PCR2005088a3.AMENDED
RESOLUTION #P.C. 088-2005
APPROVAL DENIAL OF A BUILDING SITE AND OPERATION PLAN FOR MICHAEL BIRKLEY IN
THE NE ¼ OF SECTION 14 (TAX KEY NO. 2213.984 / DURHAM DRIVE)
WHEREAS, On July 6, 2005 plans were submitted by Mike Birkley for a Building, Site and
Operation Plan for a Tree Service/Landscaping business for a property located in the NE ¼ of
Section 14 (Tax Key No. 2213.984 / Durham Drive), and
WHEREAS, Said property is currently zoned RS-2 Suburban Residence District and RS-2/OHS
Suburban Residence District with a Highway Service Overlay, and said use may be a permitted use
by right subject to Building Site and Operation Plan approvals but Conditional Use Grant approval
may possibly be needed, and
WHEREAS, Said property was zoned RS-2/OHS Suburban Residence District with a Highway
Service Overlay District, although the Common Council acted to remove the OHS Highway
Service Overlay District by Ordinance #1198 on July 26, 2005, thus the current zoning of the
property is only RS-2 Suburban Residence District, however petitioner claims vested rights
to the RS-2/OHS zoning district, and
WHERAS, The RS-2 Suburban Residence District only permits single-family residential uses
and does not permit the proposed use by right, accessory, or conditional use grant, and
WHERAS, This BSO is dependent on the successful expansion of the OHS zoning district being
handled under Resolution P.C. 081-2005, and
WHERAS, The Planning Commission recommended to the Common Council that the OHS
zoning should be removed in its entirety under Resolution P.C. 081-2005, siting that the area
is more compatible with a suburban character rather than highway character and that the
area fits better with the RS-2 zoning and it is more contiguous with existing zoning, and
WHEREAS, That upon reviewing the narrative submitted by the petitioner and reviewing the details
of the zoning code, the Plan Commission should determine whether the proposed uses will require
a Conditional Use Grant under the RS-2/OHS zoning district.
WHEREAS, The Planning Commission agreed at their July 19, 2005 meeting that the
proposed use required an approved Conditional Use Grant, and the Conditional Use Grant
would need to be approved along with a Building, Site and Operational Plan under the RS-
2/OHS zoning district, and
WHEREAS, A Conditional Use Grant was applied for by Mike Birkley on July 25, 2005, and a
public hearing was held before the Planning Commission on September 6, 2005 regarding
the Conditional Use Grant, and
WHEREAS, The site currently consists of two structures, one of which is a house and the other
which is an accessory structure, and
WHEREAS, The Petitioner proposes to alter the current site by constructing a commercial
structure, and adding parking arrangements on the site in order to perform landscape and tree
service related tasks on-site, and
WHEREAS, The operations of the business are proposed to include the parking of trucks and
equipment, the cutting and splitting of firewood, and the milling of logs into lumber, and
WHEREAS, The possible future operations of the business could include a lawn and garden
center, a nursery, a green house, and/or the milling of lumber within the proposed building, and
WHEREAS, The proposed commercial building will measure 60’ x 125’ (7,500 square feet) and will
be 22.5 feet high, and
WHEREAS, Building materials and colors used on the proposed commercial structure will include
steel rib walls colored “fern green” and Galvalume (steel) roofing colored grey/silver, and
WHEREAS, The building does not meet the 50% masonry requirement for a commercial structure
in the City’s General Design Guide, and
WHEREAS, The proposed building contains no masonry product, and
WHEREAS, The proposed building is shown to have a low pitched roof with no overhangs, and
WHEREAS, The petitioner wished to store piles of large logs and firewood behind the existing
residence and accessory structure, and
WHEREAS, Parking is illustrated as 7 parking stalls for public and employee use, and
WHEREAS, 1 space of parking is needed for every 2 employees in an industrial/commercial use
and the parking depicted allows for this plus additional spaces for customers, and
WHEREAS, No additional lighting is shown on the plans and any new lighting would need Plan
Commission approval, and
WHEREAS, No area is designated for refuse/recycling and Plan Commission approval would be
needed if an enclosure is sought, and
WHEREAS, No specific signage is proposed at this time and Plan Commission and/or staff
approval may be needed if signage is requested, and
WHEREAS, A landscape plan has not been submitted and will need to be submitted and approved
by the City Forester prior to the issuance of building permits, and
WHEREAS, The petitioner notes that they intend on installing small locust and evergreen trees
along the north line of the OHS district on their property, and
WHEREAS, Access is provided to the site with one entrance off of Durham Drive that is gravel, and
WHEREAS, The petitioner is proposing that the parking areas and the existing entry drive stay as a
gravel surface, and
WHEREAS, The hours of operation requested are Monday thru Friday from 7AM to dark and
Saturdays from 8AM to dark, with no operation on Sundays, and
WHEREAS, Stormwater management may need to occur on-site and be approved by the
Engineering Department before building permits are issued.
THEREFORE BE IT RESOLVED, That the Plan Commission denies approves of a Building, Site
and Operation Plan for a Tree Service/Landscaping business for Mike Birkley for a property located
in the NE ¼ of Section 14 (Tax Key No. 2213.984 / Durham Drive) first under the old zoning of
RS-2/OHS pursuant to petitioner claim of vested rights and second under the RS-2 zoning.
FIRST BE IT FURTHER RESOLVED, That the Plan Commission denies the Conditional Use
Grant for a Tree Service/Landscaping business even if the old zoning of RS-2/OHS was still
in affect as the proposed commercial use is note seen as compatible with the surrounding
suburban area because due to the surrounding uses being predominantly residential; that
the proposed use could negatively affect the area in regards to congestion and sound; and
that the future of the area is viewed to be of a residential character in the City’s 2010
Comprehensive Plan.
SECOND BE IT FURTHER RESOLVED, That the Plan Commission denies the Conditional
Use Grant for a Tree Service/Landscaping business with the existing RS-2 zoning in affect
as the proposed use is not an allowed use by right, accessory, or by Conditional Use Grant
under the RS-2 zoning.
BE IT FURTHER RESOLVED, The Plan Commission makes no determination as to whether
or not the petitioner has vested rights to the RS-2/OHS zoning as the Plan Commission
denied the CUG under both the old and new zoning categories.
BE IT FURTHER RESOLVED, That Resolution P.C. 081-2005 must be approved to include the
expansion of the OHS district on this parcel, and
BE IT FURTHER RESOLVED, That Plan Commission requires a Conditional Use Grant to meet the
Zoning ordinance requirements.
BE IT FURTHER RESOLVED, That any expansion or alteration to the site or the uses of the
business would require the approval of the Plan Commission.
BE IT FURTHER RESOLVED, That if any new additional parking, and/or traffic areas are needed
near or around the proposed commercial building, revised site plans would need to be submitted
and approved prior to installation.
BE IT FURTHER RESOLVED, That the proposed building shall be clad in at least 50% masonry
product.
BE IT FURTHER RESOLVED, That the log piles are to be entirely fenced in by a board-on-board
fence and that the log piles shall not exceed 10 feet in height to minimize disturbance to the
surrounding properties.
BE IT FURTHER RESOLVED, That there shall be no outside storage other than the approved
enclosed log piles.
BE IT FURTHER RESOLVED, That once the proposed structure is completed, all equipment and
trucks must be stored in the building.
BE IT FURTHER RESOLVED, That all parking and driveway areas (all drivable areas) shall be
asphalt or concrete.
BE IT FURTHER RESOLVED, That only vehicles allowed regularly on Durham Drive may be
allowed on the business site.
BE IT FURTHER RESOLVED, That hours for the operation of any machinery and loud equipment
shall be Monday thru Saturday from 8AM to 5PM while allowing the petitioner’s stated hours for the
rest of the business, in order to not hamper the surrounding properties.
BE IT FURTHER RESOLVED, The need for stormwater management for the current site will be
determined by the Engineering Department at the time of building permits.
BE IT FURTHER RESOLVED, That if an outdoor refuse facility is sought, it will need to have
locations and building elevations approved by the Planning Department and/or Plan Commission.
BE IT FURTHER RESOLVED, That no outside refuse/recycling storage is allowed and any storage
of this type must be within an existing building.
BE IT FURTHER RESOLVED, That Plan Commission and/or staff approvals will be needed if any
signage is requested.
BE IT FURTHER RESOLVED, That Plan Commission and/or staff approvals will be needed if any
exterior lighting is requested.
BE IT FURTHER RESOLVED, That no mechanicals are shown to adorn the roof of proposed
building and if any are required, they must be screened from view and colored to match the
principal structure.
BE IT FURTHER RESOLVED, That a landscape plan shall be submitted and reviewed by the City
Forester prior to the release of building permits.
BE IT FURTHER RESOLVED, That the landscape plan will need to include landscaping around the
entire OHS zoned area.
BE IT FURTHER RESOLVED, That a copy of said plans be kept on file in the Building Department
and that all aspect of this plan shall be maintained in perpetuity unless otherwise authorized by the
Plan Commission.
BE IT FURTHER RESOLVED, That failure to comply with the approval contained in this resolution
shall result in the imposition of fines of $100 per day, the initiation of legal action, or both.
Plan Commission
City of Muskego
Adopted: September 6, 2005
Defeated:
Deferred: July 19, 2005; August 2, 2005; August 16, 2005
Introduced: July 19, 2005
ATTEST: Sandi Asti, Recording Secretary