRIC POWER f • 1 oo. ! / f 221 SM f / � 213- 'Loo / 2 3 / Z % N � J 00 %� 8 _ f 189.3v-" G v YJ ZONING BOARD OF APPEALS MINUTES CITY OF MUSKEGO MARCH 23, 2006 Meeting was called to order at 7:01 P.M PRESENT: Chairman Dan Schepp, Vice Chairman Henry Schneiker, Dr. Barb Blumenfield, Dr. Russ Kashian, Mr. William Le Doux, Mr. Richard Ristow and Associate Planner Adam Trzebiatowski. EXCUSED: Mr. Horst Schmidt STATEMENT OF PUBLIC NOTICE: The Secretary stated the meeting was noticed on March 17, 2006, in accordance with Open Meeting Laws. NEW BUSINESS: APPEAL #03-2006 Petitioner: Mark and Debra Golla, W180 S8091 Pioneer Drive 1 Tax Key No. 2222.986. REQUESTING under the direction of Chapter 17 Zoning Ordinance: Section 3.08(1) Appeal Provisions, Petitioner seeks the following variance: Chapter 17 — Zoning Ordinance: Section 5.02 — Building Location (1) Location Restricted: No building shall be hereafter erected, structurally altered or relocated on a lot except in conformity with the following location regulations as hereinafter specified for the district in which it is located. A setback of 40-feet is required from the front property line on the above -mentioned lot. The petitioner seeks a setback of 23.11-feet from the front lot line to permit the reconstruction of a front deck/porch, and is therefore requesting a 16.89-foot variance from the front property line. Vice Chairman Schneiker swore in Mark and Debra Golla and Adam Trzebiatowski Mrs. Golla explained they would like to replace the existing concrete porch and steps with new composite materials. The porch and steps are in poor condition and create a safety hazard. The existing porch and steps are two separate slabs and the porch has sunk. Mrs. Golla stated there is no walkway from the porch to the driveway. The Golla's live next door and want to rent out this house. Mrs. Golla stated the hardship for the property is the safety of the porch/steps in the existing condition. Dr. Blumenfield questioned moving the steps to the north. Mrs. Golla explained there are trees nearby that would have to be cut down if the steps were turned to the north. Mr. Trzebiatowski gave the City's opinion based on the Zoning Code. The petitioner is proposing to reconstruct a deck/porch on the front of the house. The petitioner has stated the concrete porch/steps are in poor condition and a safety hazard. The existing concrete porch/stairs are currently non- conforming, In this district there is a 40-foot setback required from the right of way, which is the front lot line. The petitioner seeks a setback of 23.11-feet from the front lot line to permit the reconstruction of a front deck/porch, and is therefore requesting a 16.89-foot variance from the required front property line setback. The petitioner currently has an old concrete porch with steps and they would like to remove and replace them with a new deck/porch construction out of composite material that will be designed to meet current code requirements. The proposed deck/porch will have a 5-foot by 5-foot landing and a 4-foot long set of stairs. Mr. Trzebiatowski further explained there are two other options. There is the possibility to turn the deck/porch parallel (so the stairs would head to the north) to the house rather than perpendicular to the house and also reduce the landing to 3-feet in depth. The building code only required a 3-foot landing. This would not require a variance because the survey shows there is 3 feet of space between the front of the house and the front door. Even though it would still be non -conforming, it is still allowed since it will be no closer to the right-of-way line than the existing house. ZBA Minutes 3/23/2006 Page 2 The other option would be a 5-foot landing. It could also be parallel to the house. If this is done the setback could be increased to 27.11 feet from the right-of-way, which would only require a variance of 12.89 feet. This would require less of a variance than requested. With either option listed, the petitioner has stated there is a large tree that would be in the way if the stairs went to the north, but after reviewing the dimensions on the pians and on the survey, there would still be about 4.5 feet of space between the end of the stairs and the tree trunk. Based upon the information given staff is recommending for denial of appeal 03-2006, allowing the reconstruction of a front deck/porch with a 23.11—foot setback, a 16.89-foot variance, from the front right- of-way line: citing the variance does not preserve the intent of the Zoning Ordinance because there are not exceptional conditions applying to the parcel that do not apply to other properties. Also, a non -self imposed hardship is not found for the appeal. Mr. Schneiker questioned if there were plans to widen Pioneer Drive. Mr. Trzebiatowski stated there were none and that the ultimate right of way is already set at what it should be. Dr. Blumenfield stated staff did a good job presenting options, however, turning the porch and steps to the north will take them farther away from the driveway. Dr. Blumenfield also explained by turning the porch and stairs people will walk past the front window to approach the front door. This is a personal safety issue. The Golla's agreed they would not like people looking in the front window. Mr. Schepp questioned if any other houses along Pioneer are closer to the setbacks. Mr. Trzebiatowski stated near Janesville Road there are houses closer to the setbacks. He also staled they vary up and down the road. APPEAL, #08-2005 Petitioner: Michael Birkley, W144 S7931 Durham Dr /Tax Key No. 2213.984. REQUESTING under the direction of Chapter 17 Zoning Ordinance: Section 3.08(1) Appeal Provisions, Petitioner seeks the following variance: Chapter 17- Zoning Ordinance: Section 6.03 Conditional Uses (1)A. Appeal Required: Uses listed as permitted by conditional grant may be permitted in the district in which listed upon petition for such grant to the Plan Commission and subject to the approval of the Plan Commission and to such other conditions as hereinafter designated. A conditional use grant was denied for the above -mentioned property on September 6, 2005, for the operation of a Tree Service/Landscape business. The petitioner is seeking an appeal regarding the Plan Commission denial of the Conditional Use Grant. DELIBERATIONS: APPEAL 03-2006 — Dr. Blumenfield moved to approve 03-2006 as submitted. Mr. Schneiker seconded. Dr. Blumenfield stated staff did a good job presenting the options for the Gallas. However, Dr. Blumenfield stated, because of the personal safety issue of having the porch and the stairs extended past the front window, the stairs being farther away from the driveway and there being no continuity along Pioneer Road anyways this variance should be allowed. Mr. Schneiker stated the 3 x 3 landing would not be sufficient room to open the door and therefore also agrees with allowing the variance. Upon a roll call vote Appeal 03-2006 is approved 5-0. APPEAL 08-2005 — Mr. Trzebiatowski explained Mr. Birkley has an agreement with the City and has been given until April 8" to come into compliance and pay the citation fees. If Mr. Birkley's attorney submits a withdrawal letter the Board may not have to meet on this issue. The Board agreed to continue with the original deferral to the regular meeting in April. APPROVAL OF THE MINUTES: Mr. Schepp moved to approve the minutes of February 23, 2006, with one correction. Seconded by Mr. Le Doux. Motion carried 6-0. MISCELLANEOUS: Mr. Trzebiatowski explained the Zoning Code changes were approved by the ZSA Minutes 3/23/2006 Page 3 Common Council on Tuesday February 28, 2006. The required votes to overturn staff recommendation is now majority and not super majority, as required in the past. ADJOURNMENT: With no further business to come before this Board, Dr. Blumenfield moved to adjourn. Mr. Le Doux seconded. Upon voice vote, meeting adjourned at 7:29 PM, Respectfully Submitted, Kellie Renk, Recording Secretary CITY OF MUSKEGO ZONING BOARD OF APPEALS AGENDA March 23, 2006 7:00 PM Muskego City Hall, Muskego Room, W182 S8200 Racine Avenue CALL TO ORDER PLEDGE OF ALLEGIANCE ROLL CALL STATEMENT OF PUBLIC NOTICE 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 appeals described below. The Board of Appeals will then reconvene into open session. OLD BUSINESS 1. APPEAL #08-2005 Petitioner: Michael A. Birkley Property: W144 S7931 Durham Drive 1 Tax Key No. 2213.984 REQUESTING: Under the direction of Chapter 17 Zoning Ordinance: Section 3.08(1) Appeal Provisions, Petitioner seeks the following variance: Chapter 17—Zoninq Ordinance: Section 6.03 Conditional Uses (1)A. Approval Required: Uses listed as permitted by conditional grant may be permitted in the district in which listed upon petition for such grant to the Plan Commission and subject to the approval of the Commission and to such other conditions as hereinafter designated. A conditional use grant was denied for the above -mentioned property on September 6, 2005 for the nparatinn of a Tree Servir.e/l_andscanP hw;inP.FS. The petitioner is seeking an Appeal regarding the Plan Commission denial of the Conditional Use Grant. Detailed descriptions are available for public inspection in the Planning Department. All interested parties will be given an opportunity to be heard NEW BUSINESS 1. APPEAL #03-2006 Petitioner: Mark and Debra Golla Property: W 180 S8091 Pioneer Drive I Tax Key No. 2222.986 REQUESTING: Under the direction of Chapter 17 Zoning Ordinance: Section 3.08(1) Appeal Provisions, Petitioner seeks the following variance: ZBA 3/23/2006 Page 2 Chapter 17—Zoning Ordinance: Section 5.02 Building Location (1) 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 the front property line on the above mentioned lot. The petitioner seeks a setback of 2111-feet from the front lot line to permit the reconstruction of a front deck/porch, and is therefore requesting a 16.89-foot variance from the front property line. CLOSED SESSION OPEN SESSION APPROVAL OF THE MINUTES FROM THE FEBRUARY 23, 2006 MEETING. MISCELLANEOUS BUSINESS 1. Discussion of voting requirement changes. ADJOURN 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. Also, 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 Janice Moyer, City Clerk/Treasurer at Muskego City Hail, (262) 679-5625. City of Muskego Staff Representative Brief Zoning Board of Appeals Supplement 08-2005 For the meeting of: March 23, 2006 REQUESTING: Under the direction of Chapter 17—Zoning Ordinance: Section 6.03 Conditional Uses (1)A. Approval Required: Uses listed as permitted by conditional grant may be permitted in the district in which listed upon petition for such grant to the Plan Commission and subject to the approval of the Commission and to such other conditions as hereinafter designated. APPELLANT: Michael A. Birkley LOCATION: W144 S7931 Durham Drive i Tax Key No. 2213.984 CITY'S POSITION PRESENTED BY: Adam Trzebiatowski, City Staff Representative BACKGROUND The petitioner was denied a Conditional Use Grant for the above -mentioned property on September 6, 2005 for the operation of a Tree Service/Landscape business. The petitioner is seeking an Appeal regarding the Plan Commission denial of the Conditional Use Grant. The petitioner has submitted an application, a narrative, a letter from the Planning Department, and three (3) surveys/site plans. DISCUSSION This item was deferred at the last four Zoning Board of Appeals meetings due to the requested adjournment/deferral from the appellant and his attorney(s). At the last meeting the board stated that they were going to defer this item until the April Board of Appeals Meeting. As such, this item will not be discussed tonight. Defer action will still need to be taken. Below is the information that was provided for the previous meetings. As stated above, the petitioner was denied for a Conditional Use Grant and has since applied for an appeal to the determination of the Plan Commission. Chapter 17 Zoning Ordinance, Section 3.08(2) relating to the Board of Appeals states the following: Unless a variance from the basic zoning regulations is sought (e.g. a request for a 30 foot building setback where a 50 foot setback is required by the regulations of the applicable zoning district), this section shall not apply to decisions of the Plan Commission relating to the following: Building, Site and Operational Plans; Signs of a temporary or permanent nature: Residential Outbuildings, - Conditional Use requests. In a case where a variance from the basic zoning regulations is sought, the Plan Commission may file a recommendation with the Board of Appeals outlining its opinion and findings as they relate to the issue(s) being appealed. Appeal # 08-2005 ZBA 01-26-2006 Page 1 of 2 The part of this code section that states "... this section shall not apply to decisions of the Plan Commission relating to the following: Building, Site and Operational Plans; Signs of a temporary or permanent nature; Residential Outbuildings; Conditional Use requests. " does not allow appeals relating to Conditional Use Grant determinations made by the Plan Commission. Based upon this code section, the requested item can not be appealed. Additionally, the Board of Appeals and Zoning Board of Appeals - Rules of Procedure, Section 4(a) states the following: Time of Appeal. An application for appeal shall be filed with the Planning Department within twenty days from the date of refusal of a permit or from the date of the making of any order, ruling, decision or determination from which an appeal is taken. The date of the decision of the Building Inspector or other such officer shall not be counted, but the date of filing the appeal and Sundays and holidays shall be counted. If the last day to file an appeal falls on a Sunday or legal holiday the time for filing shall be extended to the next working day. Also, the Administrative Appeal application/handout (which was filled out and signed by the petitioner) states the following: Time of Appeal. Application for appeal shall be filed with the Planning Department within twenty days from the date of refusal of a permit or from the date of the making of any order, ruling, decision or determination from which an appeal is taken. The date of the decision of the Building Inspector or other such officer shall not be counted. but the date of filing the appeal and Sundays and holidays shall be counted. except that if the last day falls on a Sunday or legal holiday the time for filing shall be extended to the next secular day. Since the Plan Commission denied the Conditional Use Grant on September 6, 2005, the last day to apply to the Zoning Board of Appeals would have been September 26, 2005. The application, the submittal fee, and the first set of documents were submitted on September 30, 2005. Additional documents were submitted on October 3, 2005. Since the initial submission was four (4) days after the required date, the appeal is not valid according the adopted Zoning Board of Appeals Rules of Procedure. BASED UPON THE FOREGOING, THE CITY STAFF REPRESENITIVE RESPECTFULLY REQUESTS: Denial of Appeal 08-2005, allowing the reconsideration of a Conditional Use Grant denied by the Planning Commission on September 6, 2005. Since the required submittal time frame has elapsed and because the Planning Commission determinations regarding Conditional Use Grants can not be appealed, the appeal needs to be denied. Appeal # 08-2005 ZBA 01-26-2006 Page 2 of 2 ZONING BOARD OF APPEALS MINUTES CITY OF MUSKEGO FEBRUARY 23, 2006 Meeting was called to order at 7:07 P.M PRESENT: Chairman Dan Schepp, Mr. Horst Schmidt, Mr. William Le Doux, Mr. Richard Ristow and Associate Planner Adam Trzebiatowski. EXCUSED: Dr. Barb Blumenfield, Mr. Henry Schneiker and Dr. Russ Kashian STATEMENT OF PUBLIC NOTICE: The Secretary stated the meeting was noticed on February 17, 2006, in accordance with Open Meeting Laws. NEW BUSINESS: APPEAL #02-2006 Petitioner: Randy Girard, S70 W 18871 Gold Drive 1 Tax Key No. 2180.941. REQUESTING under the direction of Chapter 17 Zoning Ordinance: Section 3.08(1) Appeal Provisions, Petitioner seeks the following variance: A. Chapter 17 — Zoning Ordinance: Section 6.06 — Outdoor Recreational Facilities (7)A. Pumps and filter equipment shall in no case be closer than 20 feet to a property line and shall be adequately housed and muffled. Chapter 17:6.06(7)A. states that pool pumps and filters must be no closer than 20 feet to the lot line of a property. The appellant is requesting to install the required mechanicals (pumps, filter, etc.) for their in -ground pool and is proposing them with an offset of 12 feet from each side lot lines and is therefore requesting a 8-foot variance from the Code requirement from each of the side lot lines. B. Chapter 17 — Zoning Ordinance: Section 4.05 — Accessory Uses and Structures (2)G. 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, flag, poles, etc.), where subject to "permanent structure" classification shall be permitted in setback and offset areas but not closer than 3-feet to an butting property line other than a street line. (Ord. #1100-04-18-02) Chapter 17:4.05(2)G. states that any walks must be no closer than 3 feet to the lot line of a property. The appellant is requesting to install a walkway along the eastern side of their property and is proposing it with an offset of 1-foot from the side lot line and is therefore requesting a 2-foot variance from the Code requirement. C. Chapter 17 — Zoning Ordinance: Section 5.07 0 Open Space (1) Minimum Required: No building shall be erected, structurally altered or relocated on a lot so as to reduce the usable open area of such lot to less than that hereinafter specified by the regulations for that district. The minimum open space required for the property is 6,666 square feet (64.2 percent) per the RS-310LS requirements. The current open space with lust the house is 8,150 square feet, resulting in 78.5- percent of the lot area being preserved as open space, which is conforming. The Appellant is proposing to pave a 1,643 square foot driveway, pave a 18 square foot area for the pool mechanicals and pave 159 square foot decking around the proposed pool, totaling, 1,820 square feet. These items combined with the house (totaling 4,046 square feet) leave 6,330 square feet of open space, resulting in 61-percent of the lot area being preserved as open space, and is therefore requesting a 3.2-percent variance to the Code requirement. Chairman Schepp swore in Randy Girard and Adam Trzebiatowski. Mr. Girard stated he inherited this property from his grandfather. Mr. Girard explained it is a narrow lot and has worked with the Plan Department on the location of the house. Mr. Girard stated he is requesting three appeals. The first is for the pool pump. Mr. Girard stated the pump will be 5112 feet below grade and surrounded by a retaining wall. The pump will also be under a deck. Mr. Girard further stated he will be purchasing a quieter pump. ZBA Minutes 2123/2006 Page 2 The second appeal is to install a walkway one foot off of the house, 3.5 feet wide. Mr. Girard stated he is requesting to make the walkway 3.5 feet wide to accommodate a wheelchair. There will be no stairs, only a ramp. The third request is for a paved driveway. Mr, Girard stated he considered using brick pavers but would like to use asphalt for maintenance and durability. Mr. Le Doux questioned if there will be any doors from the house along the side walkway. Mr. Girard stated there will only be one door, but there will be windows that crank out along the walkway. Mr. Schmidt questioned if the neighbors objected. Mr. Girard stated the neighbors did not object. Mr. Trzebiatowski gave the City's opinion based on the Zoning Code. As noted the petitioner is requesting three different variances. They are organized by A, B C. A. The code state that any pool mechanicals must be located at least 20 feet away from all lot lines. Due to the narrowness of this lot, the petitioner is requesting to place the mechanicals in the middle of the lot, which is the best place under this circumstance. This will leave 12-feet on each side of the equipment. The petitioner has stated that the mechanicals will be enclosed on the side by two 5'8" high stone retaining walls. The petitioner also states there will be a deck above to help dampen the sound. Based upon the hardship relating to this property of the narrowness of the existing lot and the proposed placement of the mechanicals within the center of the lot, staff recommends approval of this portion of the variance with the condition that all mechanicals must be enclosed on all sides to ensure the dampening of the equipment noise. Mr. Trzebiatowski questioned what the motor housing area on the plans would be used for. Mr. Girard explained it is for a child safety cover for the pool. The motor is for an electric winch and will only run to open and close the cover on the pool. B. The code states any walks must remain at least 3-feet away from all lot lines. The petitioner would like to construct a 42-inch walkway 1 foot off of the eastern lot line. This will leave the walkway 1 foot away from the house, centered between the house and the lot line. Based upon the 3-foot code requirement staff recommends for denial of this portion of the variance. The walkway can be placed right next to the house and it can be reduced in size to 2.5 feet. This would not require a variance and preserve the integrity of the Zoning Code. Since there is no specific need/requirement for a 3.5-foot walkway, a 2.5-foot walkway should be more than sufficient to access the rear of the property. C. The Code states that this lot must maintain/preserve at least 6,666 square feet as open space. The approved house consumes 2,226 square feet of open space, which leaves 8,150 square feet as open space. This is within the code requirements. The petitioner is proposing three other asphalt/conCrete areas that when combined with the house square footage, will require a variance. The petitioner is proposing to add 1,643 square foot concrete/asphait driveway, a 159 square foot concrete pool deck, and an 18 square foot concrete pad for the pool mechanicals. The pool deck and sidewalk are under the limit and could be installed without a variance. The driveway puts the lot 336 square feet over the allowed limit, which is a 3 percent variance from the code requirement. Based upon the information given, staff is recommending approval citing the driveway should not hamper the surrounding neighborhood and in the past the Board has stated every property owner should be offered the opportunity for paved access to their home. A concrete/asphalt driveway also helps keep down on dust and reduces sedimentation run off. Mr. Trzebiatowski noted he checked with the Building Inspectors and there are no ADA requirements for single-family homes related to wheelchairs. APPEAL #08-2005 Petitioner: Michael Birkley, W144 S7931 Durham Dr/Tax Key No, 2213.984. REQUESTING under the direction of Chapter 17 Zoning Ordinance: Section 3.08(1 ) Appeal Provisions, Petitioner seeks the following variance: Chapter 17- Zoning Ordinance: Section 6.03 Conditional Uses ZBA Minutes 2/2312006 Page 3 (1)A. Appeal Required: Uses listed as permitted by conditional grant may be permitted in the district in which listed upon petition for such grant to the Plan Commission and subject to the approval of the Plan Commission and to such other conditions as hereinafter designated. A conditional use grant was denied for the above -mentioned property on September 6, 2005, for the operation of a Tree Service/Landscape business. The petitioner is seeking an appeal regarding the Plan Commission denial of the Conditional Use Grant. Mr. Trzebiatowski explained the Planning Department has received new information that Mr. Birkley has a lease in another community that will be effective Saturday February 25, 2006. By the next meeting it may be possible to deny this appeal without prejudice. DELIBERATIONS APPEAL 02-2006 A — Mr. Schmidt moved to approve the appeal as submitted. Seconded by Mr. Ristow. Mr. Schepp stated he agreed with approving this appeal based on the hardship of the narrowness of this 30-foot wide lot. Mr. Schepp also agreed with the staff recommendation of requiring the mechanicals to be being fully enclosed to dampen the noise. Upon a roll call vote appeal 02-2006 A is approved 4-0. (Mr. Schmidt requested taking the appeals out of order. There were no objections) APPEAL 02-2006 C — Mr. Schmidt moved to approve the appeal as submitted. Seconded by Mr. Le Doux. Mr. Schmidt stated he is in favor of the approval based on historically the Board has approved paved driveways to keep sediment from running into the lake. Mr. Schepp also added the hardship of the narrowness of lot again being 30 feet wide. Upon a roll call vote appeal 02-2006 C is approved 4-0. APPEAL 02-2006 B. — Mr. Le Doux moved to approve the appeal as submitted. Seconded by Mr. Schmidt. Mr. Le Doux stated he is in favor of approving this appeal to allow for space between the house and the sidewalk. The sidewalk up against the house would be dangerous with crank out windows. Mr. Le Doux feels it is good to plan ahead to accommodate a wheelchair. Mr. Schepp agreed it would be a bad idea to place the sidewalk up against the house as it may begin to tilt in towards the house, and there could also be a safety issues for children with the sidewalk being too close to the crank out windows. Mr. Schepp stated the hardship is the narrowness of the lot only being 30 feet wide. Upon a roll call vote appeal 02-2006 B is approved 4-0. APPEAL 08-2005 — Mr. Schmidt moved to defer until the regular meeting of April 2006. Mr. Ristow seconded. Upon a roll tail vote appeal 08-2005 is deferred 4-0. APPROVAL OF THE MINUTES: Mr. Schmidt moved to approve the minutes of January 26, 2006. Seconded by Mr. Ristow. Motion carried 4-0. MISCELLANEOUS: Mr. Trzebiatowski explained the Zoning Code changes are on the Common Council agenda for Tuesday February 28, 2006. If approved the required votes to overturn staff recommendation will be majority and not super majority, as required in the past. The final Council resolution will be included in the packet for the next meeting. ADJOURNMENT: With no further business to come before this Board, Mr. Schmidt moved to adjourn. Mr. Le Doux seconded. Upon voice vote, meeting adjourned at 7:43 PM. Respectfully Submitted, (/ do ,l Kellie Renk, Recording Secretary CITY OF MUSKEGO ZONING BOARD OF APPEALS AGENDA February 23, 2006 7:00 PM Muskego City Hall, Muskego Room, W182 S8200 Racine Avenue CALL TO ORDER PLEDGE OF ALLEGIANCE ROLL CALL STATEMENT OF PUBLIC NOTICE 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 appeals described below. The Board of Appeals wifl then reconvene into open session. OLD BUSINESS 1. APPEAL #08-2005 Petitioner: Michael A. Birkley Property: W 144 S7931 Durham Drive 1 Tax Key No. 2213.984 REQUESTING: Under the direction of Chapter 17 Zoning Ordinance: Section 3.08(1) Appeal Provisions, Petitioner seeks the following variance: Chapter 17 Zoning Ordinance: Section 6.03 Conditional Uses (1)A. Approval Required: Uses listed as permitted by conditional grant may be permitted in the district in which listed upon petition for such grant to the Plan Commission and subject to the approval of the Commission and to such other conditions as hereinafter designated. A conditional use grant was denied for the above -mentioned property on September 6, 2005 for the operation of a Tree Service/Landscape business. The petitioner is seeking an Appeal regarding the Plan Commission denial of the Conditional Use Grant. Detailed descriptions are available for public inspection in the Planning Department. All interested parties will be given an opportunity to be heard. NEW BUSINESS 1. APPEAL #02-2006 Petitioner: Randy Girard Property: S70 W 18871 Gold Drive / Tax Key No. 2180.941 REQUESTING: Under the direction of Chapter 17 Zoning Ordinance: Section 3.08(1) Appeal Provisions, Petitioner seeks the following variance: ZBA 2/23/2006 Page 2 A. Chapter 17—Zoning Ordinance: Section 6.06 — Outdoor Recreational Facilities (7)A. Pumps and filter equipment shall in no case be closer than 20 feet to a property line and shall be adequately housed and muffled. Chapter 17:6.06(7)A. states that pool pumps and filters must be no closer than 20 feet to the lot line of a property. The appellant is requesting to install the required mechanicals (pumps, filter, etc.) for their in ground pool and is proposing them with an offset of 12 feet from each side lot tines and is therefore requesting a 8-foot variance from the Code requirement from each of the side lot lines. B. Chapter 17—Zoning Ordinance: Section 4.05 —Accessory Uses and Structures (2)G. Walks, drives, paved terraces, mechanical appurtenances for a(I single-family and two- family structures (such as air conditioners, venting, and service panels), and purely decorative garden accessories (such as pools, fountains, statuary, flag poles, etc.), where subject to "permanent structure' classification shall be permitted in setback and offset areas but not closer than 3 feet to an abutting property line other than a street line. (Ord. #1100 - 04-18-02) Chapter 17:4.05(2)G. states that any walks must be no closer than 3 feet to the lot line of a property. The appellant is requesting to install a walkway along the eastern side of their property and is proposing it with an offset of 1-foot from the side lot line and is therefore requesting a 2-foot variance from the Code requirement. C. Chapter 17—ZoningOrdinance: Section 5.07 — Open Space (1) Minimum Required: No building shall be erected, structurally altered or relocated on a lot so as to reduce the usable open area of such lot to less than that hereinafter specified by the regulations for that district. The minimum open space required for the property is 6,666 square feet (64.2 percent) per the RS-3/OLS requirements. The current open space with just the house is 8.150 square feet, resulting in 78.5-percent of the lot area being preserved as open space, which is conforming. The Appellant is proposing to pave a 1,643 square foot driveway, pave a 18 square foot area for the pool mechanicals, and pave 159 square foot decking around the proposed pool, totaling 1.820 square feet. These items combined with the house (totaling 4,046 square feet) leave 6,330 square feet of open space, resulting in 61-percent of the lot area being preserved as open space, and is therefore requesting an 3.2-percent variance to the Code requirement. CLOSED SESSION OPEN SESSION APPROVAL OF THE MINUTES FROM THE JANUARY 26, 2005 MEETING. MISCELLANEOUS BUSINESS None. ADJOURN 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. Also, 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 Janice Moyer, City Clerk/Treasurer at Muskego City Hall, (262) 679-5625. City of Muskego Staff Representative Brief Zoning Board of Appeals Supplement 08-2005 For the meeting of: February 23, 2006 REQUESTING: Under the direction of Chapter 17—Zoning Ordinance: Section 6.03 Conditional Uses (1)A. Approval Required: Uses listed as permitted by conditional grant may be permitted in the district in which listed upon petition for such grant to the Plan Commission and subject to the approval of the Commission and to such other conditions as hereinafter designated. APPELLANT: Michael A. Birkley LOCATION: W 144 S7931 Durham Drive 1 Tax Key No. 2213,984 CITY'S POSITION PRESENTED BY: Adam Trzebiatowski, City Staff Representative BACKGROUND The petitioner was denied a Conditional Use Grant for the above -mentioned property on September 6, 2005 for the operation of a Tree Service/Landscape business. The petitioner is seeking an Appeal regarding the Plan Commission denial of the Conditional Use Grant. The petitioner has submitted an application, a narrative, a letter from the Planning Department, and three (3) surveys/site plans. DISCUSSION This item was deferred at the last three Zoning Board of Appeals meetings due to the requested adjournment/deferral from the appellant and his attorney(s). At the last meeting the board stated that they were going to defer this item until the April Board of Appeals Meeting. As such, this item will not be discussed tonight. Defer action will still need to be taken. Below is the information that was provided for the previous meetings. As stated above, the petitioner was denied for a Conditional Use Grant and has since applied for an appeal to the determination of the Plan Commission, Chapter 17 Zoning Ordinance, Section 3.08(2) relating to the Board of Appeals states the following: Unless a variance from the basic zoning regulations is sought (e.g. a request for a 30 foot building setback where a 50 foot setback is required by the regulations of the applicable zoning district), this section shall not apply to decisions of the Plan Commission relating to the following. Building, Site and Operational Plans; Signs of a temporary or permanent nature; Residential Outbuildings; Conditional Use requests. In a case where a variance from the basic zoning regulations is sought. the Plan Commission may file a recommendation with the Board of Appeals outlining its opinion and findings as they relate to the issue(s) being appealed. Appeal # 08-2005 ZBA 01-26-2006 Page t of 2 The part of this code section that states "...this section shall not apply to decisions of the Plan Commission relating to the following; Building, Site and Operational Plans; Signs of a temporary or permanent nature; Residential Outbuildings; Conditional Use requests." does not allow appeals relating to Conditional Use Grant determinations made by the Plan Commission. Based upon this code section, the requested item can not be appealed. Additionally, the Board of Appeals and Zoning Board of Appeals - Rules of Procedure, Section 4(a) states the following: Time of Appeal. An application for appeal shall be filed with the Planning Department within twenty days from the date of refusal of a permit or from the date of the making of any order, ruling, decision or determination from which an appeal is taken. The date of the decision of the Building Inspector or other such officer shall not be counted, but the date of filing the appeal and Sundays and holidays shall be counted. If the last day to file an appeal falls on a Sunday or legal holiday the time for filing shall be extended to the next working day. Also, the Administrative Appeal application/handout (which was filled out and signed by the petitioner) states the following: Time of Appeal. Application for appeal shall be filed with the Planning Department within twenty days from the date of refusal of a permit or from the date of the making of any order, ruling, decision or determination from which an appeal is taken. The date of the decision of the Building Inspector or other such officer shall not be counted, but the date of filing the appeal and Sundays and holidays shall be counted, except that if the last day falls on a Sunday or legal holiday the time for filing shall be extended to the next secular day. Since the Plan Commission denied the Conditional Use Grant on September 6, 2005, the last day to apply to the Zoning Board of Appeals would have been September 26, 2005. The application, the submittal fee, and the first set of documents were submitted on September 30, 2005. Additional documents were submitted on October 3, 2005. Since the initial submission was four (4) days after the required date, the appeal is not valid according the adopted Zoning Board of Appeals Rules of Procedure. BASED UPON THE FOREGOING, THE CITY STAFF REPRESENITIVE RESPECTFULLY REQUESTS: Denial of Appeal 08-2005, allowing the reconsideration of a Conditional Use Grant denied by the Planning Commission on September 6, 2005. Since the required submittal time frame has elapsed and because the Planning Commission determinations regarding Conditional Use Grants can not be appealed, the appeal needs to be denied. Appeal # 08-2005 ZBA 01-26-2006 Page 2 of 2 ZONING BOARD OF APPEALS MINUTES CITY OF MUSKEGO JANUARY 26, 2006 Meeting was called to order at 7:07 P.M PRESENT: Chairman Dan Schepp, Vice Chairman Schneiker, Mr. Horst Schmidt, Mr. William Le Doux, Mr, Richard Ristow and Associate Planner Adam Trzebiatowski. EXCUSED: Dr. Barb Biumenfield, Dr. Russ Kashian STATEMENT OF PUBLIC NOTICE: The Secretary stated the meeting was noticed on January 20, 2006 in accordance with Open Meeting Laws. NEW BUSINESS: APPEAL #08-2005 Petitioner: Michael Birkley, W144 S7931 Durham Dr/Tax Key No. 2213.984, REQUESTING under the direction of Chapter 17 Zoning Ordinance: Section 3.08(1) Appeal Provisions, Petitioner seeks the following variance: Chapter 17- Zoning Ordinance: Section 6,03 Conditional Uses (1)A. Appeal Required: Uses listed as permitted by conditional grant may be permitted in the district in which fisted upon petition for such grant to the Plan Commission and subject to the approval of the Plan Commission and to such other conditions as hereinafter designated. A conditional use grant was denied for the above -mentioned property on September 6, 2005, for the operation of a Tree Service/Landscape business. The petitioner is seeking an appeal regarding the Plan Commission denial of the Conditional Use Grant. Mr. Schneiker swore in Michael Birkley, Attorney Richard Zaffiro and Associate Planner Adam Trzebiatowski. Attorney Zaffiro gave some history on Mr. Birkley's appeal. The issue began July 5, 2005, when a Conditional Use Grant and Building, Site and Operation approvals were applied for and paid for by Mr. Birkley. Problems of woodpiles and vehicles parked on the property were investigated by the City. Since Dec. Bch some progress has been made on the woodpile and parking. Mr. Birkley is continuing to look for a suitable place to move his business. A potential property in the Town of Norway fell through last week. Attorney Zaffiro stated he is encouraging Mr. Birkley to continue to work with seller. Mr. Birkley stated he is actively pursuing a new location also. He will be meeting with a potential seller on Saturday. The location is a little father away than he would like to go but he is willing to consider it. Mr. Birkley submitted a map showing the businesses that surround his property. Mr. Birkley stated there is an apartment building, Linda's Place Bar, Schultz Gun Club, Hunters Nest and a storage facility all near his property. Mr. Zaffiro stated the core of Mr. Birkley's business is not the woodpile. He could move that to another location, The core of the business is to go to places and do work. There were complaints on Mr. Birkley's business at the public hearing to remove the OHS zoning. Neighbors complained of trucks running up and down the road. Attorney Zaffiro stated these trucks leave in the morning and don't come back till the end of the day. Mr. Birkley only comes and goes twice a day because he goes to the customer's location. The other businesses around Mr. Birkley have customers coming and going. Mr. Birkley feels the neighbor that owns the apartment building only complained because her two sons own the same type of landscape business. Other neighbors do not have a problem. Attorney Zaffiro questioned the due process notice rights regarding the denial of Mr. Birkley's business while other businesses surround his. Mr. Le Doux questioned if the Conditional Use Grant was permissible under the existing zoning at the time of application. Attorney Zaffiro stated yes, under the existing zoning at the time, the Conditional Use Grant was permissible. The code changed three weeks later. ZBA Minutes 1/26/2006 Page 2 Mr. Le ❑oux questioned the dates of the application process by Mr. Birkley. Attorney Zaffiro stated on July 5, 2005 Mr. Birkley applied for a Building, Site and Operation. On July 25, 2005, the application for the Conditional Use Grant was submitted. Mr. Trzebiatowski explained Ald. Madden requested rezoning based on a few residents who wanted to do additions with OHS (highway service overlay) overlay and because of the zoning they could not. Adam Trzebiatowski stated on July 26, 2005, the zoning was changed by the City. Notification went out a few weeks prior and at this time no one was approved to be running a business in the area. If there were, the property would not have been rezoned. Mr. Schneiker questioned Mr. Birkley if there was a contingency on the property when it was purchased in order to obtain proper approvals. Attorney Zaffiro stated Mr. Birkley relied on verbal assurance by Plan Department staff. Mr. Birkley stated he was told he would not have a problem getting the Conditional Use Grant. Mr. Birkley sent a letter to Director Muenkel confirming the understandings in writing. Mr. Birkley questioned staff at the time of the Board of Appeals submittal what the deadline date was. Staff stated 20 days. Mr. Birkley submitted past the deadline. Mr. Trzebiatowski stated staff must accept an appeal even if it is submitted after the deadline. Attorney Zaffiro stated local time schedules do not over ride constitutional questions. Attorney Zaffiro stated Mr. Birkley has three options: running the business at this site, without woodpiles and trucks within setback of the ordinance, work with other municipalities to move the business or the third option is to go to court. Attorney Zaffiro is requesting a limited period of time to continue to look for another property. Mr. Schmidt questioned how much more time the petitioner is asking for. Attorney Zaffiro stated March or April should be sufficient. Mr. Le Doux questioned if the business is currently up and running. Mr. Birkley asked what is considered up and running. Mr. Birkley also questioned if he answers that is he going to hang himself. Attorney Zaffiro stated in winter months there is not much business until spring. Mr. Birkley is not going to and from locations, but is still cutting wood to get rid of the piles. Mr. Trzebiatowski stated this item was deferred at the last two Zoning Board of Appeals meetings due to the requested adjourn mentldeferral from the appellant and his attorney. The attorney stated at the last meeting they were not going to ask for any additional adjournments/deferrals. Due to this, action should be taken at the January 26, 2006 Zoning Board of Appeals meeting. No new information has been received at this time. The appellant's attorney did submit a letter to the City and the Alderman of the applicable Aldermanic District. The letter attempted to get an agreement in place to give Mr. Birkley time to explore his options. The City and the Alderman both agreed that plenty of time has been given and the issues at hand must come to an immediate end. No agreement was worked out. Based upon the facts, the City Staff representative respectfully requests denial of this appeal allowing the reconsideration of a Conditional Use grant denied by the Planning Commission on September 6, 2005. Since the required submittal time frame has elapsed and because the Planning Commission determinations regarding Conditional Use grants cannot be appealed, the appeal should be denied. Mr. Trzebiatowski further stated this appeal is not taking into consideration the storage of the logs or the trucks parked on the property. Those issues are being handled through citations. Reasons for the denial from Plan Commission and the Public Hearing were concerns by residents related to noise of sawing equipment. Staff did meet with Mr. Birkley and staff will never ensure anything, only give the best professional opinion and suggestions. Mr. Trzebiatowski stated he was not aware of the location of the logs. Prior to moving to this site the business has not been approved and should not be and never have been operating on this property. Staff will give options to appeal and give the petitioner a packet of information explaining the process and deadlines. Staff is recommending denial because the Zoning Code states certain decisions by the Plan Commission cannot be appealed, Conditional Use Grant being one of those. The zoning for a business to be allowed ZBA Minutes 1 /26/2006 Page 3 on this property is not in place and a Building Site and Operation Plan was denied and the Conditional Use Grant was denied. Mr. Trzebiatowski referenced the map Mr. Birkley submitted. Linda's Place and Hunters Nest are both in the OLR Zoning district which allows lakeshore recreation such as cottages and taverns. The apartment building is nonconforming and was built prior to the zoning code. The storage business on the west side of Durham is in the COS overlay and can be used only for storage, businesses cannot be run out of the storage units with the current zoning. The Board discussed the timeline of submittals and determination by the Plan Commission. Mr. Birkley bought the property in August of 2004. Prior to that, he had discussions with the Plan Department staff about operating the business on this property. He stated he was under the understanding it was ok to operate the business in 2004. One year later Mr. Birkley came before the Plan Department to obtain proper approvals. July 19, 2005, Plan Commission approved the removal of the business zoning including Mr. Birkley's property. July 26, 2005, Common Council also approved the removal of the business zoning. Mr. Trzebiatowski noted the Public Hearing for the removal of the zoning was scheduled and published within the requirements for meeting notices. Mr. Schneiker questioned if Mr. Birkley received the paperwork for a Conditional Use Grant, Building Site and Operation and Zoning Board of Appeals. Mr. Birkley stated he did receive the paperwork. Mr. Schmidt questioned Mr. Birkley if between the time the property was purchased and the zoning change in 2005 were you actively trying to get proper approvals. Mr. Birkley stated for the Building Site and Operation approval he thought he needed building plans for the structure he was going to build on the property. Mr. Birkley stated he was trying to get different quotes for an architect. Mr. Trzebiatowski stated Mr. Birkley did not need the building plans for the structure to apply for Building Site and Operation approval, which is stated in the paperwork. Mr. Trzebiatowski noted the RS-2IOHS zoning was only located in a small triangle on the front corner of the property and the use is only allowed with an approved Conditional Use Grant and Building Site and Operation Plan. The zoning has been removed. Mr. Trzebiatowski stated if the zoning had never been removed and Mr. Birkley went through the Public Hearing and received all approvals necessary, he could have operated a business on this property if the Plan Commission thought it was an appropriate use for the area and would have granted the Building Site and Operation and Conditional Use Grant approvals. Mr. Birkley stated he has also started the process of working with the City to divide lots off of the property. APPEAL #01-2006 Petitioner: Luis and Amy Ceballos, S73 W14270 Woods Road/Tax Key No. 2201.090. REQUESTING: Under the direction on Chapter 17 Zoning Ordinance: Section 3.08(1) Appeal Provisions, Petitioner seeks the following variance: Chapter 17-Zoning Ordinance: Section 4.05 — Accessory Structures (1)(A) Any accessory use or structure shall conform to the applicable regulations of the district in which it is located except as specifically otherwise provided. Chapter 17 — Section 4.05(2)(B)(2) states that accessory structures can consume up to 2% of a parcels total area (2,637 square feet on this parcel). The appellant currently has a 2,188 square foot accessory structure and is proposing to build an additional 1,160 square foot accessory structure. The appellant is requesting to have two accessory structures totaling 3,348 square feet and is therefore requesting a 711 square foot variance from the Code requirement. Vice Chairman Schneiker swore in Luis and Amy Ceballos, Bob Harvey of S73 W 14275 Woods Rd, Ald. Pat Patterson and Associate Planner Trzebiatowski. Mrs. Ceballos explained there is no garage on the property. The mouse is the original farmhouse. There is a barn on the property, but it is not possible to park cars in the barn because of the way it is built. The ZBA Minutes 1/26/2006 Page 4 only place they could attach a garage to the house would be in the rear and they would have to take down three big trees. Mrs. Ceballos is requesting the additional accessory building to park the cars inside. Mr. Ceballos stated he and his son are restoring an old car and would like to do this in the garage. When they worked on it in the driveway the Police Department gave them a ticket for unlicensed vehicle. They usually keep the car in the back in fenced in area. Mrs. Ceballos stated the garage will match the house and have the same roofline as the house. Mr. Schepp asked if they considered attaching the garage to the back of the house. Mrs. Ceballos stated they would lose to many windows if they went off the back of the house. The location of the well would also make it hard to put an addition off the back of the house. The driveway would be installed right over the well. Mrs. Cebaflo stated the location of the well is also a hardship on the property. Mr. Harvey who lives across the street stated he supports the additional garage on the Ceballo's property. Aid. Patterson stated he supports the zoning ordinance and also believes the citizens should be listened too. Aid. Patterson spoke with the neighbors and none have concerns with the second accessory structure on the property. Mr. Trzebiatowski gave the City's opinion based on the Zoning Code. The petitioner already has an accessory structure that is 2188 square feet. This means the petitioner can already construct an additional 449 square foot accessory structure on their property without a variance. Most residents within the City are not allowed near the total square footage that this property is allowed by right. Being a large property, this lot is allowed a larger total square footage of accessory structures than other smaller properties. Second accessory structures require approval from the Planning Department. This item did receive approvals from the Planning Commission on December 12, 2005. Their approval was subject to the demonstration of an appropriate hardship and approval by the Zoning Board of Appeals. When calculating the allowed square footage of accessory structures, there are three ways to calculate the maximum square footage allowed on a property. The Planning Department will look at each way of calculation and use the highest square footage found. The three ways to determine allowed square footage is as follows: 720 square feet, 60% of the house size or 2% of the total lot size. In this case of the petitioner, the best calculation is when taking 2% of the total lot area. The Planning Commission also stated that if the variance is granted, the garage could only be used to house personal vehicles and restore old vehicles. There are other options for more storage space on this property. An additional accessory structure totaling 449 square feet is allowed on this property that would not require a variance. There is also the option of attaching a garage to the house. The petitioner has stated their hardship would be removing trees and covering windows if the garage were attached to the rear of the house. Staff is recommending denial of this appeal, allowing a second accessory structure that would bring the total square foot of both structures to 3348 square feet, requiring a 711 square foot variance, citing that the variances does not preserve the intent of the Zoning Ordinance because there are not exceptional conditions applying to the parcel that do not apply to other properties. Also, a non -self imposed hardship is not found for the appeal. DELIBERATIONS: APPEAL 08-2005 — Mr. Schmidt moved to defer until the regular meeting of April 2006. Mr. Ristow seconded. Mr. Le Doux supports deferring the appeal in the chance Mr. Birkley could refocate his business. Mr. Schneiker stated with or without deferral of this appeal the business should not be operating on this property, as the zoning is not in place. Upon a roll call vote appeal 08-2005 is deferred 5-0. During deliberations Mr. Birkley returned with the letter written to Jeff Muenkel dated April 17, 2005. The Board requested this be added to the appeal. ZBA Minutes 1 /2612006 Page 5 The Board requested Plan Commission minutes, Council minutes and Public Hearing minutes related to Mr. Birkleys appeal for the April Board of Appeals meeting. APPEAL 01-2006 — Mr. Schmidt moved to approve the appeal as submitted. Seconded by Mr. Schneiker. Mr. Horst stated the location of the well is a hardship to attach the garage to the house. Mr. Schepp noted the lot is one of the bigger lots in this area and the neighbors and the Alderman of the district have stated they support the additional accessory building. Upon a roll call vote appeal 01-2006 is approved 5-0. APPROVAL OF THE MINUTES: Mr. Schmidt moved to approve the minutes of December 8, 2005. Seconded by Mr. Le Doux. Motion carried 5-0. MISCELLANEOUS: None. ADJOURNMENT: With no further business to come before this Board, Mr. Schmidt moved to adjourn. Mr. Le Doux seconded. Upon voice vote, meeting adjourned at 9:26 PM. Re p'gc Ily Submitte Kellie Renk, Recording Secretary CITY OF MUSKEGO ZONING BOARD OF APPEALS AGENDA January 26, 2006 7:00 PM Muskego City Hall, Muskego Room, W182 S8200 Racine Avenue CALL TO ORDER PLEDGE OF ALLEGIANCE ROLL CALL STATEMENT OF PUBLIC NCTICE 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 appeals described below. The Board of Appeals will then reconvene into open session. OLD BUSINESS 1. APPEAL #08-2005 Petitioner: Michael A. Birkley Property: W144 S7931 Durham Drive 1 Tax Key No, 2213.984 REQUESTING: Under the direction of Chapter 17 Zoning Ordinance: Section 3.08(1) Appeal Provisions, Petitioner seeks the following variance: Chapter 17—Zoning Ordinance: Section 6.03 Conditional Uses (1)A. Approval Required: Uses listed as permitted by conditional grant may be permitted in the district in which listed upon petition for such grant to the Plan Commission and subject to the approval of the Commission and to such other conditions as hereinafter designated. A conditional use grant was denied for the above -mentioned property on September 6, 2005 for the operation of a Tree Service/Landscape business. The petitioner is seeking an Appeal regarding the Plan Commission denial of the Conditional Use Grant. Detailed descriptions are available for public inspection in the Planning Department. All interested parties will be given an opportunity to be heard. NEW BUSINESS 1. APPEAL #01-2006 Petitioner: Luis and Amy Ceballos Property: S73 W14270 Woods Road 1 Tax Key No. 2201.090 REQUESTING: Under the direction of Chapter 17 Zoning Ordinance: Section 3.08(1) Appeal Provisions, Petitioner seeks the following variance: ZBA 1/26/2006 Page 2 Chapter 17—Zoning Ordinance: Section 4.05 - Accessory Uses and Structures (1)(A) Any accessory use or structure shall conform to the applicable regulations of the district in which J is located except as specifically otherwise provided. Chapter 17: Section 4.05(2)(B)(2) states that accessory structures can consume up to 2% of a parcels total area (2,637 square feet on this parcel). The appellant currently has a 2,188 square foot accessory structure and is proposing to build an additional 1,160 square foot accessory structure. The appellant is requesting to have two accessory structures totaling 3,348 square feet and is therefore requesting a 711 square foot variance from the Code requirement. CLOSED SESSION OPEN SESSION APPROVAL OF THE MINUTES FROM THE DECEMBER 8, 2005 MEETING, MISCELLANEOUS BUSINESS None. ADJOURN 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. Also, 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 Janice Moyer, City Clerk/Treasurer at Muskego City Hall, (262) 679-5625, City of Muskego Staff Representative Brief Zoning Board of Appeals Supplement 08-2005 For the meeting of. January 26, 2006 REQUESTING: Under the direction of Chapter 17—Zoning Ordinance. Section 6.03 Conditional Uses (1)A. Approval Required: Uses listed as permitted by conditional grant may be permitted in the district in which listed upon petition for such grant to the Plan Commission and subject to the approval of the Commission and to such other conditions as hereinafter designated APPELLANT: Michael A. Birkley LOCATION: W144 S7931 Durham Drive 1 Tax Key No. 2213.984 CITY'S POSITION PRESENTED BY: Adam Trzebiatowski, City Staff Representative BACKGROUND The petitioner was denied a Conditional Use Grant for the above -mentioned property on September 6, 2005 for the operation of a Tree Service/Landscape business. The petitioner is seeking an Appeal regarding the Plan Commission denial of the Conditional Use Grant. The petitioner has submitted an application, a narrative, a letter from the Planning Department, and three (3) surveys/site plans. DISCUSSION This item was deferred at the last two Zoning Board of Appeals meetings due to the requested adjournment/deferral from the appellant and his attorney(s). The attorney stated at the last meeting that they were not going to ask for any more adjournments/deferrals. Due to this, action should be taken at the January 26, 2006 Zoning Board of Appeals meeting. No new information has been received at this time. The appellant's attorney did submit a letter to the City and the Alderman of the applicable Aldermanic District. The letter attempted to get an agreement in place to give Mr. Birkley time to explore his options. The City and the Alderman both agreed that plenty of time has been given and that the issues at hand must come to an immediate end. No agreement was worked out. Based upon the facts, the City Staff Representative respectfully requests Denial of Appeal 08-2005, allowing the reconsideration of a Conditional Use Grant denied by the Planning Commission on September 6, 2005. Since the required submittal time frame has elapsed and because the Planning Commission determinations regarding Conditional Use Grants can not be appealed, the appeal needs to be denied. Below is the information that was provided for the previous meetings. As stated above, the petitioner was denied for a Conditional Use Grant and has since applied for an appeal to the determination of the Plan Commission, Appeal # 08-2005 ZBA 01-26-2006 Page 1 of 2 Chapter 17 Zoning Ordinance.. Section 3.08(2) relating to the Board of Appeals states the following: Unless a variance from the basic zoning regulations is sought (e.g. a request for a 30 foot building setback where a 50 foot setback is required by the regulations of the applicable zoning district), this section shall not apply to decisions of the Plan Commission relating to the following: Building, Site and Operational Plans; Signs of a temporary or permanent nature; Residential Outbuildings; Conditional Use requests. In a case where a variance from the basic zoning regulations is sought, the Plan Commission may file a recommendation with the Board of Appeals outlining its opinion and findings as they relate to the issue(s) being appealed. The part of this code section that states "..,this section shall not apply to decisions of the Plan Commission relating to the following: Building, Site and Operational Plans; Signs of a temporary or permanent nature; Residential Outbuildings; Conditional Use requests. " does not allow appeals relating to Conditional Use Grant determinations made by the Plan Commission. Based upon this code section, the requested item can not be appealed. Additionally, the Board of Appeals and Zoning Board of Appeals - Rules of Procedure, Section 4(a) states the following: Time of Appeal. An application for appeal shall be filed with the Planning Department within twenty days from the date of refusal of a permit or from the date of the making of any order, ruling, decision or determination from which an appeal is taken. The date of the decision of the Building Inspector or other such officer shall not be counted, but the date of filing the appeal and Sundays and holidays shall be counted. If the last day to file an appeal falls on a Sunday or legal holiday the time for filing shall be extended to the next working day. Also, the Administrative Appeal application/handout (which was filled out and signed by the petitioner) states the following: Time of Appeal. Application for appeal shall be filed with the Planning Department within twenty days from the date of refusal of a permit or from the date of the making of any order. ruling, decision or determination from which an appeal is taken. The date of the decision of the Building Inspector or other such officer shall not be counted, but the date of filing the appeal and Sundays and holidays shall be counted, except that if the last day falls on a Sunday or legal holiday the time for filing shall be extended to the next secular day. Since the Plan Commission denied the Conditional Use Grant on September 6, 2005, the last day to apply to the Zoning Board of Appeals would have been September 26, 2005. The application, the submittal fee, and the first set of documents were submitted on September 30, 2005, Additional documents were submitted on October 3, 2005. Since the initial submission was four (4) days after the required date, the appeal is not vaiid according the adopted Zoning Board of Appeals Rules of Procedure. BASED UPON THE FOREGOING, THE CITY STAFF REPRESENITIVE RESPECTFULLY REQUESTS: Denial of Appeal 08-2005, allowing the reconsideration of a Conditional Use Grant denied by the Planning Commission on September 6, 2005. Since the required submittal time frame has elapsed and because the Planning Commission determinations regarding Conditional Use Grants can not be appealed, the appeal needs to be denied. Appeal # 08-2005 ZeA 01-26-2006 Page 2 of 2 ZONING BOARD OF APPEALS MINUTES CITY OF MUSKEGO DECEMBER 8, 2005 Meeting was called to order at 7:08 P.M PRESENT: Chairman Dan Schepp, Dr. Barb Blumenfield, Mr. Horst Schmidt, Dr. Russ Kashian (7:12 PM), Mr. William Le Doux, Mr. Richard Ristow and Associate Planner Adam Trzebiatowski. EXCUSED: Vice Chairman Schneiker STATEMENT OF PUBLIC NOTICE: The Secretary stated the meeting was noticed on December 2, 2005, in accordance with Open Meeting Laws. NEW BUSINESS: APPEAL #08-2005 Petitioner: Michael Birkley, W 144 S7931 Durham Dr1Tax Key No. 2213.984. REQUESTING under the direction of Chapter 17 Zoning Ordinance: Section 3.08(1) Appeal Provisions, Petitioner seeks the following variance: Chapter 17- Zoning Ordinance: Section 6.03 Conditional Uses (1)A. Appeal Required: Uses listed as permitted by conditional grant may be permitted in the district in which listed upon petition for such grant to the Plan Commission and subject to the approval of the Plan Commission and to such other conditions as hereinafter designated. A conditional use grant was denied for the above -mentioned property on September 6, 2005, for the operation of a Tree Service/Landscape business. The petitioner is seeking an appeal regarding the Plan Commission denial of the Conditional Use Grant. Chairman Schepp explained the Board received a second request to defer the appeal to the next regular meeting. There is no new information submitted. Dr. Blumenfield questioned why the petitioner is requesting this item be deferred again. Attorney Richard Zaffiro, representing Mr. Birkley, explained he has been retained by Mr. Birkley only eight days ago and is trying to get up to speed. Atty. Zaffiro further explained Mr. Birkley is looking at different options that may not require an appeal being granted and he is trying to reach a settlement without litigation. Atty. Zaffiro stated Mr. Birkley has also contacted a realtor and is trying to find another location for the business. Dr. Kashian questioned who Mr. Birkley's attorney was at the last meeting. Atty. Zaffiro explained Mr. Birkley had issues that he could not resolve with the last Attorney and did not retain him. Atty. Zaffiro stated he was not able to argue this appeal tonight. Dr. Kashian stated the appellant has had sufficient amount of time to discuss this issue. Mr. Le Doux moved to grant one last deferral to appeal 08-2005 to the regular meeting in January. Dr. Blumenfield seconded. Dr. Blumenfield explained a resolution would be better for the City than litigation. Dr. Blumenfield further explained if the board were to defer this item, this would be the last deferral. Dr. Kashain stated he does not agree with deferring this appeal for the second time. Dr. Kashian explained the appellant requested the City to place this item on the agenda and he should be prepared to present his case. Upon a roll call vote appeal 08-2005 is deferred 4-1 with Dr. Kashian voting no. APPEAL #09-2005 Petitioner: Thomas Sauer, W187 S7160 Gold Drivel Tax Key No. 2175.996. REQUESTING under the direction of Chapter 17 Zoning Ordinance: Section 3.08 (1) Appeal Provisions, Petitioner seeks the following variances: Chapter 17- Zoning Ordinance: Section 5.03 — Height. (1) Maximum Height Restricted: In any district no building or structure shall be hereafter erected or structurally altered to a height in excess of that hereinafter specified by the regulations for that district, except as may be modified by Section 17:4.02(2)(B)(3)(c). Chapter 17: Section 9.04(B)(3)(b) states that a boathouse cannot be higher than 15 feet from the lowest grade. The appellant is requesting to build a boathouse with a height of 18.5 feet, and is therefore requesting a 3.5-foot variance to the Code requirement. Chapter 17-Zoning Ordinance: Section 4.05 Accessory Uses and Structures (1)(A) Any accessory use or structure shall conform to the applicable regulations of the district in which it is located except as specifically otherwise provided. Chapter 17: Section 9.04(B)(3)(c) states that a boathouse cannot be greater in size than 525 square feet. ZBA Minutes 1210812005 Page 2 The appellant is requesting to build a two-story boathouse totaling 968 square feet, and is therefore requesting a 443 square foot variance to the Code requirement. Dr. Blumenfield swore in Thomas Sauer. Mr. Sauer explained the property is in a unique location. There is no basement, no crawl space, no attic and no garage for storage. Mr. Sauer stated he has boating equipment, yard equipment and lawn equipment that he would like to store inside the proposed 2-story boathouse. Mr. Sauer currently has a 10x20 off -site storage unit that he uses to store these items in. Mr. Sauer noted he does not have a storm shelter in the house so he will be using the a concrete block room within the boathouse as a storm shelter. Mr. Schmidt questioned if there will be living quarters in the boathouse. Mr. Sauer stated there will not be living quarters and the air conditioning is for climate control for storage. Mr. Sauer explained he is trying to match the roof line of the house and the aesthetics of the house with the boathouse. Mr. Sauer explained a garage would not be possible on his property within the 70-foot setbacks. Mr. Schmidt asked the petitioner if he would like the Board to defer this item to allow him time to discuss options with the City staff. The petitioner stated he has already looked at the other options with staff. Mr. Schepp noted there are no overhead doors in the plans for the boathouse. Dr. Blumenfield questioned if a boat will be stored in the boathouse. Mr. Sauer stated possibly in the future he will store a boat inside but not right away. The Board discussed storing other items than boating equipment and yard equipment. Mr. Trezebiatowski noted approval of this variance does not allow any specific uses other than boathouse related storage uses. Mr. Sauer stated he is out on a peninsula and the nearest neighbor is 600 feet away. Mr. Sauer noted the hardships are having no basement for storage and no shelter from storms. Dr. Blumenfield swore in Neil Borgman, District 3 Alderman. Ald. Borgman stated the property is unique and safety is a concern during storms with having no shelter. Ald. Borgman stated he is in favor of the variance. Mr. Trezbiatowski gave the City's opinion. The petitioner currently has a residence on his property with no outbuildings. The petitioner is requesting to build a boathouse on his property. In the Ot_S district, two of the specific code requirements are height- not greater than 15-feet above the lowest grade, and area — no greater than 525 square feet. Since the boathouse is a two-story building, the floor area is tieing doubled. When floor area is calculated it includes all usable area of a structure. The Zoning Code definition for floor are is the square footage of floor space within the outside walls, including the total of afl pace on all floors of al building nr c.In irti ira, Alcn cinre this ig hi -inn r_.allPri a hnathni_1sP. the i jRP.s related to the structure are explained in our code. The definition of a boat house is a detached accessory structure located close to the ordinary high water mark and designed and used principally for the storage of boats and accessory marine equipment normally used in the daily activities of lakefront property and which typically includes a large overhead door for primary access on the side of the structure facing the water. Since this building has to be used principally for boats and marine accessories, two stories are not necessary. The first floor of the boathouse can be enlarged to 525 square feet without a variance. There is the option that the petitioner could have a one-story structure with a gabfed roof and then have storage trusses in the attic area that would not count towards the floor area of the boathouse. This then would create some additional storage space for the petitioner. If the petitioner would chose to go with the one- story boathouse, then this would eliminate the need for a height variance. In all, predominantly residential zoning districts have the 15-foot limit for the height of accessory structures. There are bonuses that can allow taller accessory structures when the proposed structures ZBA Minutes 12/08/2005 Page 3 are being placed a greater distance from the lot lines or in the case of larger lots. The Zoning Code states that boathouses are not allowed any height bonuses. If this variance is granted or if the plans are altered to conform to ail of the code requirements, a revised survey will need to be submitted for building permits showing the exact Ordinary High Water Mark (OHWM), the exact distance from the boathouse to the OHWM, and proof that the parcel/structure is not within the 100 year floodplain. Also, as per the SW zoning district, a Conditional Use Grant (CUG) needs to be approved for the boathouse before any building permits can be issued. CUG's are handled through the Planning Commission, The Planning Department can assist with more information if that time arises. Staff is recommending denial of Appeal 09-2005, allowing a boathouse with a height of 18.5, a 3.5-foot variance, and denial of a boathouse with an area of 968 square feet, a 433 square foot variance, citing that the variances does not preserve the intent of the Zoning Ordinance because there are not exceptional conditions applying to the parcel that do not apply to other properties. Also, a non -self imposed hardship is not found for the appeal. There are other options for a boathouse on this property. A 525 square foot boathouse is allowed on this property that would not require a variance. Also, two stories are not necessary for the storage of boats and marine accessories. There is the option of having a one-story boathouse with a gable roof with storage trusses to increase the allowed storage area. DELIBERATIONS: APPEAL 09-2005 — Dr. Kashian moved to approve appeal 09-2005-1 allowing a boathouse with a height of 18.5, a 3.5-foot variance. Seconded by Dr. Blumenfield. Mr. Schepp noted he is in favor of granting the appeal based on the fact there are no nearby neighbors that would be affected by the height and the hardship on the property owner of having no area for storage. Dr. Blumenfield agreed and added the boathouse will also be used as a storm shelter, which is a safety issue. Upon a roll call vote Appeal 09-2005-1 is approved 5-0. Mr. Schmidt moved to approve appeal 09-2005-1A allowing a boathouse with an area of 968 square feet, a 433 square foot variance. Seconded by Dr. Blumenfield. Dr. Blumenfield noted she is in favor of granting the appeal based on the hardship of the uniqueness of the property, no garage for storage and no shelter in a storm, and added, as long as the boathouse is used for purpose intended. Upon a roll call vote Appeal 09-2005-1A is approved 5-0. APPROVAL OF THE MINUTES: Mr. Schmidt moved to approve the minutes of October 27, 2005. Seconded by Mr. Le Doux. Motion carried 5-0. MISCELLANEOUS: None. ADJOURNMENT: With no further business to come before this Board, Dr. Blumenfield moved to adjourn. Dr. Kashian seconded. Upon voice vote, meeting adjourned at 8:50 PM. Respectfu�t Submitted, Kel ie Renk, Recording Secretary CITY OF MUSKEGO ZONING BOARD OF APPEALS AGENDA December 8, 2005 7:00 PM Muskego City Hall, Muskego Room, W182 S8200 Racine Avenue CALL TO ORDER PLEDGE OF ALLEGIANCE ROLL CALL STATEMENT OF PUBLIC NOTICE 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 appeals described below. The Board of Appeals will then reconvene into open session. OLD BUSINESS 1. APPEAL #08-2005 Petitioner: Michael A. Birkley Property: W 144 S7931 Durham Drive 1 Tax Key No. 2213.984 REQUESTING: Under the direction of Chapter 17 Zoning Ordinance: Section 3.08(1) Appeal Provisions, Petitioner seeks the following variance: Chapter 17—Zoning Ordinance: Section 6.03 Conditional Uses (1)A. Approval Required: Uses listed as permitted by conditional grant may be permitted in the district in which listed upon petition for such grant to the Plan Commission and subject to the approval of the Commission and to such other conditions as hereinafter designated. A conditional use grant was denied for the above -mentioned property on September 6, 2005 for the operation of a Tree Service/Landscape business. The petitioner is seeking an Appeal regarding the Plan Commission denial of the Conditional Use Grant. Detailed descriptions are available for public inspection in the Planning Department. All interested parties will be given an opportunity to be heard. NEW BUSINESS 1. APPEAL #09-2005 Petitioner: Thomas Sauer Property: W 187 S7160 Gold Drive I Tax Key No, 2175.996 REQUESTING: Under the direction of Chapter 17 Zoning Ordinance: Section 3.08(1) Appeal Provisions, Petitioner seeks the following variances: ZBA 1210812005 Page 2 Chapter 17—Zening Ordinance: Section 5.03 - Height (1) Maximum Height Restricted: In any district no building or structure shall be hereafter erected or structurally altered to a height in excess of that hereinafter specified by the regulations for that district, except as may be modified by Section 17:4.05(2)(B)(3)(c). Chapter 17: Section 9.04(B)(3)(b) states that a boathouse can not be higher than 15 feet from the lowest grade. The appellant is requesting to build a boathouse with a height of 18.5 feet, and is therefore requesting a 3.5-foot variance to the Code requirement. Chapter 17—Zoning Ordinance: Section 4.05 Accessory Uses and Structures (1)(A) Any accessory use or structure shall conform to the applicable regulations of the district in which it is located except as specifically otherwise provided. Chapter 17: Section 9.04(B)(3)(c) states that a boathouse can not be greater in size than 525 square feet. The appellant is requesting to build a two-story boathouse totaling 968 square feet, and is therefore requesting a 443 square foot variance to the Code requirement. Detailed descriptions are available for public inspection In the Planning Department. All interested parties will be given an opportunity to be heard. CLOSED SESSION OPEN SESSION APPROVAL OF THE MINUTES FROM THE OCTOBER 27, 2005 MEETING MISCELLANEOUS BUSINESS ADJOURN 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. Also, 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 .Janice Moyer, City Clerk/Treasurer at Muskego City Hall, (262) 679-5625, City of Muskego Staff Representative Brief Zoning Board of Appeals Supplement 08-2005 For the meeting of: December 8, 2005 REQUESTING: Under the direction of Chapter 17— Zonin Ordinance: Section 6.03 Conditional Uses (1)A. Approval Required: Uses listed as permitted by conditional grant may be permitted in the district in which listed upon petition for such grant to the Plan Commission and subject to the approval of the Commission and to such other conditions as hereinafter designated. APPELLANT: Michael A. Birkley LOCATION: W 144 S7931 Durham Drive / Tax Key No. 2213.984 CITY'S POSITION PRESENTED BY: Adam Trzebiatowski, City Staff Representative BACKGROUND The petitioner was denied a Conditional Use Grant for the above -mentioned property on September 6, 2005 for the operation of a Tree Service/Landscape business. The petitioner is seeking an Appeal regarding the Plan Commission denial of the Conditional Use Grant. The petitioner has submitted an application, a narrative, a letter from the Planning Department, and three (3) surveys/site plans. DISCUSSION The attorney of the appellant has requested that this item be deferred until the January Board of Appeals meeting. As a refresher, this item was deffered at the last Board of Appeals meeting due to the requested adjournment/deferral from the appellant and his attorney. If the Board feels that they have enough information to make an informed decision, action can be taken at this meeting. Below is the information that was provided for the last meeting. As stated above, the petitioner was denied for a Conditional Use Grant and has since applied for an appeal to the determination of the Plan Commission. Chapter 17 Zoning Ordinance, Section 3.08(2) relating to the Board of Appeals states the following: Unless a variance from the basic zoning regulations is sought (e.g. a request for a 30 foot building setback where a 50 foot setback is required by the regulations of the applicable zoning district), this section shall not apply to decisions of the Plan Commission relating to the following: Building, Site and Operational Plans; Signs of a temporary or permanent nature; Residential Outbuildings; Conditional Use requests. In a case where a variance from the basic zoning regulations is sought, the Plan Commission may file a recommendation with the Board of Appeals outlining its opinion and findings as they relate to the issue(s) being appealed. The part of this code section that states "...this section shall not apply to decisions of the Plan Commission relating to the following: Building, Site and Operational Plans; Signs of a temporary or Appeal # 08-2005 ZBA 12-08-2005 Page 1 permanent nature; Residential Outbuildings; Conditional Use requests." does not allow appeals relating to Conditional Use Grant determinations made by the Plan Commission. Based upon this code section, the requested item can not be appealed. Additionally, the Board of Appeals and Zoning Board of Appeals - Rules of Procedure, Section 4(a) states the following: Time of Appeal. An application for appeal shall be filed with the Planning Department within twenty days from the date of refusal of a permit or from the date of the making of any order, ruling, decision or determination from which an appeal is taken. The date of the decision of the Building Inspector or other such officer shall not be counted, but the date of filing the appeal and Sundays and holidays shall be counted. If the last day to file an appeal falls on a Sunday or legal holiday the time for filing shall be extended to the next working day. Also, the Administrative Appeal application/handout (which was filled out and signed by the petitioner) states the following: Time of Appeal. Application for appeal shall be filed with the Planning Department within twenty days from the date of refusal of a permit or from the date of the making of any order, ruling, decision or determination from which an appeal is taken. The date of the decision of the Building Inspector or other such officer shall not be counted, but the date of filing the appeal and Sundays and holidays shall be counted, except that if the last day falls on a Sunday or legal holiday the time for filing shall be extended to the next secular day. Since the Plan Commission denied the Conditional Use Grant on September 6, 2005, the last day to apply to the Zoning Board of Appeals would have been September 26, 2005. The application, the submittal fee, and the first set of documents were submitted on September 30, 2005. Additional documents were submitted on October 3, 2005. Since the initial submission was four (4) days after the required date, the appeal is not valid according the adopted Zoning Board of Appeals Rules of Procedure. BASED UPON THE FOREGOING, THE CITY STAFF REPRESENITIVE RESPECTFULLY REQUESTS: Denial of Appeal 08-2005, allowing the reconsideration of a Conditional Use Grant denied by the Planning Commission on September 6, 2005. Since the required submittal time frame has elapsed and because the Planning Commission determinations regarding Conditional Use Grants can not be appealed, the appeal needs to be denied. Appeal # 08-2005 ZBA 1 2-08-2005 Page 2 Memo To: Zoning Board of Appeals Members From: Adam Trzebiatowski — City Staff Representative Date: December 1, 2005 Re: Appeal 08-2005, Michael Birkley Appeal 08-2005 was deferred at the October 27, 2005 Zoning Board of Appeals meeting. There has been no new information submitted from the petitioner, other than the enclosed letter from the petitioner's attorney. Due to this, please use the information provided for the October 27, 2005 meeting for Appeal 08-2005. If you no longer have that information, please contact the Planning Department at 262-679-4136 and we can get you a copy of the submitted information from the last meeting. Thank You. 9 11/30/2005 22:24 4144381015 (414) 438-91 RLZAFFIRQ PAGE 01 RICHARD L. ZAFFIR0 zt DEC- f 2005 ATTORNEY T LAW__.. 4261 N. 92 a ST_ WAUWATOSA, WI 3222-1617 E-MAIL: RICHARDZAF ROVAOL.COM 96 CELL (414) 737-1956 Nov City of Musk Board of App ATTN: Kelly go als Via Facsimilb Only RE: App Dear Kelly: r 30, 2005 Michael A. ai.rkley No. 08-2005 Z am the attorney who represents Michael A_ Birkley on this appeal and r lated citations received regarding his use of the subject Droperty. This letter is to confirm that the appeal is being deferred For consideration to a new date of January 26, 2006. Re R C At Cc: Encs. 1 y, d L.`"Zaffiro ey at Law 12/01/2005 17:36 4144381015 RLZAFFIRO PAGE 01 RICHARD L. ATTORNEY, 4261N.92 WAUWATOSA, WI E-MAIL: RICHAROZAFI (414) 438-9 96 City of Musk go Board of App als ATTN: Kelly Via Facsimil( Dear Kelly: I am the att appeal and r the subject today's phon that the mee will take up defer consid The reasons f forth in yest out a binding meeting date ceasing busin agreed upon b forebearance If there are Cc: Only De RE: App. iw ! DEC Z 2005 :A F F I R O T LAW r,,,USKEGO PL",NI,NING ' ST.- i3222-1617 ROOAOL.COM CELL (414) 737-1956 er 1, 2005 Michael A. Birkley No. 08-2005 'ney who represents Michael A. Birkley on this ated citations received regarding his use of operty. This letter is to follow up on call with Adam Trzeb'atowski,, who advised me ng on 12/8/05 is ski 1 on but that the Board y request in yesterd y's FAX'd letter to ation to January 26. r the requested deferral are both those set rday's letter, and a so the desire to work settlement agreement at or before that ith the City that provides for Mr. Birkley ss operations on the cite by a date certain both sides, in retu n for the City's f enforcement action against him. ny questions, pleas all. R sp / l�Y, ch rr!Zaffiro Atta ney at Law ZONING BOARD OF APPEALS MINUTES CITY OF MUSKEGO OCTOBER 27, 2005 Meeting was called to order at 7:07 P.M. PRESENT: Chairman Dan Schepp, Mr. Horst Schmidt, Dr. Russ Kashian, Mr. William Le Doux and Associate Planner Adam Trzebiatowski. EXCUSED: Vice Chairman Schneiker and Dr. Blumenfield. STATEMENT OF PUBLIC NOTICE: The Secretary stated the meeting was noticed on October 21, 2005, in accordance with Open Meeting Laws. NEW BUSINESS: APPEAL #08-2005 Petitioner: Michael Birkley, W144 S7931 Durham Dr/Tax Key No. 2213.984. REQUESTING under the direction of Chapter 17 Zoning Ordinance: Section 3.08(1) Appeal Provisions, Petitioner seeks the following variance: Chapter 17- Zoning Ordinance: Section 6.03 Conditional Uses (1)A. Appeal Required: Uses listed as permitted by conditional grant may be permitted in the district in which listed upon petition for such grant to the Plan Commission and subject to the approval of the Plan Commission and to such other conditions as hereinafter designated. A conditional use grant was denied for the above -mentioned property on September 6, 2005, for the operation of a Tree ServicelLandscape business. The petitioner is seeking an appeal regarding the Plan Commission denial of the Conditional Use Grant. Detailed descriptions are available for the public inspection in the Planning Department. All interested parties will be given an opportunity to be heard. Chairman Schepp noted for the record the petitioner, Mr. Birkley, submitted a letter requesting this item be deferred to the next meeting, as his Attorney has not had time to review this petition. DELIBERATIONS: APPEAL 08-2005 — Mr. Schmidt moved to accept the petitioner's request to defer Appeal 08-2005 to the next meeting. Seconded by Mr. Le Doux. Dr. Kashian requested more notice on the request to defer. Mr. Trzebiatowski explained he referred this issue to the City's Attorney. The Attorney recommended the Board meet and make the decision to defer. Mr. Trzebiatowski requested the opportunity to give the City's opinion of this petition. The Board decided to wait to hear the City's opinion until the Petitioner's Attorney was present. Upon a roll call vote Appeal 08-2005 is deferred 4-0. APPROVAL OF THE MINUTES: Mr. Schmidt moved to approve the minutes of September 22, 2005. Seconded by Mr. Le Doux. Motion carried 3-0. MISCELLANEOUS: 1. Discuss validity determination of Appeal submittals. — Mr. Trzebiatowski explained there was a question of if the petitioner's submittal does not meet the requirements of the Board, should there be a hearing. After discussing this with the City's Attorney, it is recommended that the Board meet to make that decision. 2. Note: The November Board of Appeals meeting will not be held on November 24, 2005 because of the Thanksgiving Holiday. There will be a joint November/December meeting held on December 1, 2005. ADJOURNMENT: With no further business to come before this Board, Mr. Schmidt moved to adjourn. Mr. Le Doux seconded. Upon voice vote, meeting adjourned at 7:20 PM. Respe tful y Submitted, Kellie Renk, Recording Secretary CITY OF MUSKEGO ZONING BOARD OF APPEALS AGENDA October 27, 2005 7:00 PM Muskego City Hall, Muskego Room, W182 S8200 Racine Avenue CALL TO ORDER 11�s1�Isi�iT����el►_1. [�i� I:ZsIlSy,1�� STATEMENT OF PUBLIC NOTICE 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 appeals described below. The Board of Appeals will then reconvene into open session. OLD BUSINESS None NEW BUSINESS 1. APPEAL #08-2005 Petitioner: Michael A. Birkley Property: W144 S7931 Durham Drive/ Tax Key No. 2213.984 REQUESTING: Under the direction of Chapter 17 Zoning Ordinance: Section 3.08(1) Appeal Provisions, Petitioner seeks the following variance: Chapter 17—Zoning Ordinance: Section 6.03 Conditional Uses (1)A. Approval Required: Uses listed as permitted by conditional grant may be permitted in the district in which listed upon petition for such grant to the Plan Commission and subject to the approval of the Commission and to such other conditions as hereinafter designated. A conditional use grant was denied for the above -mentioned property on September 6, 2005 for the operation of a Tree Service/Landscape business. The petitioner is seeking an Appeal regarding the Plan Commission denial of the Conditional Use Grant. Detailed descriptions are available for public inspection in the Planning Department. All interested parties will be given an opportunity to be heard. CLOSED SESSION OPEN SESSION APPROVAL OF THE MINUTES FROM THE SEPTEMBER 22, 2005 MEETING. MISCELLANEOUS BUSINESS 1. Discuss validity determination of Appeal submittals. ZBA 1012712005 Page 2 2. Note: The November Board of Appeals meeting will not be held on November 24, 2005 because of the Thanksgiving Holiday. There will be a joint November/December meet held on December 1, 2005. ADJOURN 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. Also, 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 Janice Moyer, City Clerk/Treasurer at Muskego City Hall, (262) 679-5625. October 25, 2005 City of Muskego Zoning Board of Appeals W 182 S8200 Racine Avenue Dear Members of the Board of Appeals: My attorney told me to ask for an adjournment to the next meeting to hear my appeal 408-2005, as he is in trial and not available to review it at this time. This is due to the Plan Commission's saying that determinations regarding Conditional Use Grants can not be appealed. Respectfully submitted, ; ? �-r- " j/t 4 41, a , & ; � � �7� 11 Michael A. Birkley City of Muskego Staff Representative Brief Zoning Board of Appeals Supplement 08-2005 For the meeting of: October 27, 2005 REQUESTING: Under the direction of Chapter 17—Zoning Ordinance: Section 6.03 Conditional Uses (1)A. Approval Required: Uses listed as permitted by conditional grant may be permitted in the district in which listed upon petition for such grant to the Plan Commission and subject to the approval of the Commission and to such other conditions as hereinafter designated. APPELLANT: Michael A. Birkley LOCATION: W144 S7931 Durham Drive I Tax Key No. 2213.984 CITY'S POSITION PRESENTED BY: Adam Trzebiatowski, City Staff Representative BACKGROUND The petitioner was denied a Conditional Use Grant for the above -mentioned property on September 6. 2005 for the operation of a Tree Service/Landscape business. The petitioner is seeking an Appeal regarding the Plan Commission denial of the Conditional Use Grant. The petitioner has submitted an application, a narrative, a letter from the Planning Department, and three (3) surveys/site plans. DISCUSSION As stated above, the petitioner was denied for a Conditional Use Grant and has since applied for an appeal to the determination of the Plan Commission. Chapter 17 Zoning Ordinance, Section 3.08(2) relating to the Board of Appeals states the following: Unless a variance from the basic zoning regulations is sought (e.g. a request for a 30 foot building setback where a 50 foot setback is required by the regulations of the applicable zoning district), this section shall not apply to decisions of the Plan Commission relating to the following; Building, Site and Operational Plans; Signs of a temporary or permanent nature; Residential Outbuildings, - Conditional Use requests. In a case where a variance from the basic zoning regulations is sought, the Plan Commission may file a recommendation with the Board of Appeals outlining its opinion and findings as they relate to the issue(s) being appealed. The part of this code section that states "...this section shall not apply to decisions of the Plan Commission relating to the following: Building, Site and Operational Plans; Signs of a temporary or permanent nature; Residential Outbuildings; Conditional Use requests. " does not allow appeals relating to Conditional Use Grant determinations made by the Plan Commission. Based upon this code section, the requested item can not be appealed. Additionally, the Board of Appeals and Zoning Board of Appeals - Rules of Procedure, Section 4(a) states the following: Time of Appeal. An application for appeal shall be filed with the Planning Department within twenty days from the date of refusal of a permit or from the date of the making of any order, ruling, Appeal # 08-2005 ZBA 10-27-2005 Page 1 decision or determination from which an appeal is taken. The date of the decision of the Building Inspector or other such officer shall not be counted, but the date of filing the appeal and Sundays and holidays shall be counted. If the last day to file an appeal falls on a Sunday or legal holiday the time for filing shall be extended to the next working day. Also, the Administrative Appeal application/handout (which was filled out and signed by the petitioner) states the following: Time of Appeal. Application for appeal shall be filed with the Planning Department within twenty days from the date of refusal of a permit or from the date of the making of any order. ruling, decision or determination from which an appeal is taken. The date of the decision of the Building Inspector or other such officer shall not be counted, but the date of filing the appeal and Sundays and holidays shall be counted, except that if the last day falls on a Sunday or legal holiday the time for filing shall be extended to the next secular day. Since the Plan Commission denied the Conditional Use Grant on September 6, 2005, the last day to apply to the Zoning Board of Appeals would have been September 26, 2005. The application, the submittal fee, and the first set of documents were submitted on September 30, 2005. Additional documents were submitted on October 3, 2005. Since the initial submission was four (4) days after the required date, the appeal is not valid according the adopted Zoning Board of Appeals Rules of Procedure. BASED UPON THE FOREGOING, THE CITY STAFF REPRESENITIVE RESPECTFULLY REQUESTS: Denial of Appeal 08-2005, allowing the reconsideration of a Conditional Use Grant denied by the Planning Commission on September 6, 2005. Since the required submittal time frame has elapsed and because the Planning Commission determinations regarding Conditional Use Grants can not be appealed, the appeal needs to be denied. Appeal # 08-2005 ZBA 10-27-2005 Page 2 Memo To: Zoning Board of Appeals From: Adam Trzebiatowski CC: Jeff Muenkel Kellie Renk Date: October 20, 2005 Re: Discussion Regarding the Validity Determination of Appeals Due to the questions that arose at the staff level regarding Appeals that may not meet certain submittal requirements in relation to deadlines or items that can not be appealed, the Planning Department was going to discuss and set up a process that would eliminate future invalid appeals from going in front of the board. Upon talking with the City Attorney, it was stated that the board should be the ones making the determination regarding the validity of each appeal at a formal Zoning Board of Appeals meeting. Every petitioner has the right to submit an appeal in front of the board. This eliminates the need to discuss any reworking of the current submittal process Thank you. 0 Page 1 Appeal #08-2005 Supplemental Map