ccm19951212bCOMMON COUNCIL/PLAN COMMISSION/BOARD OF APPEALS
CITY OF MUSKEGO
MINUTES OF SPECIAL JOINT MEETING HELD DECEMBER 12, 1995
The meeting was called to order at 6:07 P.M. by Mayor De
Angelis. Also present were Aldermen D'Acquisto (arr. 6:12
P.M.), Misko, Patterson, Rasmussen, Salentine and Suhr; Plan
Commissioners Vitt (arr. 6:18 P.M.), Smith, Gummer and
O'Neil, Schepp, Schneiker, Brandt and Herda. Also present were
Schaumberg (arr.6:18 P.M.); Board of Appeals members Pionek,
City Clerk Marenda, Plan Director Sadowski, Asst. Planner
Trejos, and City Attorney Molter. Absent were Ald. Sanders,
Plan Comm. Hulbert and Board of Appeals member Kerr.
Atty. Molter felt that some confusion of authority started with
the City Plan Commission vs. Board of Appeals case concerning
the Fohr appeal. That court decision indicated basically the
Use because that authority is with the Plan Commission.
Board of Appeals does not have authority to grant a Conditional
Chapter 17:3.08(2) of the Municipal Code distinguishes certain
areas where the decision of the Plan Commission would not be
appealable to the Board of Appeals. This is a jurisdictional
ordinance adopted by this Common Council. The Council felt
Building, Site and Operational Plans; Signs; Residential
strongly the Plan Commission should have authority over
Outbuildings; and, Conditional Uses.
With regard to the Fohr appeals, Mr. Pionek felt the City should
court at a cost to the taxpayers. The Board thought because
have conferred with the Board on this matter to avoid going to
within their rights to state a number.
Plan Commission had granted the conditional use, the Board was
Atty. Molter stated the Board of Appeals is a quasi judicial
body, and it is improper for the Common Council to influence
your decisions. They are a political body and you are judicial.
Mr. O'Neil referred to a recent variance to size. If the Board
conditional use, why was that case sent to us? Atty. Molter
isn't allowed to make a decision on matters pertaining to
use. The original site plan was approved by the Plan
stated he believed that was an outbuilding, not a conditional
Commission, but the size of the building was excessive over the
zoning category. The use was okay, but not the size, unless a
variance was obtained. That was a variance of the type you can
grant, but the Plan Commission cannot. As to uses, the Plan
Commission must determine.
Matt Sadowski explained the Plan Commission approved a 36' x 36'
building if a variance to allow that size would be granted by
the Board. The Board is asking why couldn't they approve
something larger. The Plan Commission approved a use of 36' x
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CITY OF MUSKEGO - DECEMBER 12, 1995 PAGE 2
36' - not a larger use, so the Board could only a grant a
variance up to that size.
Mr. Schneiker asked for the criteria used by the Plan
Commission. Atty. Molter referred to Sections 6.11 and 4.05 of
the Zoning Code.
Mayor stated the Plan Commission uses those parameters to review
the request. The Plan Commission sets the maximum use they feel
is appropriate. Each use is taken on a case-by-case basis.
The case of the height variance for light poles was discussed.
Matt Sadowski advised the ordinance limits the height to 15'.
The Plan Commission felt it appropriate to go to 23', but a
variance required from Board of Appeals. The Board could
approve no variance, or anywhere up to 23', but could not go
higher.
Mr. Pionek asked about the presence of an attorney at the
hearings. Atty. Molter felt it was a matter of economics, and
the possibility of conflicts. There has been very little
litigation over the years.
Mayor advised that if the Board feels something is coming up
that you feel an attorney is necessary, we can provide one.
However, that is why professional staff is present at the
meetings, or you can adjourn to get a legal opinion before
acting on a request.
The Mayor also noted that staff does not have the right to deny
an application to appeal, even if the Board doesn't have
authority to hear the case. You'll still hear the case and make
the decision whether or not what they're bring before you is
appealable. Ald. D'Acquisto felt it was the responsibility of
the individual to determine if the Board of Appeals is the right
place for the case to be heard.
Mr. Brandt questioned an appeal that was granted for a variance,
but a building permit was denied. Mayor referred to the pole
barn issue. The City did exactly what the Board determined
based on "past practice". Mr. O'Neil stated it was the intent
of the Board to allow the petitioner to build the building as
proposed.
Mr. Pionek requested guidelines be drawn up by the City Attorney
for the Board of Appeals for things you can or can't do. A
do. Atty. Molter said most Boards of Appeals grant more
recent seminar indicated we shouldn't be granting anything we
hardships that are up to interpretations.
Ald. Rasmussen stated clarification is needed of the role of the
Board of Appeals. Can an Alderman comment on whether someone
should appear before the Board? What options does a citizen
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CITY OF MUSKEGO - DECEMBER 12, 1995 PAGE 3
have if the Plan Commission denies their request - an example,
the light pole at 15' denied going to 23'?
Mr. Vitt asked that input be given to the Plan Commission
regarding the Council's feelings on the use of canopies. What
are the aldermen hearing from the citizens?
At 7:lO P.M., Ald. Salentine moved to adjourn the Council
portion of the joint meeting. Patterson seconded, motion
carried. Mayor, Finance Committee members and Ald. Suhr left
the meeting.
Matt Sadowski responded to Ald. Rasmussen's question regarding
the light pole. Under building, site and operational plan
determine height. They can determine 23' is appropriate. Mr.
review, it is under the Plan Commission jurisdiction to
Schepp asked, if the Plan Commission said 15' is maximum, where
can the citizen go? Atty. Molter replied if the Plan Commission
feels that is part of the "use" that is the final word in the
City of Muskego. If it is a question as to a variance as to
height, can't that go to the Board of Appeals? Matt provided
examples such as neighbor felt height disturbing, etc. Atty.
Molter advised the Plan Commission decisions need to be better
stated to provide rationale.
Mr. Schepp moved to adjourn at 7:30 P.M. Mr. O'Neil seconded,
motion carried.
Respectfully submitted,