Board of Zoning Appeals

THESE ARE THE MINUTES OF THE BOARD OF APPEALS MEETING ON THURSDAY, OCTOBER 12, 2017, AT 7:00 P.M. HELD IN THE COUNCIL CHAMBERS AT CITY HALL, 2000 N. CALHOUN ROAD, BROOKFIELD. MEMBERS PRESENT: Kevin Bublitz, Rod Carter, Gordon Rozmus, Frank DeGuire, Robert Buikema MEMBERS ABSENT & EXCUSED: Alderman Ron Balzer, Alderman Lisa Mellone (alt.) ALSO PRESENT: Zoning & Building Administrator Kevin Bublitz called the meeting to order at 7:00 p.m. He stated that the notice of hearing has been duly published pursuant to the State open meetings law and explained the procedure to present the appeals to the Board this evening. 1. Roll Call Mr. Bublitz indicated that a quorum is present and that the request for variances must receive the affirmative vote of three members of the Board in order for a request to be granted. New Business: 2a. September 14, 2017, Minutes • Frank DeGuire moved approval of the September 14, 2017, Board of Appeals meeting minutes. Seconded by Robert Buikema and carried unanimously. ******** Public Hearing & Consideration of Appeal: Certain requests for building permits have been submitted to the City of Brookfield and have been denied by the Zoning & Building Administrator because they did not comply with the Zoning, Building or Sign Code of the City of Brookfield. There will be a Public Hearing held before the Board of Appeals on September 14, 2017, at 7:00 pm at the Common Council Chambers for the express purpose of considering the following request(s) for variance. Please note that following the public hearing(s) the Board intends to take action by considering the request indicated: 3a. Ken and Susan Levitt, 3415 Muirwood Dr.: Swimming Pool and Fence The next item was the request of Ken & Susan Levitt, Lot 31 & 1/62 UNDIV FRAC INT OUTLOT 1 MUIRWOOD NE ¼ SEC 8 T7N R20E, to appeal Section 15.04.330 C. to permit installation of a swimming pool and fence which is too close to the lot line at 3415 Muirwood Drive. The proposed pool is located 15’ from back property line where 25’ is the minimum offset. Zoning and Building Administrator Larry Goudy reviewed the regulations for swimming pools. Swimming pools must be outside of the offset for that subdivision. In the City of Board of Appeals Page 2 October 12, 2017 Brookfield, there are different offsets, depending on when the subdivision was platted. Subdivisions platted after 1989, such as Muirwood, have a offset regulation of 25’. In regards to swimming pools and how they relate to that, the first 3’ of concrete apron surrounding the in-ground pool counts as the swimming pool (The water edge is at 28’.) In this case the proposed pool, including the 3’ concrete apron, is 15’ from the property line. Therefore, there is a request for a 10’ variance. The fence that surrounds the pool does not violate the code. The code allows the fence up to 10’ from the edge of the hardscape area but no closer than 10’ to the property line, which it is. The fence does not require a variance, but the location of the swimming pool does. The applicant provided pictures of the pool layout of the subject property and the neighbors’ lot. Mr. Goudy stated he has received one letter of opposition and received a phone call from the son of the same opposition writer (reiterating the same ideas). Ken and Susan Levitt appeared before the Board as well as the builder of the pool, Rob Brinkman. Mr. Levitt stated that where they are proposing the pool is set down into the yard. There is a large deck that they can overlook the pool. He stated his lot on either side is very private. They can’t see into their yard. It was made aware to him yesterday that there was an objection by his next door neighbor. We have lived next to her for 18 years and she is an elderly lady. Assistance has been given to her by his family. He was shocked to hear of this and to not even call him. She couldn’t see anything from her backyard as there is a lot of landscaping. Pictures were provided that showed her neighbor’s viewpoint from her neighbor’s backyard. Mr. Rozmus asked if there were any evergreens amongst the trees. There is one pine tree left on the side. The rest are trees that drop leaves in the fall. Mrs. Levitt offered to plant more trees. Mr. Levitt stated he wasn’t expecting to receive any objections. One of the things that was mentioned in the letter was noise. There is noise because Brookfield Academy has football and baseball games and concerts, etc. It is only just the two of them. On the North side of her is a sports court. She also spends half the summer in her lake cottage up North. He has never seen her sit in her backyard, ever. Mr. Carter asked if the variance is denied, what is plan ‘B’? Mr. Brinkman asked if a thinner concrete apron be allowed, instead of 3’ and inquired as to the reason for the 3’ requirement. Mr. Goudy replied that he believes that the 3’ apron minimum is what is needed to provide a safe way around the pool and/or to render aid for someone that is in the pool. The pool is a narrow pool and the pool is less than 6’ deep. One thing we could do is cut 2’ of concrete off the western edge. It could probably be brought closer to the corner deck, whereby he could get 4’ less off the variance. Mr. Rozmus asked if the water area could be shifted further to the south so it would be completely behind the house. Mr. Goudy added that there is no legal setback from the house for a swimming pool. However, he has had insurance companies oppose a pool being too close to the house because of injury due to someone jumping off the roof. Mr. Brinkman stated he could bring it about 1-1/2’ to 2’ South closer to the house. Mr. Bublitz felt the purpose of a setback is to avoid having something too closer to a neighboring property. In this case, he did view the property today. It is a very secluded property and is at the end of a cul-de-sac. There is a conservancy behind it. It would be very difficult to see the proposed pool. The property is unique as there is only a 34’ back yard. It limits the ability to do anything in the back yard. Board of Appeals Page 3 October 12, 2017 Mr. Rozmus asked the distance of the fence to the North property line. Mr. Brinkman replied about 20’. From the edge of the pool is about 31’ from the North lot line. He could move it about 2’ closer. Mr. Carter stated there are solid trees on the North side. Mr. Brinkman suggested that he would be fine with adding more trees and seclude it more. Mr. Rozmus agreed that planting more arborvitae to seclude the property even more would help. Mr. Bublitz stated in lieu of an additional drawing, it should be stipulated that be a condition of approval. Mary and Mark Reinders, daughter and son of neighbor, wanted to get a couple of things straight. Mary Reinders stated although her mother is elderly, she is very active and is in great health. In recent years, she only made it up North three times for long weekends. She loves being outdoors and spends a lot of time in her back porch and deck that is located at the Southwest corner which directly overlooks her neighbor’s back yard. Mark Reinders stated his mother is very non-confrontational. She is not trying to make enemies. She just wants to enjoy the conservancy and doesn’t want it disturbed. He can see into the Levitt’s back porch. The view lines are very open. He is really interested in seeing the Southwest view into the conservancy as an uninterrupted view. The pool interferes with that. He felt this is not one of the sites for a pool because the backyard is small. In his past experience, he has dealt with a wetland barrier (buffer). Nothing can be built in that area to protect wetlands. He reviewed DNR Administrative Code NR151.125. He believes the conservancy is a moderate wetland. It references that nothing can be built within 50’ of the wetland area. It is a 50’ buffer area from the delineated wetland boundary to the closest impervious surface (pool aprons for example). If the wetland is considered highly susceptible, then you would have to 75’ back from the delineated line of the wetland before any impervious surface. The patios from these houses seem to be 75’ back from the wetland delineation. He recommended to call Travis Schroeder from the Waukesha DNR to verify this. Mr. Reinders then referred to the well, septic and drainage area of the Zoning Code, stating that in no case shall a swimming pool be drained onto lands of property owners other than the owner of the swimming pool. Clearly, it will be drained on the property owner’s land, but where will the water go. The pool would be 15’ from the conservancy. There will be pool chemicals going into the conservancy. That is contrary to the Code. He has been out 15’ and it is soggy ground. It surprises me that Brinkman would construct a pool and dig down that far because he will hit water. His mother’s sump pump runs a lot. Mrs. Levitt replied that his mother’s house is further below grade than their house. Her sump pump has never run in 18 years. There was discussion of Brookfield Academy’s involvement with wetland delineation. Mr. Rozmus felt that 75’ buffer pertains to lakes. Mr. Reinders disagreed and stated it applies to highly susceptible areas and mentioned those types of areas. Mr. Rozmus stated this area is not any of the definitions that was mentioned. That defined area is further out and there is standing water. Mr. Bublitz felt this discussion was beyond the scope of the Board of Appeals. The Board’s scope is limited in determining whether a variance would be appropriate here. He thought the DNR ruling would be a completely separate matter. He felt a variance could be granted or denied based on the Municipal Code but the DNR could be a separate issue as to whether if they approve it or not. Mr. Reinders stated if the Board knows that the DNR prohibits impervious surface in an area, it would set a bad precedent to approving things that are in violation of DNR violation code. Board of Appeals Page 4 October 12, 2017 Mr. Buikema wanted on record that he wants the Board to focus on the rules they are obligated to do. He doesn’t know if those DNR rules apply to this Board. Mrs. Reinders felt that the rules are in place to provide a standard for living in Brookfield. Also, Brookfield is known for their open spaces, parks, and conservancy. She felt it is going against what Brookfield is set up to be, especially homes that are built in such proximity to a conservancy. Mr. Rozmus asked if there were any private deed restrictions. Mr. Reinders replied he is not aware. That would be a legal issue and the City is not part of enforcing those restrictions. Mr. Brinkman asked why a 3’ apron is required around the pool. Mr. Goudy replied to provide a safe travel path around the pool and to render aid for someone in the pool. Mr. Brinkman added the patios can be pervious around the pool. Pools retain their own water and it is not discharged. Fiberglass pools are full of water. They are also not emptied. In regards to pool chemicals, they will be ultraviolet and very little if any chlorine would be in the pool. It has 8 times less chlorine than the typical residential pool. In regards to grades, he is several feet above grade. If it was close, he would have been concerned with ground water. In regards to Brookfield Academy, he doesn’t know if that is relevant. He offered to come back with a list of detailed trees for screening and vision if needed. Mr. Bublitz read the standards for granting a variance. Mr. Buikema felt the Board should look at public interest. Part of the public interest is neighbors. He felt it is unpleasant to be in the middle of something like that. The property has some unique characteristics that an argument can be made that some of the standards are met. He would have a concern about the public interest. There are a lot of open questions. Mr. Buikema felt that this should be denied based on that. Mr. Carter stated there has been reluctance in the past to grant variances for pools. He is struggling with whether the unnecessary concept has been addressed. He is also concerned with public input from the neighbors. Mr. Bublitz felt that he doesn’t believe the DNR regulations and the Bureau of Watershed Management regulations are relevant to this decision. It should be a separate issue addressed with the DNR. He believes the purpose of the zoning ordinance is to avoid pools being placed too close to adjoining property owners. He doesn’t think that is the case here. There is a very large wetland behind the property. He doesn’t think it would affect any other properties in the neighborhood. He felt that the neighbor that filed the objection would be affected minimally. He doesn’t think there can be an expectation that you can prevent someone doing something on their property that would create noise or other issues that might bother you. He doesn’t feel this violates the purpose of the Statute or has a significant effect on the neighborhood or the public interest in any way. It is a relatively nominal request. The property itself is relatively unique and that it only has a 34’ backyard. Mr. Rozmus agreed with uniqueness. The property meets land area requirements, but the configuration of the property becomes difficult and a hardship. An effort has been made to meet those elements in the Zoning Code. His view in seeing the area to the rear of the property is not in a floodplain. It’s in an area called a floodfringe which is the edge. He is certain that area gets water at times but it’s not an inhibiting factor for the pool or the highland that’s involved adjacent to that floodfringe. He thinks an effort can be made to screen this with Board of Appeals Page 5 October 12, 2017 landscaping that would make it more isolated from the neighbor. It’s not a poor quality situation, and doesn’t feel it would have a detrimental effect on any adjoining property. Mr. DeGuire stated installing a pool is a permitted purpose under the Code. He agrees there are some property limitations, as well as public interest. He felt the purpose of the Code is to not have a pool close to the neighbor’s property. He can understand the concerns of the neighbor’s, though. Mr. Rozmus heard from the applicants that they could shift the pool 2 or 3 feet. He would like a small concession. It was stated he can come 2-1/2’ to 3’ closer to the porch. Mr. Goudy replied there is no offset from the building. Mr. Reinders said if the pool was being considered on the South side, it would be a lot less of an issue. The North end is the tightest. It would pull it away from his mother’s sunroom and deck. The further North and West it goes, the pool becomes a bigger issue for his mother. His mother wouldn’t have a complaint if the pool was moved more to the South. Mr. Linnert didn’t feel his neighbor’s site line was compromised. It could only be moved a couple of feet. It wouldn’t work for them. There are sidewalks and odd elevations on the South part of the property. • Kevin Bublitz moved to approve the variance given the unique nature of the property, and the compliance of the purpose of the zoning code. He would be open to specifying that there be some type of vegetation be planted on the North for screening, permanent landscaping involving evergreens along the property line to help screen the pool, moving it 2’ to the South would be a good gesture (providing the grades in the yard work with that). The motion was seconded by Gordon Rozmus and carried Ayes 3, No’s 2 with Rod Carter and Rod Buikema voting no. ****** 3b. Trader Joes, 12665 W. Bluemound Rd.: Sign The next item on the agenda was the request of Trader Joes, LOT 1 OF CSM #11025 a DIVISION OF LOT 2 OF PLAT OF UNDERWOOD CROSSING SUBD. BEING A PART OF NE ¼ & NW ¼ OF SE ¼ OF SECTION 25 T7N R20E, to appeal Section 15.16.220 C.4 to permit installation of a sign at 12665 W. Bluemound Road. The proposed sign would exceed the allowable number of signs for the tenant space. Mr. Goudy stated this would be on the South wall of their building. The Code states that either two wall signs or one wall sign and one monument sign is permitted. This Planned Development District (PDD) project is called Underwood Crossing. It allowed Trader Joes to be included on the main identification sign for the center. They were also granted a monument sign in the front of their store and two wall signs (one is facing Bluemound and the other faces West). The third proposed sign is facing South toward the Target parking lot. It goes beyond the allowable number of signs per the PDD ordinance and what the Sign Code allows. The sign would only be visible from the Target/Children’s Hospital parking lot. Target has included a letter in the packet that is in support of this. No other documents for or against have been received Board of Appeals Page 6 October 12, 2017 Mr. Buikema asked if all the signs combined exceeds the size limits. Mr. Goudy replied they are beyond the typical square footage of signage, but they were approved to be beyond the typical amount when the PDD ordinance was approved. Mr. Bublitz reviewed the standards for granting a sign variance. Valeria DeMundo, representative for Trader Joes, and Angela Delugi, Bauer Sign and Lighting, appeared before the Board. The proposed sign would bring business recognition from the South to help direct customers into the lot and also to attract new customers. Mr. Bublitz stated he visited the property and there is a frontage road. Mr. Rozmus thought there was very good signage there now. It was agreed that there were signs everywhere but on the south side. Once you are at Target, you can’t identify the building. Mr. Rozmus noticed that on the frontage road on the East side, there are scrub trees that are obscuring the current sign on the front of the building as well. They are very close to the street. Ms. DeMundo didn’t feel that was their property. The proposed sign would be similar to what is there now. The sign would be LED illuminated. Mr. Buikema asked if she has heard that people have found difficulties finding the store. Ms. DeMundo replied not really. It would be more for business enhancement. Mr. Goudy explained that the PDD ordinance was created for Ryan Companies (Target). Target didn’t care about having a large number of signs, but more for having a huge sign. Target received their typical Target logo on the building (big) and the very large main identification sign in front. At the same time, it was known that there would be outbuildings. The PDD ordinance allowed for additional signage. It was allowed for each of those building in front to have their own monument sign. Trader Joes have already received more signage than a typical Brookfield location. Mr. Bublitz stated that looking at the standards, he didn’t feel there would be an undue concentration of signage. There is no signage at the South side of the building. It wouldn’t render it difficult or confusing to the existing signs. The appearance of the sign is of adequate design and style. Mr. Rozmus remembered that when Chick-fil-A on Moorland Road was approved for a variance, there was a question of them putting a sign in the back of their building. That was not approved. The distances between that building and the other buildings on Brookfield Square are much closer than this. Mr. Buikema felt it was slightly different. We looked at all of Chick-fil-A’s signs which was in the Board’s purview. These signs at Target are not really in the Board’s purview. This is a new request. Mr. Buikema asked was this additional request asked for in the original request. Mr. Goudy replied it was not asked for in the original request. • Gordon Rozmus moved to approve the sign variance based upon it meets the standards. It falls within the criteria we can grant under the provisions of the Code, not to exceed the size of the existing signs. The motion was seconded by Kevin Bublitz and carried Ayes 3-No’s 2 with Rod Carter and Frank DeGuire voting no. ******* Board of Appeals Page 7 October 12, 2017 3c. Starbucks, 12400 W. Capitol Dr.: Sign The next item was the request of Starbucks Coffee, Lot 7 Blk 17, Exc N68 ft. of E 143 ft. and W 87 ft. of S 140 ft. and W65 ft. of N 68 ft. Acre Home Fields Assessment Map 6 3 ½ sec. 1 T7N R20E, to appeal Section 15.16.220 C.4. to permit installation of a sign at 12400 W. Capitol Drive. The proposed sign exceeds the allowable number of signs for the tenant space. Joy Gabellos, Hilton Displays, appeared before the Board and represents Starbucks. Mr. Goudy stated this is a request for a third sign at Starbucks for a brand new construction building. At the last Plan Review Board meeting, the Board approved the monument sign at the corner for the site. It is a two tenant site. Starbucks is located on the Western side of the building (with a drive-thru). The monument sign will face the intersection. Normally, they are allowed a monument sign and a single wall sign OR two wall signs and no monument sign. The applicant has opted to be included on the monument sign, so they are allowed to have one wall sign which is placed on the South wall elevation. They are requesting a secondary sign on the West side. No letters or comments were received from neighboring businesses. However, he anticipates Stanton Optical coming in to appeal their own signage based on the decision this evening. He felt their additional sign request would be on the East elevation. It was asked if the Starbucks across the street would be closing. It was replied, yes, the Starbucks in Wauwatosa would be closing as they don’t have a drive-thru at that location. Mr. Rozmus stated that there isn’t a “Starbucks” script on the sign and asked if that would be added. Ms. Gabellos replied, no, the logo is well known and effective. “Drive-thru” would be underneath it. It is also less square footage. The front logo is a little bit difficult to see when driving by it. Mr. Buikema stated there are multiple buildings there. Capitol Drive is a high traffic area. There are safety and traffic issues there as well. He didn’t feel there would be an overabundance of signage there. • Kevin Buikema moved approval of the sign variance because it won’t result in undue concentration of signage or render it difficult or confusing to read an existing sign. Additional signage will help the public there. The motion was seconded by Rod Carter and carried unanimously. Mr. Goudy asked the Board if they felt the same opinion with the other tenant (Stanton Optical) if they asked for more signage. They will request an additional sign on the East elevation. The Board felt that the request had to be seen first. ****** • Frank DeGuire moved to adjourn. Seconded by Gordon Rozmus and carried unanimously. Meeting ended at 8:30 p.m. Minutes submitted by Renee J. Tadych, Deputy City Clerk.