City of Muskego, WI Article III Commissions and Boards

§ 400-17 Plan Commission.

A. Establishment. There is hereby established a Plan Commission for the City of Muskego, Wisconsin, pursuant to § 62.23, Wis. Stats.

B. Membership.

[Amended 6-26-2018 by Ord. No. 1418; 3-18-2020 by Ord. No. 1442]

(1) Composition. The Plan Commission shall consist of seven members as outlined herein and each member must be a resident of the City:

(a) The Mayor.

(b) An Alderperson.

(c) Five citizen members of recognized experience and qualifications.

(2) Appointment.

(a) Aldermanic member. The Aldermanic member of the Plan Commission shall be appointed annually at the Common Council reorganization meeting by the Mayor and confirmed by a majority vote of the Common Council.

(b) Citizen members. Citizen members shall be appointed by the Mayor and confirmed by a majority vote of the Common Council.

(c) Presiding officer and Chairperson. The presiding officer and Chairperson shall be the Mayor. In the absence of the Mayor, the Aldermanic representative shall be the presiding officer. In the absence of the Mayor and Aldermanic representative, the citizen member with the longest tenure shall be the presiding officer.

(d) Official oath. All members, according to § 19.01, Wis. Stats., shall take the official oath within 10 days of receiving notice of their appointment.

(3) Terms.

(a) Aldermanic member. The Alderperson member of the Plan Commission shall serve for one year, unless the position becomes vacant, in which case the Mayor shall appoint a new representative as outlined in Subsection B(2)(a) above.

(b) Citizen members. Terms for the citizen members shall be staggered and each term shall be for a three-year period.

(c) Secretary. The Public Works and Development Director or designee shall be the Secretary of the Plan Commission. In the absence of the Public Works and Development Director or designee, other planning staff employed by the City of Muskego may fill said role.

(d) Recording secretary. The Public Works and Development Director or designee shall select the recording secretary in accordance with policies and procedures established by the Common Council from time to time.

C. Organization. The Plan Commission shall organize and adopt rules for its own government according to the provisions of this chapter.

(1) Meetings. The Plan Commission shall set its own meeting schedule. Special meetings may be held at the call of the Chairperson.

(2) Standing and special subcommittees. The Chairperson may appoint standing and special subcommittees.

(3) Quorum. Quorum shall be four members, and all actions shall require approval of a majority of the members present.

(4) Proxy voting. Voting by proxy shall not be permitted.

(5) Minutes. Minutes shall be kept showing all actions taken, resolutions, findings, determinations, transactions, and recommendations made. A copy of the minutes shall be filed with the City Clerk in accordance with policies as may be adopted by the Common Council from time to time.

D. Powers. The Plan Commission shall have such powers as may be necessary to enable it to perform its functions and duties and promote municipal planning. Such powers shall include, but not be limited to, the following:

(1) Employment of experts. To employ experts and staff and to pay for their services, supplies, equipment, and other such expenses as may be necessary and proper, not to exceed the appropriations and regulations as may be made by the Common Council from time to time.

(2) Reports and recommendations. To make reports and recommendations relating to the planning and development of the municipality to public officials, agencies, utilities, and other organizations and citizens.

(3) Request available information. To request available information from any public official to be furnished within a reasonable time.

E. Duties and referrals. The Plan Commission shall have the following functions and duties:

(1) Prepare and recommend a comprehensive plan. To make and adopt a comprehensive plan for the physical development of the municipality, in accordance with §§ 62.23 and 66.1001, Wis. Stats.

(2) Prepare and recommend an official map. To make and recommend an official map to the Common Council according to § 62.23, Wis. Stats.

(3) Prepare and recommend a zoning district plan and regulations. To prepare and recommend a zoning district plan and regulations to the Common Council according to § 62.23, Wis. Stats.

(4) Prepare and recommend land division regulations. To prepare and recommend land division regulations to the Common Council according to Ch. 236, Wis. Stats.

(5) Hear and determine appropriateness of building, site and operation plan applications. The granting of petitions for building, site and operation plan approval shall be the sole responsibility of the Plan Commission and will not require the approval of the Common Council.

(6) Changes to adopted plans. To make and/or recommend changes to adopted plans and to recommend said changes or amendments to the Common Council concerning the Official Map and Official Map Ordinance, Zoning and Land Division Ordinances, and other ordinances as deemed related.

(7) Matters referred to the Plan Commission. To consider and report or recommend on all matters referred to it, including but not limited to conditional use permits.

(8) Exceptions to the land division and platting provisions of Chapter 392, Land Division, of the City Code. The granting of exceptions to land division and platting related aspects of Chapter 392, Land Division, of the City Code shall be the sole charge of the Plan Commission.

(9) Determination of use. The Plan Commission shall make a determination for all uses that are not specifically classified as permitted by right, as accessory to a permitted primary use, or permitted by conditional use grant.

(10) Conditional use grant recommendations. The Plan Commission shall hear petitions for conditional use grants and make the determinations.

(11) Conditional use grant terminations. The Plan Commission shall only provide recommendations for termination of conditional uses to the Common Council.

(12) Hold public hearings and informational meetings. To hold public hearings and informational meetings on matters referred to the Plan Commission.

F. Referrals. The Common Council or other public body or officer of the City having final authority thereon shall refer to the Plan Commission for its consideration and report, before final action is taken, the following matters:

(1) Public buildings. Location and architectural design of any public building.

(2) Statues and memorials. Location of any statue or other memorial.

(3) Street, alley, or other public way, park, playground, airport, or other memorial/public grounds. Location, acceptance, extension, alteration, vacation, abandonment, change of use, sale, acquisition, or lease of land for any street, alley, or other public way, park, playground, airport, parking area, or other memorial or public grounds.

(4) Other. Location, character and extent or acquisition, leasing or sale of lands for public or semipublic housing, slum clearance, relief of congestion, or vacation camps for children.

(5) Public utilities. Location, extension, abandonment, or authorization for any public utility, whether publicly or privately owned.

(6) Annexations, incorporations, or consolidations. All annexations, incorporations, or consolidations affecting the City.

(7) Division of land. All division of lands within the City's extraterritorial platting jurisdiction.

(8) Changes and amendments. All proposed or requested changes and amendments to the City's Comprehensive Plan and adopted components thereof, Official Map, Zoning Ordinance, Subdivision and Land Division Ordinances, and comprehensive planning.

G. Additional powers and duties. The Plan Commission shall have all additional powers and duties granted or assigned by the Common Council or by City ordinances. All the powers and duties granted or assigned by the Wisconsin Statutes to plan commissions and any amendments thereto are hereby granted or assigned to the Plan Commission and such statutes are hereby adopted by reference.

H. Actions of Plan Commission prohibited. The Plan Commission shall not:

(1) Grant variances to the terms of this chapter in place of action by the Zoning Board of Appeals.

(2) Amend the text of this code, or Zoning Map, in place of action by the Common Council.

I. Compensation. The members of the Plan Commission shall receive such compensation as the Common Council shall from time to time designate.

J. Fees for Plan Commission meetings or hearings. Fees associated with Plan Commission petitions shall be paid by the petitioner prior to the item being added to the agenda. The sum shall be set forth in the City of Muskego Fee Schedule and amended from time to time by the Common Council.

§ 400-18 Zoning Board of Appeals.

A. Establishment. There is hereby established a Zoning Board of Appeals in the City of Muskego in accordance with § 62.23(7)(e), Wis. Stats., for hearing appeals and applications and granting variations and exceptions to the provisions of this chapter in harmony with the purpose and intent of this chapter.

B. Membership.

(1) Composition. The Zoning Board of Appeals shall consist of five members appointed by the Mayor and confirmed by the Common Council per § 62.23(7)(e)2, Wis. Stats.

(2) Terms. Terms of the Zoning Board of Appeals shall be staggered three-year periods. Alternate members shall serve staggered terms of three years.

(3) Chairperson. The Mayor shall designate the Chairperson of the Zoning Board of Appeals. The Chairperson shall preside at all meetings of the Board, except that in the event of his absence or disability, the Vice Chairperson shall preside. In the absence of both the Chairperson and the Vice Chairperson, the longest standing Board member shall preside.

(4) Alternate members. The Mayor shall appoint, for staggered terms of three years, two alternate members of such Board, in addition to the five members above provided for. Annually, the Mayor shall designate one of the alternate members as first alternate and the other as second alternate. The first alternate shall act, with full power, only when a member of the Board refuses to vote because of interest or when a member is absent. The second alternate shall so act only when the first alternate so refuses or is absent or when more than one member of the Board so refuses or is absent.[1]

[1] Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II).

(5) The Planner shall attend all meetings of the Zoning Board of Appeals for providing the City's case. In the event of the absence of the Planner, the Public Works and Development Director or designee or other staff as may be provided by the Common Council shall substitute.

(6) Official oaths. Official oaths shall be taken by all members of the Zoning Board of Appeals according to § 19.01, Wis. Stats., within 10 days of receiving notice of their appointment.

(7) Vacancies. Vacancies on the Zoning Board of Appeals shall be filled for the remaining term in the same manner as appointments for a full term.

C. Organization. The Zoning Board of Appeals shall organize and adopt rules of procedure for its own government according to the provisions of this chapter.

(1) Meetings. Meetings of the Board shall be held at the call of the Chairperson and at such other times as the Board may determine. All meetings of the Board shall be open to the public.

(2) Minutes. Minutes of the proceedings of the Zoning Board of Appeals and a record of all actions shall be kept by the recording secretary, showing the vote of each member upon every question, the reasons for the Zoning Board of Appeals determination, and its findings of facts. These records shall be immediately filed in the office of the Zoning Board of Appeals and shall be a public record.

(3) Recording secretary. A recording secretary is provided by City administration to record minutes for the Zoning Board of Appeals. This position is not a Board-appointed employee pursuant to § 62.23(7)(e)2, Wis. Stats.

D. Powers of the Board.

(1) The Zoning Board of Appeals shall have the following powers:

(a) To hear and decide appeals where it is alleged there is error in any order, requirement, decision, or determination made by an administrative official in the enforcement of this chapter.

(b) (Reserved)[2]

[2] Editor's Note: Former Subsection D(1)(b), regarding the power to hear and decide special exceptions, was repealed 11-17-2021 by Ord. No. 1466.

(c) To authorize upon appeal in specific cases such variances from the terms of this chapter as will not be contrary to the public interest, where, owing to special conditions, a literal enforcement of the provisions of this chapter will result in practical difficulty or unnecessary hardship, so that the spirit of this chapter shall be observed, public safety and welfare secured, and substantial justice done.

(d) To hear and decide applications for interpretation of the zoning regulations and the boundaries of the zoning districts after the Plan Commission has made a review and recommendation.

(e) To permit, in appropriate cases, and subject to appropriate conditions and safeguards in harmony with the general purpose and intent of this chapter, a building or premises to be erected or used for such public utility purposes in any location which is reasonably necessary for the public convenience and welfare.

(2) The Zoning Board of Appeals may reverse, affirm, wholly or partly, or modify the requirements appealed from and may issue or direct the issue of a permit.

(3) The Zoning Board of Appeals may request assistance from other City officers, departments, commissions, and boards.

(4) An appeal shall stay all legal proceedings in furtherance of the action appealed from, unless the officer from whom the appeal is taken certifies to the Zoning Board of Appeals, after the notice of appeal shall have been filed with him, that by reason of facts stated in the certificate a stay would, in his opinion, cause imminent peril to life or property. In such cases, proceedings shall not be stayed otherwise than by a restraining order which may be granted by the Zoning Board of Appeals or by a court of record on application, on notice to the officer from whom the appeal is taken and on due cause shown.

(5) Oaths. The Vice Chairperson of the Zoning Board of Appeals may administer oaths and compel the attendance of witnesses.

(6) Rules of procedure. The Board may adopt such rules of procedure as it deems necessary for the conduct of its proceedings.

(7) Variances to subdivision, land division, and platting provisions. The granting of variances to the land division and platting related issues of Chapter 392, Land Division, of the City Code shall be the sole charge of the Plan Commission.

E. Administrative appeals.

(1) General application requirements. Appeals from the decision of the Zoning Administrator and/or the Building Inspector concerning the literal enforcement of this chapter may be made by any person aggrieved or by any officer, department, board, or bureau of the City. Such appeals shall be filed with the Public Works and Development Department within 20 days after the date of written notice of the decision or order of the Zoning Administrator or Building Inspector. Applications may be made by the owner or lessee of the structure, land, or water to be affected any time and shall be filed with the Public Works and Development Department. Such appeals and applications shall include that information and data as outlined in the Zoning Board of Appeals rules of procedure.

(2) Applications relating to shoreland-wetland related mapping disputes. See the provisions of § 400-72, SW Shoreland-Wetland District, of this chapter.

F. Dimensional variances.

(1) Purpose. The Zoning Board of Appeals, after a public hearing, may determine and vary the regulations of this chapter in harmony with their general purpose and intent, only in the specific instances hereinafter set forth, where the Zoning Board of Appeals makes findings of fact according to the standards hereinafter prescribed and further finds that there are practical difficulties or particular hardships in the way of carrying out the strict letter of the regulations of this chapter.

(2) Application and notice of hearing. An application for a variance shall be filed in writing with the Public Works and Development Department. The application shall contain such information as outlined in the Zoning Board of Appeals rules of procedure. Before decisions on such petitions, the Zoning Board of Appeals shall hold a public hearing thereon pursuant to the requirements set forth in the Zoning Board of Appeals rules of procedure.

(3) Findings of facts. No variance to the provisions of this chapter (except as otherwise provided) shall be granted by the Zoning Board of Appeals unless it finds that if the variance is granted it would not be contrary to the public interest; a literal enforcement of the provisions of this chapter would result in practical difficulties or unnecessary hardship due to special conditions; the spirit of this chapter is preserved; and public safety and welfare are secured and substantial justice done. In reviewing the application and evidence relating to a variance, the Zoning Board of Appeals shall consider the findings statements set forth in this section of this chapter.

(4) Authorized variances. Variances from the zoning regulations of this chapter shall be the authority of the Zoning Board of Appeals only according to the standards established in this section. This section shall not apply to decisions of the Plan Commission relating to the following: building, site and operation plans; signs of a temporary or permanent nature; residential outbuildings; and conditional use requests. In a case where a variance from the basic zoning regulations is sought, the Plan Commission may file a recommendation with the Zoning Board of Appeals outlining its opinion and findings as they relate to the issue(s) being appealed.[3]

[3] Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II).

G. Public hearings.

(1) General. The Zoning Board of Appeals shall hold a public hearing upon each variance within a reasonable time of the date of filing, giving notice of the date, time, and place of such hearing and the matter to be presented at the hearing by publication in the City of a Class 1 notice under Ch. 985, Wis. Stats. Notice of the public hearing shall be given to the Zoning Administrator or Building Inspector and mailed to all parties in interest at least 10 days before the hearing. "Parties in interest" shall be defined as the petitioner, the clerk of any municipality within 100 feet of any lands included in the petition, and the owners of all lands included in the petition and all lands lying within 300 feet of lands included in the petition. The Public Works and Development Department shall set the date for the public hearing(s). At the hearing the appellant or applicant may appear in person, by agent, or by attorney.

(2) Conduct of public hearing. The Vice Chairperson of the Zoning Board of Appeals shall place all witnesses under oath. The Zoning Board of Appeals shall hear all relevant evidence presented for and against the application. The Chairperson of the Zoning Board of Appeals may rule on exceptions to evidence and permit examination of witnesses.

H. Findings. The Zoning Board of Appeals shall grant no variance to the provisions of this chapter unless it finds that the following facts and conditions exist when applicable and so indicates in the minutes of its proceedings:

(1) Preservation of intent. No variance shall be granted that is not consistent with the purpose and intent of the regulations for the district in which the development is located. No variance shall permit a use in any district that is not a stated permitted use, accessory use, or conditional use in that particular district.

(2) Exceptional circumstances. There must be exceptional, extraordinary, or unusual circumstances or conditions applying to the lot or parcel, structure, use, or intended use that do not apply generally to other properties or uses in the same district, and the granting of the variance would not be of so general or recurrent nature as to suggest that this chapter should be changed.

(3) Economic hardship and self-imposed hardship not grounds for variance. No variance shall be granted solely based on economic gain or loss. Self-imposed hardships shall not be considered as grounds for the granting of the variance.

(4) Preservation of property rights. The variance must be necessary for the preservation and enjoyment of substantial property rights possessed by other properties in the same district and same vicinity.

(5) Absence of detriment. No variance shall be granted that will create substantial detriment to adjacent property and will materially impair or be contrary to the purpose and spirit of this chapter or the public interest.

(6) Additional requirements in Shoreland-Wetland District. See the provisions of § 400-72, SW Shoreland-Wetland District, of this chapter.

I. Decision. The Zoning Board of Appeals shall render its decision in writing within 15 days after the completion of the hearing thereon.

(1) Required vote. The concurring vote of the majority of a quorum (a quorum being three or more members) of the Zoning Board of Appeals shall be necessary to grant a variance, exception, or substitution.[4]

[4] Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II).

(2) Finding of fact. Every finding of fact shall be signed by the Chairperson or Vice Chairperson and attested to by the Board Secretary as evidence of the action of the Board. The original finding of fact letter shall be sent to the appellant. Copies of each finding of fact letter shall be filed with the Board's record of the case, the property file, and the administrative officer by the recording secretary.

(3) Conditions. Conditions may be placed upon any zoning permit ordered or authorized by the Zoning Board of Appeals.

(4) Expiration of a variance. All work associated with an approved variance request must be completed within 18 months from the date of the variance approval, unless otherwise approved by the Zoning Board of Appeals. For the purpose of this code section, "all work completed" means that all final inspections must be approved and occupancy must be granted.

[Added 4-18-2013 by Ord. No. 1371]

J. Resubmittal. No appeal that has been dismissed or denied shall be considered again within one year except on a motion to reconsider the vote made by a member voting with the majority within 30 days of the date of the decision or on a request for a rehearing.

K. Rehearing. No request to grant a rehearing shall be entertained unless substantial new evidence is submitted which could not reasonably have been presented at the previous hearing. In all cases, the request for a rehearing shall be in writing listing the reasons for the request and shall be duly verified and accompanied by the necessary data and diagrams. The party requesting the rehearing shall be notified to appear before the Board on a date to be set by the Board, of which the requestor shall be notified. If a motion to grant a rehearing receives the affirmative votes of four or more members of the Board, the case shall be put on the calendar for a rehearing. Rehearings shall be subject to the same requirements as the original hearing.

L. Review by court of record. Any person or persons aggrieved by any decision of the Zoning Board of Appeals may present to the court of record a petition duly verified setting forth that such decision is illegal and specifying the grounds of the illegality. Such petition shall be presented to the court within 30 days after the filing of the decision in the planning office of the Zoning Board of Appeals, which is the Public Works and Development Department of the City of Muskego.

M. Compensation. The members of the Zoning Board of Appeals shall serve without compensation.