ZBA Minutes 20221027UNAPPROVED
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Muskego City Hall, W182 S8200 Racine Avenue
CALL TO ORDER
Chairperson Blumenfield called the meeting to order at 6:01 PM.
PLEDGE OF ALLEGIANCE
Those present recited the Pledge of Allegiance.
ROLL CALL
Present: Dr. Blumenfield, Mr. Harenda, Mr. Dyszelski, Mr. Schneiker and Mr. Patterson
Absent: Mr. Boschert and Dr. Kashian
STATEMENT OF PUBLIC NOTICE
The meeting was noticed in accordance with the open meeting laws.
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.
NEW BUSINESS
Appeal #01-2022
Petitioner: James & Nancy Moeller
Property: W 179 S6700 Muskego Drive / Tax Key No. 2174.863
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 front/right-of-way setback of 40-feet is required from the eastern side lot line along Ranch Drive. The petitioner
seeks a setback of 16.6 feet from the east side lot/right-of-way line for the allowance of a garage addition and is
therefore requesting a 23.4-foot variance from the required front/right-of-way setback along Ranch Drive.
OPEN SESSION
Mr. Schneiker swore in the following:
James Moeller, W179 S6700 Muskego Drive
Nancy Moeller, W179 S6700 Muskego Drive
David Branski, W191 S7192 Luehring Drive
June Doyne, W179 S6721 Muskego Drive
Nancy Schmidt, W179 S6650 Ranch Drive
Adam Trzebiatowski, Planning Manager
James Moeller explained the history of the situation. He bought the house in 1980 and raised three kids so he
needed a place to put everything. Brian Misko was an alderman at the time who raised racing pigeons with a
couple coops in his yard, and he told Mr. Moeller that he needed to get a coop also. Mr. Moeller moved a truck
box from his farm to alongside the garage with half being a coop and the other half for storage. Brian Misko said
everything was clear with the city and he didn't need a permit for outside storage and everyone can have an
outside storage on their property. Mr. Moeller didn't believe he did anything wrong since he was told he could put
it alongside the garage. Mr. Moeller believed he was just replacing what he had. A couple years ago he built a
shed alongside the garage.
Chairperson Blumenfield asked what the hardship was. Mr. Moeller explained that he is boxed in with Muskego
Drive, Ranch Drive and Earl Drive with no where to go and where the lean-to is located fits the property and
everyone that sees it says it looks like a million dollars. Chairman Blumenfield clarified that his hardship is the size
of his lot and Mr. Moeller said that it was.
Mr. Harenda asked if the metal container was attached to the building with a foundation. Mr. Moeller said that it
was not attached and just on concrete blocks. Mr. Harenda then asked if the lean-to, or addition has a concrete
base and Mr. Moeller said that it does have a concrete floor now.
Mr. Branski noted that he lives on Little Muskego Lake and understands rules and regulations and being
conforming on the lake. He built a house 12 years ago and had a permit dispute due to lot lines where his house
would have been 6 or 7 inches off the lot line incorrectly based on different surveys. He was worried about having
a non -conforming house and understands Jim Moeller's situation when he put up a lean-to without opening up to
the garage. He said that Mr. Moeller's lot is pie shaped where the house is non -conforming now and in the future
for someone to buy. He can't build on except along the north side. If that is done, it wouldn't be practical use -wise
because you only have a certain area you would want to use for outdoor space for a patio and it is a different
grade. He built it furthest to the east, it is out of site and a small little addition to protect valuables. When you sell
something in the future you are selling a non -conforming garage and would turn off prospective buyers.
Ms. Doyne, said the she can see directly into the Moeller's yard every day. She understands the trials and
tribulations with property lines and conforming. The Moeller's property is very tidy and their yard is completely
fenced in and you cannot see the shed or anything else due to the placement of the home, garage and fencing. It
doesn't impede anyone's property and it would be a big hardship for James to have to move or remove the shed.
He allows people to park on his gravel and grass for the water bugs. It would be a hardship to remove it and their
property is a staple in the neighborhood. Ms. Doyne would be really hurt if they were forced to remove or move
the shed.
Ms. Schmidt wanted to say she has been on Ranch Drive for 67 years and the Moeller's take wonderful care of
their property and are amazing neighbors. He made a mistake and was not aware he made a mistake. He knows
there are rules and made a mistake. It would be a shame if the Board made him take the lean-to down.
Mrs. Moeller understands the 40-foot rule, but for them to put the storage shed somewhere else would make the
yard look obsolete. It is the perfect spot that is out of the way and doesn't block anyone's views, it matches the
house and garage. They can keep their stuff locked up. There is never going to be a road widened or new home
built as everything is established so she questions what it is going to hurt by leaving it there.
Chairperson Blumenfield asked when the concrete slab was installed for the patio furniture and if they pulled a
permit for that. Mrs. Moeller said she did not remember.
Adam Trzebiatowski, Planning Manager explained that this issue came up due to a complaint from an
Alderperson. Staff visited the property and sent a couple letters to the homeowners. All zoning districts in the city
except the RL lots, which are lots abutting the lake, have a 40-foot setback. There are many homes that were built
before the codes were in effect that are grandfathered in just like the existing garage. The Moeller's discussed this
with staff and staff provided them options and a variance was one option, removing the lean-to or moving it to
another location are other options. Staff tries to work with applicants where possible. Related to Earl Drive, the
addition is stepped back from the existing garage from Earl Drive so there is no issue there. The issue is the
setback from Ranch Drive where the setback is 16.6 feet from the legal lot line along Ranch Drive where it is
supposed to be 40 feet. The existing garage is non -compliant so even if they would have come to us before the
addition was built they would have been advised that it wouldn't work. Staff would have offered and have offered
afterwards the potential ability to expand toward the north or west. State Statutes and case law talks about
options and only if there are no other options, but in this case, there are other opportunities to go to the north or
west. Staff provides a couple handouts to applicants thinking about a variance that explain and have examples of
Zoning case law and state law. One example would be that the variance cannot be self-imposed or cannot be a
circumstance of the applicant. The desire for a larger garage is not a reason to grant a variance.
The code does allow for a size limit of accessory structures. Everyone is allowed an accessory building, but there
is nothing that states you are allowed a certain amount by right. A lack of objection from neighbors is not a sole
reason to grant a variance. It is offered and could be helpful to know that there are not any aggrieved neighbors
and we have not heard any of that today.
Another case law states that a variance if granted must be the least or most minimal variance possible. Since
there are other options on the property that don't need a variance this isn't a factor.
Case law also discusses financial hardship and the Moeller's haven't discussed this, but if there was ever a
question or comment regarding finances, that should not be figured in for a variance.
There is a three -step test that boards should be looking at. The first step is unnecessary hardship. A necessary
hardship exists when compliance would unreasonably prevent the property owner from using the property for a
permitted purpose. If someone would think this is unnecessarily burdensome they should look at if there are any
other options. Unique property limitations are also something the Board should look, but minor grade changes
shouldn't be an issue. The last test would be that there be no harm to the public interest. Staff agrees that there
is no public harm.
One issue the Board should be careful of is when dealing with a structure built without a permit. The petition
should be looked at the same whether it is existing today or if they were asking ahead of time. There should be no
benefit to having the structure built already.
Another issue to be careful with is that this is not setting any precedent that says if something is built without a
permit you can just leave it. This isn't a test of aesthetics, so the board shouldn't be looking at whether it looks
good or not.
If the variance is not granted, the structure would need to be removed within a reasonable amount of time. The
Board would be responsible for providing a timeframe. If the variance is granted then the petitioner would need to
apply for a building permit that would include building plans just as if the building wasn't built. Planner
Trzebiatowski explained the financial limitations that would be allowed based on the legal non -conforming status of
the garage for an expansion.
Mr. Schneiker asked where the values for the garage came from. Planner Trzebiatowski said that the assessed
value came from the assessor as required by the Code.
Mr. Schneiker asked if the addition was put on the north side of the house as if there was any topography.
Planner Trzebiatowski mentioned that there is a grade change, but the lean-to is also a step lower as it is now.
Mr. Schneiker asked if the lean-to takes up more space than the box that we set there previously. Planner
Trzebiatowski noted that we weren't exactly sure as we are working off of aerial photos. The petitioner added that
the lean-to is wider but shorter than the truck box.
Mr. Harenda asked if they are asking to leave the structure, not add to the structure. Planner Trzebiatowski
confirmed they are asking to leave what is there. Mr. Harenda asked if anyone has spoken to the alderman.
Planner Trzebiatowski noted that that was where the complaint came from. However, when the original complaint
came in it may have been a different alderman that the current due to some redistricting.
Mr. Harenda noted that he did drive by the property and it is clean and you cannot see the lean-to and is a good
steward for the community and it did start as a coop. Mr. Harenda asked if you need a permit for a coop. Planner
Trzebiatowski said a permit is needed and there is no roofed feature you can put on your lot that does not need a
permit.
Mr. Harenda asked how this sits as far as greenspace. Planner Trzebiatowski noted that the survey shows that as
it sits today, they are compliant with greenspace requirement.
Mr. Harenda is looking for future solutions and asked about a point of sale would have caught this. Planner
Trzebiatowski noted that when those permits were required, it was only for safety issues not what violations can be
found.
Mr. Harenda asked if anyone has ever waived the triple permit fees for building without a permit. Planner
Trzebiatowski noted that is not a staff level waiver that can be granted.
Deliberations:
Mr. Harenda noted that they have been given options for moving the lean-to by staff to the north side of the
building so there are options to move forward to what Muskego is looking for.
Chairman Blumenfield noted that this is complicated as the board would like to approve the appeal as individuals
and citizens as they appreciate the effort brought to the board. However, the board is restricted from simply
approving the variance because of state statute and City codes. There are limits to what the board can do and the
board must have a hardship that is applicable to the case that may include topography or that there are other
extreme measures that don't allow petitioners to do something that would otherwise be permitted. Otherwise, the
board and city could be liable to legal action if there isn't a valid hardship. A valid hardship was not presented. As
much as Chairman Blumenfield would like to support the appeal as an individual, she cannot support the variance
due to a lack of hardship.
Mr. Harenda noted that the Board is bound by the rules as previously stated and agrees with Chairman
Blumenfield if the Board would approve this it would be setting up the City for other liabilities.
Mr. Harenda made a motion to approve Resolution Appeal #01-2022 to deny the variance for James & Nancy
Moeller at W179 S6700 Muskego Drive / Tax Key No. 2174.863 for a 23.4-foot variance from the required
front/right-of-way setback along Ranch Drive based on the fact that Mr. Moeller believed he was just replacing
what he had and that he didn't believe he did anything wrong since he was told he could put a pigeon coop
alongside the garage previously without a permit as a hardship. Mr. Dyszelski seconded. Upon a roll call vote
Resolution Appeal 01-2022 was approved unanimously 5-0 denying the variance.
Chairman Blumenfield noted that a timeframe is needed for the lean-to to be removed or replaced. Planner
Trzebiatowski suggested a spring date with winter coming. Chairman Blumenfield made a motion to have a plan
in place and any applicable permits obtained by March 1, 2023 with a removal date of July 31, 2023. Mr.
Dyszelski seconded. The schedule of permitting/removing the existing lean-to was approved unanimously 5-0.
APPROVAL OF THE MINUTES
Approval of the Minutes of the July 22, 2021 Meeting.
Mr. Schneiker made a motion to approve the minutes of the July 22, 2021 meeting. Mr. Dyszelski seconded.
Motion to approve the minutes passed unanimously.
MISCELLANEOUS BUSINESS - none
ADJOURN
Mr. Schneiker made a motion to adjourn. Mr. Harenda seconded.
Meeting adjourned at 7:03 PM.
Respectfully submitted,
Aaron Fahl, AICP
Planner