ZONING BOARD OF APPEALS MINUTES 06/27/2013CITY OF MUSKEGO
ZONING BOARD OF APPEALS MINUTES unapproved
June 27, 2013 6:00 PM
Muskego City Hall, Muskego Room, W182 S8200 Racine Avenue
CALL TO ORDER
Meeting was called to order at 6:00 P.M.
Those in attendance recited the Pledge of Allegiance.
PRESENT: Dr. Barbara Blumenfield (Chairman), Henry Schneiker (Vice Chairman) Dr. Russell
Kashian, Mr. Richard Ristow, Mr. Aaron Robertson, Mr. Blaise Di Pronio and Planner Adam
Trzebiatowski.
ABSENT: Mr. William LeDoux
STATEMENT OF PUBLIC NOTICE: The secretary stated the meeting was noticed on June
21, 2013 in accordance with open meeting laws.
OLD BUSINESS
1. APPEAL #01-2013
Petitioner: Brain Buck
Property: Vacant Lot — Lot 36 Stonebridge Subdivision / Tax Key No. 2258.065
REQUESTING: Under the direction of Chapter 17 Zoning Ordinance: Section 3.02 Zoning
Board of Appeals, Petitioner seeks the following variances:
Chapter 17 - Zoning Ordinance: Section 5.02(7) — Wetland Protection Offset
(7) (Ord. #1290 — 04-23-2009) Wetland Protection Offset: No building or
structure shall hereafter be erected, structurally altered, or relocated so that
it is located closer than the distances listed below to a delineated wetland
area. The purpose of this protection offset is to preserve the wetland areas
themselves and the environmentally sensitive areas immediately around the
wetland areas. These Wetland Protection Offsets are separate and
different from any DNR wetland requirements. Any DNR restrictions
relating to wetlands and wetland offsets apply in addition to these
regulations.
A. Wetland Protection Offsets Distances: The offset distance is fifteen (15)
feet from any delineated wetland. All wetland delineations must receive
DNR concurrence.
B. Protection Offset Restrictions: No building or structure shall hereafter
be erected, structurally altered, or relocated within the Wetland
Protection Offsets. This includes, but is not limited to, any building
(including sheds and accessory structures), deck, pool, any hard
surface (asphalt, concrete, pavers, gravel, etc.), or any other feature
deemed a structure or building by Community Development Director or
his/her designee. Landscape features (including, but not limited to
fences, retaining walls, planting beds, plantings, etc.) are allowed within
the Wetland Protection Offset area as long as they do not cross into
and/or impact the wetlands. Grading, excavation, and filling are allowed
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within the Wetland Protection areas as long as they do not cross into
and/or impact the wetlands. Per the discretion of the Community
Development Director or his/her designee, the only exceptions to these
requirements shall be work associated with approved DNR wetland
disturbance activities (examples: wetland board walks, wetland
crossings).
1. The petitioner seeks an offset of 12.45-feet from the wetland to construct a new home,
and is therefore requesting a 2.55-foot variance from the required wetland protection
offset,
2. And, the petitioner seeks an offset of 6.23-feet from the wetland to construct a new
permeable paver patio, and is therefore requesting a 8.77-foot variance from the
required wetland protection offset,
3. And, the petitioner seeks an offset of 10.18-feet from the wetland to construct a new
deck, and is therefore requesting a 4.82-foot variance from the required wetland
protection offset.
Vice Chairman Schneiker swore in the following:
Adam Trzebiatowski — City Staff
Brian and Marilyn Buck — Petitioners
Mr. Trzebiatowski gave a brief history of how the 15 foot wetland setback was established in
2009. Mr. Trzebiatowski noted that structures and hard surfaces are not allowed within the 15'
wetland setback.
Mr. Trzebiatowski further explained a new home was planned for the vacant lot in the
Stonebridge Subdivision. An original wetland delineation was done in 2000 when the
subdivision was developed. Wetland delineations are only valid for 5 years, per the DNR
requirements, and due to that they were re -delineated this spring and it was found that they
expanded.
The petitioner, Brian Buck, explained he purchased the lot and new home plans designed for
this lot in January 2013. There were no issues at the time of purchase. Mr. Buck stated he
talked to the City to make sure the house would fit and everything was fine. Mr. Buck added
that he feels the lot was poorly graded when the subdivision was developed which caused the
wetlands to encroach. Mr. Buck stated his hardship is having to redesign the house so narrow
it will not fit in with the high end neighborhood. Having a house with the flat back would look
institutional and would have no character.
Marilyn Buck, petitioner, stated the hardship is having to design a home that would be 30 feet
wide and fit with the slope of the lot and the wetlands. The original design fit the lot when the
wetland setbacks were only 10 feet.
Mr. Di Pronio questioned when the petitioner bought the lot. Mr. Buck stated January 14, 2013.
Dr. Blumenfield questioned if Mr. Buck tried to find a different house for this lot. Mr. Buck
stated if he searched the internet he could probably find one, but this one doesn't fit by only 18
inches. Dr. Blumenfield questioned if he was concerned that in the future the house may sink.
Mr. Buck stated he did the engineering and that would not be the case. Mrs. Buck added the
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soil tests came back with no issues.
Mr. Trzebiatowski gave the City's opinion based on the Zoning Code. Mr. Trzebiatowski stated
the following three variances are being requested:
A. House Location — The location of the house will require a 2.55 foot variance from the
wetland protection offset. Staff did not find a valid hardship. This is new construction and the
house could be designed to fit the lot such as a two story or a narrower footprint.
Mr. Trzebiatowski added the plans had not received city approval. When Mr. Buck stopped in
with the plans it appeared the plan would work. When the formal review was done after permits
were applied for, it was found there was an issue with the wetland setback. With certainty Mr.
Trzebiatowski stated he knew the offset was 15 feet from the wetlands since 2009.
B. Patio — 8.77 foot variance from the wetland protection offset. Staff did not find a valid
hardship. While a patio is desirable, the code does not require one to be allowed.
C. Deck — 4.82 foot variance from the wetland protection offset. Staff did not find a valid
hardship. While only two post holes will be impacting the offset, the perimeter of the deck is
what the code looks at. Also, the code does not require a deck or patio door for access.
Staff is recommending denial of Appeal #01-2013 A, B, and C; citing a non -self-imposed
hardship is not found for the appeal.
Dr. Blumenfield questioned if the wetlands could be impacted if approved. Mr. Trzebiatowski
stated that could be argued. The city requires the 15 foot offset to ensure protection of the
wetlands.
Mr. Schneiker questioned if there are subdivision covenants. Mr. Buck stated there are. Mr.
Schneiker noted that could be a hardship having to design a house to meet the subdivision
requirements. Mr. Trzebiatowski added a house should be designed to meet both the city and
subdivision's requirements.
Discussion took place over the process for changing the wetland setback offset in 2009. Dr.
Blumenfield questioned if the Bucks were informed of the offset requirements. Mr.
Trzebiatowski explained they first came in with the original survey that had a 10 foot offset.
When the full permit came in more detail was given to the pond area and the wetlands needed
to be re -delineated. At that time also, it was found that the setback offset was incorrect and
should be 15 feet.
With no other comments or questions Chairman Blumenfield closed public comment and the
Board went into deliberations.
DELIBERATIONS
Appeal #03-2012 — Vice Chairman Schneiker made a motion to approve Appeal #01-2013
as submitted. Mr. Robertson seconded.
Mr. Schneiker stated the way the house is laid out there doesn't seem to be a lot of impact, but
Mr. Schneiker added he doesn't see a valid hardship because the house could be re -designed,
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although, the covenants on the property may require a bigger house if it were a two story.
Feels the deck is not impacting the area with 2-3 posts or the patio because it is drainable.
Mr. Robertson stated he doesn't see a hardship. The house may be their dream home but
there are other options.
Mr. Di Pronio explained discretion must be used. Mr. Di Pronio stated he agrees with the
principle that there is no proven hardship, but it does not seem to be harmful to the wetland and
the petitioner was misled along the way. This should be given some consideration because it is
only 2 feet and would not hurt anybody.
Dr. Kashian stated this is a hard variance because the changing wetlands rules caught this
property in a trap, but there is a failure to prove a hardship. Dr. Kashian further stated that the
topography of this property causes issues and if left untreated wetlands will grow larger.
Dr. Blumenfield noted there could be hardships being the shape of the lot, the 10-15 foot
change in wetland setback requirements in 2009, and being unaware of the water on the back
of the lot encroaching.
Mr. Ristow explained Mr. Buck did his due diligence and added that the City not telling them
about the 15 foot setback when they first came in is a hardship.
Dr. Kashian stated the grade issue with a wet spring is a hardship.
Upon a roll call vote, Appeal #01-2013 was approved 4-1 with Mr. Robertson abstaining.
Dr. Blumenfield noted this decision was reached with a great amount of difficulty and staff's
work on this was not suspect for any reason and the circumstance and the information
presented are the grounds the decision was made as done in the past based on the uniqueness
of the situation.
NEW BUSINESS: None.
APPROVAL OF THE MINUTES: Dr. Kashian moved to approve the minutes of January 16,
2013. Vice Chairman Schneiker seconded. Upon a voice vote, minutes were approved
unanimously.
MISCELLANEOUS
None.
ADJOURNMENT: With no further business to come before this Board, Dr. Kashian moved to
adjourn. Vice Chairman Schneiker seconded. Upon voice vote, meeting adjourned at 7:32 PM.
Respectfully Submitted,
Kellie McMullen
Recording Secretary