Board of Appeals — Agenda

PLEASE NOTE: Upon reasonable notice, efforts will be made to accommodate the needs of disabled individuals through sign language interpreters or other auxiliary aids. For additional information or to request these services, contact the Village Clerk at (414) 351-8900. It is possible that members of, and possibly a quorum of members of, other governmental bodies of the municipality may be in attendance at the above-stated meeting to gather information; no action will be taken by any governmental body at the above-stated meeting other than the governmental body specifically referred to above in this notice. NOTICE OF MEETING VILLAGE OF FOX POINT BOARD OF APPEALS SCHWEMER HALL - MUNICIPAL BLDG. WEDNESDAY 7200 N. SANTA MONICA BLVD. NOVEMBER 19, 2025 FOX POINT, WISCONSIN 5:00 P.M. AGENDA 1. Suspension of the Board of Appeals Rules Which Specify the Meeting Date of November 26, 2025, and Instead, Proceed with Holding the Board of Appeals Meeting on November 19, 2025 2. Roll Call 3. Approval of Minutes and Determinations – September 24, 2025 Meeting 4. Case 2025-10: 1572 E Goodrich Ln. The applicant is requesting a special exception for a corner lot for determination of the front, rear, or side yard areas and approval of 6ft fencing. The special exception request is made pursuant to 745-7 B(3)(h)[1] of the Fox Point Code. 5. Case 2025-011: 1081 E Thorne Ln. The applicant is requesting a special exception to install a 42” stone wall screening device within the street yard setback. The special exception request is made pursuant to 745-7 B(3)(h)[2] and 745-7 B(3)(j) of the Fox Point Code. 6. Case 2025-12: 402 E Calumet Rd. The applicant is requesting a variance to allow a principal structure addition (porch) to be located 62.4 feet from the right- of-way centerline rather than the required 75 foot setback, a variance of 12.6 feet. The request is made pursuant to 745-17 B(2) of the Fox Point Code and the official zoning map of the Village of Fox Point. 7. Adjourn Published and Posted: November 13, 2025 VILLAGE OF FOX POINT BOARD OF APPEALS MEETING MINUTES AND DETERMINATION WEDNESDAY, SEPTEMBER 24, 2025 Page 1 of 4 A meeting of the Fox Point Board of Appeals was held in Schwemer Hall, 7200 N. Santa Monica Blvd., on Wednesday, September 24 , 2025 at 5:00 p.m. Chair Mark Grady called the meeting to order at 5:12 p.m. Members present: Mark Grady, Chair Adam Bazalon, Member Julianna Javor, Member Nancy Filsinger, Alternate Member Staff Present: Attorney Luke Martell, Building Inspector Michael Rakow, and Assistant Village Manager Kevin Ausman. Approval of Minutes of the July 23, 2025 Meeting and the Findings of Fact, Decision and Order Roll call vote: Mark Grady Aye Adam Bazalon Aye Julianna Javor Aye Alternate Nancy Filsinger Aye Motion by Bazalon, and second by Filsinger, to approve the minutes of the July 23, 2025 meeting. All ayes, motion carried. Chair Grady recused himself from Case 2025-08. Motion by Filsinger, Second by Javor, to nominate Bazalon as Acting Chair. All ayes, motion carried. Case 2025-08: 402 E Calumet Rd. The applicant is requesting a variance to allow a principal structure addition (porch) to be located 57.4 feet from the right-of-way centerline rather than the required 75 foot setback, a variance of 17.6 feet. The request is made pursuant to 745-17 B(2) of the Fox Point Code and the official zoning map of the Village of Fox Point. Village of Fox Point Building Inspector Michael Rakow Building Inspector Michael Rakow stated his name and was sworn in to provide testimony by the Assistant Village Manager. Inspector Rakow described the property as existing in a state of legal non-conforming VILLAGE OF FOX POINT BOARD OF APPEALS MEETING MINUTES AND DETERMINATION WEDNESDAY, SEPTEMBER 24, 2025 Page 2 of 4 Applicant Elizabeth Wick - 402 E Calumet Rd. Applicant was sworn in to provide testimony by the Assistant Village Manager. Ms. Wick described the request; that a new porch was installed in 2021 without the contractor pulling a building permit, nor requesting a variance for the increased size as the new porch is located closer to the right-of-way centerline. The Board discussed standards for variance approval with Ms. Wick. Ms. Wick entered Exhibit 2 into the record showing the location of the previous porch. Mike Lewis, 6345 N Lake Dr., Whitefish Bay Mr. Lewis was sworn in to provide testimony by the Assistant Village Manager. Mr. Lewis explained that he and his wife intend to purchase the home located at 402 E Calumet Rd, and provided Exhibit 1, detailing the front yard setbacks of the home, and spoke in favor of the variance. Mr. Lewis described the home as resting within the front yard setbacks and the unique property situation the applicant faces because the age of the principal structure predates the current zoning code. Mr. Lewis described a hardship due to the home’s legal non- conforming status, given that the principal structure exists within the front yard setback. Closing of Testimony: Case 2025-08 Without objection and by unanimous consent, Acting Chair Bazalon closed testimony for Case 2025-08 at 5:42 PM. The Board discussed standards for a variance; that a request must not be self-created hardship, that unique property conditions must exist, and that the granting of the variance be in the public good. Motion by Bazalon, seconded by Filsinger, to DENY the request as the standards for variance HAVE NOT been met. Roll call vote: Adam Bazalon Aye Julianna Javor Aye Alternate Nancy Filsinger Aye Motion is carried 3-0; Grady recused. The request is DENIED. Mark Grady resumed the role of Chair at 5:51 PM. VILLAGE OF FOX POINT BOARD OF APPEALS MEETING MINUTES AND DETERMINATION WEDNESDAY, SEPTEMBER 24, 2025 Page 3 of 4 Case 2025-09: 803 E Fox Ln. The applicant is requesting a special exception for a corner lot for determination of the front, rear, or side yard areas. The special exception request is made pursuant to 745-7 B(3)(h)[1] of the Fox Point Code. Village of Fox Point Building Inspector Michael Rakow Building Inspector Michael Rakow stated his name and was sworn in to provide testimony by the Assistant Village Manager. Mr. Rakow described the property and that his determination regarding fencing is that the area along Fox Lane is the Street Yard. Applicant Andrew & Geetha Kerlin – 803 E Fox Ln. Applicants were sworn in to provide testimony by the Assistant Village Manager. The applicants described their home with the orientation, front door, and driveway all facing Fox Lane. Joseph Olla – 402 E Daphne Rd. Mr. Olla stated that he is the contractor for the fence project. Mr. Olla described the request is to determine the Rear Yard area for a future fence project. Closing of Testimony: Case 2025-09 Without objection and by unanimous consent, Chair Grady closed testimony for Case 2025-09 at 6:19 PM. Motion by Bazalon, seconded by Javor, to determine E. Fox Lane as the Front Yard. Roll call vote: Mark Grady Aye Adam Bazalon Aye Julianna Javor Aye Alternate Nancy Filsinger Aye Motion is carried 4-0. The request is APPROVED. Adjourn Motion by Grady, and adopted by unanimous consent without object, to adjourn. VILLAGE OF FOX POINT BOARD OF APPEALS MEETING MINUTES AND DETERMINATION WEDNESDAY, SEPTEMBER 24, 2025 Page 4 of 4 Meeting adjourned at 6:20 PM. Respectfully Submitted, Kevin Ausman Assistant Village Manager FINDINGS OF FACT, DECISION AND ORDER OF THE ZONING BOARD OF APPEALS FOR THE VILLAGE OF FOX POINT MILWAUKEE COUNTY, WISCONSIN CASE NO. 2025-08 The above entitled matter came before the Village of Fox Point Zoning Board of Appeals (hereinafter “Board”) for a hearing on September 24, 2025 to consider the request for a variance filed by the Property Owner Elizabeth Wick (the “Applicant”) dated August 20, 2025. These Findings, Conclusions and Order were then considered and acted upon by the Board on October ____ , 2025. The Applicant appeared in person and provided testimony at the September 24 hearing in support of the variance request. FINDINGS OF FACT1 Having heard the testimony and considered the evidence presented, the Board of Appeals finds the following facts: 1. The Applicant is: Elizabeth Wick Mailing address: 5100 E Elmdale Rd. Mequon, WI 53092 Address of Property: 402 E Calumet Rd Fox Point, WI 53217 2. The Applicant is the owner of the property. 4. The Applicant requests a variance to the Village of Fox Point Building Code Section 745-17(B)(2). 5. The Village of Fox Point Zoning Code provides its general purpose as follows: The Village of Fox Point is a community in the metropolitan area of Milwaukee County, in which Village substantially all of the land and real property has been or is being developed for private residential purposes by the owners thereof, and territory accessible to the inhabitants of the Village is now occupied by, or is available for, manufacturing and industrial purposes more than sufficient for the general needs of the inhabitants of the Village, and it is the desire of the inhabitants and property owners to preserve the residential character of the Village, and in the opinion of the Board of Trustees, the enactment of the regulations of this chapter is essential for the promotion of the public health, morals and public safety, and is further necessary for the promotion of the public welfare, convenience and general prosperity of the Village and its inhabitants by the prevention of unregulated and unrestricted development. 6. The Village of Fox Point Zoning Code Section 745-17(B)(2) governs setbacks for the front yard of properties located in the C Residence District and states: A front yard of not less than 30 feet shall be provided for every building on a lot for which a setback is not hereinafter provided for. Every building shall be set back from the center line of each adjoining street or area reserved for highway purposes, or any extension or separated portion thereof hereafter established, not less than the street setback specified upon the Official Zoning Map, except that the following reductions may be made for a corner lot from the setbacks specified on the Official Zoning Map: five feet when width of lot is more than 80 feet but less than 90 feet; 10 feet when width of lot is more than 70 feet but less than 80 feet; 15 feet when width of lot is 70 feet or less; provided, however, that no setbacks will be less than 15 feet plus 1/2 the width of the abutting road or area reserved for highway purposes. 1 To the extent that any Finding of Fact herein involves issues of law, it is intended in that respect to be a Conclusion of Law, and to the extent that a Conclusion of Law herein involves factual issues, it is intended in that respect to be a Finding of Fact. The heading under which the statement is made shall not be controlling. 2 7. The request for a variance seeks to allow a porch that was built in 2021 to be built 17.6 feet within the front yard setback of the Property. 8. Building Inspector Michael Rakow stated that this is an after-the-fact variance request for an unpermitted porch constructed in 2021 that encroaches 17.6 feet into the 75-foot front yard setback that applies to this Property. 9. The house on the Property was built in 1880 and relocated to its current site in 1940. 10. There was an original porch on the Property built at an unknown date; the Applicant claimed to have found permits indicating construction in the 1960s. 11. Building Inspector Michael Rakow stated in 2021, the Applicant constructed a new porch, larger than the original, without obtaining a building permit or variance. 12. Building Inspector Michael Rakow stated his opinion that the current porch is not a legal non- conforming structure. 13. Building Inspector Michael Rakow stated that no building permit was sought or approved for the 2021 porch construction, and this issue arose when the Applicant attempted to sell the Property. 14. The Applicant stated that the lack of a permit was discovered during the sale process when prospective buyers inquired about permits for the home. 15. The Applicant stated that she was under the impression that the contractor that completed the porch renovation in 2021 had taken care of any permit issues then. 16. There is currently an accepted offer on the home, contingent upon obtaining the necessary approvals for the porch. 17. The Applicant admitted multiple times that her claimed hardship was self created. 18. The Board of Appeals determined that the Applicant has not demonstrated an unnecessary hardship. a. Any alleged hardship was self-created as this petition involved the unpermitted construction of a porch by the Applicant. b. The Applicant did not seek a building permit or show plans to the Building Inspector that detailed the proposed porch within the front yard setback prior to construction. c. The Applicant’s requested variance of the front yard setbacks runs contrary to the stated purpose of the Village’s Zoning Code. d. Any claimed economic loss or financial hardship of the Applicant, including impacts on the pending sale of the Property, does not justify the granting of the requested variance. 19. The Board of Appeals determined that the Applicant has not demonstrated that the Property possesses unique physical property limitations that would prevent compliance with the Village Zoning Code. a. The Applicant’s desire to place the porch in a specific location in relation to their home is not a legitimate factor for deciding a variance, even considering the age of the home. b. The property possesses similar characteristics to the parcels surrounding it. 20. The Applicant has not demonstrated that a variance to the front yard setback requirement would not harm the public interest. a. The Applicant did not provide any evidence that the neighboring properties would not be harmed. 3 b. Granting an after-the-fact variance for unpermitted construction would undermine the enforcement of zoning regulations and the public interest in regulated development. CONCLUSIONS OF LAW2 Based upon the foregoing Findings of Fact, the Zoning Board of Appeals makes the following Conclusions of Law: 1. The proposed location of the porch violates the Village Zoning Code purpose. 2. The proposed location of the porch violates C Residence District setback standard. 3. The Applicant’s proposed structure is contrary to the public interest, the Property does not possess special conditions, and enforcement of the front yard setbacks would not result in an unnecessary hardship. 4. In Section 745-36, the Village of Fox Point Code empowers the Village Board of Appeals with all powers and authority vested in such a board by § 62.23(7)(e), Wis. Stats., and all acts amendatory thereof and supplementary thereto. 5. Wis. Stat. § 62.23(7)(e)7.a. provides: “area variance” means a modification to a dimensional, physical, or locational requirement such as a setback, frontage, height, bulk, or density restriction for a structure that is granted by the board of appeals under this paragraph. In this subdivision, “use variance” means an authorization by the board of appeals under this paragraph for the use of land for a purpose that is otherwise not allowed or is prohibited by the applicable zoning ordinance. 6. Wisconsin Statutes Section 62.23(7)(e)7.d. empowers the Board of Appeals to prove a basis for a variance only upon finding an unnecessary hardship and unique property conditions, as follows: “(d) A property owner bears the burden of proving “unnecessary hardship," as that term is used in this subdivision, for an area variance, by demonstrating that strict compliance with a zoning ordinance would unreasonably prevent the property owner from using the property owner's property for a permitted purpose or would render conformity with the zoning ordinance unnecessarily burdensome …. In all circumstances, a property owner bears the burden of proving that the unnecessary hardship is based on conditions unique to the property, rather than considerations personal to the property owner, and that the unnecessary hardship was not created by the property owner.” (Section 62.23(7)(e)7.d., Wisconsin Statutes, applicable to the Village by Wisconsin Statutes Section 61.35.) 7. Village Code Section § 745-4(C)(2) states, in part, that a legal nonconforming structure, “may be totally rebuilt if such reconstruction is identical in size and shape and use to the original structure.” 8. Village Code Section § 745-4(D) states, in part, “The property owner has the burden of showing that a use, structure or lot is legal nonconforming.” 9. The Applicant has not met the burden of proof that the porch is a legal nonconforming structure. 10. The Applicant has not demonstrated sufficient cause for the Board to grant the requested variance. The Board of Appeals reached this determination as follows: 2 See Footnote #1. 4 a. Unnecessary Hardship. For an area variance, unnecessary hardship exists when compliance would unreasonably prevent the owner from using the property for a permitted purpose or would render conformity with such restrictions unnecessarily burdensome. See Snyder v. Waukesha County Zoning Bd. Of Adjustment, 74 Wis.2d at 475, 247 N.W.2d 98 (1976)(quoting Rathkopf, the Law of Zoning & Planning, sec. 45-28, 3d ed. 1972). i. The Applicant has failed to meet the unnecessary hardship standard as discussed in Section 18 of the Findings of Fact. b. Unique Physical Property Limitations. Unnecessary hardship must be due to unique physical limitations of the property. See State ex rel. Spinner v. Kenosha County Bd. of Adjustment, 223 Wis. 2d 99, 105-6, 588 N.W.2d 662 (Ct. App. 1998); State v. Kenosha County Bd. of Adjustment, 218 Wis. 2d 396, 410, 577 N.W.2d 813 (1998); Arndorfer v. Sauk County Bd. of Adjustment, 162 Wis. 2d 246, 255-56, 469 N.W.2d 831 (1991); Snyder v. Waukesha County Zoning Bd. of Adjustment, 74 Wis. 2d 468, 478, 247 N.W.2d 98 (1976). The circumstances of an applicant (growing family, need for a larger garage, etc.) are not a factor in deciding variances. See Snyder v. Waukesha County Zoning Bd. of Adjustment, 74 Wis. 2d 468, 478-79, 247 N.W.2d 98. Property limitations that prevent ordinance compliance and are common to a number of properties should be addressed by amending the ordinance. See Arndorfer v. Sauk County Bd. of Adjustment, 162 Wis. 2d 246, 256,469 N.W.2d 831 (1991); State v. Winnebago County, 196 Wis. 2d 836, 846, 540 N.W.2d 6 (Ct. App. 1995). i. The Applicant has failed to meet the unique physical conditions standard as discussed in Section 19 of the Findings of Fact. c. No Harm to Public Interests. A variance may not be granted which results in harm to public interests. See State v. Winnebago County, 196 Wis. 2d 836, 846-47, 540 N.W.2d 6 (Ct. App. 1995); State v. Kenosha County Bd. of Adjustment, 218 Wis. 2d 396, 407-8, 577 N.W.2d 813 (1998). In applying this test, the zoning board should review the purpose statement of the ordinance and related statutes in order to identify public interests. i. The Applicant has failed to meet the no public harm standard as discussed in Section 20 of the Findings of Fact. DETERMINATION AND ORDER Based upon the foregoing, the Applicant’s request for a variance is denied. These findings have been approved by the Board. Review of this Decision may be obtained by filing a Petition for Writ of Certiorari in any court of record of this County with 30 days after the date of filing of this written decision shown below. Dated: October ____ , 2025, nunc pro tunc September 24, 2025. Village of Fox Point ZONING BOARD OF APPEALS ______________________________________ Adam Bazelon, Temporary Board Chair ATTEST: 5 _______________________________________ Kevin Ausman, Assistant Village Manager The appellant / homeowner owns the oldest residence in the Village, which is placed on an idyllic property that is graced with many tall, mature trees. There are some other trees along the property’s north edge that are in poor condition and are proposed to be removed. Once that area is cleared, the view to the home will be substantially opened. The appellant / homeowner is interested in building a 42” high by 85 ft. long dry stacked “New England” style stone wall to offer architectural screening and delineation for that part of the property, as well as a visually warm and welcoming enhanced view for guests. The route of the wall would run in a soft dogleg beginning parallel to Thorne Lane running northward to the NE lot corner, then softly bending to run westward and parallel to East Coleman Lane. The proposed type of handcrafted wall construction will be in harmony with this special and historic residence as well as restoring a sense of security for the owner and beauty to the immediate neighborhood. Upon completion of the wall, the appellant / homeowner plans to add a row of flowering trees along the inside (house side) of the wall to provide dimension and added privacy. Pennsylvania Bluestone Old Cedars and Infected Ash Tree Along East Coleman Lane Right of Way, Proposed for Removal Old Cedars Proposed for Removal Along the East Colemen Lane Right of Way NW Corner of Lot, Boulders are Neighbor’s Outer NE Corner at Intersection of E. Thorne Lane and E. Coleman Lane View from North Perimeter Looking South Back to Residence Closer View of Residence