A.
Scope of appeals. Appeals to the Zoning Board of Appeals may be taken
by any person aggrieved or by any officer, department, board or bureau
of the Village affected by any decision of the administrative officer.
Such appeal shall be taken within reasonable 30 days of the alleged
grievance or judgment in question by filing with the officer(s) from
whom the appeal is taken and with the Zoning Board of Appeals a notice
of appeal specifying the grounds thereof, together with payment of
a filing fee as set by the Village Board as may be established by
the Village Board. The officer(s) from whom the appeal is taken shall
forthwith transmit to the Zoning Board of Appeals all papers constituting
the record of appeals upon which the action appealed from was taken.[1]
B.
Stay of proceedings. An appeal shall stay all legal proceedings in
furtherance of the action appealed from, unless the officer from whom
the appeal is taken certified to the Zoning Board of Appeals that,
by reason of facts stated in the certificate, a stay would, in his
opinion, cause immediate 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.
C.
Meetings.
(1)
Open to public. All meetings and hearings of the Zoning Board
of Appeals shall be open to the public, except that the Board may
go into executive session to deliberate after a hearing or an appeal.
The final vote on an appeal shall be taken in open session by roll
call vote, recorded and open for public inspection in the Board's
office. Public notice of all regular and special meetings shall be
given to the public and news media as required by the Wisconsin Open
Meeting Law.[2]
[2]
Editor's Note: See Ch. 19, Subch. V, Wis. Stats.
(2)
Special meetings. Special meetings may be called by the Chairperson
or by the Secretary of the Zoning Board of Appeals at the request
of two members. Notice of a special meeting shall be mailed to each
member at least 48 hours prior to the time set for the meeting, or
announcement of the meeting shall be made at any meeting at which
all members are present.
(3)
Hearings. Hearings may be held at any regular or special meeting
at the time set by the Chairperson.
(4)
Quorum. A quorum for any meeting or hearing shall consist of
four members, but a lesser number may meet and adjourn to a specified
time.
D.
Powers of Zoning Board of Appeals. In addition to these powers enumerated
elsewhere in this Code of Ordinances, the Zoning Board of Appeals
shall have the following powers:
(1)
Errors. To hear and decide appeals where it is alleged there
is error in any order, requirement, decision or determination made
by the Zoning Administrator, Building Inspector or other administrative
official in the enforcement of this chapter or any ordinance adopted
under §§ 61.35, 62.23, 61.351 (wetlands), 87.30 or
144.26 (floodplains) or Ch. 91 (farmland preservation), Wis. Stats.[3]
(2)
Variances. To hear and rule on appeals for variances as will
not be contrary to the public interest where, owing to practical difficulty
or unnecessary hardship, so that the spirit and purposes of this chapter
shall be observed and the public safety, welfare and Justice secured.
(3)
Interpretations. To hear and decide application for interpretations
of the zoning regulations and the boundaries of the zoning districts
after the Plan Commission has made a review and recommendation.
(4)
Substitutions. To hear and grant applications for substitution
of more restrictive nonconforming uses for existing nonconforming
uses provided no structural alterations are to be made and the Plan
Commission has made a review and recommendation. Whenever the Board
permits such a substitution, the use may not thereafter be changed
without application.
(5)
Unclassified uses. To hear and grant applications for unclassified
and unspecified uses, provided that such uses are similar in character
to the principal uses permitted in the district and the Plan Commission
has made a review and recommendation.
(6)
Temporary uses. To hear and grant applications for temporary
uses, in any district, provided that such uses are of a temporary
nature, do not involve the erection of a substantial structure and
are compatible with the neighboring uses and the Plan Commission has
made a review and recommendation. The permit shall be temporary, revocable,
subject to any condition required by the Zoning Board of Appeals,
and shall be issued for a period not to exceed 12 months. Compliance
with all other provisions of this chapter shall be required.
E.
Board action. In exercising the powers under Subsection D, the Zoning Board of Appeals may reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination appealed from, and may make such order, requirement, decision or determination as ought to be made and, to that end, shall have all the powers of the officer from whom the appeal is taken, and may issue or direct the issuance of a permit.
F.
Voting.
(1)
Personal interest. No Zoning Board of Appeals member shall participate
in the decision of or vote upon any case in which the member is financially
interested, directly or indirectly, but the Chairperson shall direct
an alternate member to act instead. Disqualification of a member for
interest shall not decrease the number of votes required for acting
upon any matter, but such member may be counted in determining whether
a quorum is present for the transaction of business.
(2)
Record of vote. The Secretary shall record the vote of each
member on every question in the minutes or, if the member is absent
or fails to vote, shall indicate such fact in the record of the proceedings.
A.
Time of appeal. Appeals shall be filed within 30 days after the date
of receipt of the written decision or order from which the appeal
is taken by filing in duplicate a notice of appeal with the Village
Administrator-Clerk/Treasurer. The date of receipt of the decision
shall not be counted in determining the time for filing of the appeal.
Sundays and holidays shall be counted, except if the last day falls
on a Saturday, Sunday or legal holiday, the time for filing shall
be extended to the next secular day.
B.
Who may appeal. Appeals or applications to the Board may be made
by:
(1)
The owner, mortgagee, purchaser under a land contract, optionee
or occupant under a written lease for one year or more of the property
for which relief is sought.
(2)
Any officer (other than the Zoning Administrator), department,
board or bureau affected by a decision or order of the Zoning Administrator.
(3)
Any person aggrieved and whose use and enjoyment of property
within the Village is directly and adversely affected by a decision
or order of the Building Inspector, Zoning Administrator or the requested
Board action.
C.
Appeal and application forms. Every appeal or application shall be
made upon forms furnished by the Village Administrator-Clerk/Treasurer
which have been approved by the Zoning Board of Appeals. A scale drawing
shall accompany each form showing the location and size of the property,
existing improvements, all abutting properties and improvements thereon
and change or addition requested. The applicant or appellant shall
provide all information requested on the form and any additional information
requested in writing by the Chairperson or Secretary of the Zoning
Board of Appeals which is necessary to inform the Board of the facts
of the appeal. Failure to supply such information shall be grounds
for dismissal of the appeal or application.
D.
Filing appeal or application. The appellant or applicant shall file
the required appeal form in duplicate with the Village Administrator-Clerk/Treasurer.
The Village Administrator-Clerk/Treasurer shall deliver one copy to
the Zoning Administrator or other officer or body from whose decision
an appeal is taken. Upon receipt of an appeal, the Zoning Administrator
or other officer or body responsible for the original determination
shall transmit to the Secretary of the Zoning Board of Appeals all
notes or papers relating to the order or decision from which the appeal
is being taken.
E.
Election to have appeal or application handled as a contested case.
The applicant or appellant may elect to have the appeal or application
handled as a contested case. The appeal or application form shall
explain that a contested case includes the right of all parties to
cross-examine witnesses, to object to improper evidence and to have
a record of the proceedings made by a court reporter or qualified
stenographer or by tape recording. Election to have the matter treated
as a contested case must be made in writing at the time of filing
of the appeal or application.
F.
Fee. All appeals and applications filed with the Village Administrator-Clerk/Treasurer
shall be accompanied by payment of a required fee as set by the Village
Board. If the appellant or applicant elects the contested-case method,
he or she shall also pay the amount determined by the Zoning Board
of Appeals to cover the additional administrative costs involved.[1]
G.
Insufficient notice. No appeal or application shall be considered by the Zoning Board of Appeals unless it is made on the required form. Upon receipt of any communication purporting to be an appeal or application, the Village Administrator-Clerk/Treasurer shall supply the applicant with the proper forms which must be filed within 10 days, in addition to the 30 days specified in Subsection A, in order to be considered by the Zoning Board of Appeals.
A.
Notice of hearing. Notice of the time, date and place of the hearing
of an appeal or application shall be given in the following manner:
(1)
By mail or personal service to the appellant or applicant and
to the Zoning Administrator or other administrative official or body
from whose decision an appeal is taken and the Secretary of the Plan
Commission not less than 10 days prior to the date of the hearing.
(2)
In every case involving a variance, conditional use, exception,
planned unit development or public utility exception, the Village
Administrator-Clerk/Treasurer shall mail notice to the owners of record
of all land within the area included in the application and within
100 feet of any part of the building or premises affected not less
than 10 days prior to the hearing. Names and last-known addresses
of such owners shall be furnished by the applicant at the time of
filing the appeal or application.
(3)
By publication of a Class 2 notice under Ch. 985, Wis. Stats.
(4)
Notice of an application for construction of a building in the
bed of a future street, highway or parkway shall be published in the
official newspaper not less than 15 days prior to the hearing.
(5)
Notice of an application for a proposed special exception in
a shoreland-wetland district shall be mailed to the district office
of the Wisconsin Department of Natural Resources at least 10 days
prior to the hearing.
B.
Time of hearing, docketing. Each appeal or application properly filed
shall be numbered serially, docketed in a special book provided therefor
and placed upon the calendar by the Secretary of the Zoning Board
of Appeals. Cases docketed more than 15 days preceding a regular meeting
shall be set for hearing at such meeting. Cases docketed seven days
or less prior to a regular meeting shall be scheduled by the Secretary,
or his designee, for a hearing on the second regular meeting day thereafter
unless otherwise directed by the Chairperson.
C.
Appearances. The appellant or applicant may appear in person or by
his agent or attorney. In the absence of an appearance for or against
an appeal or application, the Zoning Board of Appeals may dismiss
the appeal or application or may dispose of the matter on the record
before it.
D.
Oath. Unless waived by the appellant or applicant and the Chairperson,
all witnesses shall be sworn before testifying by the Chairperson
or presiding officer.
E.
Compelling attendance of witnesses. The Chairperson or, in his absence,
the presiding officer may compel the attendance of witnesses by subpoena.
Written request for subpoenas shall be filed with the Secretary of
the Zoning Board of Appeals not less than two days prior to the hearing
except by special permission of the Chairperson.
F.
Order of hearing. Appeals and applications shall be heard in numerical
order except for good cause shown.
G.
Order of business.
(1)
General hearing. At the hearing, the order of business shall
be as follows:
(a)
Statement of the nature of the case by the Chairperson.
(b)
Appellant's side of the case.
(c)
Questions by Board members.
(d)
Zoning Administrator's side of the case.
(e)
Questions by Board members.
(f)
Statements by interested persons such as neighbors or abutting
landowners.
(g)
Questions by Board members.
(h)
Appellant's or applicant's rebuttal.
(2)
Contested cases. If the applicant or appellant elects to have
his or her appeal or application treated as a contested case, the
order of business shall be as follows:
(a)
Call to order by the Chairperson.
(b)
The appellant or applicant's opening statement.
(c)
The Zoning Administrator's opening statement.
(d)
Opening statement of persons aggrieved and other interested
parties. The right to make an opening statement is limited to persons
who will present evidence.
(e)
The applicant's or appellant's case-in-chief.
(f)
Questions by Board members.
(g)
Cross-examination. No more than one person for each party shall
cross-examine witnesses. The Chairperson may limit the number of parties
who may cross-examine.
(h)
Zoning Administrator's case-in-chief.
(i)
Questions by Board members.
(k)
Case-in-chief of other parties.
(l)
Questions by Board members.
(n)
Rebuttal by appellant or applicant. Rebuttal is limited to matters
raised by the adverse parties by way of evidence or argument.
(o)
Statements of opinion of neighbors or abutting landowners —
not subject to cross-examination.
(p)
Closing statements of those who made or waived opening statements.
H.
Evidence and official notice. Except in contested case hearings,
written and oral testimony will be received. In contested case hearings,
no hearsay evidence will be allowed or relied upon as the sole evidence
of any factual determination. The Zoning Board of Appeals may take
official notice of the ordinances of the municipality, the zoning
and location of the subject property and geographical features or
other facts which are common knowledge in the municipality or can
be verified by reference to public record. In contested-case hearings,
all witnesses shall be sworn and no person shall be permitted to testify
unless he or she submits to cross-examination. See § 227.45,
Wis. Stats.
I.
Adjournments. When all appeals or applications cannot be disposed
of on the day set, the Zoning Board of Appeals may adjourn from day
to day or to a day certain, as it may order, and such adjourned day
shall be construed as a continuance of the hearing. Notice of such
adjournment shall be given to the absent members of the Zoning Board
of Appeals.
J.
Withdrawal. An appellant or applicant may withdraw an appeal at any
time prior to the decision, but a pending motion to grant or dismiss
the appeal shall have precedence over withdrawal. Withdrawal of the
appeal shall not entitle the appellant or applicant to remission of
the filing fee.
A.
Time of decision. The Zoning Board of Appeals shall render its decision
either at the termination of the hearing or within 30 days thereafter
and shall notify the parties in interest and the Zoning Administrator
in writing of its decision.
B.
Form of decision. The final disposition of an appeal or application
shall be in the form of a written decision or order signed by the
Chairperson and Secretary of the Zoning Board of Appeals. Such decision
shall state the reasons for the Board's determination with findings
of fact and conclusions of law and shall either affirm, reverse, vary
or modify the order, requirement, decision or determination appealed,
in whole or in part, dismiss the appeal or grant or deny the special
exception, conditional use or variance. Copies of the decision shall
be sent to the applicant, Village Administrator-Clerk/Treasurer, the
Secretary of the Plan Commission and any Village committee involved.
C.
Basis of decision; findings. At the conclusion of a hearing, the
Board should reduce to writing its findings of fact and conclusions
of law regarding the proper interpretation and application of this
chapter.
D.
Vote required. All orders or decisions of the Zoning Board of Appeals
granting a variance, exception or conditional use or reversing any
action or order of the Administrator require the affirmative vote
of four members. Whenever only four members of the Board are present
and the vote stands three to one in favor of the appellant or applicant,
the matter shall be laid over for consideration and final determination
at the next meeting of the Board or a special meeting noticed and
called for that purpose.
E.
Conditions. Variances or conditions imposed in any permit shall be
stated in the decision or order embodying the Board's decision
and shall also be set forth in the building, conditional use or occupancy
permit issued under that order by the Zoning Administrator. A permit
shall be valid only as long as the conditions upon which it is granted
are observed. Whenever the Board grants an application or appeal affecting
the use of any premises, such authorization shall be deemed revoked
unless the owner, occupant or his agent shall, upon request, file
with the Board Secretary a written report certifying that all conditions
or limitations imposed by the Board have been conformed to and maintained.
Variances, substitutions or conditional use permits approved by the
Board shall expire six months after issuance if the performance of
work is required and substantial work has not commenced.
F.
Filing of decision. Every order or decision of the Zoning Board of
Appeals shall be immediately filed with the Secretary, who shall thereupon
forward the decision to the Village Administrator-Clerk/Treasurer
and mail a copy to the applicant or appellant. Copies of decisions
granting conditional uses or variances in a floodplain, shoreland
or wetland district shall be mailed to the district office of the
Wisconsin Department of Natural Resources.
G.
Reconsideration.
(1)
Resubmission. No appeal or application which has been dismissed or denied shall be considered again without material alteration or revision within one year of the Board's decision, except pursuant to court order or by motion to reconsider made by a member voting with the majority or as provided in Subsection G(2) below.
(2)
Rehearing. No rehearing shall be held except upon the affirmative
vote of four or more members of the Board upon finding that substantial,
new evidence is submitted which could not reasonably have been presented
at the previous hearing. Requests for rehearing shall be in writing,
shall state the reasons for the request and shall be accompanied by
necessary data and diagrams. Rehearings shall be subject to the same
notice requirements as original hearings.
A.
Purpose; Board review.
(1)
A request for a variance may be made when an aggrieved party
can submit proof that strict adherence to the provisions of this chapter
would cause him undue hardship or create conditions causing greater
harmful effects than the initial condition. A variance granted to
a nonconforming use brings that use into conformance with the district
and zoning requirements.
(2)
Persons requesting a variance shall first submit such request
to the Village Board who shall make a determination on the request
following notice and hearing. Persons having a variance request denied
by the Village Board may then have their request reviewed by the Zoning
Board of Appeals pursuant to this section.
(3)
The Zoning Board of Appeals may authorize upon appeal, in specific
cases, such variance 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 unnecessary hardship and so that the spirit of the Zoning Code
shall be observed and substantial justice done. No variance shall
have the effect of allowing in any district uses prohibited in that
district, permit a lower degree of flood protection than the flood
protection elevation for the particular area or permit standards lower
than those required by state law.
(4)
For the purposes of this section, "unnecessary hardship" shall
be defined as an unusual or extreme decrease in the adaptability of
the property to the uses permitted by the zoning district which is
caused by facts, such as rough terrain or good soil conditions, uniquely
applicable to the particular piece of property as distinguished from
those applicable to most or all property in the same zoning district.
C.
Public hearing of application. The public hearing for a variance shall be conducted pursuant to § 480-107.
D.
Prohibited variances. The Zoning Board of Appeals shall not grant
use variances in floodplain or wetland and conservancy districts,
In all other districts, no use variance shall be granted unless the
applicant has first petitioned for a zoning amendment or a conditional
use permit, if applicable, and upon a showing that no lawful and feasible
use of the subject property can be made in the absence of such variance.
Any use variance granted shall be limited to the specific use described
in the Board's decision and shall not permit variances in yard,
area or other requirements of the district in which located.
E.
Action of the Zoning Board of Appeals; standards. For the Zoning
Board of Appeals, it must find that:[2]
(1)
Denial of variance may result in hardship to the property owner
due to physiographical consideration. 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
the Zoning Code should be changed.
(2)
The conditions upon which a petition for a variance is based
are unique to the property for which variance is being sought and
that such variance is necessary for the preservation and enjoyment
of substantial property rights possessed by other properties in the
same district and same vicinity.
(3)
The purpose of the variance is not based exclusively upon a
desire to increase the value or income potential of the property.
(4)
The granting of the variance will not be detrimental to the
public welfare or injurious to the other property or improvements
in the neighborhood in which the property is located.
F.
Conditions. The Zoning Board of Appeals may impose such conditions
and restrictions upon the premises benefited by a variance as may
be necessary to comply with the standards established in this section.
Any person or persons aggrieved by any decision of the Zoning
Board of Appeals may present to a 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 offices
of the Zoning Board of Appeals.
