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Zoning Board of Appeals Packet 07/22/2021CITY OF MUSKEGO ZONING BOARD OF APPEALS AGENDA 07/22/2021 6:00 PM Muskego City Hall, W182 S8200 Racine Avenue CALL TO ORDER PLEDGE OF ALLEGIANCE ROLL CALL STATEMENT OF PUBLIC NOTICE APPROVAL OF THE MINUTES Approval of the Minutes of the June 25, 2020 Meeting. ZBA Minutes 20200625.pdf 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 NEW BUSINESS Appeal # 01-2021 Petitioner: Mitch Golla on behalf of the Golla Trust Property: W180 S8091 Pioneer Drive / Tax Key No. 2222.986 REQUESTING: Under the direction of Section 400-18 of the Municipal Code (Zoning – Zoning Board of Appeals), the petitioner seeks the following variance: Chapter 400-167C.(2)(a) – Accessory Structure Size Limits (2) Area. Subject to the open space requirements of the zoning district, the total square footage of all accessory structures subject to this section is permitted as follows: (a) Square footage permitted by right: the greater of 720 square feet or 60% of the assessed floor area of the principal structure. A total accessory structure size limit on the above noted property is 720 square feet in area. The petitioner seeks to be allowed to keep two existing accessory structures, totaling 997 square feet, on their recently split 0.459 acre property and is therefore requesting a 277 square foot variance from the maximum total allowed accessory structure size limit. 1 ZBA 01-2021 SUPPLEMENT.pdf ZBA 01-2021 MAP.pdf ZBA 01-2021 SUBMITTAL.pdf CLOSED SESSION OPEN SESSION MISCELLANEOUS BUSINESS ADJOURN NOTICE IT IS POSSIBLE THAT MEMBERS OF AND POSSIBLY A QUORUM OF MEMBERS OF OTHER GOVERNMENTAL BODIES OF THE MUNICIPALITY MAY BE IN ATTENDANCE AT THE ABOVE-STATED MEETING TO GATHER INFORMATION; NO ACTION WILL BE TAKEN BY ANY GOVERNMENTAL BODY AT THE ABOVE-STATED MEETING OTHER THAN THE GOVERNMENTAL BODY SPECIFICALLY REFERRED TO ABOVE IN THIS NOTICE. 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 MUSKEGO CITY HALL, (262) 679-4100. 2 UNAPPROVED CITY OF MUSKEGO ZONING BOARD OF APPEALS MINUTES 06/25/2020 6:00 PM Muskego City Hall, W182 S8200 Racine Avenue CALL TO ORDER Chairperson Blumenfield called the meeting to order at 6:00 PM. PLEDGE OF ALLEGIANCE Those present recited the Pledge of Allegiance. ROLL CALL Present: Dr. Blumenfield, Mr. Robertson, Dr. Kashian and Mr. Harenda Excused: Mr. Schneiker, Mr. Boschert and Mr. Wallner. STATEMENT OF PUBLIC NOTICE The meeting was noticed in accordance with the open meeting laws. NOTICE OF CLOSED SESSION OLD BUSINESS NEW BUSINESS Appeal #02-2020 Petitioner: Robert Hoelzl (of LBJ Muskego Realty, LLC) Property: S73 W16555 Janesville Road / Tax Key No. 2198.978 REQUESTING: Under the direction of Section 400-18 of the Municipal Code (Zoning – Zoning Board of Appeals), the petitioner seeks the following variance: Chapter 400-23 A. – Building Location Location restricted. No building shall be hereafter erected, structurally altered or relocated on a lot except in conformity with the following locational regulations as hereinafter specified for the district in which it is located. A side offset of 10-feet is required from the eastern side lot line. The petitioner seeks an offset of 9.8 feet from the east side lot line for the continued allowance of a portion of an existing commercial building and is therefore requesting a 0.2 -foot variance from the required side offset. Dr. Kashian swore in the following: Mike van Someren, Davis & Kuelthau, S.C., 111 E. Kilbourn Avenue, Milwaukee Robert Hoelzl, 1461 South River Road, New Berlin Adam Trzebiatowski, Planning Manager 3 Mr. van Someren, representing Mr. Hoelzl explained that his client acquired the building to remodel and include a laundromat. During this process, they determined that it made more sense to expand the footprint for the project, meaning knocking down a portion of the building. A survey was completed and made a reasonable assumption that the building met the current zoning. The survey shows the building exceeding the offset by 0.2 feet. The first visit to the Plan Commission didn’t have any footprint change. The second visit to the Plan Commission found included demolishing portions of the building at which time the offset infraction was discovered. Mr. Hoelzl then decided to seek a variance for the offset. Plans were submitted to move the easternmost wall 0.2 feet to meet the 10-foot side yard offset. The hardship would be the number of things in addition to normal construction process which may include another variance for the masonry requirements. Additionally, substantial landscaping would be a much bigger impact to the property. Asking for the car wash bay to remain. Dr. Kashian asked if Mr. van Someren had the case law indicated in submittal. Mr. van Someren did not have the case law on hand, but this is also part of the hardship. Mr. Harenda asked whether the initial plans were to demolish and then changed to remodel. Mr. van Someren explained it was the opposite in that the first plans were to renovate and then the plans changed to expand the footprint with demolishing a portion of the building. Due to expanding the footprint then the non-conforming structure rules come into effect with the 50 percent rule. Dr. Kashian asked if it was 50 percent of value. Mr. van Someren said that it was 50 percent of square footage. Dr. Blumenfield read a portion of the hardship explanation in the submittal that states that Wisconsin Law indicates that where a municipality fails to detect a mistake in the location of an improvement, failing to detect a setback encroachment during inspections by the municipality during construction, requiring a property owner to demolish and relocate a structure constitutes a hardship that is unique to an owner’s property. Planner Trzebiatowski explained the overview of the submittals that were reviewed by the Plan Commission. He clarified that the 50 percent rule for non-conforming structures applies to the cost of the materials, not labor, to expand the building outward, upward or rebuilt. So when this was a remodel project, there weren’t any, or minimal costs that would apply. When the project became a rebuild project, this is when the 50 percent rule would be applicable. Planner Trzebiatowski also mentioned that there was a memo from the City Attorney from his review of the case law and agreed that parts of the case that applied and parts that did not. Planner Trzebiatowski wanted to be clear that there was no negligence by the City as Muskego, along with most communities, do not recertify the foundations of additions. Building inspectors are not surveyors and are not licensed to determine the distance of the building from the property line. By law, a certified surveyor would be required to record these measurements. The Plan Commission was involved as originally the resolution for the rebuild project noted that the wall must be moved 0.2 feet to meet the offset. The applicant then requested the Plan Commission amend the resolution to allow for the applicant to seek a variance for the 9.8-foot offset. The Plan Commission granted the amended resolution and wanted to convey to the Board of Appeals that they were in favor of the variance and thought it was a good project for Janesville Road and the City. Staff recommends approval of the variance based on the fact that the building is currently there and the new portions of the building will be fully compliant. Mr. Harenda asked if there was any way that would have prevented this. Planner Trzebiatowski explained the history of recertification’s for foundations of new homes and fairly recently new commercial construction also recertify the foundations. A way to prevent this in the future would 4 be to require the foundations be recertified for any commercial projects, not just new construction. If the Board would like to suggest this change, staff can certainly pass along to City Administration for a change. Mr. Harenda asked if there have been any comments from neighbors. Planner Trzebiatowski explained that a couple questions were asked from neighbors about what the project entailed, but no concerns specifically about this variance request. Deliberations: Dr. Blumenfield stated that this is a unique property and this happened twenty years ago. If this could have been measured or recertified back then, this wouldn’t be an issue. Dr. Blumenfield appreciates that they are trying to improve the City. Whether or not neighbors object or support the project is not relevant as the Board has to make a decision based on the facts and a hardship. Based on the information in the packet, there were some issues in the past concerning the construction and measurement and asking the owner to move the wall two inches through no negligence of their own or doing something just to get it done would be a hardship. This is a unique situation and appreciate the diligence of the applicant and staff to present the facts. Mr. Harenda made a motion to approve Appeal #02-2020 for Robert Hoelzl at S73 W16555 Janesville Road / Tax Key No. 2198.978 for a 0.2-foot variance to the 10-foot offset requirement from the eastern property line based on the fact that asking the current property owner to move a wall two inches through no negligence of their own would be a hardship. Mr. Robertson seconded. Upon a roll call vote Appeal 02-2020 was approved unanimously 4-0. CLOSED SESSION OPEN SESSION APPROVAL OF THE MINUTES Approval of Minutes of the May 28, 2020 Meeting. Dr. Kashian made a motion to approve the minutes of the May 28, 2020 meeting. Mr. Robertson seconded. Mr. Harenda noted a correction was needed. Dr. Kashian made a motion to amend the minutes. Mr. Harenda seconded. Motion to approve the amended minutes passed unanimously. MISCELLANEOUS BUSINESS ADJOURN Dr. Kashian made a motion to adjourn. Mr. Harenda seconded. Meeting adjourned at 6:25 PM. Respectfully submitted, Aaron Fahl, AICP Associate Planner 5 Appeal # 01-2021 ZBA 7/22/2021 Page 1 of 3 City of Muskego City Representative Brief Zoning Board of Appeals Supplement 01-2021 For the meeting of: July 22, 2021 REQUESTING: 1. Under the direction of Chapter 400-167C.(2)(a) – Accessory Structure Size Limits (2) Area. Subject to the open space requirements of the zoning district, the total square footage of all accessory structures subject to this section is permitted as follows: (a) Square footage permitted by right: the greater of 720 square feet or 60% of the assessed floor area of the principal structure. APPELLANT: Mitch Golla on behalf of the Golla Trust LOCATION: W180 S8091 Pioneer Drive / Tax Key No. 2222.986 CITY’S POSITION PRESENTED BY: Adam Trzebiatowski AICP, City Representative BACKGROUND The owner of this property recently went through the approval process to divide their family land from one lot into two lots. One of the lots (the larger one – 6.96 acres) is currently vacant and is going to be the location of the Golla’s new home. The other lot is smaller (0.46 acres) and currently contains a home and two accessory structures with sizes of 853 SF and 144 SF (997 SF total). With the land division, the combined size of the two existing accessory structures exceed the allowable accessory structure size limit for the new smaller lot. The maximum allowed accessory structure size limit on this lot is now 720 SF. The lot size (0.46 acres) and the existing home size (767 SF) do not allow any bonus area above the 720 SF allowance. Some lots can be granted size allowance bonuses if the lots are over 40,000 SF in area or if the home is over 1,200 SF, but neither of those are met in this case. As such, the applicant would like to be able to keep the two existing accessory structures on the lot 0.46 acre lot. The two accessory structures in question have existing in this location for 70+ years per the applicant. The parcel in question is zoned RS-2, Suburban Residence District. The property is located on Pioneer Drive, just to the north of Veterans Memorial Park. The petitioner is seeking the following variance: A total accessory structure size limit on the above noted property is 720 square feet in area. The petitioner seeks to be allowed to keep two existing accessory structures, totaling 997 square feet, on their recently split 0.459 acre property and is therefore requesting a 277 square foot variance from the maximum total allowed accessory structure size limit. DISCUSSION Based upon the information submitted, staff does not see a valid hardship, based on case law and State Statutes, to allow the existing two accessory structures totaling 997 SF to remain on the 0.46 acre lot. The property is still allowed a total of 720 SF of accessory structure(s). 6 Appeal # 01-2021 ZBA 7/22/2021 Page 2 of 3 The owner has stated in their submittals that they believe there are several hardships causing the need for the variance including: • The existing home was built in 1946 and is only 767 SF in size, which is much smaller than newer standard homes. This leads to a hardship since the existing non-compliant size home wrongfully penalizes them because the house was constructed in 1946 under a different set of housing standards. If the home was larger, then larger outbuildings would be allowed on site. • The small existing home does not allow for storage. The accessory structures allow for stor age for the basic home owning necessities. The existing accessory structures included a covered location for parking of two vehicles, store a lawn mower, snowblower, various necessary yard tools, and other objects that cannot be stored on the home. This necessary storage within the accessory structures keeps these items out of the yard and keeps them from getting damaged or stolen. • Removal of important outbuildings will result in an unnecessary burdensome hardship. The approval of the variance is essential to allow reasonable use and upkeep of the property. Granting of the variance would have zero impact on the neighborhood because there will be no changes from the current state. • Moving the building would disrupt the natural alignment of the outbuildings making them much more visible from the street. Also, moving the buildings may result in structure failure due to their age. • Given the age of the structures and home, the neighbors have become accustomed to the outbuilding in their current locations/sizes. • The request is just to keep what has been there in the past still there. The proposal does not look at add or expand anything new. Relating to the reasons that the applicant has noted in their application and noted above for their request, here is a summary of the variance standards that are applicable to this case: 1. Zoning Case Law states that “self-imposed hardships” and “circumstances of the applicant” are not grounds for granting a variance. A 720 SF accessory structure limit applies to many properties in the City and normal storage should be able to be contained in a 720 SF structure. The desire for a larger garage is cited in the zoning variance literature as something that should not factor in deciding variance cases as it’s a circumstances of the applicant. 2. Zoning Case Law states that “lack of objections from neighbors does not provide grounds for granting a variance”, if applicable. No objections have been received as of the drafting of this document, but that alone is not grounds to grant a variance. 3. Zoning Case Law states that the Board may only grant the minimum variance needed, if they are even going to grant any variance. In a case like this where there are two accessory structures, if the board were to find a valid hardship, maybe they could look to have the existing smaller building removed or relocated off-site while allowing the larger building to stay for some storage outside the home. This would still need a variance, just less of a variance. 4. Per the Zoning Board Handbook (2nd Addition, 2006), using the three-step test which looks at unnecessary hardship, unique property limitations, and no harm to public interest, the following can be found: a. Unnecessary Hardship – Unnecessary hardship exists when compliance would unreasonably prevent the owner from using the property for the permitted purpose (leaving the property owners without any use that is permitted for the property) or would render conformity with such restrictions “unnecessarily burdensome”. The applicants believe compliance would be unnecessarily burdensome. Removing at least one of the building would still provide storage outside the home, while bringing the property further into compliance. b. Unique Property Limitations – Unnecessary hardship must be due to physical limitations of the property. There are no property limitations to reducing the size of the existing accessory structures. c. No Harm to Public Interest – A variance may not be granted which results in harm to public interest. There is no harm to the public interest whether the accessory structures are present on site or not, regardless of size. 7 Appeal # 01-2021 ZBA 7/22/2021 Page 3 of 3 The applicant has stressed in their application that they are not asking for a variance to be able to construct anything new, but rather just to keep the status quo with what has been on site for the past 70+ years. Please see the applicant’s full submittal for full details on their request. Note - If the variance is not granted, then per the condition of the recorded CSM, the accessory structure(s) must be reduced in size to 720 SF total by September 22, 2021 (6-month from recording of the CSM). NOTE: Please remember that the City must base their recommendation upon a valid hardship as defined by State Law and Zoning Case Law. Zoning Case Law states that a hardship must be unique to the property, it cannot be self-created, and must be based upon conditions unique to the property rather than conditions personal to the property owner(s). Case Law also states that a hardship should be something that would unreasonably prevent the owner from using their property for the permitted purpose or would render conformity with such restrictions unnecessarily burdensome. The Zoning Board of Appeals needs to find a valid hardship in order to be able to approve a variance request. BASED UPON THE FOREGOING, THE CITY RESPECTFULLY REQUESTS: Denial of Appeal 01-2021 as proposed, allowing a two accessory structures with a combined size of 997 SF to remain on the property, which would be a 277 SF variance; citing that the existing shed can be relocated to the adjacent lot owned by the family or removed altogether and citing that the larger accessory structure can be structurally altered to a maximum size of 720 SF. The hardships stated are self-imposed/self-created and are not the least variance necessary. 8 PIONEE R DR WC Land Information Office, WLIP, SEWRPC, Ayres Associates I Agenda Item(s) Right-of-Way Properties 0 100 200 Feet Mitch GollaW180 S8091 Pioneer DriveTax Key No. 2222.986 Appeal #01-2021Supplemental Map Prepared by City of Muskego Planning Department 9 10 11 12 13 14 15 16 17 18