PCR2005098RESOLUTION #P.C. 098-2005
DENIAL OF A CONDITIONAL USE GRANT FOR MICHAEL BIRKLEY TO RUN A TREE
SERVICE/LANDSCAPING BUSINESS IN THE NE ¼ OF SECTION 14
(TAX KEY NO. 2213.984 / DURHAM DRIVE)
WHEREAS, On July 25, 2005 a request for a Conditional Use Grant was submitted by Mike Birkley
to run 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, A Building, Site, and Operation Plan was submitted by Mike Birkley on July 6, 2005
and Planning Commission required at their July 19, 2005 meeting that the proposed use have a
Conditional Use Grant before the BSO would be acted upon, and
WHEREAS, The Conditional Use Grant public hearing, as required by code, was heard before
Planning Commission on September 6, 2005, and
WHEREAS, Said property was zoned RS-2/OHS Suburban Residence District with a Highway
Service Overlay District, although the Common Council removed the OHS Highway Service
Overlay District by Ordinance #1198 adopted on July 26, 2005 thus the current zoning of the
property is only RS-2 Suburban Residence District subject to any vested right claim of petitioner to
the RS_2/OHS zoning, and
WHEREAS, The former OHS district allowed the proposed use by Conditional Use Grant although
the current 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
WHEREAS, 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.
THEREFORE BE IT RESOLVED, That the Plan Commission denies a Conditional Use Grant for a
Tree Service/Landscaping business for Mike Birkley on 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 not 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 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:
Introduced: September 6, 2005
ATTEST: Sandi Asti, Recording Secretary