City of New Berlin, WI Article VIII General Development Regulations

§ 275-52 General provisions.

A. Applicability. The regulations of this article apply to all development in New Berlin subject to this chapter. No person shall develop any land located within the jurisdictional limits of this chapter without compliance with the purpose and intent and all requirements of this article.

B. Purpose and intent. The purpose of this article is to regulate and control the development of land in New Berlin in order to promote the public health, safety, prosperity, aesthetics, and general welfare of the City. It is the specific intent of this chapter to regulate the development of land so as to:

(1) Implement the New Berlin Comprehensive Plan;

(2) Encourage the wise use, conservation, protection, and proper development of the City's natural resources and provide for the proper land use and development to the supporting and sustaining natural resource base;

(3) Lessen congestion in the streets and highways;

(4) Provide adequate and orderly parking facilities where required by the public;

(5) Secure safety from fire, panic, and other dangers;

(6) Provide adequate protection from detrimental operational conditions;

(7) Provide for the development of adequate densities in appropriate areas of the City;

(8) Provide direction for approved development relative to protection of natural resources, parking and loading facilities, landscaping and buffering, exterior lighting, and signs;

(9) Preserve natural vegetation and cover and promote the natural beauty of the City.

C. Waivers/modifications.

(1) The Plan Commission may waive or modify any or all of the other requirements of this article if it determines that:

(a) The site or activity in question will have no appreciable off-site impact;

(b) Compliance with the requirement(s) is impractical or impossible due to site conditions or other circumstances beyond the control of the applicant; or

(c) The specific requirement is not necessary for a particular site to ensure compliance with the requirements of this chapter.

(2) Any property for which a waiver from the requirements of this chapter is granted shall comply with all other requirements of this chapter.

(3) The Development Handbook is the City of New Berlin's Infrastructure and Design Standards. This document is approved by the Board of Public Works and sets forth the policies for both public and private infrastructure and construction standards. Any waivers or modifications to this document shall be incorporated as part of a DCD application and approved by the DCD and/or the Plan Commission/Community Development Authority.

[Added 10-11-2016 by Ord. No. 2576]

§ 275-53 Site plan review principles and standards.

A. Applicability. This section sets forth review principles and standards to guide the Plan Commission and staff in the review of all development requiring a site plan pursuant to § 275-24, Zoning permits, except where permits are considered to be redevelopment.. For redevelopment, as defined in the definition section of this Zoning Code,[1] the application shall follow the criteria listed in § 275-53C below. Uses requiring a site plan shall conform to the principles and standards of this section in addition to complying with all development standards set forth in this Article VIII.

[1] Editor's Note: See Art. XI, Definitions.

B. Review principles and standards. The Plan Commission shall approve site plans only after determining that:

(1) The site plan is consistent with the purposes and requirements of this chapter, including these general development regulations.

(2) The site plan is consistent with the goals, objectives, principles, standards, policies, and urban design criteria set forth in the New Berlin Comprehensive Plan.

(3) No land shall be used or structure erected where the land is unsuitable for such use or structure by reason of flooding, concentrated runoff, inadequate drainage, adverse soil or rock formation, unfavorable topography, or low bearing strength of underlying soil, erosion susceptibility of underlying soil, or any other feature likely to be harmful to the health, safety, prosperity, aesthetics, and general welfare of this community.

(4) No zoning permit or building permit shall be issued for a lot that does not abut a fully dedicated and improved public street.

(5) There is a proper relationship between the existing and proposed streets and highways within the vicinity of the project in order to assure the safety and convenience of pedestrian and vehicular traffic.

(6) The proposed on-site buildings, structures, and entryways are situated and designed to minimize adverse effects upon owners and occupants of adjacent and surrounding properties by providing for adequate design of ingress/egress, interior/exterior traffic flow, stormwater drainage, erosion, grading, lighting, and parking, as specified by this chapter or any other codes or laws.

(7) Natural features of the landscape are retained where they can enhance the development on the site, or where they furnish a barrier or buffer between the project and adjoining properties used for dissimilar purposes, or where they assist in preserving the general safety, health, welfare, and appearance of the neighborhood.

(8) Adverse effects of the proposed development and activities upon adjoining residents or owners are minimized by appropriate screening, fencing, or landscaping as provided or required in this chapter.

(9) Land, buildings, and structures are readily accessible to emergency vehicles and the handicapped.

(10) When a site plan modification or addition is reviewed, all existing nonconformities and outstanding code violations shall be identified, resolved, and remedied.

(11) All hazards identified in the site plan review process shall be resolved or mitigated.

C. Redevelopment standards.

(1) Open space is not required to meet the zoning district requirements for new development but shall not go below the amount of open space existing on the lot at the time of the proposed redevelopment and/or site modifications. For sites that do not meet the minimum open space requirements, the applicant shall incorporate low-impact development techniques.

(2) Existing parking lots and drive aisles that do not meet the required setbacks shall not encroach any further into the setback.

(3) Sites shall provide adequate parking spaces to meet the requirements in Table 275-57-1, unless a waiver is requested and granted by the Plan Commission.

(4) The applicant shall meet all applicable stormwater and drainage requirements.

(5) Existing parking lot lighting shall be evaluated on a case-by-case basis when a project includes parking lot modification or expansion. At a minimum, a lighting plan shall be provided for the parking lot modification area(s).

(6) A reoccupancy, internal facility remodel, parking lot repair and maintenance or façade improvement does not require the implementation of these requirements or the requirements in this article. Only a building expansion or parking lot expansion will prompt the requirements to be enforced.

§ 275-54 Natural resource protection.

A. Limits of disturbance.

(1) Establishment of limits of disturbance. As part of the zoning permit application process, the applicant shall propose, and the Department of Community Development shall establish, limits of disturbance (LOD) lines according to the criteria set forth below. The LOD shall indicate the specific area(s) of a site within which the developed project may be constructed and within which development activity shall be contained.

(2) Criteria for establishing LOD. In establishing the LOD, which may be multiple and noncontiguous on a site, the following shall be taken into account:

(a) Erosion prevention and control, including but not limited to protection of natural drainage channels and steep slopes over 20%.

(b) Preservation of woodlands, significant native trees, and other significant native site vegetation.

(c) Visual impacts, including but not limited to steep slopes and scenic views.

(d) Riparian habitats, stream corridors, and wetland protection and buffering.

(e) Floodplains and floodways.

(f) Significant wildlife habitat areas.

(g) The practical needs of approved construction activity in terms of ingress and egress to the developed project and necessary staging and operational areas.

(3) Maximum limits of disturbance.

(a) The maximum limits of disturbance shall be determined by the Plan Commission based on the criteria listed in § 275-54A(2).

(4) Development standards and guidelines.

(a) To the maximum extent feasible, no development, grading, or vegetation removal or alteration shall occur as a part of the development project or associated construction activity outside the LOD.

(b) Disturbance or construction activity may occur outside the LOD with approval of the Department of Community Development for the following limited purposes:

[1] Mitigation of development activities;

[2] Restoration of previously disturbed or degraded areas;

[3] Personal gardens not operated on a for-profit basis and maintained by individual homeowners;

[4] Utility installations and emergency public safety activities when such activities and installations cannot reasonably be contained within the LOD;

[5] Construction of a trail or pedestrian walkway that will provide public access, when such trails or walkways cannot reasonably be contained within the LOD;

[6] The enhancement of the habitat values and/or other natural resource values of an identified natural area; and

[7] Landscaping according to an approved landscaping plan.

(5) Standards for protection during construction and grading.

(a) Designation. Approved LODs shall be shown on the plan for development and shall be designated in the field prior to commencement of excavation, grading, or construction with fencing or other methods approved by the Director.

(b) Barrier fencing. Construction barrier fencing shall be provided at the LOD during construction through the utilization of protection techniques defined by the International Society of Arboriculture or other techniques as approved by staff. For the protection of trees and stands of trees to be preserved within an LOD that is to be disturbed, tree protection specifications as described in Subsection B(7) below shall be followed. See Figure VIII-1.

Figure VIII-1

Barrier and Protective Fencing

B. Woodland, tree, and vegetation protection (new development).

[Amended 10-9-2018 by Ord. No. 2607]

(1) Purposes. Protection of existing woodlands, trees, and vegetation cover is intended to preserve the visual and aesthetic qualities of New Berlin; to encourage site design techniques that preserve the natural environment and enhance the developed environment; to control erosion, slippage, and sediment runoff into streams and waterways; to increase slope stability; and to protect wildlife habitat and migration corridors. Preservation or provision of trees near structures also serves to conserve energy by reducing heating and cooling costs.

(2) Application and exemptions. The provisions of this section shall apply to all new development in any zoning districts, except that the following developments and activities shall be exempt from this section:

(a) The removal of dead or naturally fallen trees or vegetation, or trees or vegetation that are found by the City to be a threat to the overall health of the forest or to the public health, safety, or welfare;

(b) The selective and limited removal of trees or vegetation necessary to obtain clear visibility at driveways or intersections, or for the purpose of performing authorized field survey work;

(c) The removal of trees or vegetation on land zoned or lawfully used for:

[1] Commercial garden centers, greenhouses, or nurseries.

(d) Wildlife habitat enhancement and restoration activities undertaken pursuant to a wildlife conservation plan approved by the City and the Wisconsin Bureau of Wildlife Management.

(3) Tree/vegetation removal.

(a) Outside approved LOD. No trees or vegetation shall be removed outside the approved LOD except as specifically exempted in this section.

(b) Inside approved LOD:

[1] Except as exempted in Subsection A(4)(b) above, to the maximum extent feasible, significant trees as defined in § 265-54B(6), and vegetation inside the limits of disturbance shall be preserved. Significant trees removed from within the LOD shall be replaced as set forth in Subsection B(4) below.

[2] Any existing trees greater than four inches' DBH, or vegetation that is in appropriate locations, in sufficient quantities, and of acceptable quality to be utilized to fulfill landscaping or buffering requirements of this chapter, shall be preserved.

(c) Shoreland areas. Within a strip paralleling any navigable body of water and extending 50 feet inland from all points along the ordinary high-water mark of the shoreline, tree cutting and vegetation removal shall be limited in accordance with the following provisions:

[1] No more than 30% of the length of a strip (measured along the ordinary high-water mark) shall be clear-cut to the depth of the strip.

[2] Cutting of this 30% shall not create a clear-cut opening in the strip greater than 30 feet wide (measured along the ordinary high-water mark).

[3] Any paths, roads, or passages within the strip shall be so constructed and surfaced so as to control erosion.

[4] The Plan Commission may allow exceptions for essential services.

(4) Special cutting plans. In the alternative to Subsection B(3) above, pertaining to tree/vegetation removal, a special cutting plan allowing greater cutting may be permitted by the Plan Commission.

(a) Plan requirements. An application for a zoning permit shall include a sketch of the lot, including the following information:

[1] Location of all structures.

[2] Location of parking and driveway.

[3] Gradient of the land.

[4] Existing vegetation.

[5] Proposed cutting.

[6] Proposed replanting.

(b) Approval criteria. The Plan Commission may grant a zoning permit only if it finds that such special cutting plans will not cause undue erosion or destruction of scenic beauty and will provide substantial shielding from the water or structures and parking areas. The Plan Commission may condition such a permit upon a guaranty of tree planting by the lot owner per an approved planting plan.

(5) Tree/vegetation removal for views prohibited. No trees or vegetation shall be removed for the sole purpose of providing open views to or from structures on a site, except as provided in Subsection B(2) above.

(6) Significant tree. A significant tree refers to any tree that provides significant aesthetic and environmental benefits such as reduction of stormwater runoff, preservation of wildlife habitat, enhancement of air quality, and contributes to overall forest health by providing species and size class diversity. Trees that are considered invasive species or infected with pests or diseases that are known to be harmful to the overall health of the forest should not be considered significant trees, and should be removed without the requirement of a replacement tree.

(7) Replacement of significant trees. When a significant tree or trees are removed from a site, the applicant or developer shall replace such tree(s) on the lot, according to the following schedule and requirements:

Table 275-54-1
Tree Type	Size of Tree Removed (DBH)	Size of Replacement Tree(s) (DBH)
Deciduous	5 to 7 inches	1 tree at 5 to 7 inches or 3 trees at 2 1/2 to 4 inches
	8 to 11 inches	3 trees at 5 to 7 inches or 9 trees at 2 1/2 to 4 inches
	12 inches or larger	6 trees at 5 to 7 inches or 12 trees at 2 1/2 to 4 inches
Conifers	10 feet or taller	1 tree that is 10 feet or taller, or 3 trees that are 8 to 10 feet, or 6 trees that are 6 to 8 feet

(a) If an applicant is unable to plant the required number of replacement trees on his/her/its development site, the applicant must plant, to the fullest extent possible, as many replacement trees as allowed by the site and must pay a fee in lieu of planting the balance of the required number of replacement trees. Credits may be given by the Plan Commission or the Community Development Authority if the applicant uses a low-impact/sustainable design, alternative stormwater best management practices/green infrastructure (which may include, but is not limited to, bioretention, infiltration, pervious surfaces, green roofs, rain gardens, underground storage, and/or rain harvesting/reuse), or does work that results in cost efficiencies for the City.

(b) The landscaping fee shall be calculated by taking the total number of replacement trees, as required per Table 275-54-1, less the number of trees that the applicant is able to plant on his/her/its site times the average industry cost to purchase and install a balled and burlapped, two-and-one-half-inch-DBH deciduous tree; or, in the case of a replacement evergreen tree, a six-foot to eight-foot tree comparable will be used. The Department of Community Development shall determine the average industry cost. The Department of Community Development shall use the landscaping fees collected to plant landscaping elsewhere in the City.

[Amended 4-25-2023 by Ord. No. 2668]

(8) Tree/vegetation protection during construction/grading activities.

(a) Within the LOD, fencing, at a minimum, should be placed around each significant tree and around stands of 12 or more smaller trees a distance equal to the size of the individual or outermost tree's drip zone.

[1] For purposes of this subsection, the drip zone is calculated by measuring the diameter of the tree at breast height; every inch of diameter is equal to one foot of drip zone.

[2] No construction, grading, equipment or material storage, or any other activity shall be allowed within this fenced area, and the fencing shall remain in place until all land alteration, construction, and development activities are completed.

(b) If it is necessary to fill over the root zone, compacted soils shall be avoided by sandwiching fabric, rocks, and more fabric under the area to be filled.

(c) Fill placed directly on the roots shall not exceed a maximum of six inches in depth.

(d) If fill creates a tree well or depression around a tree or shrubs, drainage for such area shall be provided.

(e) If a tree's roots must be cut, roots shall be pruned cleanly prior to digging and not ripped off by heavy equipment. Cutting more than 30% of the roots of a tree should be avoided. See Figure VIII-2.

(f) Utility trenches near trees should be avoided. If a line must be near a tree, tunneling, auguring, or other mitigation measures shall be used. See Figure VIII-2.

Figure VIII-2

Utility Tunnels and Trenches

C. Wildlife habitat protection.

[Amended 10-9-2018 by Ord. No. 2607]

(1) Purpose. These regulations are intended to maintain and enhance the diversity of wildlife species and habitats that occur in New Berlin and to plan and design land uses to be harmonious with wildlife habitats and the species that depend on this habitat for the economic, recreational, and environmental benefit of the residents of and visitors to New Berlin. Through the use of SEWRPC's Primary Environmental Corridor (PEC), Secondary Environmental Corridor (SEC), and Isolated Natural Resources Area's (INRA), the City desires to preserve these corridors/areas through careful development within these defined areas. Please refer to § 275-37.

(2) Applicability. The provisions of this section shall apply to all development, except that the following developments and activities shall be exempt from this section:

(a) Agricultural activities such as soil preparation, irrigation, planting, harvesting, grazing, and farm ponds;

(b) Maintenance and repair of existing public roads, utilities, and other public facilities within an existing right-of-way or easement;

(c) Maintenance and repair of flood-control structures and activities in response to a flood emergency;

(d) Wildlife habitat enhancement and restoration activities undertaken pursuant to a wildlife conservation plan approved under this section;

(e) Existing individual residential platted lots of record.

(3) Other regulations. This section of the chapter does not repeal or supersede any existing federal, state, or local laws, easements, covenants, or deed restrictions pertaining to wildlife. When this section imposes a higher or more-restrictive standard, this section shall apply.

(4) Wildlife habitat database.

(a) The following sources shall be used to identify important wildlife habitat areas for purposes of review under this section:

[1] Wisconsin Department of Natural Resources' (DNR) habitat maps for the New Berlin area.

[2] Other information and maps as staff or the Plan Commission may from time to time identify in cooperation with the DNR and/or the Southeastern Wisconsin Regional Planning Commission (SEWRPC).

(b) Wildlife habitat information required by this section is intended for general planning purposes. The Director of the Department of Community Development may correct obvious errors or omissions after consultation with the DNR and/or SEWRPC.

(5) Review procedures. The following procedures shall apply to all applications for development subject to this section:

(a) Application. As part of the site plan submission, the applicant shall submit a plan depicting the general location of the property, location of all structures on the site, prominent natural areas, such as streams and wetlands, and other features that the Department of Community Development may require.

(b) Preliminary review. Based upon the project's location and potential for adversely affecting key wildlife habitat areas listed in the wildlife habitat database, the Department of Community Development shall determine whether the requirements of this section have been met or whether the application shall be referred to the DNR and/or SEWRPC for review. Applicants whose applications are referred are advised to meet with the DNR and/or SEWRPC, and other agencies as determined appropriate by the Department of Community Development, to ensure compliance with the requirements of this section.

(c) DNR and/or SEWRPC review. For applications referred to it, the DNR and/or SEWRPC will determine whether the proposal will result in significant adverse impact on wildlife or wildlife habitats based on the review criteria set forth below in Subsection C(6)(d) and will make a recommendation to the Department of Community Development whether a wildlife conservation plan shall be prepared.

(d) Wildlife conservation plan required.

[1] Based on recommendations from the DNR and/or SEWRPC, the Department of Community Development shall determine whether the applicant must submit a wildlife conservation plan prior to the approval of any development application that requires a rezoning or platting. The Department of Community Development shall require a wildlife conservation plan be prepared pursuant to this section for all major subdivisions, all commercial and industrial development located west of Calhoun, and any other location where the Department of Community Development determines that sensitive wildlife habitats may be located.

[2] Such a conservation plan, if required, shall be prepared pursuant to the requirements of Subsection C(6)(c) below and shall be submitted to the DNR and/or SEWRPC for review and recommendation as to whether the plan adequately addresses the adverse impacts identified by the agency pursuant to its initial review described in Subsection C(5)(c) above.

(e) Final review. The Director of Community Development shall determine whether the site plan application and, if applicable, the wildlife conservation plan meet the review criteria set forth in Subsection C(6)(d) below and shall approve, approve with conditions, or disapprove the application.

(f) Waivers or minor modifications. The Plan Commission may waive or approve minor modifications of any development standard or review criteria in this section upon a finding that such waiver or modification:

[1] Is consistent with the stated purposes of this section;

[2] Will have no significant adverse impacts on wildlife species or habitats;

[3] Any potential adverse impacts will be mitigated or offset to the maximum degree practicable; and

[4] Application of the standard or criteria is not warranted based on the location of the development, the absence of a particular species on the site, or other relevant factors.

(6) Wildlife and wildlife habitat disturbance and mitigation.

(a) Outside approved LOD. No wildlife or wildlife habitat shall be adversely affected outside the approved LOD except as specifically exempted in this section. If there is an adverse impact due to an exempted activity, the applicant shall attempt to mitigate the effects of the impact to the maximum extent practicable using the techniques set forth in Subsection C(6)(b) below.

(b) Inside approved LOD. Inside the approved LOD, the following general mitigation measures shall apply to all development as specified. It is intended that these measures be applied in a flexible fashion to protect wildlife habitats and wildlife species in a cost-effective fashion.

[1] Buffers. All development shall be set back a minimum of 75 feet from any identified important wildlife habitat area or such additional distance as is specified depending on the presence of specified wildlife species.

[2] Nonnative vegetation. There shall be no introduction of plant species that are not native or that are not on an approved City landscaping list on any site containing any important wildlife habitat area. To the maximum extent feasible, existing herbaceous and woody cover on the site shall be maintained, and removal of native vegetation shall be minimized. (See also § 275-54B, Woodland, tree, and vegetation protection.)

[3] Fencing. No fencing on a site containing an important wildlife habitat shall exceed four feet in height, except to the extent that such fencing is approved by the Plan Commission to confine permitted domestic animals or to protect permitted ornamental landscaping or gardens. The type of fencing (materials, opacity, etc.) shall be determined by the Plan Commission as appropriate for the wildlife species on the site.

[4] Exterior lighting. Use of exterior lighting shall be minimized in areas of important wildlife habitat, and lighting shall be designed so that it does not spill over or onto such critical habitat. (See also § 275-60I, Lighting.)

[5] Domestic animals. Development applications for property that includes important wildlife habitats shall include a plan with specified enforcement measures for the control of domestic animals and household pets. The plan shall include provisions to prevent the harassment, disturbance, and killing of wildlife and to prevent the destruction of important wildlife habitats.

(c) Wildlife conservation plans.

[1] Plan preparation. A wildlife conservation plan required by this section shall be prepared for the applicant, at the applicant's expense, under the responsible direction of a qualified person who has demonstrated expertise in the field and is acceptable to the Director.

[2] Plan content. Any wildlife conservation plan required to be prepared pursuant to this section shall include the following information at a minimum:

[a] A description of the ownership, location, type, size, and other attributes of the wildlife habitat on the site.

[b] A description of the populations of wildlife species that inhabit or use the site, including a qualitative description of their spatial distribution and abundance.

[c] An analysis of the potential adverse impacts of the proposed development on wildlife and wildlife habitats on or off site.

[d] A list of proposed mitigation measures and an analysis of the probability of success of such measures.

[e] A plan for implementation, maintenance, and monitoring of mitigation measures.

[f] A plan for any relevant enhancement or restoration measures.

[g] A demonstration of fiscal, administrative, and technical competence of the applicant or other relevant entity to successfully execute the plan.

(d) Review criteria. The Plan Commission shall not approve any site plan application unless it determines that the proposed development, to the maximum extent practicable, avoids significant adverse impacts on wildlife habitats and species on or off the site. In determining whether the proposed development has significant adverse impacts, the Development Review Committee shall consider the following categories of effects and steps taken to avoid or substantially mitigate such impacts:

[1] Impacts on wildlife species, including but not limited to human-related activities, and impacts from domestic pets that disrupt necessary life cycle functions of wildlife or cause stress on wildlife to the extent that the health and viability of a species is threatened in New Berlin.

[2] Impact on wildlife habitats, including but not limited to elimination, reduction, or fragmentation of wildlife habitats to the extent that the viability of an individual species is threatened in New Berlin and the diversity of wildlife species occurring in New Berlin is reduced.

[3] Impact on wildlife movement patterns/displacement and adaption of wildlife populations, including but not limited to disruption of necessary migration or movement patterns that keep wildlife from using their entire habitat, displacement of wildlife species into areas that cannot support or sustain the species over the long term, and the inability of wildlife species living within or in close proximity to development to adapt and thrive to the extent that the health and viability of the species is threatened in New Berlin.

[4] Uniqueness of habitat and species to New Berlin, including but not limited to elimination, reduction, or fragmentation of important wildlife habitats that are identified as unique to New Berlin in that they support wildlife species that do not commonly occur outside the City.

[5] Cumulative impacts, including but not limited to cumulative impacts beyond the boundaries of the proposed site, such that the wildlife habitat in New Berlin is eliminated, reduced, or fragmented to the point that the viability of individual species is threatened and the diversity of species occurring in New Berlin is reduced.

§ 275-54.1 Woodland, tree and vegetation protection (existing lands).

A. All existing lands that contain more than five acres of contiguous forest lands under a single ownership within the City and wish to actively engage in silvicultural activities where no new development is proposed shall be required to submit a forestry management plan and special cutting plan for approval by the Plan Commission outlining the appropriate silvicultural treatments to be used, the intended purpose of the work to be completed and the goals and objectives of any harvesting or removal of trees, restoration and future activities. The Plan Commission may issue a zoning permit after review and comment by the Wisconsin Department of Natural Resources.

[Amended 10-9-2018 by Ord. No. 2607]

B. The following developments, activities and lands shall be exempt from this section:

[Amended 10-9-2018 by Ord. No. 2607]

(1) The removal of dead or naturally fallen trees or vegetation or trees or vegetation that are found by the City to be a threat to the overall health of the forest or to the public health, safety, or welfare;

(2) The selective and limited removal of trees or vegetation necessary to obtain clear visibility at driveways or intersections, or for the purpose of performing authorized field survey work;

(3) The removal of trees or vegetation on land zoned or lawfully used for commercial garden centers, greenhouses, or tree nurseries;

(4) Wildlife habitat enhancement and restoration activities undertaken pursuant to a wildlife conservation plan approved by the City and the Wisconsin Bureau of Wildlife Management.

C. The Plan Commission shall accept no development applications for a period of 36 months from the date that a forestry management plan and special cutting plan are approved.

D. All work shall minimize disturbance to the integrity of the natural resource features as identified in the City's Map of Potential Conservation Areas or any other natural resource features not identified.

§ 275-55 Grading and drainage.

A. Grading plan.

(1) In order to preserve the natural beauty and character of the existing topography as much as possible, and in order to protect against the dangers and damages caused by man-made changes of existing topography, and to avoid unsightly and hazardous exposed earth, no lot or portion of a lot or parcel shall be excavated, graded or filled without approval as required by this chapter and Section 3, Paragraph VIII, of the Developer Handbook.

(2) Every person who erects, alters, or moves a building or proposes to alter existing topography shall submit a grading plan to the Director for review and approval. The grading plan shall be prepared at a recognized engineering or architectural scale and shall show:

(a) Topographic maps: the existing and proposed topography of the site, and all areas within 40 feet of the site, at a contour interval of two feet, prepared by a registered professional engineer or registered land surveyor. The Director may require a different contour interval where appropriate. All topographic information shall be to City datum which is National Geodetic Vertical Datum (NGVD). Topographic maps shall not be required in the agricultural districts and residential zoning districts.

(b) The existing and proposed grades of the lot at each corner of the lot, at each corner of any existing or proposed buildings, at the center of the street pavement at the lot lines extended, and at the center of the street opposite the center of the lot. Grades shall also be provided on the front, side and rear lot lines at the building setbacks extended. Grades shall also be provided along all breaks in grade within the lot.

(c) The existing and proposed grades of all driveways and parking lots.

(d) Spot elevations at the top and bottom of all drainage swales, if applicable.

(e) Spot elevation of significant cut and fill areas.

(f) The grade and setback of all buildings on adjacent lots or the first building within 200 feet of the lot line if the adjacent lot is undeveloped.

(g) The type of monument at each lot corner.

(h) The location and size of all permanent structures on the site.

(i) The location of any recorded easements on the site and of all above- or below-ground utilities.

(j) Cross sections of any proposed retaining walls or berms.

(k) The date of the plat of the grading plan.

(l) A North arrow and graphic scale.

(m) The registered land surveyor's or professional engineer's seal.

(3) Review of grading and filling plans. Every building hereafter erected, structurally altered, added onto or moved shall be sited on the lot in a manner that the building's appearance is not incompatible with buildings on adjacent lots, that no hazard to the occupant or to the public is created and that minimum soil erosion will result from the building location or change in topography. The Director shall consider the following guidelines in the review of grading plans:

(a) Buildings shall be designed to match the existing grade. In the case of uneven topography, the design and architecture of proposed buildings shall incorporate techniques to accommodate the difference in grade through the structure. Examples of this practice include exposed portions of the foundation or courses of block with suitable architectural covering; extra steps from the garage or parking area; split-level floor plans (side to side and/or front to back); wing walls or foundation walls; exposed lower level or basement; and rotating or reversing building plan, when appropriate.

(b) Building grades shall be compatible with the average grade of adjacent buildings and sites.

(c) Building grades shall be compatible with the existing street grade.

(d) Overall average driveway grades shall not exceed 10%.

(e) Parking lot grades shall not exceed 6% in longitudinal drainage or 3% in transverse drainage.

(f) Lots shall be graded in a manner to foster safety and negotiability during bad weather.

(g) Lots shall be graded in such a manner to permit emergency vehicles to gain access to and have a level area to perform fire, rescue and relief operations.

(h) Proposed lot grades shall not exceed a gradient of four feet horizontal to one foot vertical. A maximum slope of three feet horizontal to one foot vertical shall be allowed along the side of proposed buildings.

(i) Lots shall be sodded, seeded and mulched or protected from erosion. In no case shall the slope exceed the normal angle of slippage of the material used.

(j) All grades shall be compatible with proposed landscaping and drainage requirements.

(k) Altered topography shall be integrated with existing and surrounding topography.

(l) Grading shall not result in excessive depths for underground utilities or hamper access to such utilities.

(m) Every effort shall be made to preserve significant trees and woodlots in accordance with § 275-54.

(n) Lot grades shall not be designed and altered in a manner that would obstruct horizontal vision clearance.

(o) The use of resulting yard areas and ease of maintenance of yards shall be considered.

(p) The appearance of buildings and their relationship to the height of buildings on adjacent lots shall be considered.

(q) Plans shall be prepared in accordance with standard design practices.

(r) There shall be uniformity and consistency throughout the plan.

(4) Fill. In order to protect the public from the hazard of unsuitable fill material, obstruction of view, nuisance of airborne dirt and dust, and from the threat to general safety caused by the existence of open trenches, holes or pits, no person, occupant, owner of land or corporation shall remove or cause to be accumulated topsoil or subsoil in any district, except quarry or landfill districts with an approved plan of operation, without review and approval by the Director of plans for earth disturbances. Such removal or accumulation includes, but is not limited to, piles of earth, dirt, topsoil or subsoil which has been formed, accumulated or pushed into mounds or piles. The Director may forward any application to the Plan Commission for further review and/or approval.

(a) In all cases, fill shall consist of clean earth containing no more than 25%, by volume, of building stone and concrete and no more than 5%, by volume, of incidental asphalt. Fill operations which exceed these limits or operations that require more than one year for completion are considered a landfill and will be regulated as such.

(b) Fill shall consist of satisfactory soil or a mixture of satisfactory soil, stone, gravel or other acceptable materials which is of a character and quality satisfactory for the purpose intended. The material shall be free from sod, stumps, logs or other organic matter, all types of refuse, including construction refuse, fragments of concrete larger than two feet in any dimension, and such other material that, in the judgment of the Director, is unsuitable.

(c) Fill in areas where there is floodplain shall follow Article IXA Floodplain Zoning.

(5) Retaining walls. The use of slopes and natural grading is encouraged. However, retaining walls exceeding 16 inches in height may be constructed only upon issuance of an administrative permit. Retaining walls may be reviewed and approved with a building permit, in which case a separate use approval permit would not be required. Retaining walls 16 inches or less in height are considered curbs and are not regulated by this section. Stepped retaining walls that do not exceed an overall gradient of three feet horizontal to one foot vertical are exempt. The following shall be required as part of the retaining wall application:

[Amended 6-11-2019 by Ord. No. 2620]

(a) A retaining wall plan detailing the location, size, type and proposed grades on both sides of the retaining wall, together with a detailed cross section of the retaining wall, a description of the material to be used, and a description of the method of construction to be utilized shall be required. The plan shall also show the proposed use of land on both sides of the retaining wall.

(b) In reviewing the plan, the Director and staff shall consider the following:

[1] Retaining walls should be considered only where the difference in grade is greater than two feet or in areas where the slope is greater than one foot vertical to three feet horizontal.

[2] Retaining walls shall be considered for the preservation of significant natural features or trees.

[3] Retaining walls should not exceed 48 inches in height unless designed by a professional engineer or installed according to manufacturer's specifications. Walls that are not tiered and exceed seven feet in height shall require a professional structural engineer on site overseeing the construction of the retaining wall.

[4] Retaining walls shall not be located closer than five feet to a side or rear lot line unless the Director finds that there is no other practical location, and only after written approval by the affected neighbor is received.

[5] The appearance of the retaining wall and wall materials shall be considered with respect to the view from the low side of the wall.

[6] The long-term durability and maintenance requirements of the retaining wall shall be considered.

[7] Adequate safety features and precautions shall be incorporated into the retaining wall design to mitigate the hazard of the abrupt dropoff created by the wall.

[8] Retaining walls shall be designed in a manner that frost and hydrostatic pressure will not compromise the integrity of the wall.

[9] Retaining walls shall not interfere with the surface water drainage pattern or create a disruption of the approved drainage or grading plan.

[10] Retaining walls shall be engineered and built in such a manner so as not to collapse.

[11] Retaining walls shall be designed and located in a manner that will not have a negative impact on abutting properties.

(c) All retaining wall structures, including tiebacks, are to be located outside the base setback line.

B. Drainage.

(1) General requirement. No land shall be developed, and no building shall be erected, structurally altered, or moved, and no use shall be permitted, on land which is not adequately drained or which would result in stormwater or surface water runoff that causes property damage, a nuisance and/or erosion to adjacent properties. All drainage plans shall conform with the City of New Berlin Stormwater Management Plan, § 275-55.1, and § 201-8.

(a) All premises shall be graded and maintained so as to prevent the accumulation of stagnant water thereon, or within a building or structure located thereon, or against any structure so as to potentially cause damage to such structures.

(b) The dispersal of concentrated drainage onto adjacent properties is prohibited.

[1] No person shall permit the discharge of concentrated drainage from a downspout and/or sump pump to be directed upon the land of an adjacent property owner.

[2] Any drainage systems which have the effect of redirecting drainage through piping or other means shall comply with the following requirements:

[a] The discharge of any such piping shall be not less than 10 feet from the lot line or, where the structure from which the discharge is occurring is less than 10 feet to the lot line, then, in that event, 1/2 the distance between said structure and the lot line.

[b] The discharge must be adequately diffused before reaching the lot line.

[c] The flow of discharge from the downspout and/or sump pump must be consistent with the approved grading plan for the property.

(2) Exemptions may be granted, with approval of the DCD Director, for properties that incorporate alternative stormwater practices (i.e., rain gardens, rain barrels, cisterns, and others) as designed per the WDNR Technical Standards.

(3) Drainage plan required for site plan approval. Every person who erects, alters or moves a building or structure or who alters or changes topography shall submit a drainage plan to the Director for review and approval as part of the site plan submission. Approval of the drainage plan shall be a prerequisite for issuance of a building permit.

§ 275-55.1 Post-construction stormwater management.

[Amended 1-12-2016 by Ord. No. 2558]

A. Authority.

(1) This section is adopted by the City of New Berlin under the authority granted by § 62.234, Wis. Stats. This section supersedes all provisions of an ordinance previously enacted under § 62.23, Wis. Stats., that related to stormwater management regulations. Except as otherwise specified in § 62.234, Wis. Stats., § 62.23, Wis. Stats., applies to this section and to any amendments to this section.

(2) The provisions of this section are deemed not to limit any other lawful regulatory powers of the same governing body.

(3) The City Common Council hereby designates the City of New Berlin to administer and enforce the provisions of this section.

(4) The requirements of this section do not preempt more stringent stormwater management requirements that may be imposed by any of the following:

(a) Wisconsin Department of Natural Resources administrative rules, permits or approvals including those authorized under §§ 281.16 and 283.33, Wis. Stats.

(b) Targeted nonagricultural performance standards promulgated in rules by the Wisconsin Department of Natural Resources under § NR 151.004, Wis. Adm. Code.

(c) City of New Berlin approved or adopted stormwater management plans for specific areas or watersheds.

B. Findings of fact. The City Common Council finds that uncontrolled post-construction runoff has a significant impact upon water resources and the health, safety and general welfare of the community and diminishes the public enjoyment and use of natural resources. Specifically, uncontrolled post-construction runoff can:

(1) Degrade physical stream habitat by increasing stream bank erosion, increasing streambed scour, diminishing groundwater recharge, diminishing stream base flows and increasing stream temperature.

(2) Diminish the capacity of lakes and streams to support fish, aquatic life, recreational and water supply uses by increasing pollutant loading of sediment, suspended solids, nutrients, heavy metals, bacteria, pathogens and other urban pollutants.

(3) Alter wetland communities by changing wetland hydrology and by increasing pollutant loads.

(4) Reduce the quality of groundwater by increasing pollutant loading.

(5) Threaten public health, safety, property and general welfare by overtaxing storm sewers, drainageways, and other minor drainage facilities.

(6) Threaten public health, safety, property and general welfare by increasing major flood peaks and volumes.

(7) Undermine floodplain management efforts by increasing the incidence and levels of flooding.

C. Purpose and intent.

(1) Purpose. The general purpose of this section is to establish long-term, post-construction runoff management requirements that will diminish the threats to public health, safety, welfare and the aquatic environment. Specific purposes are to:

(a) Further the maintenance of safe and healthful conditions.

(b) Prevent and control the adverse effects of stormwater; prevent and control soil erosion; prevent and control water pollution; protect spawning grounds, fish and aquatic life; control building sites, placement of structures and land uses; preserve ground cover and scenic beauty; and promote sound economic growth.

(c) Control exceedance of the safe capacity of existing drainage facilities and receiving water bodies; prevent undue channel erosion; control increases in the scouring and transportation of particulate matter; and prevent conditions that endanger downstream property.

(d) Minimize the amount of pollutants discharged from the separate storm sewer to protect the waters of the state.

(2) Intent. It is the intent of the City Common Council that this section regulates post-construction stormwater discharges to waters of the state. This section may be applied on a site-by-site basis. The City Common Council recognizes, however, that the preferred method of achieving the stormwater performance standards set forth in this section is through the preparation and implementation of comprehensive, systems-level stormwater management plans that cover hydrologic units, such as watersheds, on a municipal and regional scale. Such plans may prescribe regional stormwater devices, practices or systems, any of which may be designed to treat runoff from more than one site prior to discharge to waters of the state. Where such plans are in conformance with the performance standards developed under § 281.16, Wis. Stats., for regional stormwater management measures and have been approved by the City Common Council, it is the intent of this section that the approved plan be used to identify post-construction management measures acceptable for the community.

D. Applicability and jurisdiction.

(1) Applicability.

(a) Where not otherwise limited by law, this section applies after final stabilization to a site of land-disturbing construction activity meeting any of the criteria in this paragraph, unless the site is otherwise exempt under Subsection D(1)(b).

[1] A post-development construction site that has one or more acres of land-disturbing construction activity.

(b) A site that meets any of the criteria in this Subsection D(1)(b) is exempt from the requirements of this section.

[1] A post-construction site with less than 10% connected imperviousness based on complete development of the post-construction site, provided the cumulative area of all parking lots and rooftops is less than one acre.

[2] Nonpoint discharges from agricultural facilities and practices.

[3] Nonpoint discharges from silviculture activities.

[4] Routine maintenance for project sites under five acres of land disturbance, if performed to maintain the original line and grade, hydraulic capacity or original purpose of the facility.

[5] Underground utility construction such as water, sewer and fiber optic lines. This exemption does not apply to the construction of any aboveground structures associated with utility construction.

(c) Notwithstanding the applicability requirements in Subsection D(1)(a), this section applies to post-construction sites of any size that, in the opinion of the City of New Berlin, is likely to result in runoff that exceeds the safe capacity of the existing drainage facilities or receiving body of water, that causes undue channel erosion, that increases water pollution by scouring or the transportation of particulate matter or that endangers property or public safety.

(d) Applicability of maximum extent practicable (MEP). Maximum extent practicable applies when a person who is subject to a performance standard of the ordinance demonstrates to the City of New Berlin's satisfaction that a performance standard is not achievable and that a lower level of performance is appropriate. In making the assertion that a performance standard is not achievable and that a level of performance different from the performance standard is the maximum extent practicable, the responsible party shall take into account the best available technology, cost effectiveness, geographic features, and other competing interests such as protection of public safety and welfare, the protection of endangered and threatened resources, and preservation of historic properties.

(2) Jurisdiction. This section applies to post-construction sites within the boundaries and jurisdiction of the City of New Berlin.

(3) Exclusions. This section is not applicable to activities conducted by a state agency, as defined under § 227.01(1), Wis. Stats., but also including the Office of District Attorney, which is subject to the state plan promulgated or a memorandum of understanding entered into under § 281.33(2), Wis. Stats.

E. Definitions. Refer to § 275-70.

[Amended 4-25-2023 by Ord. No. 2668]

F. Technical standards. The following methods shall be used in designing and meeting the performance standards for the stormwater management plan:

(1) Technical standards identified, developed or disseminated by the Wisconsin Department of Natural Resources under Subchapter V of Chapter NR 151, Wis. Adm. Code.

(2) Where technical standards have not been identified or developed by the Wisconsin Department of Natural Resources, other technical standards may be used, provided that the methods have been approved by the City of New Berlin.

G. Performance standards.

(1) Responsible party. The responsible party shall implement a post-construction stormwater management plan that incorporates the requirements of this section.

(2) Plan. A written stormwater management plan in accordance with Subsection I shall be developed and implemented for each post-construction site.

(3) Maintenance of effort. For redevelopment sites where the redevelopment will be replacing older development that was subject to post-construction performance standards of NR 151 in effect on or after October 1, 2004, the responsible party shall meet the total suspended solids reduction, peak flow control, infiltration, and protective areas standards applicable to the older development or meet the redevelopment standards of the ordinance, whichever is more stringent.

(4) Requirements. The plan required under Subsection G(2) shall include the following:

(a) Total suspended solids.

[1] BMPs shall be designed, installed and maintained to control total suspended solids carried in runoff from the post-construction site. BMPs shall be designed in accordance with Table 1 or to the maximum extent practicable. The design shall be based on an average annual rainfall, as compared to no runoff management controls.

	Table 275-55.1-1 TSS Reduction Standards
	Development Type	TSS Reduction
	New development	80%
	In-fill	80%
	Redevelopment	40% of load from parking areas and roads

[2] Maximum extent practicable. If the design cannot meet a total suspended solids reduction standard of Table 1, the stormwater management plan shall include a written, site-specific explanation of why the total suspended solids reduction performance standard cannot be met and why the total suspended solids load will be reduced to the maximum extent practicable.

[3] Off-site drainage. When designing BMPS, runoff draining to the BMP from off-site shall be taken in to account in determining the treatment efficiency of the practice. Any impact on the efficiency shall be compensated for by increasing the size of the BMP accordingly.

(b) Peak discharge.

[1] By design, stormwater management practices shall be employed to reduce the one-hundred-year, twenty-four-hour post-development runoff rate to the ten-year, twenty-four-hour pre-development runoff rate. The post-developed one-year, twenty-four-hour and the two-year, twenty-four-hour runoff rate shall be controlled to be no greater than the one-year, twenty-four-hour and the two-year, twenty-four-hour pre-development runoff rate, or to the maximum extent practicable. Pre-development conditions shall assume "good hydrologic conditions" for appropriate land covers as identified in TR-55 or an equivalent methodology. The meaning of "hydrologic soil group" and "runoff curve number" are as determined in TR-55. However, the pre-development state curve number shall not be greater than the curve numbers in Table 2. Peak discharges shall be calculated using TR-55 runoff curve number methodology, Atlas 14 precipitation depths, and the appropriate NRCS Wisconsin MSE3 or MSE4 precipitation distribution. On a case-by-case basis, the City of New Berlin may allow the use of TP-40 precipitation depths and the Type II distribution.

	Table 275-55.1-2 — Maximum Pre-development Runoff Curve Numbers
	Runoff Curve Number	Hydrologic Soil Group
		A	B	C	D
	Woodland	30	55	70	77
	Grassland	39	61	71	78
	Cropland	55	69	78	83

[2] By design, stormwater management practices shall be employed to meet peak discharge requirements of City-adopted stormwater management plans for specific areas or watersheds where applicable.

[3] This Subsection G(4)(b) of the section does not apply to any of the following:

[a] A redevelopment post-construction site, if the impervious surface area of the redevelopment is not increased from existing conditions, except as provided under Subsection G(3).

[b] An infill development area less than five acres, unless determined otherwise by the City per Subsection D(1)(c).

[c] A post-construction site where the discharge is directly into a lake over 5,000 acres or a stream or river segment draining more than 500 square miles.

(c) Infiltration.

[1] BMPs shall be designed, installed, and maintained to infiltrate runoff in accordance with the following or to the maximum extent practicable:

[a] Low imperviousness. For development up to 40% connected imperviousness, such as parks, cemeteries, and low-density residential development, infiltrate sufficient runoff volume so that the post-development infiltration volume shall be at least 90% of the pre-development infiltration volume, based on an average annual rainfall. However, when designing appropriate infiltration systems to meet this requirement, no more than 1% of the post-construction site is required as an effective infiltration area.

[b] Moderate imperviousness. For development with more than 40% and up to 80% connected imperviousness, such as medium- and high-density residential, multifamily development, industrial and institutional development, and office parks, infiltrate sufficient runoff volume so that the post-development infiltration volume shall be at least 75% of the pre-development infiltration volume, based on an average annual rainfall. However, when designing appropriate infiltration systems to meet this requirement, no more than 2% of the post-construction site is required as an effective infiltration area.

[c] High imperviousness. For development with more than 80% connected imperviousness, such as commercial strip malls, shopping centers, and commercial downtowns, infiltrate sufficient runoff volume so that the post-development infiltration volume shall be at least 60% of the pre-development infiltration volume, based on an average annual rainfall. However, when designing appropriate infiltration systems to meet this requirement, no more than 2% of the post-construction site is required as an effective infiltration area.

[2] Pre-development condition shall be the same as specified in Table 275-55.1-2 of the Peak Discharge section.

[3] Source areas.

[a] Prohibitions. Runoff from the following areas may not be infiltrated and may not qualify as contributing to meeting the requirements of this section unless demonstrated to meet the conditions identified in Subsection G(4)(c)[6]:

[i] Areas associated with Tier 1 industrial facilities identified in § NR 216.21(2)(a), Wis. Adm. Code, including storage, loading, rooftop and parking. Rooftops may be infiltrated with the concurrence of the regulatory authority.

[ii] Storage and loading areas of Tier 2 industrial facilities identified in § NR 216.21(2)(b), Wis. Adm. Code.

[iii] Fueling and vehicle maintenance areas. Runoff from rooftops of fueling and vehicle.

[b] Exemptions. Runoff from the following areas may be credited toward meeting the requirement when infiltrated, but the decision to infiltrate runoff from these source areas is optional.

[i] Parking areas and access roads less than 5,000 square feet for commercial development.

[ii] Parking areas and access roads less than 5,000 square feet for industrial development not subject to the prohibitions under Subsection G(4)(c)[1][a].

[iii] Except as provided under Subsection G(3), Redevelopment post-construction sites.

[iv] Infill development areas less than five acres.

[v] Roads on commercial, industrial and institutional land uses, and arterial residential roads.

[4] Location of practices.

[a] Prohibitions. Infiltration practices may not be located in the following areas:

[i] Areas within 1,000 feet upgradient or within 100 feet downgradient of direct conduits to groundwater.

[ii] Areas within 400 feet of a community water system well as specified in § NR811.16(4), Wis. Adm. Code, or within the separation distances listed in § NR 812.08, Wis. Adm. Code for any private well or noncommunity well for runoff infiltrated from commercial, including multifamily, industrial and institutional land uses or regional devices for one- and two-family residential development.

[iii] Areas where contaminants of concern, as defined in § NR 720.03(2), Wis. Adm. Code, are present in the soil through which infiltration will occur.

[b] Separation distances.

[i] Infiltration practices shall be located so that the characteristics of the soil and the separation distance between the bottom of the infiltration system and the elevation of the seasonal high groundwater or the top of bedrock are in accordance with Table 255-55.1-3:

	Source Area	Separation Distance	Soil Characteristics
	Industrial, commercial, institutional parking lots and roads	5 feet or more	Filtering layer
	Residential arterial roads	5 feet or more	Filtering layer
	Roofs draining to subsurface infiltration practices	1 foot or more	Native or engineered soil with particles finer than coarse sand
	Roofs draining to surface infiltration practices	Not applicable	Not applicable
	All other impervious source areas	3 feet or more	Filtering layer

[ii] Notwithstanding Subsection G(4)(c)[4][b], applicable requirements for injection wells classified under § NR 815 shall be followed.

[c] Infiltration rate exemptions. Infiltration practices located in the following areas may be credited toward meeting the requirements under the following conditions, but the decision to infiltrate under these conditions is optional:

[i] Where the infiltration rate of the soil measured at the proposed bottom of the infiltration system is less than 0.6 inches per hour using a scientifically credible field test method.

[ii] Where the least permeable soil horizon to five feet below the proposed bottom of the infiltration system using the U.S. Department of Agriculture method of soils analysis is one of the following: sandy clay loam, clay loam, silty clay loam, sandy clay, silty clay, or clay.

[5] Alternate use. Where alternate uses of runoff are employed, such as from toilet flushing, laundry, or irrigation or storage on green roofs where an equivalent portion of the runoff is captured permanently by rooftop vegetation, such alternate use shall be given equal credit toward the infiltration volume required by this section.

[6] Groundwater standards.

[a] Infiltration systems designed in accordance with this paragraph shall, to the extent technically and economically feasible, minimize the level of pollutants infiltrating to groundwater and shall maintain compliance with the preventative action limit at a point of standards application in accordance with Ch. NR 140, Wis. Adm. Code. However, if site-specific information indicates that compliance with a preventative action limit is not achievable, the infiltration BMP may not be installed or shall be modified to prevent infiltration, to the maximum extent practicable.

[b] Notwithstanding the above, the discharge from BMPs shall remain below the enforcement standard at the point of standards application.

[7] Pretreatment. Before infiltrating runoff, pretreatment shall be required for parking lot runoff and for runoff from new road construction in commercial, industrial and institutional areas that will enter an infiltration system. The pretreatment shall be designed to protect the infiltration system from clogging prior to scheduled maintenance and to protect groundwater quality in accordance with Subsection G(4)(c)[6]. Pretreatment options may include, but are not limited to, oil/grease separation, sedimentation, biofiltration, filtration, swales or filter strips.

[8] Maximum extent practicable. Where the conditions of Subsection G(4)(c)[3] and [4] limit or restrict the use of infiltration practices, the performance standard of Subsection G(4)(c) shall be met to the maximum extent practicable.

(d) Protective areas. The following are minimum standards for protective areas; however, the City may impose greater limits based on site-specific information.

[1] "Protective area" means an area of land that commences at the top of the channel of lakes, streams and rivers, or at the delineated boundary of wetlands, and that is the greatest of the following widths, as measured horizontally from the top of the channel or delineated wetland boundary to the closest impervious surface. However, in this paragraph, "protective area" does not include any area of land adjacent to any stream enclosed within a pipe or culvert such that runoff cannot enter the enclosure at this location.

[a] For outstanding resource waters and exceptional resource waters: 75 feet.

[b] For perennial and intermittent streams identified on a United States Geological Survey 7.5-minute series topographic map, or a county soil survey map, whichever is more current: 50 feet.

[c] For lakes: 50 feet.

[d] For wetlands not subject to Subsection G(4)(d)[1][e] or [f]: 50 feet.

[e] For highly susceptible wetlands: 75 feet. Highly susceptible wetlands include the following types: calcareous fens, sedge meadows, open and coniferous bogs, low prairies, coniferous swamps, lowland hardwood swamps, and ephemeral ponds.

[f] For less susceptible wetlands: 10% of the average wetland width, but no less than 10 feet nor more than 30 feet. Less susceptible wetlands include: degraded wetlands dominated by invasive species such as reed canary grass; cultivated hydric soils; and any gravel pits, or dredged material or fill material disposal sites that take on the attributes of a wetland.

[g] In Subsection G(4)(d)[1][d] to [f], determinations of the extent of the protective area adjacent to wetlands shall be made on the basis of the sensitivity and runoff susceptibility of the wetland in accordance with the standards and criteria in § NR 103.03, Wis. Adm. Code.

[h] Wetland boundary delineations shall be made in accordance with § NR 103.08(1m), Wis. Adm. Code. This paragraph does not apply to wetlands that have been completely filled in accordance with all applicable state and federal regulations. The protective area for wetlands that have been partially filled in accordance with all applicable state and federal regulations shall be measured from the wetland boundary delineation after fill has been placed. Where there is a legally authorized wetland fill, the protective area standard need not be met in that location.

[i] For concentrated flow channels with drainage areas greater than 130 acres: 10 feet.

[j] Notwithstanding Subsection G(4)(d)[1][a] to [i], the greatest protective area width shall apply where rivers, streams, lakes and wetlands are contiguous.

[2] Applicability. This paragraph applies to post-construction sites located within a protective area, except those areas exempted pursuant Subsection G(4)(d)[4].

[3] Requirements. The following requirements shall be met:

[a] Impervious surfaces shall be kept out of the protective area entirely or to the maximum extent practicable. If there is no practical alternative to locating an impervious surface in the protective area, the stormwater management plan shall contain a written site-specific explanation for any parts of the protective area that are disturbed during construction.

[b] Where land-disturbing construction activity occurs within a protective area, and where no impervious surface is present, adequate sod or self-sustaining vegetative cover of 70% or greater shall be established and maintained. The adequate sod or self-sustaining vegetative cover shall be sufficient to provide for bank stability, maintenance of fish habitat and filtering of pollutants from upslope overland flow areas under sheet flow conditions. Nonvegetative materials, such as rock riprap, may be employed on the bank as necessary to prevent erosion, such as on steep slopes or where high velocity flows occur.

[c] Best management practices such as filter strips or swales that are designed to control pollutants from nonpoint sources may be located in the protective area.

[4] Exemptions. This paragraph does not apply to:

[a] Except as provided under Subsection G(3), redevelopment post-construction sites.

[b] Infill development areas less than five acres.

[c] Structures that cross or access surface waters, such as boat landings, bridges and culverts.

[d] Structures constructed in accordance with § 59.692(1v), Wis. Stats.

[e] Area of post-construction sites from which runoff does not enter the protective area's surface water, including wetlands, without first being treated by a BMP to meet the local ordinance requirements for total suspended solids and peak flow reduction, except to the extent that vegetative ground cover is necessary to maintain bank.

(e) Fueling and vehicle maintenance areas. Fueling and vehicle maintenance areas shall, to the maximum extent practicable, have BMPs designed, installed and maintained to reduce petroleum within runoff, such that the runoff that enters waters of the state contains no visible petroleum sheen.

(f) Swale treatment for transportation facilities.

[1] Applicability. Except as provided in Subsection G(4)(f)[2], transportation facilities that use swales for runoff conveyance and pollutant removal meet all of the requirements of this section if the swales are designed to the maximum extent practicable to do all of the following:

[a] Be vegetated. However, where appropriate, nonvegetative measures may be employed to prevent erosion or provide for runoff treatment, such as rock riprap stabilization or check dams.

[b] Swales shall comply with section V.F. (Velocity and Depth) and V.G. (Swale Geometry Criteria) with a swale treatment length as long as that specified in section V.C., (Pre-Treatment) of the Wisconsin Department of Natural Resources Technical Standard 1005 "Vegetated Infiltration Swales," dated May 2007, or a superseding document. Transportation facility swale treatment does not have to comply with other sections of Technical Standard 1005.

[2] Other requirements.

[a] Notwithstanding Subsection G(4)(f)[1], the City of New Berlin may, consistent with water quality standards, require other provisions of this section be met on a transportation facility with an average daily travel of vehicles greater than 2,500 and where the initial surface water of the state that the runoff directly enters is any of the following:

[i] An outstanding resource water.

[ii] An exceptional resource water.

[iii] Waters listed in § 303(d) of the Federal Clean Water Act that are identified as impaired in whole or in part, due to nonpoint source impacts.

[iv] Waters where targeted performance standards are developed under § NR 151.004, Wis. Adm. Code, to meet water quality standards.

[b] The transportation facility authority shall contact the City of New Berlin to determine if additional BMPs beyond a water quality swale are needed under this subsection.

(g) Storm sewers and culverts.

[1] Storm sewers and culverts shall be designed for a twenty-five-year storm event as defined by the New Berlin Developer's Handbook.

[2] Storm sewers shall be designed to be self-cleaning with a minimum velocity of two feet/second and a maximum velocity of 12 feet/second.

(5) General considerations for on-site and off-site stormwater management measures. The following considerations shall be observed in on-site and off-site runoff management:

(a) Natural topography and land cover features such as natural swales, natural depressions, native soil infiltrating capacity, and natural groundwater recharge areas shall be preserved and used, to the extent possible, to meet the requirements of this section.

(b) Emergency overland flow routes for all stormwater facilities shall be provided to prevent exceeding the safe capacity of downstream drainage facilities and prevent endangerment of downstream property or public safety.

(6) Location and regional treatment option.

(a) To comply with the performance standards required under Subsection G, BMPs may be located on-site or off-site as part of a regional stormwater device, practice or system, but shall be installed in accordance with § NR 151.003, Wis. Adm. Code.

(b) The City of New Berlin may approve off-site management measures, provided that all of the following conditions are met:

[1] The City of New Berlin determines that the post-construction runoff is covered by a stormwater management system plan that is approved by the City of New Berlin and that contains management requirements consistent with the purpose and intent of this section.

[2] The off-site facility meets all of the following conditions:

[a] The facility is in place.

[b] The facility is designed and adequately sized to provide a level of stormwater control equal to or greater than that which would be afforded by on-site practices meeting the performance standards of this section.

[c] The facility has a legally obligated entity responsible for its long-term operation and maintenance.

(c) Where a regional treatment option exists such that the City of New Berlin exempts the applicant from all or part of the minimum on-site stormwater management requirements, the applicant shall be required to pay a fee in an amount determined in negotiation with the City of New Berlin. In determining the fee for post-construction runoff, the City of New Berlin shall consider an equitable distribution of the cost for land, engineering design, construction, and maintenance of the regional treatment option.

(7) Milwaukee Metropolitan Sewerage District (MMSD) rules on surface water and stormwater runoff management.

(a) These rules are effective January 1, 2002, and are hereby adopted by reference for those portions of the City within the ultimate sewer service area as established by MMSD. Said ultimate sewer service area is depicted on the MMSD sewer service map for the City of New Berlin. Future amendments to the MMSD rules are also adopted by reference. A copy of Chapter 13, as well as the MMSD sewer service map for the City of New Berlin, shall be on file and open to public inspection in the offices of the City Clerk and Department of Community Development.

(b) The MMSD rules on stormwater runoff management and plan submittal requirements shall be complied with as to all property within the MMSD ultimate sewer service area, in addition to the other stormwater provisions of this chapter, including but not limited to plat approval under Chapter 275, Zoning, construction site erosion control, and post-construction stormwater quality best management practices to abate pollutant runoff. A violation of the MMSD rules shall be a violation of this chapter with respect to those properties within the MMSD ultimate sewer service area.

(8) Additional requirements. The City of New Berlin may establish stormwater management requirements more stringent than those set forth in this section if the City of New Berlin determines that the requirements are needed to control stormwater quantity or control flooding, comply with federally approved total maximum daily load requirements, or control pollutants associated with existing development or redevelopment, or an added level of protection is needed to protect sensitive resources.

H. Permitting requirements, procedures and fees.

(1) Permit required. No responsible party may undertake a land-disturbing construction activity without receiving a post-construction runoff permit from the City of New Berlin prior to commencing the proposed activity.

(2) Permit application and fees. Unless specifically excluded by this section, any responsible party desiring a permit shall submit to the City of New Berlin a permit application made on a form provided by the City of New Berlin for that purpose.

(a) Unless otherwise excepted by this section, a permit application must be accompanied by a stormwater management plan, a maintenance agreement and a nonrefundable permit administration fee.

(b) The stormwater management plan shall be prepared to meet the requirements of Subsection G and I; the maintenance agreement shall be prepared to meet the requirements of Subsection J; the financial guarantee shall meet the requirements of Subsection K; and fees shall be those established by the City of New Berlin as set forth in Subsection L.

(3) Review and approval of permit application. The City of New Berlin shall review any permit application that is submitted with a stormwater management plan, maintenance agreement, and the required fee. The following approval procedure shall be used:

(a) Within 45 business days of the receipt of a complete permit application, including all items as required by Subsection H(2), the City of New Berlin shall inform the applicant whether the application, plan and maintenance agreement are approved or disapproved based on the requirements of this section.

(b) If the stormwater permit application, plan and maintenance agreement are approved, or if an agreed upon payment of fees in lieu of stormwater management practices is made, the City of New Berlin shall issue the permit.

(c) If the stormwater permit application, plan or maintenance agreement is disapproved, the City of New Berlin shall detail in writing the reasons for disapproval.

(d) The City of New Berlin may request additional information from the applicant. If additional information is submitted, the City of New Berlin shall have 45 business days from the date the additional information is received to inform the applicant that the plan and maintenance agreement are either approved or disapproved.

(e) Failure by the City of New Berlin to inform the permit applicant of a decision within 45 business days of a required submittal shall not be deemed to mean approval of the submittal, and the applicant may not proceed as if a permit had been issued until the Director responds in writing with a decision. If the Director, following the first forty-five-day period, fails to respond after written request to do so by the applicant within 45 days of request, then the failure to respond shall be deemed to mean approval of the submittal, and the applicant may proceed as if a permit had been issued.

(4) Permit requirements. All permits issued under this section shall be subject to the following conditions, and holders of permits issued under this section shall be deemed to have accepted these conditions. The City of New Berlin may suspend or revoke a permit for violation of a permit condition, following written notification of the responsible party. An action by the City of New Berlin to suspend or revoke this permit may be appealed in accordance with Subsection N.

(a) Compliance with this permit does not relieve the responsible party of the responsibility to comply with other applicable federal, state, and local laws and regulations.

(b) The responsible party shall design and install all structural and nonstructural stormwater management measures in accordance with the approved stormwater management plan and this permit.

(c) The responsible party shall notify the City of New Berlin at least five business days before commencing any work in conjunction with the stormwater management plan and within five business days upon completion of the stormwater management practices. If required as a special condition under Subsection H(5), the responsible party shall make additional notification according to a schedule set forth by the City of New Berlin so that practice installations can be inspected during construction.

(d) Practice installations required as part of this section shall be certified "as-built" by a licensed professional engineer. Completed stormwater management practices must pass a final inspection by the City of New Berlin or its designee to determine if they are in accordance with the approved stormwater management plan and ordinance. The City of New Berlin or its designee shall notify the responsible party in writing of any changes required in such practices to bring them into compliance with the conditions of this permit.

(e) The responsible party shall notify the City of New Berlin of any significant modifications it intends to make to an approved stormwater management plan. The City of New Berlin may require that the proposed modifications be submitted for approval prior to incorporation into the stormwater management plan and execution by the responsible party.

(f) The responsible party shall maintain all stormwater management practices in accordance with the stormwater management plan until the practices either become the responsibility of the City of New Berlin or are transferred to subsequent private owners, as specified in the approved maintenance agreement.

(g) If the responsible party fails to maintain all stormwater management practices, the City of New Berlin may perform any work or operations necessary to bring stormwater management measures into conformance with the approved stormwater management plan, and make a special assessment or charge against the property as authorized under Subch. VII of Ch. 66, Wis. Stats., or charge such costs against the financial guarantee posted under Subsection K.

(h) If so directed by the City of New Berlin, the responsible party shall repair at the responsible party's own expense all damage to adjoining municipal facilities and drainageways caused by runoff, where such damage is caused by activities that are not in compliance with the approved stormwater management plan.

(i) The responsible party shall permit property access to the City of New Berlin or its designee for the purpose of inspecting the property for compliance with the approved stormwater management plan and this permit.

(j) Where site development or redevelopment involves changes in direction, increases in peak rate and/or total volume of runoff from a site, the City of New Berlin may require the responsible party to make appropriate legal arrangements with affected property owners concerning the prevention of endangerment to property or public safety.

(k) The responsible party is subject to the enforcement actions and penalties detailed in Subsection M if the responsible party fails to comply with the terms of this permit.

(5) Permit conditions. Permits issued under this subsection may include conditions established by the City of New Berlin in addition to the requirements needed to meet the performance standards in Subsection G or a financial guarantee as provided for in Subsection K.

(6) Permit duration. Permits issued under this section shall be valid from the date of issuance through the date the City of New Berlin notifies the responsible party that all stormwater management practices have passed the final inspection required under Subsection H(4)(d).

I. Stormwater management plan.

(1) Plan requirements. The stormwater management plan required under Subsection H(2) shall contain at a minimum the following information:

(a) Name, address, and telephone number for the following or their designees: landowner; developer; project engineer for practice design and certification; person(s) responsible for installation of stormwater management practices; and person(s) responsible for maintenance of stormwater management practices prior to the transfer, if any, of maintenance responsibility to another party.

(b) A proper legal description of the property proposed to be developed, referenced to the U.S. Public Land Survey system or to block and lot numbers within a recorded land subdivision plat.

(c) Pre-development site conditions, including:

[1] One or more site maps at a scale of not less than one inch equals 100 feet. The site maps shall show the following: site location and legal property description; predominant soil types and hydrologic soil groups; existing cover type and condition; topographic contours of the site at a scale not to exceed 100 feet; topography and drainage network including enough of the contiguous properties to show runoff patterns onto, through, and from the site; watercourses that may affect or be affected by runoff from the site; flow path and direction for all stormwater conveyance sections, including time of travel and time of concentration applicable to each; watershed boundaries used in hydrology determinations to show compliance with performance standards; lakes, streams, wetlands, channels, ditches, and other watercourses on and immediately adjacent to the site; limits of the one-hundred-year floodplain; location of wells and wellhead protection areas covering the project area and delineated pursuant to § NR 811.16, Wis. Adm. Code.

[2] Hydrology and pollutant-loading computations as needed to show compliance with performance standards. All major assumptions used in developing input parameters shall be clearly stated. The geographic areas used in making the calculations shall be clearly cross-referenced to the required map(s).

(d) Post-development site conditions, including:

[1] Explanation of the provisions to preserve and use natural topography and land cover features to minimize changes in peak flow runoff rates and volumes to surface waters and wetlands.

[2] Explanation of any restrictions on stormwater management measures in the development area imposed by wellhead protection plans and ordinances.

[3] One or more site maps at a scale of not less than one inch equals 100 feet showing the following: post-construction pervious areas including vegetative cover type and condition; impervious surfaces including all buildings, structures, and pavement; post-construction topographic contours of the site at a scale not to exceed 100 feet; post-construction drainage network including enough of the contiguous properties to show runoff patterns onto, through, and from the site; locations and dimensions of drainage easements; locations of maintenance easements specified in the maintenance agreement; flow path and direction for all stormwater conveyance sections, including time of travel and time of concentration applicable to each; location and type of all stormwater management conveyance and treatment practices, including the on-site and off-site tributary drainage area; location and type of conveyance system that will carry runoff from the drainage and treatment practices to the nearest adequate outlet such as a curbed street, storm drain, or natural drainageway; watershed boundaries used in hydrology and pollutant-loading calculations and any changes to lakes, streams, wetlands, channels, ditches, and other watercourses on and immediately adjacent to the site.

[4] Hydrology and pollutant-loading computations as needed to show compliance with performance standards. All major assumptions used in developing input parameters shall be clearly stated. The computations shall be made for each discharge point in the development, and the geographic areas used in making the calculations shall be clearly cross-referenced to the required map(s).

[5] Results of investigations of soils and groundwater required for the placement and design of stormwater management measures. Detailed drawings including cross sections and profiles of all permanent stormwater conveyance and treatment practices.

(e) Construction specifications, description and installation schedule for the stormwater management practices needed to meet the performance standards in Subsection G.

(f) A maintenance plan developed for the life of each stormwater management practice, including the required maintenance activities and maintenance activity schedule.

(g) Cost estimates for the construction, operation, and maintenance of each stormwater management practice.

(h) Typed written narrative for BMP design(s), including a description of design procedures, software used and computer model schematics, flow rates, design results, and any relative information or assumptions used for the design.

(i) Other information requested in writing by the City of New Berlin to determine compliance of the proposed stormwater management measures with the provisions of this section.

(j) All site investigations, plans, designs, computations, and drawings shall be certified by a licensed Wisconsin professional engineer to be prepared in accordance with accepted engineering practice and requirements of this section.

(2) Alternate requirements. The City of New Berlin may prescribe alternative submittal requirements for applicants seeking an exemption to on-site stormwater management performance standards under Subsection G(6).

J. Maintenance agreement.

(1) Maintenance agreement required. The maintenance agreement required under Subsection H(2) for stormwater management practices shall be an agreement between the City of New Berlin and the responsible party to provide for maintenance of stormwater practices beyond the duration period of this permit. The maintenance agreement shall be filed with the County Register of Deeds as a property deed restriction so that it is binding upon all subsequent owners of the land served by the stormwater management practices.

(2) Agreement provisions. The maintenance agreement shall contain the following information and provisions and be consistent with the maintenance plan required by Subsection I(1)(f).

(a) Identification of the stormwater facilities and designation of the drainage area served by the facilities.

(b) A schedule for regular maintenance of each aspect of the stormwater management system consistent with the stormwater management plan required under Subsection H(2).

(c) Identification of the responsible party(s), organization or city, county or City responsible for long-term inspection and maintenance of the stormwater management practices identified in the stormwater management plan required under Subsection H(2).

(d) Requirement that the responsible party(s), organization or city, county, or City shall maintain stormwater management practices in accordance with the schedule included in Subsection J(2)(b).

(e) Authorization for the City of New Berlin to access the property to conduct inspections of stormwater management practices as necessary to ascertain that the practices are being maintained and operated in accordance with the agreement.

(f) A requirement on the City of New Berlin to maintain public records of the results of the site inspections, to inform the responsible party responsible for maintenance of the inspection results, and to specifically indicate any corrective actions required to bring the stormwater management practice into proper working condition.

(g) Agreement that the party designated under Subsection J(2)(c) as responsible for long-term inspection and maintenance of the stormwater management practices, if notified by the City of New Berlin of maintenance problems which require correction, will undertake corrective action within a reasonable time frame as set by the City of New Berlin.

(h) Authorization of the City of New Berlin to perform the corrected actions identified in the inspection report if the responsible party designated under Subsection J(2)(c) does not make the required corrections in the specified time period. The City of New Berlin shall enter the amount due on the tax rolls and collect the money as a special charge against the property pursuant to Subch. VII of Ch. 66, Wis. Stats.

K. Financial guarantee.

(1) Establishment of the guarantee. The City of New Berlin may require the submittal of a financial guarantee, the form and type of which shall be acceptable to the City of New Berlin. The financial guarantee shall be in an amount determined by the City of New Berlin to be the estimated cost of construction and the estimated cost of maintenance of the stormwater management practices during the period which the designated party in the maintenance agreement has maintenance responsibility. The financial guarantee shall give the City of New Berlin the authorization to use the funds to complete the stormwater management practices or restore the project site, as deemed fit by the City, if the responsible party defaults or does not properly implement the approved stormwater management plan upon written notice to the responsible party by the administering authority that the requirements of this section have not been met.

(2) Conditions for release. Conditions for the release of the financial guarantee are as follows:

(a) The City of New Berlin shall release the portion of the financial guarantee established under this section, less any costs incurred by the City of New Berlin to complete installation of practices, upon submission of as-built plans by a licensed professional engineer. The City of New Berlin may make provisions for a partial pro-rata release of the financial guarantee based on the completion of various development stages.

(b) The City of New Berlin shall release the portion of the financial guarantee established under this section to assure maintenance of stormwater practices, less any costs incurred by the City of New Berlin, at such time that the responsibility for practice maintenance is passed on to another entity via an approved maintenance agreement.

L. Fee schedule. The fees referred to in other subsections of this section shall be established by the City of New Berlin and may from time to time be modified by resolution. A schedule of the fees established by the City of New Berlin shall be available for review in the City Hall.

M. Enforcement.

(1) Any land-disturbing construction activity or post-construction runoff initiated after the effective date of this section by any person, firm, association, or corporation subject to the ordinance provisions shall be deemed a violation unless conducted in accordance with the requirements of this section.

(2) The City of New Berlin shall notify the responsible party by certified mail of any noncomplying land-disturbing construction activity or post-construction runoff. The notice shall describe the nature of the violation, remedial actions needed, a schedule of remedial action, and additional enforcement action which may be taken.

(3) Upon receipt of written notification from the City of New Berlin under Subsection M(2), the responsible party shall correct work that does not comply with the stormwater management plan or other provisions of this permit. The responsible party shall make corrections as necessary to meet the specifications and schedule set forth by the City of New Berlin in the notice.

(4) If the violations to a permit issued pursuant to this section are likely to result in damage to properties, public facilities, or waters of the state, the City of New Berlin may enter the land and take emergency actions necessary to prevent such damage. The costs incurred by the City of New Berlin plus interest and legal costs shall be billed to the responsible party.

(5) The City of New Berlin is authorized to post a stop-work order on all land-disturbing construction activity that is in violation of this section or to request the municipal attorney to obtain a cease-and-desist order in any court with jurisdiction.

(6) The City of New Berlin may revoke a permit issued under this section for noncompliance with ordinance provisions.

(7) Any permit revocation, stop-work order, or cease-and-desist order shall remain in effect unless retracted by the City of New Berlin or by a court with jurisdiction.

(8) The City of New Berlin is authorized to refer any violation of this section, or of a stop-work order or cease-and-desist order issued pursuant to this section, to the Municipal Attorney for the commencement of further legal proceedings in any court with jurisdiction.

(9) Any person, firm, association, or corporation who does not comply with the provisions of this section shall be subject to a forfeiture of not less than $500 or more than $1,000 per offense, together with the costs of prosecution. Each day that the violation exists shall constitute a separate offense.

(10) Compliance with the provisions of this section may also be enforced by injunction in any court with jurisdiction. It shall not be necessary to prosecute for forfeiture or a cease-and-desist order before resorting to injunctional proceedings.

(11) When the City of New Berlin determines that the holder of a permit issued pursuant to this section has failed to follow practices set forth in the stormwater management plan, or has failed to comply with schedules set forth in said stormwater management plan, the City of New Berlin or a party designated by the City of New Berlin may enter upon the land and perform the work or other operations necessary to bring the condition of said lands into conformance with requirements of the approved plan. The City of New Berlin shall keep a detailed accounting of the costs and expenses of performing this work. These costs and expenses shall be deducted from any financial security posted pursuant to Subsection K of this section. Where such a security has not been established, or where such a security is insufficient to cover these costs, the costs and expenses shall be entered on the tax roll as a special charge against the property and collected with any other taxes levied thereon for the year in which the work is completed.

N. Appeals.

(1) Board of Appeals. The Board of Appeals, created pursuant to § 275-16 of the City of New Berlin ordinances pursuant to § 62.234(4)(b), Wis. Stats., shall hear and decide appeals where it is alleged that there is error in any order, decision or determination made by the City of New Berlin in administering this section. The Board shall also use the rules, procedures, duties, and powers authorized by statute in hearing and deciding appeals. Upon appeal, the Board may authorize variances from the provisions of this section that are not contrary to the public interest and where, owing to special conditions, a literal enforcement of the ordinance will result in unnecessary hardship.

(2) Who may appeal. Appeals to the Board of Appeals may be taken by any aggrieved person or by an officer, department, board or bureau of the City of New Berlin affected by any decision of the City of New Berlin.

§ 275-55.2 Construction site erosion control.

[Amended 1-12-2016 by Ord. No. 2558]

A. Authority.

(1) This section is adopted under the authority granted by § 62.234, Wis. Stats., for cities. This section supersedes all provisions of an ordinance previously enacted under § 62.23, Wis. Stats., that relate to construction site erosion control. Except as otherwise specified in § 62.234 Wis. Stats., § 62.23, Wis. Stats., applies to this section and to any amendments to this section.

(2) The provisions of this section are deemed not to limit any other lawful regulatory powers of the same governing body.

(3) The City Common Council hereby designates the City of New Berlin to administer and enforce the provisions of this section.

(4) The requirements of this section do not preempt more stringent erosion and sediment control requirements that may be imposed by any of the following:

(a) Wisconsin Department of Natural Resources administrative rules, permits or approvals including those authorized under §§ 281.16 and 283.33, Wis. Stats.

(b) Targeted nonagricultural performance standards promulgated in rules by the Wisconsin Department of Natural Resources under § NR 151.004, Wis. Adm. Code.

B. Findings of fact. The City of New Berlin finds that runoff from land-disturbing construction activity carries a significant amount of sediment and other pollutants to the waters of the state in the City of New Berlin.

C. Purpose. It is the purpose of this section to further the maintenance of safe and healthful conditions; prevent and control water pollution; prevent and control soil erosion and sediment discharge; protect spawning grounds, fish and aquatic life; control building sites, placement of structures and land uses; preserve ground cover and scenic beauty; and promote sound economic growth, by minimizing the amount of sediment and other pollutants carried by runoff or discharged from land-disturbing construction activity to waters of the state in the City of New Berlin.

D. Applicability and jurisdiction.

(1) Applicability.

(a) This section applies to any construction site except as provided under Subsection D(1)(b).

(b) This section does not apply to the following:

[1] A construction project that is exempted by federal statutes or regulations from the requirement to have a national pollutant discharge elimination system permit issued under Chapter 40, Code of Federal Regulations, Part 122, for land-disturbing construction activity.

[2] Nonpoint discharges from agricultural facilities and practices.

[3] Nonpoint discharges from silviculture activities.

[4] Routine maintenance for project sites under five acres of land disturbance if performed to maintain the original line and grade, hydraulic capacity or original purpose of the facility.

[5] Transportation facilities, except transportation facility construction projects that are part of a larger common plan of development such as local roads within a residential or industrial development.

(c) Notwithstanding the applicability requirements in Subsection D(1)(a), this section applies to construction sites of any size that, in the opinion of the City of New Berlin, are likely to carry sediment and pollutants to downstream stormwater facilities and waters of the state or which degrades safe and healthful conditions or endangers property, the environment, or downstream facilities.

(d) Applicability of maximum extent practicable. Maximum extent practicable applies when a person who is subject to a performance standard of this section demonstrates to the City of New Berlin's satisfaction that a performance standard is not achievable and that a lower level of performance is appropriate. In making the assertion that a performance standard is not achievable and that a level of performance different from the performance standard is the maximum extent practicable, the responsible party shall take into account the best available technology, cost effectiveness, geographic features, and other competing interests such as protection of public safety and welfare, protection of endangered and threatened resources, and preservation of historic properties.

(2) Jurisdiction. This section applies to land-disturbing construction activity on construction sites located within the boundaries and jurisdiction of the City of New Berlin.

(3) Exclusions. This section is not applicable to activities conducted by a state agency, as defined under § 227.01(1), Wis. Stats., but also including the office of district attorney, which are subject to the state plan promulgated or a memorandum of understanding entered into under § 281.33(2), Wis. Stats.

E. Definitions. Refer to § 275-70.

[Amended 4-25-2023 by Ord. No. 2668]

F. Technical standards. All BMPs required for compliance with this section shall meet the design criteria, standards and specifications based on any of the following:

(1) Design guidance and technical standards identified and developed by the Wisconsin Department of Natural Resources under Subchapter V of Chapter NR 151, Wis. Adm. Code. Copies of these standards are maintained on the WDNR internet site.

(2) Soil loss prediction tools [such as the Universal Soil Loss Equation (USLE)] when using the appropriate rainfall or runoff factor, also referred to as the R factor, or an appropriate design storm and precipitation distribution, with consideration given to the geographic location of the site and the period of disturbance.

(3) Other standards. Other technical standards may be used, provided that the methods have been approved by the City Engineer.

G. Performance standards for construction sites under one acre.

(1) Responsible party. The responsible party shall implement an erosion and sediment control plan, developed in accordance with Subsection J, that incorporates the requirements of this section.

(2) Erosion and sediment control practices. Erosion and sediment control practices at each site where land-disturbing construction activity is to occur shall be used to prevent or reduce all of the following:

(a) The deposition of soil from being tracked onto streets by vehicles.

(b) The discharge of sediment from disturbed areas into on-site stormwater inlets.

(c) The discharge of sediment from disturbed areas into adjacent waters of the state.

(d) The discharge of sediment from drainage ways that flow off the site.

(e) The discharge of sediment by dewatering activities.

(f) The discharge of sediment eroding from soil stockpiles existing for more than seven days.

(g) The discharge of sediment from erosive flows at outlets and in downstream channels.

(h) The transport by runoff into water of the state of chemicals, cement, and other building compounds and materials on the construction site during the construction period. However, projects that require the placement of these materials in waters of the state, such as constructing bridge footings or BMP installations, are not prohibited by this paragraph.

(i) The transport by runoff into water of the state of untreated wash water from vehicle and wheel washing.

(3) Location. The BMPs used to comply with this section shall be located so that treatment occurs before runoff enters waters of the state.

(4) Implementation. The BMPs used to comply with this section shall be implemented as follows:

(a) Erosion and sediment control practices shall be constructed or installed before land-disturbing activities begin.

(b) Erosion and sediment control practices shall be maintained until final stabilization.

(c) Final stabilization activity shall commence when land-disturbing activities cease and final grade has been reached on any portion of the site.

(d) Temporary stabilization activity shall commence when land-disturbing activities have temporarily ceased and will not resume for a period exceeding 14 calendar days.

(e) BMPs that are no longer necessary for erosion and sediment control shall be removed by the responsible party.

(5) Alternate requirements. The City of New Berlin may establish erosion and sediment control management requirements more stringent than those set forth in this section if the City of New Berlin determines that an added level of protection is needed for sensitive resources.

(6) Sites shall receive final or interim stabilization by no later than October 15 of each year, or approved by the Director. Sites under interim stabilization shall be maintained through the winter until final stabilization can be achieved during the growing season. Stabilization methods shall adhere to the Wisconsin DNR storm water construction technical standards for erosion and stabilization practices.

[Added 4-25-2023 by Ord. No. 2668]

H. Performance standards for construction sites of one acre or more.

(1) Responsible party. The responsible party shall implement an erosion and sediment control plan, developed in accordance with Subsection J, that incorporates the requirements of this section.

(2) Plan. A written site-specific plan shall be developed in accordance with Subsection J and implemented for each construction site.

(3) Erosion and other pollutant control requirements. The plan required under Subsection H(2) shall include the following:

(a) Erosion and sediment control practices. Erosion and sediment control practices at each site where land-disturbing construction activity is to occur shall be used to prevent or reduce all of the following:

[1] The deposition of soil from being tracked onto streets by vehicles.

[2] The discharge of sediment from disturbed areas into on-site stormwater inlets.

[3] The discharge of sediment from disturbed areas into adjacent waters of the state.

[4] The discharge of sediment from drainageways that flow off the site.

[5] The discharge of sediment by dewatering activities.

[6] The discharge of sediment eroding from soil stockpiles existing for more than seven days.

[7] The discharge of sediment from erosive flows at outlets and in downstream channels.

[8] The transport by runoff into water of the state of chemicals, cement, and other building compounds and materials on the construction site during the construction period. However, projects that require the placement of these materials in waters of the state, such as constructing bridge footings or BMP installations, are not prohibited by this paragraph.

[9] The transport by runoff into water of the state of untreated wash water from vehicle and wheel washing.

(b) Sediment performance standards. In addition to the erosion and sediment control practices under Subsection H(3)(a), the following erosion and sediment control practices shall be employed:

[1] BMPs that, by design, discharge no more than five tons per acre per year, or to the maximum extent practicable, of the sediment load carried in runoff from initial grading to final stabilization.

[2] No person shall be required to employ more BMPs than are needed to meet a performance standard in order to comply with maximum extent practicable. Erosion and sediment control BMPs may be combined to meet the requirements of this paragraph. Credit may be given toward meeting the sediment performance standard of this paragraph for limiting the duration or area, or both, of land-disturbing construction activity, or for other appropriate mechanisms.

[3] Notwithstanding Subsection H(3)(b)[1], if BMPs cannot be designed and implemented to meet the sediment performance standard, the erosion and sediment control plan shall include a written, site-specific explanation of why the sediment performance standard cannot be met and how the sediment load will be reduced to the maximum extent practicable.

(c) Preventive measures. The erosion and sediment control plan shall incorporate all of the following:

[1] Maintenance of existing vegetation, especially adjacent to surface waters whenever possible.

[2] Minimization of soil compaction and preservation of topsoil.

[3] Minimization of land-disturbing construction activity on slopes of 20% or more.

[4] Development of spill prevention and response procedures.

(d) Location. The BMPs used to comply with this section shall be located so that treatment occurs before runoff enters waters of the state.

(4) Implementation. The BMPs used to comply with this section shall be implemented as follows:

(a) Erosion and sediment control practices shall be constructed or installed before land-disturbing activities begin in accordance with the erosion and sediment control plan developed in Subsection H(2).

(b) Erosion and sediment control practices shall be maintained until final stabilization.

(c) Final stabilization activity shall commence when land-disturbing activities cease and final grade has been reached on any portion of the site.

(d) Temporary stabilization activity shall commence when land-disturbing activities have temporarily ceased and will not resume for a period exceeding 14 calendar days.

(e) BMPs that are no longer necessary for erosion and sediment control shall be removed by the responsible party.

(5) Alternate requirements. The City of New Berlin may establish erosion and sediment control management requirements more stringent than those set forth in this section if the City of New Berlin determines that an added level of protection is needed for sensitive resources.

(6) Sites shall receive final or interim stabilization by no later than October 15 of each year, or approved by the Director. Sites under interim stabilization shall be maintained through the winter until final stabilization can be achieved during the growing season. Stabilization methods shall adhere to the Wisconsin DNR storm water construction technical standards for erosion and stabilization practices.

[Added 4-25-2023 by Ord. No. 2668]

I. Permitting requirements, procedures and fees.

(1) Permit required. No responsible party may commence a land-disturbing construction activity subject to this section without receiving prior approval of an erosion and sediment control plan for the site and a permit from the City of New Berlin.

(2) Permit application and fees. The responsible party desiring to undertake a land-disturbing construction activity subject to this section shall submit an application for a permit and an erosion and sediment control plan that meets the requirements of Subsection J and shall pay an application fee as required in Subsection K to the City of New Berlin. By submitting an application, the applicant is authorizing the City of New Berlin to enter the site to obtain information required for the review of the erosion and sediment control plan.

(3) Review and approval of permit application. The City of New Berlin shall review any permit application that is submitted with an erosion and sediment control plan and the required fee. The following approval procedure shall be used:

(a) Within 20 business days of the receipt of a complete permit application, as required by Subsection I(2), the City of New Berlin shall inform the applicant whether the application and plan are approved or disapproved based on the requirements of this section.

(b) If the permit application and erosion and sediment control plan are approved, the City of New Berlin shall issue the permit.

(c) If the permit application or erosion and sediment control plan is disapproved, the City of New Berlin shall state in writing the reasons for disapproval.

(d) The City of New Berlin may request additional information from the applicant. If additional information is submitted, the City of New Berlin shall have 20 business days from the date the additional information is received to inform the applicant that the erosion and sediment control plan is either approved or disapproved.

(e) Failure by the City of New Berlin to inform the permit applicant of a decision within 30 business days of a required submittal shall be deemed to mean approval of the submittal and the applicant may proceed as if a permit had been issued.

(4) Surety bond. As a condition of approval and issuance of the permit, the City of New Berlin may require the applicant to deposit a surety bond or irrevocable letter of credit to guarantee a good faith execution of the approved erosion and sediment control plan and any permit conditions.

(5) Permit requirements. All permits shall require the responsible party to:

(a) Notify the City of New Berlin within 48 hours of commencing any land-disturbing construction activity.

(b) Notify the City of New Berlin of completion of any BMPs within 14 days after their installation.

(c) Obtain permission in writing from the City of New Berlin prior to any modification pursuant to Subsection J(3) of the erosion and sediment control plan.

(d) Install all BMPs as identified in the approved erosion and sediment control plan.

(e) Maintain all road drainage systems, stormwater drainage systems, BMPs and other facilities or pollutant control measures identified in the erosion and sediment control plan.

(f) Site dewatering. Water pumped from the site shall be treated by temporary sedimentation basins, grit chambers, sand filters, upflow chambers, hydro-cyclones, swirl concentrators or other appropriate controls designed and used to remove particles of 100 microns or greater for the highest dewatering pumping rate. If the water is demonstrated to have no particles greater than 100 microns during dewatering operations, then no control is needed before discharge, except as determined by the City Engineer. Water may not be discharged in a manner that causes erosion of the site or receiving channels.

(g) Water and material disposal. All waste and unused building materials, including garbage, debris, cleaning wastes, wastewater, toxic materials or hazardous materials, shall be properly disposed and not allowed to be carried by runoff into a receiving channel or storm sewer system.

(h) Tracking. Each site shall have graveled roads, access drives and parking areas of sufficient width and length to prevent sediment or other native material from being tracked onto public or private roadways. Any such material, mud or dirt reaching a public or private road shall be removed by street cleaning, not flushing, as determined by the city and no later than the end of each workday on a project. Street cleaning shall consist of removing all the material off the roadways, leaving the street clean of any sediment. All removed material shall be disposed of properly.

(i) Drain inlet protection. All storm drain inlets shall be protected with a straw bale, filter fabric or equivalent barrier meeting accepted design criteria, standards and specifications.

(j) Site erosion control. The following criteria apply only to land development or land-disturbing activities that may reasonably be expected to result in runoff leaving the site:

[1] Channelized runoff from adjacent areas passing through the site shall be diverted around disturbed areas, if practical. Otherwise, the channel shall be protected as described below in Subsection I(5)(j)[3][c]. Sheetflow runoff from adjacent areas greater than 10,000 square feet in area shall also be diverted around disturbed areas, unless shown to have resultant runoff velocities of less than 0.5 feet per second across the disturbed area for the set of one-year design storms. Diverted runoff shall be conveyed in a manner that will not erode the conveyance and receiving channels.

[2] All activities on the site shall be conducted in a logical sequence to minimize the area of bare soil exposed at any one time.

[3] Runoff from the entire disturbed area on the site shall be controlled by meeting either Subsection I(5)(j)[a] and [b] or Subsection I(5)(j)[a] and [c].

[a] All disturbed ground left inactive for seven or more days shall be stabilized by seeding or sodding (only available prior to September 15) or by mulching, covering or other equivalent control measure. Due to inclement weather or extenuating circumstances, the City Engineer may vary this requirement up to 21 days.

[b] For sites with more than 10 acres disturbed at one time or if a channel originates in the disturbed area, one or more sedimentation basins shall be constructed. Each sedimentation basin shall have a surface area of at least 1% of the area draining to the basin and at least three feet of depth and constructed in accordance with accepted design specifications. Sediment shall be removed to maintain a depth of three feet. The basin shall be designed to trap sediment greater than 15 microns in size, based on the set of one-year design storms having durations of 0.5 to 24 hours. The basin discharge rate shall also be sufficiently low as to not cause erosion along the discharge channel or the receiving water.

[c] For sites with less than 10 acres disturbed at one time, filter fences, straw bales or equivalent control measures shall be placed along all sideslope and downslope sides of the site. If a channel or area of concentrated runoff passes through the site, filter fences shall be placed along the channel edges to reduce sediment reaching the channel.

[4] Any soil or dirt storage piles containing more than 10 cubic yards of material should not be located with a downslope drainage length of less than 25 feet to a roadway or drainage channel. If remaining more than seven days, they shall be stabilized by mulching, vegetative cover, tarps or other means. Filter fence barriers or straw bales shall be placed immediately on the downslope side of the piles. In-street utility repair or construction soil or dirt storage piles located closer than 25 feet of a roadway or drainage channel must be covered with tarps or suitable alternative control if exposed for more than seven days and the storm drain inlets must be protected with straw bale or other appropriate filtering barriers.

[5] Runoff from sites on slopes of 12% or more slope may require additional or different controls than listed in Subsection I(5)(j)[3] above. Requirements for such slopes shall be as specified by the City Engineer.

(k) Windborne materials. Control of soil particles carried from the site by wind is also required. Control measures shall be as directed by the City Engineer as dictated by weather conditions.

(l) Repair any siltation or erosion damage to adjacent lands and drainageways resulting from land-disturbing construction activities and document repairs in a site erosion control log.

(m) Inspect the BMPs within 24 hours after each rain of 0.5 inches or more which results in runoff during active construction periods, and at least once each week make needed repairs and document the findings of the inspections in a site erosion control log with the date of inspection, the name of the person conducting the inspection, and a description of the present phase of the construction at the site.

(n) Allow the City of New Berlin to enter the site for the purpose of inspecting compliance with the erosion and sediment control plan or for performing any work necessary to bring the site into compliance with the control plan. Keep a copy of the erosion and sediment control plan at the construction site.

(6) Permit conditions. Permits issued under this section may include conditions established by the City of New Berlin, in addition to the requirements set forth in Subsection I(5), where needed to assure compliance with the performance standards in Subsection H.

(7) Permit duration. Permits issued under this section shall be valid for a period of 180 days or the length of the building permit or other construction authorizations, whichever is longer, from the date of issuance. The City of New Berlin may extend the period one or more times for up to an additional 180 days. The City of New Berlin may require additional BMPs as a condition of the extension if they are necessary to meet the requirements of this section.

(8) Maintenance. The responsible party throughout the duration of the construction activities shall maintain all BMPs necessary to meet the requirements of this section until the site has undergone final stabilization.

(9) BMPs that are no longer necessary for erosion and sediment control must be removed by the responsible party.

J. Erosion and sediment control plan, statement, and amendments.

(1) Erosion and sediment control plan.

(a) An erosion and sediment control plan shall be prepared and submitted to the City of New Berlin.

(b) The erosion and sediment control plan shall be designed to meet the performance standards in Subsection H and other requirements of this section.

(c) The erosion and sediment control plan shall address pollution caused by soil erosion and sedimentation during construction and up to final stabilization of the site. The erosion and sediment control plan shall include, at a minimum, the following items:

[1] The name(s) and address(es) of the owner or developer of the site and of any consulting firm retained by the applicant, together with the name of the applicant's principal contact at such firm. The application shall also include start and end dates for construction.

[2] Description of the site and nature of the construction activity, including representation of the limits of land disturbance on a United States Geological Service 7.5 minute series topographic map.

[3] Description of the intended sequence of major land-disturbing construction activities for major portions of the construction site, including stripping and clearing; rough grading; construction of utilities, infrastructure, and buildings; and final grading and landscaping. Sequencing shall identify the expected date on which clearing will begin, the estimated duration of exposure of cleared areas, areas of clearing, installation of temporary erosion and sediment control measures, and establishment of permanent vegetation.

[4] Estimates of the total area of the site and the total area of the site that is expected to be disturbed by land-disturbing construction activities.

[5] Calculations to show compliance with the performance standard in Subsection H(3)(b).

[6] Existing data describing the surface soil as well as subsoils.

[7] Depth to groundwater, as indicated by Natural Resources Conservation Service soil information where available.

[8] Name of the immediate named receiving water from the United States Geological Service 7.5 minute series topographic maps.

(d) The erosion and sediment control plan shall include a site map. The site map shall include the following items and shall be at a scale not greater than 100 feet per inch and at a contour interval not to exceed two feet:

[1] Existing topography, vegetative cover, natural and engineered drainage systems, roads and surface waters. Lakes, streams, wetlands, channels, ditches and other watercourses on and immediately adjacent to the site shall be shown. Any identified one-hundred-year floodplains, flood fringes and floodways shall also be shown.

[2] Boundaries of the construction site.

[3] Drainage patterns and approximate slopes anticipated after major grading activities.

[4] Areas of soil disturbance.

[5] Location of major structural and nonstructural controls identified in the plan.

[6] Location of areas where stabilization BMPs will be employed.

[7] Areas which will be vegetated following land-disturbing construction activities.

[8] Area(s) and location(s) of wetland on the construction site and locations where stormwater is discharged to a surface water or wetland within 1/4 mile downstream of the construction site.

[9] Area(s) used for infiltration of post-construction stormwater runoff.

[10] An alphanumeric or equivalent grid overlying the entire construction site map.

(e) Each erosion and sediment control plan shall include a description of appropriate control BMPs that will be installed and maintained at the construction site to prevent pollutants from reaching waters of the state. The erosion and sediment control plan shall clearly describe the appropriate erosion and sediment control BMPs for each major land-disturbing construction activity and the timing during the period of land-disturbing construction activity that the erosion and sediment control BMPs will be implemented. The description of erosion and sediment control BMPs shall include, when appropriate, the following minimum requirements:

[1] Description of interim and permanent stabilization practices, including a BMP implementation schedule. The erosion and sediment control plan shall ensure that existing vegetation is preserved where attainable and that disturbed portions of the site are stabilized.

[2] Description of structural practices to divert flow away from exposed soils, store flows or otherwise limit runoff and the discharge of pollutants from the site. Unless otherwise specifically approved in writing by the City of New Berlin, structural measures shall be installed on upland soils.

[3] Management of overland flow at all areas of the construction site, unless otherwise controlled by outfall controls.

[4] Trapping of sediment in channelized flow.

[5] Staging land-disturbing construction activities to limit exposed soil areas subject to erosion.

[6] Protection of downslope drainage inlets where they occur.

[7] Minimization of tracking at all vehicle and equipment entry and exit locations of the construction site.

[8] Clean up of off-site sediment deposits.

[9] Proper disposal of building and waste materials at all sites.

[10] Stabilization of drainageways.

[11] Control of soil erosion from dirt stockpiles.

[12] Installation of permanent stabilization practices as soon as possible after final grading.

[13] Minimization of dust to the maximum extent practicable.

(f) The erosion and sediment control plan shall require that velocity dissipation devices be placed at discharge locations and along the length of any outfall channel, as necessary, to provide a non-erosive flow from the structure to a watercourse so that the natural physical and biological characteristics and functions are maintained and protected.

(2) Erosion and sediment control plan statement. For each construction site identified under Subsection D(1), an erosion and sediment control plan statement shall be prepared. This statement shall be submitted to the City of New Berlin. The erosion and sediment control plan statement shall briefly describe the site, the development schedule, and the BMPs that will be used to meet the requirements of this section. A site map shall also accompany the erosion and sediment control plan statement.

(3) Amendments. The applicant shall amend the erosion and sediment control plan if any of the following occur:

(a) There is a change in design, construction, operation or maintenance at the site which has the reasonable potential for the discharge of pollutants to waters of the state and which has not otherwise been addressed in the erosion and sediment control plan.

(b) The actions required by the erosion and sediment control plan fail to reduce the impacts of pollutants carried by construction site runoff.

(c) The City of New Berlin notifies the applicant of changes needed in the plan.

(4) Content of control plan statement for land-disturbing and land development activities covering less than one acre, but meeting the applicability requirements stated herein. An erosion control plan statement, with simple map, shall be submitted to briefly describe the site and erosion controls, including the site development schedule, that will be used to meet the requirements of this chapter.

(5) Review of control plan. Within 30 days of receipt of the application, control plan or control plan statement and fee, the City Engineer shall review the application and control plan to determine if the requirements of this chapter are met. The City Engineer may request comments from other departments or agencies. If the requirements of this chapter are met, the City Engineer shall approve the plan, inform the applicant and issue a permit. If the conditions are not met, the City Engineer shall inform the applicant in writing and may either require needed information or disapprove the plan. Within 20 days of receipt of needed information, the City Engineer shall again determine if the plans meet the requirements of this chapter. If the plan is disapproved, the City Engineer shall inform the applicant in writing of the reasons for the disapproval.

K. Fee schedule. The fees referred to in other sections of this section shall be established by the City of New Berlin and may from time to time be modified by resolution. A schedule of the fees established by the City of New Berlin shall be available for review in the City Hall.

(1) Surety bond. As a condition of approval and issuance of the permit, the City Engineer may require the applicant to deposit a surety bond, irrevocable letter of credit or other financial guaranty as approved by the City Attorney to guarantee a good faith execution of the approved control plan and any permit conditions. This shall be in the amount of not less than the cost of construction of the erosion and sediment control practices and shall include all phases of the plan from the clearing and stockpiling operations to final grading and landscaping, including a maintenance guaranty for a period of not less than two years from the commencement of construction. The City shall have the authority to use the funds to complete the project if the landowner defaults or does not properly implement the approved plan. A performance bond may be replaced with a maintenance agreement for a stated period of time in an amount equal to a percentage of the cost of the construction of the improvements and usually between 10% and 15%.

(2) Fees. A nonrefundable fee as set by the Common Council will be required of the permittee at initial application. In such cases where in the opinion of the City Engineer the scope of the proposed work is such that the fee is not sufficient to cover costs likely to be incurred by the city in reviewing and monitoring the erosion control plan, the permittee will be provided with an estimate of the additional required funds as part of the initial review. To obtain the permit, the permittee must deposit money with the city, post a bond or make other adequate financial arrangements to assure that the costs will be paid.

L. Inspection. If land-disturbing construction activities are occurring without a permit required by this section, the City of New Berlin may enter the land pursuant to the provisions of § 66.0119(1), (2) and (3), Wis. Stats.

M. Enforcement.

(1) The City of New Berlin may post a stop-work order if any of the following occurs:

(a) Any land-disturbing construction activity regulated under this section is being undertaken without a permit.

(b) The erosion and sediment control plan is not being implemented in a good faith manner.

(c) The conditions of the permit are not being met.

(2) If the responsible party does not cease activity as required in a stop-work order posted under this section or fails to comply with the erosion and sediment control plan or permit conditions, the City of New Berlin may revoke the permit.

(3) If the responsible party, where no permit has been issued, does not cease the activity after being notified by the City of New Berlin, or if a responsible party violates a stop-work order posted under Subsection M(1), the City of New Berlin may request the City Attorney to obtain a cease-and-desist order in any court with jurisdiction.

(4) The City of New Berlin may retract the stop-work order issued under Subsection M(1) or the permit revocation under Subsection M(2).

(5) After posting a stop-work order under Subsection M(1), the City of New Berlin may issue a notice of intent to the responsible party of its intent to perform work necessary to comply with this section. The City of New Berlin may go on the land and commence the work after issuing the notice of intent. The costs of the work performed under this subsection by the City of New Berlin, plus interest at the rate authorized by City of New Berlin shall be billed to the responsible party. In the event a responsible party fails to pay the amount due, the clerk shall enter the amount due on the tax rolls and collect as a special assessment against the property pursuant to Subch. VII of Ch. 66, Wis. Stats.

(6) Any person violating any of the provisions of this section shall be subject to a forfeiture of not less than $500 nor more than $1,000 and the costs of prosecution for each violation. Each day a violation exists shall constitute a separate offense.

(7) Compliance with the provisions of this section may also be enforced by injunction in any court with jurisdiction. It shall not be necessary to prosecute for forfeiture or a cease-and-desist order before resorting to injunctional proceedings.

N. Appeals.

(1) Board of Appeals. The Board of Appeals created pursuant to § 275-16 of this chapter pursuant to § 62.234(4)(b), Wis. Stats.:

(a) Shall hear and decide appeals where it is alleged that there is error in any order, decision or determination made by the City of New Berlin in administering this section except for cease-and-desist orders obtained under Subsection M(3).

(b) Upon appeal, the Board may authorize variances from the provisions of this section which are not contrary to the public interest and where owing to special conditions a literal enforcement of the provisions of the ordinance will result in unnecessary hardship; and

(c) Shall use the rules, procedures, duties and powers authorized by statute in hearing and deciding appeals and authorizing variances.

(2) Who may appeal. Appeals to the Board may be taken by any aggrieved person or by any office, department, board, or bureau of the City of New Berlin affected by any decision of the City of New Berlin.

§ 275-55.3 Illicit charges and connections.

A. Definitions. Refer to § 275-70.

[Amended 4-25-2023 by Ord. No. 2668]

B. Discharges prohibited. No person shall discharge, spill or dump substances or materials which are not entirely composed of stormwater into receiving bodies of water or onto driveways, sidewalks, parking lots or other areas that drain into the storm drainage system.

C. Connections prohibited. The construction, use, maintenance or continued existence of illicit connections to the storm drainage system is prohibited. This prohibition expressly includes, without limitation, illicit connections made prior to the adoption of this section, regardless of whether the connection was permissible under law or practice applicable or prevailing at the time of construction.

D. Exemptions. The following activities are exempt from the provisions of this section unless found to have an adverse impact on the stormwater:

(1) Discharges authorized by a permit issued by the Wisconsin Department of Natural Resources.

(2) Discharges resulting from firefighting activities.

(3) Discharges from uncontaminated groundwater, potable water sources, roof drains, foundation drains and sump pumps, air-conditioning condensation, springs, lawn watering, individual residential car washing, water main and hydrant flushing, and swimming pools if the water has been dechlorinated.

E. Enforcement. Whenever the City finds a person has violated a prohibition or failed to meet a requirement of this section, the City may order compliance by written notice of violation to the responsible person. Such notice may require, without limitation:

(1) The elimination of illicit connections or discharges;

(2) That violating discharges, practices, or operations shall cease and desist;

(3) The abatement or remediation of stormwater pollution or contamination hazards and the restoration of any affected property;

(4) In the event the person fails to eliminate the illicit connections or discharge, fails to cease and desist in discharges, practices or operations in violation of this section, or fails to abate or remediate the stormwater pollution or contamination hazards, that person may be subject to a forfeiture of not less than $100 nor more than $1,000 for each offense, together with the cost of prosecution. Each day that the violation exists shall constitute a separate offense.

(5) In the event that an illicit discharge is identified and emergency cleanup action is undertaken by the City, WDNR, or other authority having jurisdiction, the persons may be subject to all associated cleanup costs incurred.

§ 275-56 Landscaping and buffering.

A. Philosophy and purpose.

(1) Design philosophy. The City of New Berlin encourages a natural approach to landscape design, utilizing large massing of shrubs and perennials which provide an established, healthy, vigorous landscape. Plant material should be arranged as a series of rhythmic layers, with the larger plant materials located to the back of the border and shorter shrubs/perennials located near the front of the border. Rhythm, as in nature, is created through the repetition of form, texture, and color; trees are generally clustered in groups, rather than as equally spaced trees. When walls or architectural fencing is used, plant materials should be placed intermittently along them to create a softening affect.

(2) General purpose. The purpose of these regulations is to provide for the City of New Berlin:

(a) To aid in stabilizing the environment's ecological balance by contributing to the processes of air purification, oxygen regeneration, and stormwater runoff retardation, while at the same time aiding in noise, glare and heat abatement.

(b) To ensure that the local stock of native trees and vegetation is preserved and replenished.

(c) To provide visual buffering and enhance the beautification of the City.

(d) To safeguard and enhance property values and to protect public and private investment.

(e) To preserve and protect the unique identity and environment of the City of New Berlin and preserve the economic base attracted to the City of New Berlin by such factors.

(f) To conserve energy, water, and natural resources through the use of applicable landscape materials and maintenance procedures and strategies.

(g) To protect the public health, safety and general welfare.

B. Applicability. All multifamily dwellings and nonresidential development shall be landscaped in accordance with this section and shall submit a landscaping plan as part of the required site plan.

(1) In cases where development landscaping cannot be met in full due to site constraints, the Department of Community Development may waive the requirement or substitute alternative landscaping quantities or methods through the use of low-impact/sustainable design, alternative stormwater best management practices/green infrastructure (which may include, but are not limited to, bioretention, infiltration, pervious surfaces, green roofs, rain gardens, underground storage, and/or rain harvesting/reuse).

C. General provisions.

(1) Landscape plans.

(a) All landscape plans submitted shall be prepared by a qualified or licensed landscape architect, forester, master gardener and/or landscape professional.

(2) Fiscal security.

(a) At the time of final execution of a certified survey map, subdivision plat or landscape plan with the City, the owner is required to make a fiscal arrangement, either by bond, escrowed funds, certificate of deposit or letter of credit, with the City to ensure that the owner is in full compliance with landscape installation and maintenance requirements.

(b) The developer shall submit a cost estimate for the landscaping based on actual bids or qualified or licensed landscape architect, forester, master gardener and/or landscape professional estimate. The actual surety shall be 100% of the accepted bid.

(c) Additionally, a maintenance portion of the surety is required to ensure that the landscape installation is maintained during its critical establishment (three-year) period following installation. The amount of the maintenance portion of the surety shall be 20% of the original surety.

(d) After the critical three-year establishment period following initial installation, the developer shall be responsible for continued maintenance until such time when the homeowners' association or designee shall be responsible for the perpetual care and maintenance of the required landscape area.

(e) Any owner must also grant a temporary access easement and license to the City or its licensed contracted agent to enter upon the land for the purposes of installing the required landscaping for the length specified for maintenance compliance, typically three years, in the event that such landscaping is not in place by the date specified in the agreement.

(f) Should the City have to provide for full compliance, the applicant will forfeit the fiscal deposit. Such fiscal arrangements shall be released when landscape improvement verification and compliance is received.

(g) Return of fiscal security.

[1] Installation security. When it is determined that the landscaping has been installed in accordance with an approved landscape plan, the City of New Berlin shall return the surety to the applicant.

[2] Maintenance security. After a period of three years has passed from the date at which the installation was accepted by the City, the maintenance security shall be returned to the applicant after an inspection has been completed by the City of New Berlin that there has been no loss of plant materials in terms of both quantity and health.

[3] The Department of Community Development shall authorize the refunding of the deposits.

(h) A qualified or licensed landscape architect, forester, master gardener and/or landscape professional shall perform the final inspection of the site to ensure adherence to the landscape plan and required installation techniques per this chapter. The qualified or licensed landscape architect, forester, master gardener and/or landscape professional will be required to sign a letter of compliance before the fiscal security will be released. The City of New Berlin must also concur with the letter of compliance before the fiscal security will be released.

(i) Required securities shall be as follows:

[1] Installation compliance security. A fiscal arrangement on file in the Department of Community Development shall be deposited with the City at the time of execution of an approved zoning permit and/or development agreement.

[2] Maintenance compliance security. A fiscal arrangement on file in the Department of Community Development shall be deposited with the City at the time of execution of an approved zoning permit and/or development agreement.

(3) New plant materials.

(a) Native or adapted plants. In order to assure adequate growth and survival of new plantings, all landscape plans shall utilize only native or adapted plants that reflect the surrounding plant materials and environment.

(b) Tree installation.

[1] New trees shall be properly planted in accordance with recommended planting procedures by the International Society of Arboriculture. See Figure VIII-3 and the following instructions.

[2] Minimum procedures.

[a] All ropes and ties shall be removed from around the tree and root ball.

[b] Remove as much of the wire basket as possible.

[c] Cut any burlap away from at least the top half of the root ball.

[d] Dig a shallow, broad planting hole that, where room allows, is as much as three times the diameter of the root ball but only as deep as the root ball.

[e] Identify the trunk flare that should be partially visible after the tree has been planted.

[f] Place the tree at the proper height and set the root ball on firmly packed soil to prevent settling.

[g] Straighten the tree and then fill the hole, gently but firmly, using water to settle the soil around the root ball.

[h] Stake the tree, if necessary, using two opposing, flexible ties.

[i] Mulch the base of the tree using a two- to four-inch layer of mulch, keeping mulch two inches from the trunk of the tree.

Figure VIII-3

Proper Tree Installation

(4) Existing plant materials. Healthy, existing trees and shrubs shall be incorporated into the landscape to the maximum extent feasible, per the requirements of Subsection C(3)(b) above.

(5) Plant protection. All planting beds shall be provided with weed barriers, mulched, and provided with a permanent edge or curbing.

(6) Species mix. To prevent uniform insect or disease susceptibility on a development, in an adjacent area or within a district, species diversity is required and extensive monocultures are prohibited. The following minimum requirements shall apply to any development:

	Table 275-56-1
	Number of Trees on Site	Maximum Percentage of any 1 Species
	10 - 19	50%
	20 - 39	40%
	40 - 59	30%
	60 or more	20%

(7) Plant sizes. At the time of installation, plantings required by this section shall be no smaller than the following:

(a) Deciduous trees.

[1] A minimum of 50% of the proposed deciduous trees shall have a minimum size of four inches' DBH.

[2] All remaining deciduous trees shall have a minimum size of two inches' DBH.

(b) Evergreen trees.

[1] A minimum of 50% of the proposed evergreen trees shall have a minimum height of eight feet.

[2] All remaining evergreen trees shall have a minimum height of six feet.

(c) All ornamental trees. All ornamental trees shall have a minimum size of two inches' DBH.

(d) All shrubs. All shrubs shall be from five-gallon or greater planters.

(8) Plant quality.

(a) All plants shall meet the standards of "American Standard of Nursery Stock," ANSI Z60.1-1996 (as amended), American Association of Nurserymen specifications for Number 1 grade, and shall be of normal health, height and leaf density, and shall be free of any defects.

(b) Plants shall meet all requirements of federal, state, and local law with respect to plant type, labeling, nursery or plant inspection, disease, insect and other pest infestation, and any other requirements.

(c) Substandard "B-grade" or "park grade" plants are not acceptable.

(9) Plant quantity. Subsections D through G of this section detail the quantity of landscaping required for each specific use category.

(10) Restoration and revegetation of disturbed areas. All open areas not occupied by buildings, parking, or storage shall be sodded and/or revegetated. Exceptions to this requirement may be permitted when:

(a) Areas are intended for future expansion, in which case the areas shall be seeded/revegetated and protected from soil erosion and maintained with grass.

(b) Undisturbed area containing existing natural vegetation shall be maintained and kept free of foreign material and noxious materials.

(11) (Reserved)

(12) Slopes and berms. Slopes and berms steeper than three feet horizontal to one foot vertical shall not be permitted without special treatment, such as terracing or retaining walls, as approved by the Department.

(13) Location of required landscaping.

(a) Placement; minimum guidelines.

[1] The hardiest species of plantings (including those engineered for high-traffic areas) in the highest vehicular and pedestrian traffic areas;

[2] The native species of shade trees away from the highest vehicular and pedestrian traffic areas;

[3] Located to not obscure vehicle sight distances;

[4] Located so future growth is not over a sidewalk or parking/drive area;

[5] Located to soften tall and long building walls;

[6] Emphasis of plantings within buffer yards; and

[7] Any fruit-bearing trees located away from parking/drive areas.

(b) All required landscaping shall be located outside the base setback line unless it is part of an approved landscaping plan.

(c) All required landscaping elements shall be located on the property they serve. Landscaping located on adjacent properties or street rights-of-way shall not count toward the landscaping requirements of this section unless prior approval is obtained from staff.

(d) Consideration shall be given to the mature height and spread of a tree during the planning of landscaping. No tree shall be located in such a manner as to extend beyond the lot line once it has reached its mature size.

(e) No landscaping shall be located within a utility easement, drainage easement, or road right-of-way except for seeding or sodding with prior approval by the Director.

(f) No encroachment by structures, berms, trees, shrubs, paved surfaces or changes in grade greater than four inches is allowed in easement areas without approval of the Director.

(14) Maintenance.

(a) General requirements.

[1] Environmental quality and its protection is a high priority. Modification or horticultural practices to respond to changing environmental conditions can minimize pest problems. The landscape investment needs to be protected from pest damage. This fact needs to be balanced with the goal of protecting the neighboring waters, soils, flora and fauna from damaging chemical buildup. Environmental conditions, such as temperature, humidity, rainfall, and snow cover, influence pest populations and can help to predict periods when pests are likely to reach unacceptable levels. These factors can be weighted with field monitoring to determine when pest controls are necessary and which control method will be most effective.

[2] Mechanical and biological controls are preferred over pesticide applications. When used, nontoxic chemicals and biodegradable chemicals are preferred. Applications of pesticides in the environment should be pest-specific, time-specific, quantity-controlled and monitored for effectiveness. Pesticide use should not become routine or institutionalized on a "blind" schedule. As chemical technology changes, it is important to stay current on all integrated pest-management techniques.

[3] The goal of the landscape maintenance requirements is to provide a well-maintained landscape in the most-visible public areas of the development emphasizing minimum environmental impact with reduced chemical use.

[4] In manicured landscape areas, weekly lawn mowing will be necessary, including spring cleanup, control of broadleaf weeds, attention to fertilization, pruning of woody plant material, edging of planting beds and leaf removal in the fall.

(b) Required maintenance practices.

[1] The developer shall be responsible for the upkeep and continued maintenance of the required landscape materials as per the maintenance standards set forth in this subsection. They include:

[a] The regular maintenance of all required landscape areas and plant materials in a vigorous and healthy condition, free from diseases, pests, weeds, and litter. This maintenance shall include weeding, watering, fertilizing, pruning, mowing, edging, mulching or other needed maintenance in accordance with generally accepted horticultural practices.

[b] The maintenance, repair or replacement of landscape structures (walls, architectural features, etc.) to a structurally sound condition.

[c] Plant replacement. Any plant materials included in an approved landscaping plan that do not survive a plant establishment period of three years after installation shall be replaced with plant material(s) of the same or like species of equal size within the next planting season, but in any event within 12 months of the plant's demise. Said replacement shall be made by the property owner or, in the case of landscape plant materials located within a landscape easement under the control of a homeowners' association, the homeowners' association shall be responsible for said replacement. Should the replacement not occur in accordance with this section, the City of New Berlin may cash the applicant's maintenance surety and perform the replacement.

[2] Failure to regularly maintain as described in these maintenance requirements shall constitute a violation of this provision and may be enforced in accordance with the City of New Berlin building inspection policy. Notice of noncompliance may be issued to the owner, requiring immediate attention to conform to these maintenance requirements. The City may correct, repair or replace landscape materials as required by this subsection. Costs for such repair, or replacement within the first three years, will be covered by the developer's maintenance surety.

[3] Required plant materials, if dead, diseased, or severely damaged, shall be removed by the owner as soon as possible but no later than 60 days after notification. All such plants shall be replaced within 60 days of notification or by the next planting season, whichever comes first.

[4] Replacement plants must be of the same size and species as shown on the approved landscape plan or must be equivalent in terms of quality and size. Such replacement will not be considered an amendment to the approved plan.

[5] All water shall be provided by the owner with adequate hose bibs and/or hydrants.

[6] All fertilizers and pesticides shall be applied in accordance with manufacturer's directions. Where alternate products are available, the environmental impact of the products shall govern which is used.

[7] Wood mulch. Maintain at a depth of three to four inches; apply annually as needed.

[8] Stone mulch. Maintain at a depth of two to three inches; clean and remove leaf and windblown debris and apply fresh stone as needed.

[9] Watering. All trees shall be watered as necessary to maintain vigor. On average, trees require one inch of rainfall a week. Supplemental watering is necessary if this rainfall does not occur. Water availability is particularly critical during the tree's transition periods: when the tree is putting on new leaves and again at leaf drop. Plants should not be watered until a moisture check has been made of representative plants in the landscape. Check the soil to a depth of four inches. If it is still moist, don't water. Overwatering will suffocate the roots and kill the tree. This is particularly true in the heavy, clay soils. Maintain a large enough mulch saucer around the perimeter of the root zone to fill with water. All properties within the City are encouraged to use water conservation techniques as outlined in the City of New Berlin Water Conservation Plan, including but not limited to the following.

[a] Rain gardens;

[b] Low-flow fixtures;

[c] Rain barrels;

[d] Rain-harvesting tanks;

[e] Water harvesting for landscape irrigation;

[f] Limit watering landscaping between the hours of 9:00 a.m. and 9:00 p.m., when possible; and

[g] Watering through the use of a hand-held watering can or other hand-held container or hose is encouraged, provided any such watering device is utilized manually and in conjunction with an automatic hand-held shutoff valve.

[10] New lawns should be watered at such frequency as weather conditions require, replenishing soil moisture four to six inches below the root zone.

[11] Pruning.

[a] Damaged trees or those that constitute health or safety hazards shall be pruned at any time of the year as required.

[b] Remove dead, diseased or damaged branches that are smaller in diameter than the trunk or branch to which they are attached, which have a vertical spacing of from 18 to 48 inches and radial orientation, so as not to overlay one another.

[c] Remove branches clean and close to the main branch without leaving stubs.

[12] Mowing. Turf should be kept at a height of two to three inches. Mowing should be done frequently enough so that no more than 1/3 of the grass blade is removed per cutting. Cutting away half or more of the grass stems at once exposes stems that have been shaded and may burn in strong sunlight and also shocks the root, requiring recovery time. Mowing equipment such as mulching mowers shall be used as often as possible to permit recycling of clippings. Blades on all equipment should be kept sharp to prevent the tearing of the grass blades. Grass adjacent to fixed objects should be trimmed to the same height as the general turf.[1]

[1] Editor's Note: Former §Subseciton C(15) Vision clearance triangle, as amended, was repealed 10-13-2020 by Ord. No. 2642.

D. Landscaping requirements for multifamily and nonresidential uses.

(1) All multifamily and nonresidential land uses shall install at least one tree and three shrubs for every 3,600 square feet of lot area covered by open space. This landscaping shall be in addition to any parking lot perimeter requirements set forth in this chapter. This landscaping may be credited toward the parking interior landscaping requirements set forth in this chapter.

(2) A minimum of 60% of the required landscaping shall be located in the front yard.

(3) Trees shall be no closer than seven feet from any structure and shall be installed with at least 50 square feet of nonpaved area around the trunk.

(4) Planting beds may contain a combination of living plant materials and mulch. However, living plant materials shall comprise no less than 50% of the required planting beds.

(5) Plant materials shall be located to enhance views from public streets and sidewalks.

(6) Any existing trees and shrubs that shall be preserved and are protected during construction according to specifications in § 275-54A(5) shall be credited against this landscaping requirement.

(7) When demonstrated by the applicant that the development site cannot or should not be landscaped in accordance within the landscape provisions of this chapter, the Department of Community Development may waive certain requirements or substitute alternative landscaping quantities or methods through the use of low-impact/sustainable design, alternative stormwater best management practices/green infrastructure (which may include, but are not limited to, bioretention, infiltration, pervious surfaces, green roofs, rain gardens, underground storage, and/or rain harvesting/reuse).

E. Parking lot landscaping.

(1) Purpose and intent. It is the intent of these standards to require screening along parking lots adjacent to the required street yard to enhance the visual quality of commercial districts by developing visual relief from the expanse of asphalt, concrete and vehicles. It is encouraged that the landscape development of the screening buffer take on a more natural appearance, where organic lines are used over straight formal lines.

(2) Perimeter landscaping.

(a) Applicability. All parking lots containing five or more spaces shall provide perimeter landscaping pursuant to this section:

(b) Minimum planting requirements.

[1] A minimum of one shade or evergreen tree per 20 linear feet of parking surfaces and one shrub per five linear feet of parking surfaces shall be planted along the perimeter of any parking area when adjacent to an arterial street. A minimum of one shade or evergreen tree per 30 linear feet of parking surfaces and one shrub per 10 linear feet of parking surfaces shall be planted along the perimeter of any parking area when adjacent to any nonarterial street.

[2] For parking lots adjacent to a side or rear lot line, a minimum of one evergreen or shade tree per 30 linear feet of parking surfaces and one shrub per five linear feet of parking surfaces shall be planted along the perimeter of any parking area when adjacent to a side or rear lot line.

(c) General requirements.

[1] Perimeter planting areas shall be designed to maintain and protect visibility at driveways and access points.

[2] Perimeter landscaping shall provide a semi-opaque screen during the winter season.

[3] Berms may be utilized as part of the perimeter landscaping.

[4] Where walls or fences are utilized within perimeter landscaping, a minimum of one evergreen tree and three shrubs shall be required every 40 linear feet of wall or fence and shall be planted on the side of the fence or wall facing the surrounding streets, walks, parks, trails and other public use properties.

[5] Plants in perimeter landscaping areas should be grouped instead of evenly spaced.

(3) Parking lot interiors. The use of landscaped islands and medians shall be used to provide positive guidance to motorists and establish proper driving patterns and/or stormwater best management practices.

(a) Applicability. All parking lots with 40 or more parking spaces shall comply with these interior parking lot landscaping requirements, unless the Director finds that landscaped islands are not appropriate for a particular site. Landscaping used to fulfill the perimeter parking lot landscaping requirements as outlined in Subsection E(2) shall not be used to satisfy these interior parking lot landscaping requirements.

(b) General requirements.

[1] Each individual landscaped island shall include a minimum of one tree and two shrubs or appropriate stormwater plantings.

[2] Landscaped islands shall be at least 170 square feet in size with the smallest dimension of pervious surface being six feet to allow for adequate root aeration and expansion. Any landscaped island that is less than 170 square feet in area may not be used in the minimum five-percent interior landscaping requirement calculation.

[3] Plant materials shall be chosen and arranged to maximize the shading of parking spaces.

[4] Plant materials shall be arranged to minimize obstruction of parking spaces as well as visibility and access on and off site.

[5] Landscaped islands shall be dispersed throughout the parking area in order to break up large areas of surfaced parking.

F. Buffering and screening.

(1) Purpose. Buffer yards shall be required around the boundary of all new developments to separate adjacent incompatible land uses and screen or soften the detrimental impacts of incompatible uses upon one another and upon the surrounding property line.

(2) General provisions.

(a) Location.

[1] Buffer yards shall be located between the uses which they are required to buffer or screen.

[2] When the same property owner owns and is developing adjoining parcels, the required buffer yard may be placed on either parcel or astride the boundary.

[3] When a different property owner owns the adjacent property, the buffer yard shall be placed on the property being developed. However, a buffer that meets the requirement of both parcels may be placed astride the boundary if a written agreement, signed by both owners, is filed with the Plan Commission and is recorded in the Waukesha County Register of Deeds' office to run with the property as a covenant.

(b) Structures. No structure shall be permitted within a required buffer other than a wall, landscaping, fence, side path, or earth berm. As demonstrated by the applicant as due to site constraints, parking areas and driveways may encroach upon buffer yards up to five feet with approval from the Department of Community Development. Encroachments greater than five feet shall be approved by the Plan Commission, and the applicant shall be required to provide justification for the encroachment.

(3) Minimum required bufferyard. The following table sets forth the minimum required bufferyard based upon the adjacent land uses and not the zoning district. The abbreviations used in the table are described as follows:

[Amended 1-12-2016 by Ord. No. 2558]

(a) Moderate bufferyard. An "A" in a cell indicates a moderate bufferyard is required with a minimum width of 10 feet.

(b) Average bufferyard. A "B" in a cell indicates an average bufferyard is required with a minimum width of 15 feet.

(c) Substantial bufferyard. A "C" in a cell indicates a substantial bufferyard is required with a minimum width of 25 feet.

(d) Major bufferyard. A "D" in a cell indicates a major bufferyard is required with a minimum width of 40 feet.

(e) No bufferyard required. An "N" in a cell indicates that there is no minimum bufferyard required.

Table 275-56-2
Proposed Use	Single- or Two-Family Residen- tial Uses	Multi-Family Residen- tial Uses	Institu- tional/ Public Semipublic Uses	Office or Com- mercial Uses (5,000 square feet or less)	Office or Com- mercial Uses (5,000 square feet or more)	Fully Enclosed Manufactur- ing/ Industrial Uses (20,000 square feet or less)	All M-3 Uses and Other Manufactur- ing/ Industrial Uses	Q-1 or L-1 Uses
Adjacent To:
Single-family or two-family residential uses	N	A	A	B	C	C	D	D
Multifamily residential uses	A	N	A	A	B	C	D	D
Institutional/ public/ semipublic uses	A	A	N	A	B	B	C	D
Office or commercial uses (5,000 square feet or less)	B	A	A	N	A	B	D	D
Office or commercial uses (5,000 square feet or more)	C	B	B	A	N	B	C	C
Fully enclosed manufactur-ing/ industrial uses (20,000 square feet or less)	C	C	B	B	B	N	C	C
All other manufactur- ing/ industrial uses	D	D	C	D	C	C	N	B
Q-1 or L-1 uses	D	D	D	D	C	C	B	N

(4) Minimum planting requirements. For every 100 linear feet of a buffer yard, the following number of plants shall be provided for each required buffer yard as set forth in Table 275-56-3.

	Table 275-56-3
	Required Buffer Yard	Minimum Trees (Deciduous or Ornamental) (per 100 linear feet)	Minimum Evergreen Trees (per 100 linear feet)	Minimum Shrubs (per 100 linear feet)
	"A"	3	None	3
	"B"	6	3	9
	"C"	12	8	18
	"D"	15	12	24

G. Screening of mechanical equipment and dumpsters.

(1) Screening of mechanical equipment.

(a) Applicability.

[1] The mechanical equipment screening standards of this section shall apply to the following:

[a] Electrical and gas-powered mechanical equipment;

[b] Duct work and major plumbing lines used to heat, cool or ventilate; and

[c] Power systems for the building or site on which the equipment is located.

[2] Antennas and vent openings shall not be considered mechanical equipment for purposes of these screening standards.

(b) Required screening. All mechanical equipment shall be screened from view to the maximum practical extent as follows:

[1] Roof-mounted equipment. Roof-mounted mechanical equipment shall be screened by a parapet wall or similar structural feature that is an integral part of the building's architectural design. The parapet wall or similar structure shall be of a height equal to or greater than the height of the mechanical equipment being screened.

[2] Wall-mounted equipment. Wall-mounted mechanical equipment that protrudes more than six inches from the outer building wall shall be screened from view by structural features that are compatible with the architecture of the subject building. Wall-mounted mechanical equipment that protrudes six inches or less from the outer building wall shall be designed to blend with the color and architectural design of the subject building.

[3] Ground-mounted equipment. Ground-mounted mechanical equipment shall be screened from view by a decorative wall that is compatible with the architecture and landscaping of a development site. The wall shall be of a height equal to or greater than the height of the mechanical equipment being screened.

(c) Alternative screening. Alternative screening methods, including but not limited to increased landscaping, larger setbacks and grouping of equipment may be permitted with the approval of the Director.

(2) Screening of dumpsters.

(a) Applicability. All dumpsters shall be screened from view from any public right-of-way according to the following provisions.

(b) Required screening.

[1] Access to dumpster. One side of the dumpster shall remain accessible for refuse removal and shall be screened by a solid gate with a minimum height of five feet. The gate shall be maintained in good working order and shall remain closed except when refuse pickups occur.

[2] Additional screening. Any side of a dumpster that is not used for access and is visible from a public right-of-way shall be screened from view by a solid wall with a minimum height of six feet. The wall shall be architecturally compatible with other buildings and structures on the site.

[3] Alternative screening. Alternative screening methods may be permitted with the approval of the Plan Commission.

H. Fences and walls. Fences and walls may be permitted as elements of a landscape plan and, in some locations, may be used to conceal storage or other unsightly or conflicting land uses. All fences or walls shall meet the following requirements:

(1) Materials. Fences or walls shall be constructed of wood, stone, brick, decorative concrete block, wrought iron, materials designed to resemble any of the latter materials, or a combination of any of these materials.

(a) All fencing shall be finished on both sides, except fencing that is accessory to a residential use.

(b) Plywood, particleboard, sheet metal, concrete slabs, concrete barriers, or similar materials shall not be used in fencing or walls intended to provide screening or buffering.

(c) Chain-link fencing, with or without slats, shall not be used for screening or buffering purposes.

(d) Barbed wire, electrical fencing and similar fence materials may only be used in conjunction with a permitted agricultural use.

(2) Fences and walls abutting public roads. Where opaque or solid fences or walls will abut a public road, they shall be screened from the road. Breaks in the screening shall be created along with changes in the fence's/wall's setback, height or material to provide visual diversity. Where more than two consecutive rear lots' lines will abut a public road, it shall be the developer's responsibility to install a wall or fence that will delineate the property line in order to assure diversity of setback, screening and streetscape views.

(3) Required plantings. Where fencing continues for more than 40 feet, a minimum of one evergreen tree or three shrubs shall be planted along the outer, public side of the fence for each 40 linear feet.

(4) Maintenance. Where walls, fences and other structures are an integral part of the landscape plan, such structures shall be maintained in good repair. Structures that are leaning, broken, missing parts, peeling paint, or are in any other way damaged shall be immediately repaired or replaced.

I. Enforcement. All plantings are subject to periodic inspections to ensure compliance with the regulations of this section and with the approved landscape plan. Failure to comply with these regulations shall be a violation of this chapter and may be subject to the enforcement and penalties provisions set forth in Article X.

J. Section 34-35 M-3 District landscape, hardscape, bufferyard, trail and pedestrian standards. In addition to applicable landscaping requirements above, the properties zoned M-3 shall adhere to the following:

[Added 1-12-2016 by Ord. No. 2558]

(1) Minimum required bufferyard. The minimum bufferyard shall be 40 feet adjacent to all single-family residential uses.

(a) Existing plant materials. Healthy, existing trees and shrubs shall be incorporated into the landscape to the maximum extent feasible, per the requirements of § 275-56C(3)(b).

(b) The buffer at the edge of this district shall be reserved as a meaningful landscape area. Sufficient landscaping, berming and/or decorative fencing or garden walls shall be used in these areas to adequately screen the adjacent uses from the view of the residential properties.

(c) Consideration shall be given to plant species to allow sufficient screening during the winter months.

(2) Trail requirements.

(a) As development occurs, off-road or on-road paths and trail connections, where appropriate to connect to the City's Utility easement/public trail and on-road bike paths for both residential and non-residential development to create an interconnected trail system, shall be required. Plan Commission may waive requirement due to site constraints. All path and trail connections shall be constructed at the time of development and public trail easements provided to the City. Requirements shall include the following:

[1] Where practical, side paths shall be a minimum of five feet along local roads, and six feet along collectors or arterials. If along the back of curb, a minimum of eight feet shall be required.

[2] Surface treatments. Concrete, or other approved material, shall be used for all side paths abutting roadways. The use of bricks or pavers shall be prohibited.

[3] Where practical, street lights, utility poles, sign posts, fire hydrants, mailboxes, benches or other street furniture shall not obstruct the sidewalk width.

[4] Pedestrian-level lighting may be installed to improve pedestrian visibility, comfort and security.

(b) Uniform signage. Any directional signage shall be part of an overall coordinated sign plan with a theme for placement, lettering style, color, construction, material and related design considerations of signs, while at the same time minimizing sign confusion and clutter.

§ 275-57 Off-street parking, loading and access.

A. Off-street parking requirements.

(1) Applicability. In all districts and in connection with every use, there shall be provided at the time any use or building is erected, enlarged, extended, increased, used or occupied off-street parking stalls for all vehicles in accordance with the following provisions.

(2) Rules for computing parking spaces. The following rules shall apply when computing parking spaces:

(a) Multiple uses. Unless otherwise noted or approved, off-street parking areas serving more than one use shall provide parking in an amount equal to the combined total of the requirements for each use.

(b) Fractions. When a measurement of the number of required spaces results in a fractional number, any fraction of 1/2 or less shall be rounded down to the next lower whole number, and any fraction of more than 1/2 shall be rounded up to the next higher whole number.

(c) Area measurements. Unless otherwise specifically noted, all square-footage-based parking standards shall be computed on the basis of gross floor area of the building.

(d) Occupancy- or capacity-based standards. For the purpose of computing parking requirements based on employees, students, residents, or occupants, calculations shall be based on the largest number of persons working on a single shift, the maximum enrollment or the maximum fire-rated capacity, whichever is applicable and whichever results in a greater number of parking spaces; for manufacturing, processing, fabrication and storage operations, one space per employee for the two consecutive work shifts with the largest number of employees. In addition, adequate visitor parking shall be provided.

(e) Unlisted uses. Upon receiving a development application for a use not specifically listed in the off-street parking schedule below, staff shall apply the off-street parking standard specified for the listed use that is deemed most similar to the proposed use in regards to use, size and intensity of use. If the staff determines that there is no use similar in use, intensity or size, the staff may require the applicant to prepare a parking study. The study must include estimates of parking demand based on recommendations of the Institute of Traffic Engineers (ITE), or other acceptable estimates as approved by the Community Development Director, and should include other reliable data collected from uses or combinations of uses that are the same as or comparable with the proposed use. Comparability will be determined by density, scale, bulk, area, type of activity, and location. The study must document the source of data used to develop the recommendations.

(f) Independent parking space study. An applicant may choose to prepare an independent parking space study in order to better accommodate reduced parking spaces. DCD staff may approve up to a fifteen-percent reduction; however, any reductions greater than 15% shall require Plan Commission approval. Requirements shall include the following:

[1] Estimates of parking demand based on recommendations of the Institute of Traffic Engineers Manual (ITE), Urban Land Institute, or other acceptable estimates as approved by the Community Development Director; and/or

[2] Reliable data collected from uses or combinations of uses that are the same as or comparable with the proposed use. Comparability will be determined by the source of the data used to develop the recommendations.

(g) Bicycle parking. All parking lot areas containing 50 spaces or more shall consider providing bicycle parking facilities (bike racks) that accommodate a minimum of five bicycles.

(h) Mass transit. Developments that are adjacent to mass transit options or offer car/van pools or other forms of alternative transportation may request a reduction in the number of required parking spaces based on supporting documentation.

(i) Parking maximum: cannot provide more than 15% above the required amount of parking unless the applicant can prove additional parking is needed.

(3) Minimum number of required spaces. Table 275-57-1 sets forth the minimum number of parking spaces required for each use unless the applicant follows § 275-57A(2)(f).

	Table 275-57-1
	Use	Required Parking Spaces
	Agricultural and Residential Uses
	Boardinghouses, rooming houses, dormitories, and community living arrangements	1 space per bed
	Elderly housing	1 space per dwelling unit. The Plan Commission may reduce the parking requirement when assisted care is provided. The Plan Commission may require an additional 10% of the parking requirement for guest parking.
	Single-family and 2-family dwellings	2 spaces per dwelling unit. A minimum of 400 square feet of parking shall be provided in an attached garage.
	Multiple-family dwellings	2 spaces per dwelling unit plus 1/10 of a space per dwelling unit shall be provided for guest parking. A minimum of 1 space per dwelling unit shall be provided in an attached or underground garage.
	Commercial Uses
	Adult-oriented establishments	1 space per 200 square feet or 1 space per 3 persons of occupant load, whichever is greater
	Tattoo and body-piercing establishments	1 space per 200 square feet
	Amphitheaters, auditoriums, stadiums and theaters	1 space per 2 seats
	Amusement centers, arcades, aquariums, banquet halls, exhibition halls	1 space per 3 persons at maximum capacity
	Automotive body repair or service	1 space per 200 square feet of sales, office or waiting area, plus 2 spaces per service bay
	Automotive sales or rental, farm equipment sales or service	1 space per 100 square feet of indoor sales or office space, plus 1 space per 500 square feet of outdoor sales area
	Automotive fuel sales	1 space per 200 square feet of sales, office or waiting area, plus 1 space per fuel pump or service bay
	Bars and taverns	1 space per 100 square feet of customer service area; 1 space per 100 square feet of customer service area for extension of premises
	Bed-and-breakfast establishment	2 spaces for the owner or operator, plus 1 space for each bedroom rented to the public
	Bowling alley	5 spaces per bowling lane, plus additional spaces as may be required for ancillary uses located within the same establishment
	Contracting and construction sales, contractor bulk sales	1 space per 400 square feet of indoor office, sales, or storage, plus 1 space per 1,000 square feet of outdoor sales
	Department stores and shopping centers	1 space per 300 square feet of customer sales
	Fairgrounds	1 space per 3 seats for any stadium or theater seating, plus 1 space per 100 square feet of sale or show floor space
	Funeral services	1 space per 4 seats or 35 spaces per chapel unit, whichever is greatest
	Greenhouses	1 space per 150 square feet of inside sales or display, plus 1 space per 500 square feet of outside sales and display area
	Hotels and motels	1 space per room or suite
	Outdoor displays, sales or storage	1 space per 750 square feet
	Personal services	1 space per 200 square feet
	Restaurant	1 space per 50 square feet or 1 space per 2 seats, whichever is greater; 1 space per 100 square feet of customer service area or 1 space per every 4 seats, whichever is greater, for extension of premises
	Self-storage facility	1 space per 200 square feet of office space, plus 1 space per 2 storage units
	Service commercial uses	1 space per 200 square feet
	Telecommunication structures	1 space per structure
	Veterinary clinics	1 space per 400 square feet
	Wholesale commercial uses	1 space per 500 square feet
	All other commercial uses	1 space per 150 square feet or 1 space per 2 seats/capacity, whichever is greater
	Office Uses
	Business offices, government offices, public service offices, contracting and construction offices	1 space per 200 square feet
	Financial institution	1 space per 300 square feet
	Medical, dental, and other professional health service offices	1 space per 250 square feet
	Post offices	1 space per 300 square feet
	Manufacturing/Industrial Uses
	Light industrial or heavy industrial uses	1 space per 300 square feet of office space, plus 1 space per 200 square feet of indoor sales area, plus 1 space per 1,000 square feet of outdoor storage or sales, plus 1 space per 500 square feet
	Industrial sales	1 space per 200 square feet of indoor sales area, plus 1 space per 500 square feet of outdoor sales area
	Laboratories	1 space per 400 square feet
	Freight services, distribution centers, weight scales and truck terminals	1 space per 500 square feet
	Warehousing or storage	1 space per 2,000 square feet
	Excavation, mineral extraction, processing, storage and other related operations	1 space per 200 square feet of office area or 1 space per employee, whichever is greater
	Quarrying or peat and soil removal	1 space per 1,000 square feet
	Recycling centers, central composting facilities and landfills	1 space per employee, plus adequate parking for queuing
	Institutional/Public/Semipublic Uses
	Golf courses	6 spaces per hole
	Golf driving ranges	2 space per tee
	Hospitals	1 space per bed
	Libraries, museums and galleries	1 space per 300 square feet of assembly area; 1 space per 4 seats of fixed seating
	Marinas	2 spaces per boat slip
	Miniature golf courses	2 spaces per hole
	Organizational clubs	1 space per 100 square feet
	Racquetball, handball and tennis courts	5 spaces per court
	Health clubs	1 space per 200 square feet
	Skating rinks	1 space per 200 square feet
	Volleyball courts	15 spaces per court, plus 1 space per employee
	All other recreational uses	1 space per 3 patrons, plus 1 space per employee
	Churches	1 space per 3 seats
	Assisted care facilities	2 spaces per 3 bedrooms for residents and visitors, plus 1 space per employee
	Elementary, middle and high schools	1 space for each staff member, plus 1 space for each 5 students over the age of 16, plus parking for all other facilities such as auditoriums or stadiums
	Colleges, universities and other graduate institutions	1 space for each staff member and student, excluding students housed in dormitories
	Nursery schools	1 space for each staff member, plus 1 space per 1 1/2 students
	Day-care centers	1 space for each staff member, plus 1 space per 6 students; for family day-care homes, the driveway may be used for parking
	Other uses	Parking spaces for other permitted or special uses not listed herein shall be provided in accordance with requirements designated by the Plan Commission or CDA.

(4) Parking requirements for physically disabled. All off-street parking areas open to the public shall provide and reserve parking spaces for use by motor vehicles which transport physically disabled persons in accordance with the applicable state and federal requirements.

(a) Van-accessible spaces. One in every eight accessible spaces, but not less than one, shall be served by an access aisle 96 inches wide minimum and shall be designated "van accessible" as required by ADAAG and/or the State Building Code.

(b) Dimensions. Parking spaces for the physically disabled shall be a minimum of 96 inches wide. Access aisles adjacent to accessible space shall be a minimum of 60 inches wide, except as provided in Subsection A(4)(a) above.

(c) Location. Parking spaces that are to be reserved for the physically disabled and which serve a particular building shall be located on the shortest accessible route of travel from adjacent parking to an accessible entrance. In parking facilities that do not serve a particular building, accessible parking shall be located on the shortest accessible route of travel to an accessible pedestrian entrance of the parking facility. In buildings with multiple accessible entrances with adjacent parking, accessible parking spaces shall be dispersed and located closest to the accessible entrances.

(d) Other. Parking spaces reserved for the physically disabled may be subject to additional standards as defined in § 346.503, Wis. Stats., the ADAAG and the State Building Code.

(5) Access. Adequate access to a public street shall be provided for each parking space.

(6) Minimum area. The minimum area for each parking space, excluding the area needed to maneuver, shall be nine feet wide and 18 feet long, except for designated handicapped parking.

(7) Minimum design standards.

(a) Method of measurement. All drive aisles and parking space widths shall be measured from edge of pavement to edge of pavement. Parking stall depths can be measured to the face of the curb, where applicable.

(b) Dimensions. The minimum size of a parking space may be altered based on aisle width and angle of parking. Parking stalls shall conform to the following minimum dimensions:

[Amended 9-23-2014 by Ord. No. 2529]

	Table 275-57-3
	Angle of Parking (degrees)	1-Way Maneuvering Lane Width (feet)	2-Way Maneuvering Lane Width (feet)	Parking Stall Width (feet)	Parking Stall Length (feet)
	No parking or parallel	12	24	9	23
	30º - 53º	12	24	9	18
	54º - 75º	18	24	9	18
	76º - 90º	24	24	9	18

	Angle of Parking (degrees)	Total Width of 1 Tier of Spaces Plus Maneuvering Lane (feet)	Total Width of 2 Tiers of Spaces Plus Maneuvering Lane (1-Way) (feet)	Total Width of 2 Tiers of Spaces Plus Maneuvering Lane (2-Way) (feet)
	0º - parallel	21	30	42
	30º - 53º	31	50	62
	54º - 75º	37	56	62
	76º - 90º	43	62	62

(c) Maneuverability areas. The following provisions shall be followed to maintain efficient maneuverability:

[1] Turnaround area. Where more than three parking spaces are served by a single driveway, a turnaround area shall be provided or other provision made to permit cars to exit the parking lot without backing onto any street or sidewalk.

[2] Backup area. Each parking space shall be provided with a sufficient backup area to permit egress in one maneuver, consisting of one backward and forward movement.

(d) Surface.

[1] All off-street parking areas and aisles in agricultural and single-family residential districts shall be graded and surfaced so as to be dust-free and properly drained. All driveways shall be completed within 18 months of receiving a building permit.

[2] Parking areas and aisles in all other districts shall be paved with an asphalt or concrete surface. The parking lot design and thickness shall be shown on the site plan.

[3] Paving of parking areas may be waived for up to 12 months by the Plan Commission to allow new parking areas to settle or because of the season. The Plan Commission may require the appropriate financial surety to guarantee that the required paving will be completed.

(e) Wheel stops and continuous curbs. Wheel stops or continuous curbs shall be provided, located and designed to protect screening, buffering, landscaping, and pedestrian ways from damage or encroachment of vehicles and to provide necessary traffic control in the parking area.

[1] Continuous curbs. Continuous curbs shall be made of asphalt, concrete, stone or other similar material and shall have a minimum height of six inches and a minimum width of six inches. They shall form a continuous edge around all raised landscaped areas adjacent to parking and maneuverability areas which are not protected by wheel stops.

[2] Wheel stops. Where continuous curb cannot be used, wheel stops or bollards may be approved. Each wheel stop shall be a singular block of reinforced concrete, stone or other durable material with a minimum height of six inches, a minimum width of six inches and a minimum length of eight feet. Wheel stops are to be securely attached to the ground and may be used only at the end of parking stalls. Bollards shall be of a durable material, reinforced concrete or decorative metal and should be placed approximately one bollard per parking space.

[3] Placement. Wheel stops, continuous curbs, and/or bollards shall be located a minimum of four feet from any structures, buildings, walls, or plant material, excluding ground cover, to prevent a vehicle from driving onto the landscaped area or hitting any structure or plant material at the edge of a parking area.

[4] Raised parking lot islands shall have vertical face curbs.

(f) Location.

[Amended 8-24-2021 by Ord. No. 2652]

[1] Parking spaces shall be located on the same lot as the principal use they serve.

[2] No more than 50% of parking spaces may be permitted in the front yard in the Rm-1, O-1, O-2, M-1, and M-2 Zoning Districts.

[a] For all properties, regardless of zoning district, located within the rural commercial boundary, parking shall be located in the side or rear unless POWTS, wetlands, environmental corridor or easements prevent parking in the side or rear. In such cases, a maximum of 50% of the parking spaces may be permitted in the front yard with enhanced landscaping and/or bufferyards, as approved by the Plan Commission.

[3] Parking for business and industrial uses shall not be located in a residential district. Parking for home occupations shall be in accordance with § 275-42G(4)(a)[9].

(g) Setback.

[Amended 9-23-2014 by Ord. No. 2529]

[1] Parking lots shall be located in such a manner to provide convenient access to the facilities they serve.

[2] Parking areas, including aisles, shall be set back a minimum of 10 feet from the base setback line and a minimum of five feet from other lot lines.

[3] Setbacks may be required to be greater due to, but not limited to:

[a] The need for snow storage;

[b] Preservation of existing vegetation;

[c] Slopes;

[d] Drainage;

[e] Vision triangles;

[f] Vehicular turning radii;

[g] The effect of street salting; or

[h] Utility location.

(8) Joint or shared parking. Joint or shared parking is encouraged and permitted if the multiple uses that the shared parking will benefit can cooperatively establish and operate the facilities. Shared parking may be applied when land uses have different parking demand patterns and are able to use the same parking spaces/areas throughout the day. Shared parking is most effective when these land uses have significantly different peak parking characteristics that vary by time of day, day of week, and/or season of the year. General parking lots and/or on-street parking that is available for patrons of nearby businesses/commercial districts is a form of shared parking. The applicant shall have the burden of proof for reduction of the total number of parking spaces and shall document and submit information substantiating his request. Joint or shared parking may be approved if:

(a) A sufficient number of spaces are provided to meet the highest demand of the participating uses;

(b) Evidence has been submitted, to the satisfaction of the Plan Commission, by the parties operating the shared parking facility, documenting the nature of uses and the times when the individual uses will operate so as to demonstrate the lack of potential conflict between them.

(c) The shared parking spaces will not be located in excess of 500 feet from the uses they are intended to serve;

(d) A shared parking agreement is submitted that provides evidence that the parking lot is either large enough to accommodate multiple users or that parking spaces will be shared at specific times of the day (i.e., one activity uses the spaces during daytime hours, and another activity use the spaces during evening hours); and

(e) Any additional documents, covenants, deed restrictions, or other agreements shall be provided as may be deemed necessary by the Plan Commission to ensure that the required spaces are provided and maintained for during the life of the development.

(9) Adjustments to required parking.

(a) Purpose. The purpose of this section is to allow adjustments to the minimum number of parking spaces required to avoid constructing unneeded and excessive off-street parking facilities. Reducing the amount of excess off-street parking facilities is intended to provide for more cost-efficient site development, eliminate constructing more impervious surface than necessary, minimize stormwater runoff, avoid construction of unnecessarily large stormwater management facilities, and provide more landscape areas and open space on commercial and industrial sites. To achieve these purposes, the Plan Commission may reduce the minimum number of required off-street parking spaces in specific cases as described in this section.

(b) Adjustments. In all commercial and industrial districts, the minimum number of required parking spaces may be adjusted by the Plan Commission on a case-by-case basis. The petitioner for such an adjustment shall show to the satisfaction of the Plan Commission that adequate parking will be provided for customers, clients, visitors, and employees. The following factors shall be used as a basis to adjust parking requirements:

[1] The applicant or developer can provide evidence that actual parking demands will be less than the requirements of this chapter. The petitioner shall submit written documentation and data to the satisfaction of the Plan Commission that the operation will require less parking than the chapter requires.

[2] There is an adequate availability of joint or shared parking. The petitioner shall submit written documentation to the satisfaction of the Plan Commission that an adequate amount of joint or shared parking spaces is available to satisfy the parking demand. All joint or shared parking shall meet the requirements set forth in § 275-57A(8).

[3] There is an adequate availability of off-site parking spaces that may account for not more than 50% of an activity's required parking and that shall be located not more than 300 feet from the principal use that it is intended to serve.

[4] When a reduction of parking spaces attributable to shared parking or off-site parking is requested, the petitioner shall submit written verification that such parking is available and shall include copies of any contracts, joint lease agreements, purchase agreements, and other such documentation to show that such shared parking can be accomplished. The City Attorney shall provide an opinion designating the method by which the required shared parking shall be provided. Off-site shared parking spaces shall be clearly posted for the joint use of employees and/or tenants or customers of each respective use sharing those spaces.

[5] Use of alternative transportation. Upon demonstration to the Plan Commission that effective alternative transportation to the automobile will occur, the Plan Commission may reduce parking requirements. Alternative transportation may include, but is not limited to, bus transit, van pool operations, carpool/ride sharing, and bicycles. Parking management plans/operations may also be used as a basis to reduce required parking. Parking management plans may include, but are not limited to, flexible working hours or shifts, preferential parking for carpools/van pools, transit/van pool fare subsidy, imposition of a charge for parking, and establishment of a transportation coordinator to implement carpool, van pool, and transit programs. Proposals for adjustments of parking requirements under this section shall show how the alternative transportation modes will be implemented, the permanency of such modes, the extent of the program, the number of vehicles the mode will replace, and other pertinent information.

(c) Additional open space. The site plan for the commercial or industrial use shall be designed to provide sufficient open space on the subject site to accommodate the additional parking spaces otherwise required by this chapter. Such open space shall be in addition to required yards, setbacks, driveways, private streets, loading and service areas. Sufficient open space shall be provided which, if converted to parking spaces, would provide off-street parking to meet the full requirements of this chapter at the time of application.

(d) Changes in occupancy or use. When the use of a building, structure, or land is changed to another use or occupant that requires more parking spaces than required for the use existing immediately prior to such change, additional parking spaces shall be constructed for the new use or occupant in the amount necessary to conform to this chapter.

(e) Changes in intensity of use. When the intensity of use of a building, structure or land is increased by an addition of employees, gross floor area, seating capacity, or other unit of measurement, additional parking spaces shall be constructed for such additions in the amount necessary to conform to this chapter.

B. Special off-street parking requirements for certain uses and districts.

(1) Parking and storage of recreational vehicles and equipment. No person shall park or store recreational vehicles on a lot in a residential district except within a fully enclosed structure unless otherwise permitted herein.

(a) General provisions.

[1] Vehicles or equipment stored or parked on a trailer intended for such use shall count as one recreational vehicle.

[2] Except within an approved trailer camp, no recreational vehicle or mobile home shall be used for the purpose of permanent habitation, living, or housekeeping purposes in the City of New Berlin, "permanent habitation" being defined as more than seven days' habitation.

[3] On no property where the storage of recreational vehicles is otherwise permitted shall such storage out of doors be so located, used, operated, or so arranged, or the vehicles or equipment be deteriorated, so as to create a nuisance or adversely affect the property values and general desirability of the neighborhood.

[4] The Director or his designee or any affected property owner may present such a complaint in writing to the Plan Commission for a determination. A copy of such complaint shall be mailed to the recreational vehicle owner at least 10 days prior to the Plan Commission meeting. The owner shall be permitted to present evidence in defense of his parking, maintenance, or storage arrangement.

[5] The Plan Commission shall be entitled, if it deems necessary, to issue written orders stating the manner and time in which such parking or storage shall be covered, screened, moved, rearranged, relocated, or removed, or limit the number, or require conditions for the vehicle or equipment to be repaired and maintained so as to eliminate such adverse effect.

[6] Variances from the dimensional provisions of this section may be granted by the Board of Appeals under the provisions of § 275-30 of this chapter.

(b) Major recreational vehicles.

[1] Major recreational vehicles shall be parked and are only allowed on a driveway, turnaround, spur, or other hard, all-weather, dust-free surface. Parking areas existing before passage of this chapter are allowed to remain, subject to a two-foot setback.

[2] One major recreational vehicle may be stored outside on an occupied residential lot of 20,000 square feet or less, provided that the vehicle or equipment shall not exceed 8.5 feet in width, 13 feet in height, and 32 feet in overall length.

[3] One major recreational vehicle may be stored outside on an occupied residential lot of more than 20,000 square feet, provided that it shall not exceed 8.5 feet in width, 13 feet in height, and 37 feet in overall length.

(c) Outside parking provisions. Outside parking of recreational vehicles and equipment is subject to the following provisions:

[1] There shall be a minimum setback of five feet from the side and rear lot lines.

[2] The parking or storage of recreational vehicles or equipment in the front yard shall only be allowed on a driveway or turnaround and parked as close to the home as possible.

[3] Recreational vehicles and equipment shall not be located in rights-of-way, vision clearance triangles, or drainage and utility easement areas.

[4] The recreational vehicle shall be maintained and be in good condition and safe for effective performance of the function for which it is intended. The exterior of the vehicle shall be intact.

[5] Recreational vehicles shall be roadworthy. Vehicles that require a license shall be properly licensed.

[6] No recreational vehicles or equipment shall be stored in any open space outside a building unless such equipment is wholly owned by the property owner, who shall be in residence at the property in question. If the property is rented, such storage shall be permitted to the tenant only, provided that such equipment is owned by the tenant.

[7] All equipment shall be parked or stored as inconspicuously as possible on the property. The area around the equipment or vehicle shall be kept weed-free and free of accumulation of other storage material.

(d) Abrogation. This chapter is not intended to allow parking and storage of recreational vehicles or equipment where they may be otherwise prohibited by deed restriction, covenant, prior orders, or developer's agreement, or otherwise limited by topography or environmental restrictions.

(2) Vehicles permitted in a residential or agricultural district. Parking of vehicles accessory to a residential use shall be limited to those vehicles actually used by the resident for personal use, agricultural use, or temporary parking for guests. Vehicles not in keeping with residential character shall not be permitted.

(a) No truck, construction equipment, or other vehicle of a business or industrial nature shall be parked upon a residential or agricultural lot, except:

[1] Vehicles approved by the Plan Commission as part of a permitted home occupation.

[2] A personal pickup truck not to exceed one ton and 20 feet in length with a standard bed, special toolboxes, or cap not to exceed six inches beyond each side or top of a standard cab. No tow truck, stake body, or dump truck may be parked on a residential lot.

[3] A passenger-sized van not to exceed one ton and 20 feet in length. No step van or chassis van shall be parked on a residential lot without Plan Commission approval.

[4] Agricultural tractors and related equipment in an agricultural district as part of an approved agricultural or horticultural use.

(b) Outside parking of autos, trucks and vans is subject to the following provisions:

[1] They shall be located not closer than five feet to a side or rear lot line.

[2] They shall only be allowed on a hard, all-weather driveway or turnaround and parked as close to the home as is practical.

[3] They shall be located outside of all ultimate rights-of-way and vision clearance triangles.

[4] Luggage racks and overhead racks are permitted, provided that they do not exceed eight feet in overall height from ground level.

[5] The truck or van shall be maintained and be in good condition. All vehicles shall be safe, licensed, drivable, and roadworthy. The exterior of the body shall be intact.

[6] No truck or van may be parked in any open space outside of a building unless such equipment is wholly owned by the property owner, who shall be in residence at the property in question, or used by the occupant in connection with continued employment.

[7] In no case shall a residential-zoned or -used parcel be used for the parking or storing of a semitrailer or tractor.

[8] Display of vehicles for sale, see § 275-41C(9)(b) for requirements.

(c) Outside parking of automobiles, station wagons, personal pickups, and passenger vans is subject to the following provisions:

[1] They shall be located not closer than five feet to a side or rear lot line, except in the case of a legal nonconforming driveway location.

[2] They shall only be allowed on an all-weather driveway or turnaround.

[3] They shall be located outside of all ultimate rights-of-way and vision clearance triangles, unless legally parked on the street.

[4] All vehicles shall be safe, licensed, drivable, and roadworthy.

[5] No vehicle may be regularly parked in any open space outside of a building unless such vehicle is wholly owned by the property owner, who shall be in residence at the property in question, or used by the occupant in connection with continued employment.

[6] Vehicles for sale shall meet the requirements described in § 275-41C(9)(a).

[Amended 4-25-2023 by Ord. No. 2668]

(3) Complaints.

(a) The Director or any affected property owner may present a written complaint of a nuisance or adverse effect on property values in writing to the Plan Commission for a determination. A copy of such complaint shall be mailed to the vehicle owner at least 10 days prior to the Plan Commission meeting. The owner shall be permitted to present evidence in defense of the parking, maintenance, or storage arrangement.

(b) The Plan Commission shall be entitled, if it deems it necessary, to issue written orders stating the manner and time in which such parking or storage shall be covered, screened, moved, rearranged, relocated, or removed, or limit the number or require conditions for the vehicle or equipment to be repaired and maintained so as to eliminate such adverse effect.

(c) The Plan Commission, in making determinations, shall consider the size of the lot, the proximity to neighbors, the size of vehicles, the size of the existing garage, and other uses on the land.

(4) Outside parking or storage of junked vehicles or equipment. In all districts, no abandoned, dismantled, unlicensed, inoperative, wrecked, or junked vehicle or equipment, or a vehicle or equipment under repair or awaiting parts, shall be parked or stored for a period to exceed 30 days unless the vehicle is within a fully enclosed structure.

(5) In the A-1, A-2, R-1/R-2, R-2E, R-3, R-4, R-4.5, R-5, Rd-1, Rm-1, B-1, B-2, B-3, B-5, O-1, O-2, I-1 and P-1 Zoning Districts, the parking and storage of semitractors and semitrailers, except for pickup and deliveries, is prohibited. Parking or storage of construction vehicles and equipment, except during periods of permitted construction activity, is prohibited.

(a) In the B-2 Zoning District, all storage and parking of vehicles and equipment, other than required customer and employee off-street parking, shall be inside, except the outside parking of two vehicles in accordance with an approved site plan and plan of operation.

[Amended 4-25-2023 by Ord. No. 2668]

(b) In the B-3 Zoning District, parking or storage of construction vehicles and equipment must be fully screened from a public street and any adjacent property located outside of the B-3 District.

(c) In the I-1 Zoning District, public works or utility storage buildings or yards are exempt from this prohibition.

(6) In the M-1, M-2, Q-1 and L-1 Zoning Districts, the parking and storage of semitractors, semitrailers and construction equipment is permitted in accordance with an approved site plan and plan of operation.

C. Off-street loading requirements.

(1) Applicability. On every lot on which a business or industrial use, with the exception of the City Center District, is hereafter established, space with access to a public street or alley shall be provided as indicated below for the loading and unloading of vehicles off the public right-of-way.

(2) Minimum number of required spaces. The number of loading spaces required is as follows:

	Table 275-57-4
	Gross Floor Area of Building (square feet)	Required Loading Spaces
	5,000 - 24,999	1
	25,000 - 49,999	2
	50,000 - 99,999	3
	100,000 - 174,999	4
	175,000 - 249,999	5
	For each additional 74,000 square feet (or fraction thereof) of gross floor area over 250,000, 1 additional loading space shall be provided.

(3) Access. Each loading space shall have access to a dedicated public street or alley.

(4) Minimum area. The minimum area for each loading space, excluding the area needed to maneuver, shall be 10 feet wide and 79 feet long with a height clearance of 14 feet.

(5) Minimum design standards.

(a) Loading areas shall be surfaced with an asphalt or concrete surface.

(b) No part of any truck or van that is being loaded or unloaded may extend into the right-of-way of a public thoroughfare.

(c) Loading spaces shall be designed with sufficient apron area to accommodate truck-turning movements and to prevent backing of trucks onto any street right-of-way.

(d) Single-bay loading docks shall provide sufficient area for the largest vehicle using the facility to maneuver without encroaching upon a street right-of-way.

(e) Minimum dimensional standards for loading spaces shall be as outlined in Table 275-57-5. See also Figure VIII-5.

	Table 275-57-5
	Overall Truck Length (feet)	Truck Berth Width (feet)	Minimum Truck Apron Length (feet)	Minimum Dock Approach (feet)
	40	10	46	86
		12	43	83
		14	39	79
	45	10	52	97
		12	49	94
		14	46	91
	50	10	60	110
		12	57	107
		14	54	104
	55	10	65	120
		12	62	117
		14	58	113
	60	10	72	132
		12	63	123
		14	60	120
	65	10	77	142
		12	72	137
		14	68	133

Figure VIII-5

Elements of Truck Loading/Unloading Dock Design

D. Vehicle stacking space requirements. Vehicle stacking spaces for drive-through facilities shall be provided according to the following provisions:

(1) Minimum number of stacking spaces. The number of stacking spaces shall be provided as follows. See Figure VIII-6 for illustration of stacking spaces.

Table 275-57-6
Activity	Minimum Stacking Spaces (per lane)	Measured From
Financial institution	4	Teller or window
Restaurant	8	Pickup window
Full-service automotive wash	7	Entrance
Self-service automotive wash	2	Washing bay
Fuel or gasoline pump island	2	Pump island
Other	As determined by Plan Commission

Figure VIII-6

Vehicle Stacking Spaces

(2) Design and layout.

(a) Stacking spaces shall be a minimum of 20 feet in length.

[Amended 6-11-2019 by Ord. No. 2620]

(b) Stacking spaces may not impede on- or off-site traffic movements or movements in or out of off-street parking spaces.

(c) Stacking spaces shall be separated from other internal driveways by surface markings. Raised medians may be required where deemed necessary by staff for the purpose of traffic movement and safety.

E. Driveways. All driveways installed, altered, changed, reconstructed, or extended after the effective date of this chapter shall meet the following requirements:

(1) Driveways. Driveways shall be set back a minimum of five feet from all side lot lines, except in the case of an approved joint or shared driveway.

(2) Surfacing. All driveways in agricultural and single-family residential districts shall be graded and surfaced so as to be dust-free and properly drained. Driveways in all other districts shall be paved with an asphalt or concrete surface. Paving of driveways may be waived for up to 12 months to allow for settling or because of the season. Appropriate financial surety may be required to guarantee that the required driveway surfacing will be completed.

(3) Driveways located on culs-de-sac and curved streets. Driveways located on culs-de-sac and curved streets shall not extend beyond the lot line extended to the curbline or pavement edge, unless otherwise permitted by the Plan Commission.

Figure VIII-7

Driveway Location with Respect to Side Lot Line Extended

(4) Driveway opening widths. Driveway opening widths for vehicular ingress and egress shall be the following:

Table 275-57-7
Zoning District	Minimum Driveway Width at Property Line (feet)	Maximum Driveway Width at Right-of-Way (feet)	Maximum Driveway Width at Curbline or Pavement (feet)
Agricultural	12	30	34
Single-family and duplex residential	12	30	34
Multifamily residential	24	30	34
Commercial, office, park and institutional	24	40	55
Manufacturing, quarrying and landfill	24	40	50

(5) Vehicular entrances. Vehicular entrances shall minimize conflict with pedestrian traffic, and driveways on arterial streets shall further be located opposite driveway openings on the opposite side of the street to minimize turning movement conflicts. The number of driveways allowed per parcel is further defined in the Development Handbook.

[Amended 4-25-2023 by Ord. No. 2668]

F. Arterial street and highway access. No direct private access (driveway) shall be permitted to the existing or proposed rights-of-way of expressways, nor to any controlled access arterial street without permission of the Plan Commission and the highway agency that has access-control jurisdiction. In addition, direct public or private access (driveway) to streets and highways shall be permitted in accordance with the following:

(1) Freeways, interstate highways and interchanges. Driveways in the vicinity of freeways, interstate highways and their interchanges or turning lanes shall be located a minimum of 200 feet from the most-remote end of the exit or entrance ramp.

(2) Arterial streets and collectors. Driveways on arterial streets and collectors shall be located a minimum of 300 feet from a street intersection or at the farthest point from an intersection. Said setback shall be measured from the intersection of the right-of-way on the two streets.

[Amended 6-11-2019 by Ord. No. 2620]

(3) Local streets. Driveways on collector or local streets shall be located a minimum of 100 feet from a street intersection or at the farthest point from the intersection. Said setback shall be measured from the intersection of the right-of-way on the two streets.

(4) Corner lots. Driveways on corner lots shall be located on the least-heavily-traveled street.

(5) Access barriers. Access barriers, such as curbing, fencing, ditching, landscaping, or other topographic barriers, shall be erected to prevent unauthorized vehicular ingress or egress to the above-specified streets or highways.

(6) Temporary access. The Common Council may grant temporary access to the above rights-of-way after review and recommendation by the Plan Commission and the highway agencies having jurisdiction. Such access permit shall be temporary, revocable, and subject to any conditions required.

G. Parking lot circulation and lot layout.

(1) Circulation internal to the site shall be reviewed as part of the plan submittal.

(2) Off-street parking lots shall be designed to accommodate traffic volumes and pedestrian circulation based on the land use served.

(3) The internal circulation pattern shall be designed to allow users to maneuver in an efficient and safe manner.

(4) The use of landscape islands and medians shall be used to provide positive guidance to motorists and establish property driving patterns.

(5) Turning radii for a single-unit truck (SU-design vehicle) shall be provided as a minimum to all portions of the lot.

§ 275-58 Adequate public facilities.

A. Purpose. The purpose of these adequate public facilities regulations is to ensure that all utilities and other facilities and services needed to support development are available concurrently with the impacts of such development.

B. General requirements.

(1) Approval conditioned upon adequate public facilities. The approval of all development shall be conditioned upon the provision of adequate public facilities and services necessary to serve the new development. No building permit shall be issued unless such public facilities and services are in place or the commitments described in this section have been made.

(2) Level-of-service standards. This section establishes level-of-service standards for transportation facilities. No site plan or building permit shall be approved or issued in a manner that will result in a reduction in the levels of service below the adopted level-of-service standard for such facilities.

(3) Developer's Handbook. All public improvements (and private improvements when required by the Director) are to be built according to the standards as described in the Developer's Handbook, as approved and amended by the Board of Public Works upon the date of application. This includes, but is not limited to, roads, sanitary sewer utilities, water utilities and stormwater facilities.

C. Transportation.

(1) Levels of service.

(a) General standard. All developments shall be required to demonstrate that there will be no significant adverse impact on existing levels of service, access, and vehicular movement on any arterial or collector street or intersection within 1/4 mile of the site or that any such adverse impact has been mitigated to the maximum extent feasible. The Department of Community Development shall be authorized to increase this distance to one mile.

(b) Waiver or modification. The Department of Community Development may waive or modify these requirements upon a showing by the applicant that the impact of the proposed development on adjacent roads and intersections will be minimal and insignificant.

(c) Development in all districts. All development shall have safe and adequate access to the nearest paved road. "Safe and adequate access" shall mean that a paved access road is available to provide access to the nearest paved road on the City's street system prior to the issuance of the first building permit for the development.

(2) Thresholds for traffic impact analysis. A traffic impact analysis (TIA) shall be required to be submitted with applications for development review and approval of:

(a) Any subdivision or multifamily residential development with 40 or more dwelling units;

(b) Any nonresidential development that exceeds 100 peak-hour trips based on traffic generation estimates of the latest edition of the Institute of Transportation Engineers' Trip Generation Manual;

(c) Any application for a change to the zoning district boundaries (rezoning);

(d) Any development that the Department of Community Development determines may have an adverse impact on traffic in the surrounding area.

(3) Contents. The TIA shall contain the following information:

(a) Traffic impact area. Identification of the precise boundaries of the traffic impact area, which shall be approved in advance by staff.

(b) Current LOS. The current projected average daily traffic volumes (level of service) on the segments and intersections of the road system in the traffic impact area based upon existing conditions and factoring in already approved developments. For purposes of these transportation facility standards, "approved development" shall mean developments that have received preliminary or final approvals from the Plan Commission or its predecessors and that have not been completed.

(c) LOS including the proposed development. The projected average daily traffic volumes (level of service) of the segments and intersections on the road system in the traffic impact area based upon existing conditions, the demands from approved development, and the proposed development.

(d) Future LOS. The future LOS should be computed for 10 years after full buildout of the proposed development.

(e) Study findings. A summary outlining the study findings on the traffic impacts of the proposed development, including a detailed description of proposed improvements and mitigation measures necessary to maintain the adopted level-of-service standard.

(f) Other information. Other information as may reasonably be required by the Department of Community Development to determine compliance with the applicable level-of-service standards.

(4) Minimum approval requirements. At a minimum, the Plan Commission shall require that, at the time of final plat or development plan approval, all necessary transportation facilities and services to meet the applicable level-of-service standard are:

(a) Currently in place and available to serve the new development; or

(b) Guaranteed by an enforceable development or improvement agreement that ensures that the public facilities will be in place at the time that the impacts of the proposed development will occur.

D. Emergency communications. The Plan Commission may require, at the developer's expense, the installation of an amplifier system for emergency communications. The Police Department and Fire Department shall be consulted with to see whether the use, size or construction of a structure warrants such an amplifier system.

§ 275-59 Architectural design standards.

[Amended 1-12-2016 by Ord. No. 2558; 10-13-2020 by Ord. No. 2642; 8-24-2021 by Ord. No. 2652]

A. Purpose. The purpose of this section is to promote compatible development; to promote stability of property values; to foster the attractiveness and functional utility of the community as a place to live and work; to preserve the character and quality of the built environment by maintaining the integrity of those areas which have a discernible character or are of a special historic significance; to protect certain public investments in the area; and to raise the level of community expectations for the quality of its environment.

B. Applicability.

(1) No land shall be developed and no building shall be erected, structurally altered, or moved unless it meets the provisions set forth in this section.

(2) Upon the filing of a site plan, staff shall decide if the proposed development qualifies as an infill development or a greenfield development. This decision will determine the architectural standards of Subsection C below that must be met to gain approval of the site plan.

C. General design standards.

(1) Infill development.

(a) Architectural character.

[1] All new development or redevelopment shall be compatible with the established architectural character of the surrounding area utilizing a building design and style that is complementary to the surrounding uses and structures. Compatibility may be achieved through the repetition of similar rooflines, similar proportions in relation to height, size, scale and mass, similar door and window patterns, building materials and color, and building orientation. See Figures VIII-8 and VIII-9.

[2] No building shall be permitted a design or exterior appearance which is so identical with those adjoining as to create excessive monotony.

Figure VIII-8

Architectural Character – Residential

Figure VIII-9

Architectural Character – Nonresidential

(b) Building size, height, bulk, scale and mass.

[1] Buildings shall maintain a similar size, height, bulk, scale and mass as surrounding architecture.

[2] If a proposed structure is to be larger than the structures in surrounding developments, the building shall be subdivided into massing that is proportional to the mass and scale of surrounding structures.

(c) Building rooflines and roof shapes. The visual continuity of roofs and their contributing elements (parapet walls, coping, cornices, etc.) shall be maintained in building development or redevelopment.

(d) Building materials.

[1] While only materials, techniques, and product types prescribed here are allowed, equivalent or better practices and products are encouraged. Proposed materials shall be submitted to staff and the Architectural Review Committee for approval. Where the proposed materials are dissimilar to the prevailing materials in the surrounding area, other characteristics, such as scale, proportion, detailing, color and texture, shall be utilized to ensure that enough similarity exists for the building to be compatible despite the use of different materials. The Plan Commission or Community Development Authority may waive or modify any or all of the requirements in this section in accordance with § 275-52C.

[2] No building or addition to a building shall be permitted where any exposed facade is constructed or faced with a finished material which is visibly incompatible with other building facades in the area and which presents an unattractive appearance to the public and surrounding properties.

[3] Building materials shall not create excessive glare. If highly reflective building materials are proposed, such as aluminum, unpainted metal and reflective glass, the potential for glare shall be evaluated to determine if the glare will create a significant adverse impact on adjacent property owners, neighborhoods or community in terms of vehicular safety, outdoor activities, and enjoyment of views. If so, such reflective materials shall be prohibited.

[4] Mirror glass with a reflectivity or opacity of greater than 60% shall be prohibited.

[5] Clear glass shall be used for commercial storefront display windows and doors.

[6] Recommended materials. "Permitted materials" are those that are allowed for each district. "Considered materials" are materials that may be permitted in certain cases depending on the character of existing buildings, specific site issues, staff approval, and/or Architectural Review Committee approval. See Figure VIII-10, Recommended Materials.

Figure VIII - 10 Recommended Materials
	Rm-1 Multiple-Family Resid- ential	R-6/R-7 Single-Family Resid- ential	Comm- ercial Districts	Office Districts	M-1 Light Manufact- uring	M-2 General Industrial	M-3 Section 34/35	Institut- ional Districts	Rural Comm- ercial Area
Building Walls
Brick	P (exposed or painted)	P (exposed, no brick painting)	P (exposed or painted)	P (exposed or painted)	P (exposed or painted)	P (exposed or painted)	P (exposed, no brick painting or CMU allowed)	P (exposed or painted)	P
Stucco - smooth or sand finish only	P	P	P	C	C	C	C	C	C
Stone - native, natural, veneer or cast	P	P	P	P	P	P	P	P	P
Glass panel system, glass storefront or curtain wall systems	*	*	P	P	P	P	P	P	*
Precast masonry - rough-faced	P (exposed foundation wall only) C (as base course material, not to exceed 15% of total wall surface)	P (exposed foundation wall only) C (as base course material, not to exceed 15% of total wall surface)	P (exposed foundation wall only) C (as base course material, not to exceed 15% of total wall surface)	P (exposed foundation wall only) C (as base course material, not to exceed 15% of total wall surface)	P	P	P	P (exposed foundation wall only) C (as base course material, not to exceed 15% of total wall surface)	P
Gypsum reinforced fiber concrete/glass fiber reinforced gypsum - for trim elements only	P	P	P	C	C	C	C	C	C
Manu- factured cement- ious siding/fiber cement board	P	P	P	P	P	P	P	P	P
Cedar shakes and lap siding	P	P	C	C	C	C	C	C	P
Vinyl siding - only with full-profile windows and trim	C (only for buildings already using this material)	C	C	C	*	*	*	C	*
EIFS (exterior insulated finish systems) - not at ground level	C (not to exceed 25% of total wall surface for the entire building)	C (not to exceed 25% of total wall surface for the entire building)	C (not to exceed 25% of total wall surface for the entire building)	C (not to exceed 25% of total wall surface for the entire building)	C (not to exceed 25% of total wall surface for the entire building)	C (not to exceed 50% of total wall surface for the entire building)	C (not to exceed 50% of total wall surface for the entire building)	C (not to exceed 25% of total wall surface for the entire building)	C (not to exceed 25% of total wall surface for the entire building)
Metal panels	C	*	C	C	C	C	C (only as an accent)	C	C
Architect- ural metal	C	*	P	P	P	P	P	C	C
Aluminum	*	*	*	*	*	*	*	*	*
Freestanding Walls and Fence
Brick	P (exposed or painted)	P (exposed, no brick painting)	P (exposed or painted)	P (exposed or painted)	P (exposed or painted)	P (exposed or painted)	P (exposed, no brick painting or CMU allowed)	P (exposed or painted)	P
Stucco - smooth or sand finish only	P	P	P	C	C	C	C	C	C
Stone - native, natural, veneer or cast	P	P	P	P	P	P	P	P	P
Precast masonry - rough-faced	P	P	P	P	P	P	P	P	P
Manu- factured cement- ious siding/fiber cement board	P	P	P	P	P	P	P	P	P
Architect- ural metal	C	*	P	P	P	P	P	C	C
Wood pickets	P	P	P	P	P	P	P	P	P
Wood lattice	P	P	P	P	P	P	P	P	P
Wood boards	P	P	P	P	P	P	P	P	P
Wood and plastic composite (painted or stained)	P	P	P	P	P	P	P	P	P
Wrought iron	P	P	P	P	P	P	P	P	P
Aluminum or decorative steel	P	P	P	P	P	P	P (no chain link)	P	P

P = Permitted material

C = Considered material

* = Prohibited material

(e) Colors. Color shades shall be selected in general harmony with the existing surrounding buildings.

(f) Building location and orientation. To the maximum extent feasible, primary facades and entrances shall face the adjacent street. Except for the M-1, M-2, Q-1 and L-1 Districts, all main entrances shall have a direct pedestrian connection to the street without requiring all pedestrians to walk through parking lots or cross driveways.

(g) Mechanical equipment and service structures. All mechanical equipment and service structures shall be located in a manner to be unobtrusive or screened from view. Screening and buffering of mechanical equipment shall be in accordance with § 275-56G.

(h) Loading, trash, and utility areas. All loading, trash and utility areas shall be screened from street and side path views in accordance with § 275-56G(2). Screening materials should complement the building, as well as adjacent buildings, and be effective in every season. The only exception is that loading and overhead doors are allowed within the New Berlin Industrial Park as part of the SPO.

(i) Additional architectural standards. Any additional architectural standards deemed appropriate in the City of New Berlin or in the vicinity of the project may be imposed by the Plan Commission.

(2) Greenfield development sites.

(a) Building design. Building design shall contribute to the uniqueness of a zoning district and the City of New Berlin with predominant materials, elements, features, color, and activity areas tailored specifically to the site and its context in consultation with the Plan Commission.

(b) Building materials.

[1] Material choices as noted in § 275-59C(1)(d)[6].

[2] Mirror glass with a reflectivity or opacity of greater than 60% shall be prohibited.

[3] Clear glass shall be used for commercial storefront display windows and doors.

(c) Multiple-building developments. Each individual site shall feature predominant characteristics, including but not limited to consistent rooflines, use of compatible proportions in building mass and outdoor spaces, complementary relationships to the street, similar window and door patterns, and the use of similar building materials in terms of color, shades and textures.

(d) Massing. A single large building mass shall be avoided in all residential and commercial districts.

(e) Color. Color shades shall be used to facilitate unification of the development. The color shades should draw from other developments that have been approved in the City of New Berlin.

D. Specific architectural design standards.

(1) While the architectural design standards prescribed are required, staff and/or the Architectural Review Committee shall have final approval.

(2) Agricultural buildings. Agricultural buildings shall be designed to be appropriately proportioned to the intended agricultural use.

(3) Building facades.

(a) O-1, O-2 and O-3 Districts. In the O-1, O-2 and O-3 Districts, all building walls facing a street shall be permitted building materials.

[1] Such materials shall extend around all four sides of the structure.

[2] Building facades should be composed to define base, middle, and top elements. The base of the building anchors it to the ground and is the interface between the building and people. The transition between the middle of the building and the base and top should be articulated by the use of contrasting materials, window openings, or ornamental elements. The top terminates the building against the sky and provides an opportunity to create an interesting silhouette.

[3] Building elevations should be articulated in ways that give the appearance of multiple layers which add depth and avoid the appearance of flat facades. Suggested techniques include setting windows back from the exterior wall plane; adding decorative elements, such as cornices, lintels, sills, awnings, and canopies; expressing structural columns through changes of plane; creating arcade walkways; and extending roof eaves.

[4] A change in materials or stepbacks (from six inches to 10 inches) shall be incorporated to articulate the ground or first floor from upper floors. Stepbacks and patios can also be incorporated on upper floors to further articulate the building.

[5] Building entries shall be clearly defined and articulated.

[6] Ground-level offices should include clear glass windows.

[7] To avoid monotonous and elementary building design, proposed architecture should incorporate new urbanist principles, such as towers, raised corners to complement the surrounding area and streetscape, rooflines of varying heights, wall planes that are varying in depth and other significant design elements; modular and/or premanufactured buildings should also incorporate the design elements described above.

(b) M-1, M-2, M-3, and I-1 Districts. In the M-1, M-2, M-3 and I-1 Districts, all building exteriors facing a street shall be permitted materials.

[1] Such materials shall extend around all four sides of the structure.

[2] Large buildings should include some smaller masses and forms to break down the building scale and provide visual richness. Techniques include using recesses or projections, creating distinct building components, and occasionally varying roof forms.

[3] Building elevations should be articulated in ways that give the appearance of multiple layers which add depth and avoid the appearance of flat facades. Suggested techniques include setting windows back from the exterior wall plane; adding decorative elements such as cornices, lintels, or sills; expressing structural columns through changes of plane; and extending roof eaves.

[4] Building facades should be composed to define base, middle, and top elements. The base of the building anchors it to the ground and is the interface between the building and people. The transition between the middle of the building and the base and top should be articulated by the use of contrasting materials, window openings, or ornamental elements. The top terminates the building against the sky and provides an opportunity to create an interesting silhouette.

(c) B-1, B-2, B-3 and B-5 Districts. In the B-1, B-2, B-3 and B-5 Districts, all building exteriors facing a street shall be permitted building materials.

[1] Building facades should be composed to define base, middle, and top elements. The base of the building anchors it to the ground and is the interface between the building and people. The transition between the middle of the building and the base and top should be articulated by the use of contrasting materials, window openings, or ornamental elements. The top terminates the building against the sky and provides an opportunity to create an interesting silhouette.

[2] Building elevations should be articulated in ways that give the appearance of multiple layers which add depth and avoid the appearance of flat facades. Suggested techniques include setting windows back from the exterior wall plane; adding decorative elements such as cornices, lintels, sills, awnings, and canopies; expressing structural columns through changes of plane; creating arcade walkways; and extending roof eaves.

[3] Building orientation, setbacks, and design elements shall encourage visual continuity between developments.

[4] A change in materials or stepbacks (from six inches to 10 inches) shall be incorporated to articulate the ground or first floor from upper floors. Stepbacks and patios can also be incorporated on upper floors to further articulate the building.

[5] Building entries should be clearly defined and articulated.

[6] Ground-level retail should include clear glass windows.

[7] To avoid monotonous and elementary building design, proposed architecture should incorporate new urbanist principles, such as towers, raised corners to complement the surrounding area and streetscape, rooflines of varying heights, wall planes that are varying in depth and other significant design elements; modular and/or premanufactured buildings should also incorporate the design elements described above.

(d) Rm-1 District. In the Rm-1 District, all building exteriors facing a street shall be permitted building materials.

[1] Materials shall be used in horizontal bands only and shall be consistent on all facades.

[2] Materials shall not be mixed on the same facade, except as bandings or approved details.

[3] Building orientation, setbacks, and design elements shall encourage visual continuity between developments.

[4] A change in materials or stepbacks (from six inches to 10 inches) shall be incorporated to articulate the ground or first floor from upper floors. Stepbacks and patios can also be incorporated on upper floors to further articulate the building.

[5] Building entries should be clearly defined and articulated.

(e) R-6 and R-7 Districts. Home construction in the R-6 and R-7 Districts shall utilize architectural materials similar in quality to subdivisions along Sunny Slope Road. An approval from an architectural review board of the homeowners' association may be required prior to issuance of building permits from the City.

(f) Rural Commercial Area. Buildings shall follow the Rural Commercial Area requirements outlined in Figure VIII-10 over an individual zoning district when considering building materials.

(4) Freestanding walls and fences.

(a) Walls shall be capped in wood, stone, brick, precast stone or metal copings.

(b) Solid piers with open fencing between are allowed.

(c) Fences or walls used as fencing shall be consistent at all locations on a lot. Exceptions are for height changes per code requirements.

(5) Loading, trash, and utility areas.

(a) Materials shall complement primary building materials.

(b) Areas shall be designed to accommodate snow removal.

(6) Overhead dock door. No overhead dock doors on a business, industrial, institutional, or park building shall face a public street, with the exception of the New Berlin Industrial Park Special Plan Overlay District. The Plan Commission or CDA may permit overhead doors (not including docks) to face a public street when it has made a finding that there is no feasible alternative location for such doors.

§ 275-60 Performance standards.

This section permits specific uses in specific districts, and these performance standards are designed to limit, restrict, and prohibit the effects of those uses outside their premises or district. All structures, lands, air, and waters shall hereafter, in addition to their use, site, and sanitary regulations, comply with the following performance standards:

A. Air pollution. No person or activity shall emit smoke, fly ash, dust, particulates, fumes, vapors, mists, or gases in quantities to exceed established state or federal air pollution standards or constitute a nuisance to surrounding property owners. Dust and other types of pollution borne by the wind from such sources as storage areas, yards, roads, and the like within lot boundaries shall be kept to a minimum by appropriate landscaping, paving, oiling, fencing, or other acceptable means.

B. Fire and explosive hazards. All activities involving the manufacturing, utilization, processing, or storage of flammable and explosive materials shall be provided with adequate safety devices against the hazard of fire and explosion and with adequate firefighting and fire-suppression equipment, as defined in the City of New Berlin Fire Code,[1] and devices that are standard in the industry. All materials that range from active to intense burning shall be manufactured, utilized, processed, and stored only in completely enclosed buildings which have incombustible exterior walls and an automatic fire-extinguishing system. The aboveground storage capacity of materials that produce flammable or explosive vapors shall not exceed the following:

	Table 275-60-1
	Closed Cup Flash Point	Gallons
	Over 187º F.	400,000
	105º F. to 187º F.	200,000
	Below 105º F.	100,000

[1] Editor's Note: See Ch. 124, Fire Prevention.

C. Glare and heat. No activity shall emit glare or heat that is visible or measurable outside its premises, except activities that may emit direct or sky-reflected glare which shall not be visible outside their district. All operations producing intense glare or heat shall be conducted within a completely enclosed building. Exposed sources of light shall be shielded so as not to be visible outside their premises.

D. Water quality protection. No activity shall locate, store, discharge, or permit the discharge of any treated, untreated, or inadequately treated liquid, gaseous or solid materials unless it meets all requirements of the City of New Berlin Stormwater Management Plan and Chapter 226, Stormwater Runoff.

E. Noise.

(1) No activity in § 275-35B(5), M-2 General Industrial District, or in § 275-37B(1), Q-1 Quarrying and Extractive District, shall produce a sound level outside the district boundary that exceeds the following sound level measured by a sound-level meter and associated octave-band filter:

	Table 275-60-2
	Octave Band Frequency (cycles per second)	Sound Level (decibels)
	0 to 75	79
	75 to 150	74
	150 to 300	66
	300 to 600	59
	600 to 1,200	53
	1,200 to 2,400	47
	2,400 to 4,800	47
	Above 4,800	39

(2) No activity in any other district shall produce a sound level outside its premises that exceeds the following:

	Table 275-60-3
	Octave Band Frequency (cycles per second)	Sound Level (decibels)
	0 to 75	72
	75 to 150	67
	150 to 300	59
	300 to 600	52
	600 to 1,200	46
	1,200 to 2,400	40
	2,400 to 4,800	34
	Above 4,800	32

(3) All noise shall be so muffled or otherwise controlled as not to become objectionable due to intermittence, duration, beat frequency, impulse character, periodic character or shrillness.

(4) Sirens, whistles, and bells which are maintained and utilized solely to serve a public purpose are exempt from the sound level standards of this section.

F. Odors. Except for food preparation and cooking odors emanating from residential properties and odors associated with property development and maintenance (such as construction, lawn care, and the painting and roofing of structures), no odor shall be created for periods exceeding a total of 15 minutes per day which is detectable by a healthy observer, such as the Director, who is unaffected by background odors such as tobacco and food, at the property line of the regulated use where any such use abuts any residential, business, office, institutional, or park district.

G. Radioactivity and electrical disturbances. No activity shall emit radioactivity or electrical disturbances outside its premises that are dangerous or adversely affect the use of neighboring premises.

H. Vibration. No activity in any district shall emit vibrations that are discernible without instruments outside its premises. No activity shall emit vibrations that exceed the following displacement measured with a three-component measuring system:

Table 275-60-4
	Displacement (inches)
Frequency (cycles per second)	Outside the Premises	Outside the District
0 to 10	.0020	.0004
10 to 20	.0010	.0002
20 to 30	.0006	.0001
30 to 40	.0004	.0001
40 to 50	.0003	.0001
50 and above	.0002	.0001

I. Lighting.

[Amended 6-11-2019 by Ord. No. 2620]

(1) General provisions. No exterior lighting used for parking lots, signage, recreational facilities, product display or security shall be permitted to spill over on operators of motor vehicles, pedestrians, and uses of land in the vicinity of the light source. These requirements shall not apply to lighting placed in a public right-of-way for public safety.

(2) Type. Shielded luminaries or luminaries with cutoff optics and careful fixture placement shall be required so as to facilitate compliance with this section.

(3) Orientation. Exterior lighting fixtures shall be oriented so that the lighting element (or a transparent shield) does not throw rays onto neighboring properties. Light rays shall not be directed into street rights-of-way or upward into the atmosphere.

(4) Minimum lighting standards. All areas designated on approved site plans for vehicular parking, loading or circulation and used for any such purpose after sunset shall provide artificial illumination in such areas, exclusive of approved anti-vandal lighting. This standard shall not apply to properties in agricultural and single-family residential districts.

(a) Multifamily development.

[1] The average illumination shall be 1.0 footcandle.

[2] The average to minimum illumination ratio is approximately 5:1.

[3] The maximum to minimum illumination ratio is approximately 20:1.

[4] Streetlighting, where required, on public roadways shall follow IESNA RP-8 specifications.

(b) Nonresidential development.

[1] The average illumination shall be 2.0 footcandles.

[2] The average to minimum illumination ratio is approximately 5:1 (0.4 footcandle minimum).

[3] The maximum to minimum illumination ratio is approximately 20:1 (8.0 footcandles maximum).

[4] Streetlighting, where required, on public roadways shall follow IESNA RP-8 specifications.

(5) Intensity of illumination. The intensity of illumination, measured at the side and rear property lines, shall not exceed 0.5 footcandle if the adjacent land uses are residential.

(6) Height. Lights and light fixtures shall have a maximum height of 25 feet measured to the bottom of the luminaire.

(7) Location. Light fixtures shall not be permitted within required buffer yards.

(8) Flashing, flickering, and other distracting lighting. Flashing, flickering, and other distracting lighting that may distract motorists is prohibited.

(9) Nuisances. Lighting which creates or becomes a public nuisance is not permitted.

(10) Accent lighting. Accent lighting and low-voltage lighting (12 volts or less) is exempt from these requirements. This would include decorative residential post lights or decorative residential building lights.

(11) Nonconforming lighting. All lighting fixtures approved prior to the adoption of this chapter and that do not comply with the provisions of this section shall be treated as and regulated as legal nonconforming uses.

(12) Existing development. Applicants are required to provide a lighting plan which covers the entire parcel as required above. Lighting meeting the minimum requirements of 0.4 footcandle will not be required to modify the lighting as part of refill/redevelopment projects as defined in § 275-70.

§ 275-61 Signs.

[Amended 7-22-2014 by Ord. No. 2524; 1-12-2016 by Ord. No. 2558; 7-26-2016 by Ord. No. 2570; 4-25-2023 by Ord. No. 2668]

A. Purpose and intent.

(1) The purpose of this section is to provide for and regulate the design, location, and safe construction of signs in a manner to ensure that all signs are compatible with surrounding land uses, are well maintained, and express the identity of individual proprietors and the City as a whole. Signs allowed within the City of New Berlin are for the purpose of location and identification not for advertisement. All sign permits, unless otherwise specified, shall be applied for on forms provided by the Department of Community Development (DCD) and administratively reviewed by the Department.

(2) In considering a sign application, DCD staff shall consider:

(a) The appearance, material for construction, location, lighting, height and size of the sign;

(b) Safety of operators of vehicles upon the adjoining streets and highways;

(c) The effect of the sign on property values within the immediate area;

(d) The effect of such sign with respect to the scenic beauty of the vicinity in which the sign is proposed to be located;

(e) The effect of such sign with respect to enforcing state laws, county and City ordinances;

(f) The effect of the sign with respect to the danger to human life because of falling or combustibility;

(g) The effect of the sign with respect to the prevention of crime; and

(h) The effect of such sign and display with respect to the general welfare, morals, and the conserving of the taxable value of lands and building located within the City and in the immediate area adjacent to the proposed location of the sign.

(3) Exemptions. The following types of signs are exempt from all provisions of this chapter:

(a) Public signs, signs erected by, or on the order of, or by the permission of, a government entity.

B. Compliance.

(1) No sign shall hereafter be located, erected, moved, reconstructed, extended, enlarged, converted or structurally altered without a sign permit and conforming with the provisions of this chapter. No sign permit shall be issued to a business or property that does not have a zoning permit.

(2) The Department of Community Development (DCD), upon review of a sign application, has the authority to administratively approve the sign application through the administrative permit policy, provided that it meets all the requirements of this chapter.

C. Sign permit application requirements. Application for a sign permit shall be made on forms provided by the Department of Community Development and must contain or have attached thereto the following information:

(1) Name, address, and telephone number of the applicant and the property owner; location of the building, structure, or lot upon which the sign is to be attached or erected.

(2) Name of person, firm, corporation, or association erecting the sign.

(3) Written consent of the owner or lessee of the building, structure, or land to which or upon which the sign is to be affixed.

(4) A scaled drawing of such sign indicating the dimensions, the materials to be used, the type of illumination, if any, and the method of construction and attachment.

(5) A scaled colored copy of the proposed sign superimposed on the building or structure.

(6) A scaled site plan indicating the location and position of such sign in relation to nearby buildings or structures or public streets and rights-of-way.

(7) Fees. The applicant shall pay all applicable fees. The fee schedule is on file with the Department of Community Development. If a sign is erected before a permit is issued, the violator shall be assessed a double fee for the sign permit.

(8) Additional information as required by the Department of Community Development, the Plan Commission, or the Community Development Authority (where applicable).

D. Procedure. Procedures for sign permits shall follow the procedures set forth in § 275-29.

(1) Sign permit applications shall be filed with the permit application center and forwarded on to the Department of Community Development, which shall review the application for its completeness, accuracy, design integrity, material for construction. This determination and the permit shall be issued within five business days. If the application is incomplete or the sign application does not meet the requirements within the sign code, it may delay issuance of the sign permit or require that the application be forwarded to the Plan Commission or the Community Development Authority (where applicable) who shall approve or deny the application within 45 business days of receipt from the applicant. A sign permit shall be issued by the Department of Community Development. The permit shall become null and void if work authorized under the permit has not been completed within one year of the date of issuance.

(2) Architectural Review Committee. Under special circumstances, the Department of Community Development shall forward sign permit applications to the Architectural Review Committee to review the materials for construction and design integrity of selected proposed signage.

(3) Construction review. Staff may refer a sign permit request to inspection services for review of construction details or specifications prior to approval.

(4) Inspection. The sign owner shall call the Department of Community Development or designated member of staff for an electrical inspection (if applicable) upon completion of all permit requirements and installation.

(5) Appeal. An applicant may appeal a decision made by staff to the Plan Commission or the Community Development Authority (where applicable) for determination. An additional review fee as determined by the Director shall be required for any sign application that is forwarded to the Plan Commission or the Community Development Authority (where applicable) for review.

(6) Waiver. An applicant may request a waiver from the Plan Commission or Community Development Authority (where applicable) for the requirements set forth in this section. All sign waiver requests are subject to an application review fee as established by the Director.

E. General provisions.

(1) Existing signs. Signs lawfully existing at the time of the adoption or amendment of this chapter may be continued, although the use, size or location does not conform with the provisions of this chapter. However, it shall be deemed a nonconforming use or structure, and the provisions of Article VII of this chapter shall apply to specific nonconforming rights. By maintaining a sign in the established right-of-way of an adjoining street or highway, the owner does so at his own risk, and no damages will be awarded if the removal is required for public use or safety or right-of-way acquisition.

(2) Sign size. The size of a sign shall be in proportion and coordinate with the building and site on which it is located and shall adhere to the size requirements in this section.

(3) Measurement of sign area. In calculating the area of a sign to determine whether it meets the requirements of this chapter, DCD staff shall include the sign copy and any border or frame surrounding that copy. Supporting members of a sign shall be excluded from the area calculation. Area of irregularly shaped signs or signs containing two or more detached elements shall be determined by the area of the smallest regular polygon that will encompass all elements of the sign (see Figure VIII-10.)

(4) Measurement of sign height. The height of the sign shall be computed as the distance from the base of the sign at the existing or new grade to the top of the highest attached component of the sign.

(5) Location.

(a) All signs shall be constructed/erected on the business property.

(b) No part of the sign or sign base shall overhang onto an adjacent property or be located within the ultimate right-of-way.

(c) No sign shall be located within the vision clearance triangle.

(d) No sign shall identify or direct attention to a business, activity, or enterprise that is not located on the same premises as the sign. Off-premises signs are prohibited in the City of New Berlin, with the exception of official signs that benefit the City and are located on City-owned land, and signs located within the special commercial sign areas identified in § 275-61J.

(e) When required for safety, curbs, protective bumpers or planters shall be placed below signs to prevent damage from passing motor vehicles or pedestrians.

(f) Signs shall not flash or blink other than approved electronic message devices. Sirens, strobe lights and other illuminated devices shall not be used to draw attention to a sign or business.

(6) Maintenance.

(a) The owner of any sign shall keep it in good maintenance and repair, which includes restoring, repainting to the same color, or replacement of a worn or damaged legally existing sign to its original condition. The owner shall also maintain the premises on which the sign is erected in a clean, sanitary, and inoffensive condition, free and clear of all obnoxious substances, rubbish, weeds, and grass.

(b) The owner of any sign shall be required to have all parts and supports of a sign properly painted as directed by DCD staff unless they are galvanized or otherwise treated to prevent rust and deterioration.

(c) The sign owner shall be responsible for the maintenance of the sign. If the sign ownership should transfer, the new owner shall be responsible for the maintenance of the sign.

(d) Temporary signs are allowed; however, once the tenant space is permitted by the City, the sign shall be removed from the property.

F. Construction standards.

(1) General standards.

(a) Signs shall not resemble, imitate, or approximate the shape, size, form, or color of railroad or traffic signs, signals or devices.

(b) Signs shall not obstruct or interfere with the effectiveness of railroad or traffic signs, signals or devices. Signs shall not be placed so as to obstruct or interfere with traffic visibility.

(c) No person shall display upon any sign or other sign structure any obscene, indecent, or immoral matter.

(d) No signs or any part thereof or sign anchors, braces, or guide rods shall be attached, fastened, or anchored to any fire escape, fire ladder, or standpipe, and no such sign or any part of any such sign or any anchor, brace, or guide rod shall be erected, put up, relocated, or maintained so as to hinder or prevent free ingress or egress through any door, doorway, window, or fire escape or so as to hinder or prevent the raising or placing of ladders against such building by the Fire Department of the City, as necessity therefore may require.

(2) Lighting.

(a) No sign shall be lighted or flashing in such a way as to cause glare or impair driver visibility upon public ways or adjacent properties. If external illumination is approved by staff, the fixture shall be mounted on a permanent unmovable base and the neck soldered so as to prevent the fixtures from being tampered with or redirected.

(b) All signs with electrical wiring shall require an electrical permit from the City Electrical Inspector.

(c) Signs located within the Rural Commercial Area (see Figure VIII-11) shall not include external neon tube lighting or internal illumination. The Rural Commercial Area is defined in the City of New Berlin Comprehensive Plan, Chapter 12. Please refer to that document for specific information.

(3) Wind pressure and dead-load requirements. The applicant and installers shall ensure that all signs and other display structures shall be designed and constructed to withstand wind pressure of not less than 40 pounds per square foot of area and shall be constructed to receive dead loads as required by the Building Inspector pursuant to the City Building Code[1] or other ordinance.

[1] Editor's Note: See Ch. 80, Building Construction.

(4) Supporting members or braces. The applicant and installer shall ensure that all signs shall be constructed of galvanized iron, properly treated wood, steel, copper, brass, or other noncorrosive incombustible material. The applicant and installer shall ensure that every means or device used for attaching any sign shall extend through the walls of the building if the safe and permanent support of such sign so requires and shall be securely anchored by wall plates and nuts to the inside of the walls. Small flat signs containing less than 10 square feet of area may be attached to a building by the use of lag bolts or other means.

G. Signs permitted in all zoning districts without a permit. The following signs are permitted in all zoning districts without a permit, subject to the following and any other applicable regulations:

(1) Yard signs. One yard sign may be allowed, not exceeding six square feet. The sign shall be placed on the property and no such signs shall be erected or placed within a public right-of-way, on light poles, utility poles, etc. No yard signs shall be placed off premises.

(2) Signs shall not be erected 30 days prior to the event, and signs shall be removed within 48 hours of the event.

H. Signs permitted in residential zoning districts with a permit. Signs are permitted in any R-1, R-2, R-2E, R-3, R-4, R-4.5, R-5, R-6, Rd-1 or Rm-1 Zoning District, subject to the following regulations and other applicable standards in this chapter:

(1) Temporary development signs. Allowed with an approved project. One sign at the entrance to the development is allowed, provided that the sign shall not exceed 32 square feet in area or eight feet in height. DCD staff shall specify the period of time the sign may remain, based on the size of the development.

(2) Residential monument signs. A permanent monument sign displaying the subdivision name may be placed at each entrance to the subdivision, not to exceed two signs per subdivision street frontage. Applicant shall submit an application for a sign permit including the following items:

(a) A site plan indicating the location of the sign.

(b) A color rendering of the proposed sign.

(c) Residential monument signs may, at the discretion of DCD staff, be placed within the public right-of-way, provided that such signs will not cause a hazard to traffic or adjoining property. A release and hold-harmless agreement including the following language shall be required:

[1] All residential monument sign placement, relocation and removal shall be at the sign owner's sole expense.

[2] The sign owner(s) agrees to remove the residential monument signs upon receiving 10 days' written notice from the City of New Berlin when the residential monument signs would impede construction, reconstruction or maintenance of the road right-of-way or interfere with vision of users of the roadway or otherwise interfere with traffic.

[3] City shall not be liable for any liens filed against the property (signs).

[4] The sign owner(s) further agrees to remove the residential monument sign(s) upon receiving 30 days, written notice from the City of New Berlin for any or no reason at all.

[5] All residential monument sign placement, replacement, relocation and removal shall be at the sign owner's sole expense. If the individual residential lots do not maintain the sign and it is in disrepair or becomes a hazard to public safety, the City shall have the authority to remove the sign.

[6] The residential homeowners' association shall be responsible for paying all maintenance of the signs and associated landscaping. Written agreements shall be on file with the City of New Berlin from the Developer and/or the homeowners' association as to the future maintenance and care for any proposed landscaping and structure/monument repairs and/or removal.

[7] If the residential homeowners' association should become defunct, then the individual subdivision lots would be responsible for the maintenance of the sign and any landscaping.

[8] This document shall be construed as a permit only and not as an easement.

(3) Agricultural signs. Permanent or temporary signs may be allowed up to a total of 32 square feet. No individual sign shall be greater than 32 square feet or eight feet in height.

I. Signs permitted in nonresidential zoning districts with a permit. Signs are permitted in B-1, B-2, B-3, B-5, O-1, O-2, O-3, M-1, M-2, M-3, Q-1, L-1, I-1, P-1, P-2 or PUD/SPO Zoning District, subject to the following regulations and other applicable standards in this chapter. Existing deed restrictions and covenants or design guidelines and standards with more restrictive requirements shall be enforced in conjunction with the sign section of this chapter (§ 275-61):

(1) Sign type and permitted sizes.

(a) Wall signs or building signs. Wall signs and building signs shall be placed against the exterior walls of buildings and shall not extend more than 12 inches outside of a building's wall surface; shall not exceed one square foot in area for every one linear foot of building face width on which they are mounted; and shall not exceed the height or project beyond the building.

(b) Awning and canopy signs. Awning and canopy signs affixed flat to the surface of a marquee or canopy are permitted in lieu of a wall sign, provided that the sign does not extend vertically or horizontally beyond the limits of such marquee, awning, or canopy. An awning or canopy may extend up to 12 feet beyond the building to which it is affixed but shall not extend into a required front yard, side yard, or rear yard, nor shall it extend closer than one foot to the vertical plane formed by the curbline in a shopping center. A name sign not exceeding two square feet in area located immediately in front of the entrance to an establishment may be suspended from an awning or canopy, provided that the name sign is at least eight feet above the sidewalk. The canopy sign shall be considered one of the two allowable signs, subject to one of the signs being a monument/ground sign.

(c) Monument signs.

[1] All new signs and/or replacement of existing signs located along arterials or major thoroughfares shall be placed on a monument base constructed of the same material and color or shall enhance the exterior architecture of the principal building. Arterials include Calhoun Road, Cleveland Avenue, Greenfield Avenue, Lincoln Avenue, Moorland Road, National Avenue, Howard Avenue, Beloit Road, Coffee Road, Lawnsdale Road, Janesville Road, Racine Avenue, College Avenue, Sunny Slope Road, 124th Street, Small Road, and Grange Avenue.

[2] The width of the sign base shall not be less than 75% of the width of the sign face. The sign base shall be a minimum of 18 inches tall. The monument sign shall not exceed eight feet in height. The sign shall be set back entirely outside the ultimate right-of-way and vision triangle.

[3] Monument signs shall not exceed 32 square feet in face area per side. The face area includes all surface area of the signage box and sign face but excludes the surface area of the signage base described.

[4] Monument signs may be positioned either parallel or perpendicular to the public right-of-way.

[5] Address plaque or numbers shall be required on the monument base or incorporated onto the sign face.

[6] The applicant may request a waiver from the Plan Commission for the requirement for a monument sign. If a waiver is granted, the monument sign may not be substituted for an additional wall sign.

(d) Ground signs. Ground signs shall not exceed eight feet in height and shall be set back entirely outside the ultimate right-of-way and shall not exceed 32 square feet in area on one side.

(e) Pole signs. All pole signs are prohibited.

(f) Roof signs. Roof signs are prohibited.

(g) Electronic message centers (EMCs) and changeable message signs. EMCs or changeable message signs may be erected as part of ground and monument signs and shall meet the requirements for those sign types.

[1] The sign area for EMCs or changeable message signs shall be included in the total permitted sign area allowed and shall not exceed 50% of the total sign area. The maximum size for an EMC or changeable message sign is 24 square feet.

[2] The changeable message portion of the sign must occupy a secondary position to the name of the business, development and/or tenant.

[3] An EMC may display static images only. No blinking, flashing, moving, scrolling or animated messages permitted. A message/image on an EMC shall not flash, scroll, twirl or otherwise move when changing.

[4] Text or images, or any portions thereof, on an EMC may change up to, but not more frequently than, once every eight seconds.

[5] Illumination. The maximum illumination of any electronic message or manual changeable message sign shall not exceed 15 footcandles when measured with a light meter held perpendicular to the sign at a distance of 24 inches.

[6] Each sign shall be placed in such a manner so as to not interfere with, confuse or present any hazard to traffic or pedestrians. This determination is in the reasonable discretion of the Plan Commission.

[7] A sign containing an EMC shall not be located closer than 100 feet from a residentially zoned property. The distance shall be calculated as the shortest measurable distance between the face of the sign to the edge of the residential zoning district, in a straight line without regard to intervening structures. Right-of-way is not included and shall be subtracted from this measurement.

[8] Audio speakers and all forms of pyrotechnics are prohibited.

[9] EMCs are not allowed within the rural commercial area. See § 275-61F(2)(c) and City of New Berlin Comprehensive Plan, Chapter 12.

(h) Off-premises signs. Off-premises signs are prohibited, except for where otherwise noted in this section.

(i) Monument signs in the M-3 District shall utilize the required bronze metal address plaque delineated in the sketch below:

(2) Number of signs.

(a) Only two signs may be permitted per business. Owners may elect for them to be any combination of wall signs, ground signs, or monument signs, not exceeding a total of two, and approved by DCD staff. Numbers of permitted signs by type are listed in Table 275-61-1.

Table 275-61-1
Sign Combinations
	Maximum Number of Wall Signs	Monument Sign	Maximum Number of Total Signs
Citywide
1 right-of-way frontage	1	Required	2
Multiple right-of-way frontages and building over 10,000 square feet	2	Required	3
Business/Industrial Parks
1 right-of-way frontage	1	Optional	2
Multiple right-of-way frontages and building over 10,000 square feet	2	Optional	3

(b) All multitenant buildings may provide a tenant directory as part of the master identification monument sign as defined below in § 275-61I(3)(b).

(c) Separate wall canopy or fascia signs may be allowed for each tenant in a retail, shopping, industrial or commercial center, subject to the approval of an overall coordinated sign plan by the DCD staff for the building. The size of wall signs approved in this manner shall be figured using the width of the bay occupied by each tenant.

(d) Price signs for gasoline or diesel fuel sales as required by other governmental regulatory entities shall not be subject to limitations on numbers of signs; however, such price signs shall not exceed an additional 20 square feet in area and shall be incorporated into a permanent sign.

(e) Directional signs six square feet in area or less and with a maximum height of four feet are allowed but shall require DCD staff approval. These do not count towards the total sign count for the business.

(f) ATM. ATM network signs shall require a sign permit.

(3) Overall coordinated sign plan.

(a) The overall coordinated sign plan shall be developed and submitted to DCD staff for any building that has more than one tenant in all zoning districts.

(b) Master identification monument sign. The overall coordinated sign plan shall permit multitenant buildings to have one freestanding monument sign.

[1] Master identification monument signs shall not exceed 32 square feet in face area. The face area includes all surface area of the signage box and sign face but excludes the surface area of the signage base described.

[2] The height of the master identification monument sign shall be limited to eight feet.

[3] The sign base shall be a minimum of 18 inches in height. The monument sign shall not exceed eight feet in height unless a waiver is approved by the Plan Commission or Community Development Authority and shall be set back entirely outside the ultimate right-of-way and vision triangle.

[4] Monument signs or master identification monument signs may be positioned either parallel or perpendicular to the public right-of-way.

[5] Address plaque or numbers shall be required on the monument base or face of the sign.

(c) Wall signs. Individual businesses within the development are allowed a wall sign meeting the provisions in § 275-61I(1) and (2), in addition to the master identification monument sign.

J. Special commercial sign areas.

(1) Purpose. The Plan Commission and Common Council have determined that there are certain commercial areas in the City that warrant the designation as special commercial sign areas to permit additional and/or larger signage because:

(a) Such areas are characterized by intense commercial activity and a high concentration of retail, commercial and business uses along major streets;

(b) The uses to which such signs pertain have long street frontages and/or have a significant setback from the right-of-way;

(c) Major roads in these areas have wide rights-of-way, divided highways and a higher speed of traffic; and

(d) Sign locations are buffered from residential areas.

(2) Designation. The City hereby designates special commercial sign districts for qualifying businesses within the areas described below:

(a) Moorland Road Business Corridor. The Moorland Road Business Corridor is defined as nonresidential properties abutting Moorland Road north of the railroad tracks to Greenfield Avenue and properties abutting both sides of Moorland Road south of the Moorland Commons and Moorland Reserve developments to College Avenue. This area also includes properties abutting Beloit Road between Towne Drive and I-43. Any property that has right-of-way adjacent to the areas described above or has an access point connecting the development to Moorland Road are considered to be located within the Moorland Road Business Corridor. See the map below.

(b) City Center. The City Center is defined as the area identified in the Comprehensive Plan as City Center Mixed Use Commercial. See the map below.

(3) Moorland Road Business Corridor. The areas identified within the Moorland Road Business Corridor are subject to the sign standards listed below.

(a) Number of signs. Only three signs may be permitted per business. Per § 275-61I(1)(c)[1], monument signs are required along arterials.

(b) Wall signage.

[1] There shall be a maximum number of two wall signs permitted per business.

[2] Wall signs and building signs shall be placed against the exterior walls of buildings and shall not extend more than 12 inches outside of a building's wall surface; shall not exceed 1.25 square foot in area for every one linear foot of building face width on which they are mounted; and shall not exceed the height or project beyond the building.

[3] The maximum area of a wall sign may be increased by 25% if the building elevation where the sign is located faces the right-of-way and is set back by more than 150 feet from the public right-of-way.

(c) Monument signs.

[1] Monument signs shall adhere to the stipulations outlined in § 275-61I(1)(c) and (3)(b), with exception to the items listed below.

[2] Each parcel may have a maximum of one monument sign per street frontage. Monument sign(s) may be placed anywhere on the property that is outside of the ultimate right-of-way, vision triangle and circulation areas, but is limited to a maximum of one monument sign per street frontage.

[3] Where at least one access point is commonly shared within a development and cross access is provided, off-premises monument and directory signage for the businesses located within the development is permitted. Signage shall be integrated into an overall coordinated sign plan for the entire development. Coordinated sign plan shall be reviewed and approved by DCD.

[4] The total monument sign height shall not exceed 13 feet.

[5] Maximum size of the monument sign face:

[a] The area for a single tenant monument sign shall not exceed 75 square feet per side.

[b] The area for a multitenant master identification monument sign that incorporates tenant names shall not exceed 100 square feet per side.

[c] Square footage calculations do not include any architectural elements of the sign.

[6] EMCs shall adhere to the regulations outlined in § 275-61I(1)(g).

(4) City Center. The areas identified within the City Center are subject to the standards listed below.

(a) Number of signs. Only three signs may be permitted per business. Owners may elect for them to be any combination of wall signs or monument signs, subject to the requirements listed below. Per § 275-61I(1)(c)[1], monument signs are required along arterials.

(b) Wall signage.

[1] There shall be a maximum number of two wall signs permitted per business.

[2] Wall signs and building signs shall be placed against the exterior walls of buildings and shall not extend more than 12 inches outside of a building's wall surface; shall not exceed 1.25 square foot in area for every one linear foot of building face width on which they are mounted; and shall not exceed the height or project beyond the building.

[3] The maximum area of a wall sign may be increased by 25% if the building elevation where the sign is located faces the right-of-way and is set back by more than 150 feet from the public right-of-way.

(c) Monument signs.

[1] Monument signs shall adhere to the stipulations outlined in § 275-61I(1)(c) and (3)(b), with exception to the items listed below.

[2] Each parcel may have a maximum of one monument sign per street frontage. Monument sign(s) may be placed anywhere on the property that is outside of the ultimate right-of-way, vision triangle and circulation areas, but is limited to a maximum of one monument sign per street frontage.

[3] Where at least one access point is commonly shared within a development and cross access is provided, off-premises monument and directory signage for the businesses located within the development is permitted. Signage shall be integrated into an overall coordinated sign plan for the entire development. Coordinated sign plan shall be reviewed and approved by DCD.

[4] Multitenant monument signs shall have at minimum: a base, a midsection including field of text and a top element. The top element/feature (typically the anchor tenant's name and/or plaza name) shall not be included within the square footage calculations, but shall be architecturally integrated into the overall sign.

[5] The total monument sign height shall not exceed 13 feet.

[6] Maximum size of the monument sign face:

[a] The area for a single tenant monument sign shall not exceed 32 square feet per side.

[b] The area for a multitenant master identification monument sign that incorporates tenant names shall not exceed 36 square feet per side.

[c] Square footage calculations do not include any architectural elements of the sign.

[7] EMCs shall adhere to the regulations outlined in § 275-61I(1)(g).

[8] Public entry signage.

[a] The face area for public entry signs shall not exceed 48 square feet.

[b] In order to maintain a cohesive design throughout City Center, the design of the public entry signs shall be coordinated with and approved by the Department of Community Development.

[c] Public entry signs shall be constructed of durable and long-lasting materials, such as metal, stone, brick, masonry or other durable materials.

[d] Public entry way signage may be permitted within the City right-of-way upon review and approval by the Director.

K. Portable/temporary signs.

(1) Department of Community Development staff may permit the temporary use of a portable sign, such as banners, pennants, and/or balloons, for display purposes in any district, provided that the portable sign meets the following criteria below. The permit application process in § 275-61C shall be required for portable signs. All temporary banners installed without a permit shall be assessed a double fee. These types of sign permits shall only be charged the base sign fee plus the filing fee.

(a) Portable/temporary signs shall be located outside any public right-of-way; will not be located closer than 10 feet to an adjacent property; will not be over 32 square feet in area; will not extend over or onto any street, alley, sidewalk, or other public thoroughfare without the approval of the Director; and will not cause a hazard to traffic or adjoining properties.

(b) Portable/temporary sign permits shall expire after 45 days or a date stipulated on the sign permit. No business shall be issued more than four portable sign permits in any given year (from January 1 to December 31).

(c) Portable signs shall not be illuminated.

(d) Portable sandwich board signs shall be permitted without a sign permit, provided they are placed directly in front of the business storefront and they are only displayed during business hours of operation. One portable sandwich board sign is allowed per business. Portable sandwich board signs shall not exceed four feet in height and two feet in width.

(2) The Department of Community Development staff may permit the temporary placement of directional signs by commercial establishments in construction zones for the purpose of identifying or showing the alternative access location of businesses affected by the construction. Placement of signs shall be at a point of barricade or detour. Signage shall not be placed in the travel portion of the road, block vision, or operation of construction vehicles. The business shall coordinate with the contractor for specific placement of the signage. The temporary signage shall be removed following completion of the construction project. This type of signage is subject to the following regulations:

(a) Single businesses affected by the construction are permitted to have one temporary sign at the point of barricade or detour. The signage is not to exceed six square feet in area.

(b) A development of four or more businesses is permitted to place one temporary sign at the point of barricade or detour for all businesses within the development affected by the construction. Signage for four or more businesses is not to exceed 32 square feet per side in area.

(c) The Director or his designee may remove signs that cause confusion, present a safety hazard or are located within the right-of-way.

(d) The Director may order sign removal if the sign is considered a safety hazard or impedes the progress of a construction project.

(e) Signage may be removed at the discretion of the construction manager during individual phases of the construction project.

(3) Portable trailer signs are prohibited. Construction trailer signs shall require a sign permit and shall not exceed 32 square feet.

L. Enforcement.

(1) Order to remove signs. No sign shall advertise a business that is in violation of this chapter or for which no zoning, occupancy and/or building permit has been issued. If the Director or his designee finds that any sign or other display structure regulated herein has been constructed or erected or is being maintained in violation of this chapter, the sign will be removed by the Director or his designee. Any sign located in a City of New Berlin right-of-way will be removed immediately.

(a) Unsafe or hazardous signs. Any sign which is hereinafter found to be unsafe or insecure, or is a menace to the public, or by reason of its location creates a traffic hazard, or is dangerous to persons and property, as determined by the Director, his designee, the City Police Department or the Safety Commission, shall be removed, except for those on private property.

(b) Abandoned signs. Any sign which is dilapidated or out of repair shall be removed by the property owner.

(c) Maintenance. If the sign owner violates the maintenance requirements of this chapter, the sign shall be removed by the property owner.

(2) Compliance. A business or property that has signage that does not meet the requirements of the current sign code shall be required to bring all signage into compliance according to Article VII of this chapter.

(3) Penalty.

(a) If a sign is displayed before a permit is issued, the violator shall pay twice the normal amount for the sign permit. If the sign owner violates the maintenance requirements as set forth in this chapter, the owner must pay a fee equal to the rate paid for the sign permit.

(b) Any person who violates any provision of this section or any order, rule, regulation or determination regarding signs shall be subject to the penalties prescribed in Article X of this chapter.

§ 275-61.1 Newsracks.

A. Purpose and intent. The purpose of the section is to provide for the safe and aesthetic placement of newsracks within the City to ensure that all newsracks will not harm the health, safety, morals, comfort, prosperity and general welfare of the public.

B. Defined. "Newsrack" shall mean any unattended self-service or coin-operated box, container, storage unit or other dispenser installed, used or maintained for the display, distribution and sale of newspapers or other news periodicals.

C. Effective date. This section shall become effective immediately upon publication.

D. Nonconformities. Article VII shall not apply to newsracks. Newsracks existing prior to the effective date of this section that do not comply with the standards within this section shall be considered in violation of this section.

E. Enforcement. This section shall be enforced in compliance with Article X of this chapter. In the event that the Director determines that a newsstand constitutes an immediate threat to public safety, the newsstand may be removed by the Director immediately.

§ 275-62 (Reserved) [1]

[1] Editor's Note: Former § 275-62, General provisions, was repealed 4-25-2023 by Ord. No. 2668.

§ 275-63 Nonmetallic mine reclamation.

[Amended 4-25-2023 by Ord. No. 2668]

A. General provisions.

(1) Title. This section shall be known and may be cited as the "Nonmetallic Mining Reclamation Ordinance for the City of New Berlin."

(2) Purpose. The purpose of this section is to establish a local program to ensure the effective reclamation of nonmetallic mining sites on which nonmetallic mining takes place in the City of New Berlin after the effective date of this section, in compliance with Ch. NR 135, Wis. Adm. Code, and Subchapter I of Ch. 295, Wis. Stats.

(3) Statutory authority. This section is adopted under authority of § 295.14(1), Wis. Stats., § NR 135.32, Wis. Adm. Code, and § 62.11(3), Wis. Stats.

(4) Restrictions adopted under other authority. The purpose of this section is to adopt and implement the uniform statewide standards for nonmetallic mining reclamation required by § 295.12(1)(a), Wis. Stats., and contained in Ch. NR 135, Wis. Adm. Code. It is not intended that this section repeal, abrogate, annul, impair or interfere with any existing rules, regulations, ordinances or permits not concerning nonmetallic mining reclamation previously adopted pursuant to other Wisconsin law.

(5) Interpretation. In their interpretation and application, the provisions of this section shall be held to be the applicable requirements for nonmetallic mining reclamation and shall not be deemed a limitation or repeal of any other power granted by the Wisconsin Statutes outside the reclamation requirements for nonmetallic mining sites required by Subchapter I of Ch. 295, Wis. Stats., and Ch. NR 135, Wis. Adm. Code. Where any terms or requirements of this section may be inconsistent or conflicting, the more restrictive requirements or interpretation shall apply. Where a provision of this section is required by Wisconsin Statutes, or by a standard in Ch. NR 135, Wis. Adm. Code, and where the provision is unclear, the provision shall be interpreted to be consistent with the Wisconsin Statutes and the provisions of Ch. NR 135, Wis. Adm. Code.

(6) Severability. Should any portion of this section be declared unconstitutional or invalid by a court of competent jurisdiction, the remainder of this section shall not be affected.

(7) Applicability.

(a) Overall applicability. The requirements of this section apply to all operators of nonmetallic mining sites within the City of New Berlin operating on or commencing to operate after August 1, 2001, except as exempted in Subsection G(2). This section does not apply to nonmetallic mining sites where nonmetallic mining permanently ceases before August 1, 2001. This section applies to nonmetallic mining conducted by or on behalf of the State of Wisconsin, by or on behalf of the City of New Berlin or for the benefit or use of the state or any state agency, board, commission or department, except for the waiver of financial assurance in Subsection E.

(b) This section does not apply to the following activities:

[1] Nonmetallic mining at a site or that portion of a site that is subject to permit and reclamation requirements of the Wisconsin Department of Natural Resources under § 30.19, 30.195 or 30.20, Wis. Stats., and complies with Ch. NR 340, Wis. Adm. Code.

[2] Excavations subject to the permit and reclamation requirements of § 30.30 or 30.31, Wis. Stats.

[3] Excavations or grading by a person solely for domestic or farm use at that person's residence or farm.

[4] Excavations or grading conducted for the construction, reconstruction, maintenance or repair of a highway, railroad, airport facility, or any other transportation facility where the excavation or grading is entirely within the property boundaries of the transportation facility.

[5] Grading conducted for preparing a construction site or restoring land following a flood or natural disaster.

[6] Excavations for building construction purposes conducted on the building site.

[7] Nonmetallic mining at nonmetallic mining sites where less than one acre of total affected acreage occurs over the life of the mine.

[8] Any mining operation, the reclamation of which is required in a permit obtained under Ch. 293, Wis. Stats.

[9] Any activities required to prepare, operate or close a solid waste disposal facility under Ch. 289, Wis. Stats., or a hazardous waste disposal facility under Ch. 291, Wis. Stats., that are conducted on the property where the facility is located, but an applicable nonmetallic mining reclamation ordinance and the standards established in this section apply to activities related to solid waste or hazardous waste disposal that are conducted at a nonmetallic mining site that is not on the property where the solid waste or hazardous waste disposal facility is located, such as activities to obtain nonmetallic minerals to be used for lining, capping, covering or constructing berms, dikes or roads.

[10] Nonmetallic mining.

[a] Nonmetallic mining conducted to obtain stone, soil, sand or gravel for construction, reconstruction, maintenance or repair of a highway, railroad, airport, or any other transportation facility or part thereof, if the nonmetallic mining is subject to the requirements of the Wisconsin Department of Transportation concerning the restoration of the nonmetallic mining site.

[b] This exemption only applies to a nonmetallic mining operation with limited purpose and duration where the Wisconsin Department of Transportation actively imposes reclamation requirements and the operator reclaims the nonmetallic mining site in accordance with these requirements. The duration of the exemption shall be specific to the length of the Wisconsin Department of Transportation contract for construction of a specific transportation project.

[c] If a nonmetallic mining site is covered under Subsection G(2)(j)[1] and is used to concurrently supply materials for projects unrelated to the Wisconsin Department of Transportation project, the exemption in this subsection still applies, provided that the site is fully reclaimed under Wisconsin Department of Transportation contract and supervision.

[11] Dredging for navigational purposes, to construct or maintain farm drainage ditches and for the remediation of environmental contamination and the disposal of spoils from these activities.

[12] Removal of material from the bed of Lake Michigan or Lake Superior by a public utility pursuant to a permit under § 30.21, Wis. Stats.

(8) Administration. The provisions of this section shall be administered by the City of New Berlin Department of Community Development.

(9) Effective date. The provisions of this section shall take effect on July 24, 2001, the date of publication.

(10) Definitions. See § 275-70.

B. All nonmetallic mining sites subject to this section shall be reclaimed in conformance with the standards contained below:

(1) General standards.

(a) Refuse and other solid wastes. Nonmetallic mining refuse shall be reused in accordance with a reclamation plan. Other solid wastes shall be disposed of in accordance with applicable rules of the Wisconsin Department of Natural Resources adopted pursuant to Chs. 289 and 291, Wis. Stats.

(b) Area disturbed and contemporaneous reclamation. Nonmetallic mining reclamation shall be conducted, to the extent practicable, to minimize the area disturbed by nonmetallic mining and to provide for nonmetallic mining reclamation of portions of the nonmetallic mining site while nonmetallic mining continues on other portions of the nonmetallic mining site.

(c) Public health, safety and welfare. All nonmetallic mining sites shall be reclaimed in a manner so as to comply with federal, state and local regulations governing public health, safety and welfare.

(d) Habitat restoration. When the land use required by the reclamation plan approved pursuant to this section requires plant, fish or wildlife habitats, it shall be restored, to the extent practicable, to a condition at least as suitable as that which existed before the lands were affected by nonmetallic mining operations.

(e) Compliance with environmental regulations. Reclamation of nonmetallic mining sites shall comply with any other applicable federal, state and local laws, including those related to environmental protection, zoning and land use control. Note: Other applicable environmental, zoning or land use regulations may include Chs. NR 103, 115, 116, 117, 205, 216, 269, 105, 106, 140, 150, 151, 340, 500-590, and 812, Wis. Adm. Code, Chs. 30 and 91, Wis. Stats., and Section 404 of the Clean Water Act (33 U.S.C. § 1344), which may be applicable to all or part of either an existing or proposed nonmetallic mining project, so long as they do not require or directly regulate the reclamation of nonmetallic mining sites as addressed under Subchapter I of Ch. 295, Wis. Stats.

(2) Surface water and wetlands protection. Nonmetallic mining reclamation shall be conducted and completed in a manner that assures compliance with the Wisconsin Department of Natural Resources' water quality standards for surface waters and wetlands contained in Chs. NR 102 to NR 105, Wis. Adm. Code. Before disturbing the surface of a nonmetallic mining site and removing topsoil, all necessary measures for diversion and drainage of runoff from the site to prevent pollution of waters of the state shall be installed in accordance with the reclamation plans approved pursuant to this section. Diverted or channelized runoff resulting from reclamation may not adversely affect neighboring properties.

(3) Groundwater protection.

(a) Groundwater quantity. A nonmetallic mining site shall be reclaimed in a manner that does not cause a permanent lowering of the water table that results in adverse effects on surface waters or a significant reduction in the quantity of groundwater reasonably available for future users of groundwater.

(b) Groundwater quality. Nonmetallic mining reclamation shall be conducted in a manner which does not cause groundwater quality standards in Ch. NR 140, Wis. Adm. Code, to be exceeded at a point of standard application defined in that chapter.

(4) Topsoil management.

(a) Removal. Topsoil and topsoil substitute material shall be provided as specified in the reclamation plan approved pursuant to this section in order to achieve reclamation to the approved post-mining land use. Removal of onsite topsoil and topsoil substitute material removal shall be performed, when specified in the reclamation plan, prior to any mining activity associated with any specific phase of the mining operation.

(b) Volume. The operator shall obtain the volume of soil required to perform final reclamation by removal of onsite topsoil or topsoil substitute material or by obtaining topsoil or substitute material as needed to make up the volume of topsoil as specified in the reclamation plan approved pursuant to this section.

(c) Storage. Once removed, topsoil or topsoil substitute material shall, as required by the reclamation plan approved pursuant to this section, either be used in contemporaneous reclamation or stored in an environmentally acceptable manner. The location of stockpiled topsoil or topsoil substitute material shall be chosen to protect the material from erosion or further disturbance or contamination. Runoff water shall be diverted around all locations in which topsoil or topsoil substitute material is stockpiled.

(5) Final grading and slopes.

(a) All areas affected by mining shall be addressed in the approved reclamation plan, pursuant to § NR 135.19, Wis. Adm. Code, to provide that a stable and safe condition consistent with the post-mining land use is achieved. The reclamation plan may designate highwalls or other unmined and undisturbed natural solid bedrock as stable and safe and not in need of reclamation or designate other areas affected by mining, including slopes comprised of unconsolidated materials that exceed a 3:1 slope, whether or not graded, as stable and safe. For slopes designated as stable under this subsection, the regulatory authority may require that either:

[1] A site-specific engineering analysis be performed by a registered professional engineer to demonstrate that an acceptable slope stability factor is attainable at a steeper slope; or

[2] The operator shall perform a field test plot demonstration to demonstrate that a stable and safe condition will be achieved and that the post-mining land use specified in the reclamation plan will not be adversely affected.

(b) Final reclaimed slopes covered by topsoil or topsoil substitute material may not be steeper than a 3:1 horizontal to vertical incline, unless found acceptable through one or more of the following: alternative requirements are approved under § NR 135.26, Wis. Adm. Code; steeper slopes are shown to be stable through a field plot demonstration approved as part of an approved reclamation plan; or stable slopes can be demonstrated based on site-specific engineering analysis performed by a registered professional engineer. All areas in the nonmetallic mine site where topsoil or topsoil substitute material is to be reapplied shall be graded or otherwise prepared prior to topsoil or topsoil substitute material redistribution to provide the optimum adherence between the topsoil or topsoil substitute material and the underlying material.

(c) When the approved post-mining land use includes a body of water, the approved final grade at the edge of a body of water shall extend vertically six feet below the lowest seasonal water level. A slope no steeper than 3:1 shall be created at a designated location or locations, depending on the size of the water body, to allow for a safe exit.

(6) Topsoil redistribution for reclamation. Topsoil or topsoil substitute material shall be redistributed in accordance with the reclamation plan approved pursuant to this section in a manner which minimizes compaction and prevents erosion. Topsoil or topsoil substitute material shall be uniformly redistributed except where uniform redistribution is undesirable or impractical. Topsoil or topsoil substitute material redistribution may not be performed during or immediately after a precipitation event until the soils have sufficiently dried.

(7) Revegetation and site stabilization. Except for permanent roads or similar surfaces identified in the reclamation plan approved pursuant to this section, all surfaces affected by nonmetallic mining shall be reclaimed and stabilized by revegetation or other means. Revegetation and site stabilization shall be in accordance with the approved reclamation plan and shall be performed as soon as practicable after mining activity has permanently ceased in any part of the mine site. Note: Field test plot demonstrations are highly recommended to ensure that reclamation success standards are met and financial assurance is released as quickly as possible. When field test plots are employed, they should be approved as part of the reclamation plan under § NR 135.19, Wis. Adm. Code.

(8) Assessing completion of successful reclamation.

(a) The criteria for assessing when reclamation is complete and, therefore, when the financial assurance may be released shall be specified in the reclamation plan approved pursuant to this section. Criteria to evaluate reclamation success shall be quantifiable.

(b) Compliance with the revegetation success standards in the approved reclamation plan shall be determined by:

[1] Onsite inspections by the City or its agent;

[2] Reports presenting results obtained during reclamation evaluations, including summarized data on revegetation, photo documentation or other evidence that the criteria approved in the reclamation plan to ascertain success have been met; or

[3] A combination of inspections and reports.

(c) In those cases where the post-mining land use specified in the reclamation plan requires a return of the mining site to a premining condition, the operator shall obtain baseline data on the existing plant community for use in the evaluation of reclamation success pursuant to this section.

(d) Revegetation success may be determined by:

[1] Comparison to an appropriate reference area;

[2] Comparison to baseline data acquired at the mining site prior to its being affected by mining; or

[3] Comparison to an approved alternate technical standard.

(e) Revegetation using a variety of plants indigenous to the area is favored.

(9) Intermittent mining. Intermittent mining may be conducted, provided that the possibility of intermittent cessation of operations is addressed in an operator's reclamation permit, no environmental pollution or erosion of sediments is occurring, and financial assurance for reclamation pursuant to § 275-65.2 is maintained covering all remaining portions of the site that have been affected by nonmetallic mining and that have not been reclaimed.

(10) Maintenance. During the period of the site reclamation, after the operator has stated that reclamation is complete but prior to release of financial assurance, the operator shall perform any maintenance necessary to prevent erosion, sedimentation or environmental pollution, comply with the standards of this section, or to meet the goals specified in the reclamation plan approved pursuant to this section.

C. Permitting. Nonmetallic mining reclamation permit application required. No person may engage in nonmetallic mining or in nonmetallic mining reclamation without possessing a nonmetallic mining reclamation permit issued pursuant to the applicable reclamation ordinance unless the activity is specifically exempted in §§ 275-63A(7) or 275-70 definition of "Nonmetallic mining site" paragraph (b).

(1) Required submittal. All operators of any nonmetallic mining sites shall apply for a reclamation permit from the City. All applications for reclamation permits under this section shall be accompanied by the following information:

(a) A brief description of the general location and nature of the nonmetallic mine.

(b) A legal description of the property on which the nonmetallic mine is located or proposed, including the parcel identification number.

(c) The names, addresses and telephone numbers of all persons or organizations who are owners or lessors of the property on which the nonmetallic mining site is located.

(d) The name, address and telephone number of the person or organization who or which is the operator.

(e) A certification by the operator of his or her intent to comply with the statewide nonmetallic mining reclamation standards established by § 275-63B.

(2) The operator of any nonmetallic mine site shall submit an application that meets the requirements specified below to the Department of Community Development by certified mail at: 3805 S. Casper Drive, New Berlin, WI 53151, prior to beginning operations.

(a) The information required by § 275-63C(1).

(b) The plan review and annual fees required by § 275-63Q and § 275-63R.

(c) A reclamation plan conforming to § 275-63D.

(d) A certification that the operator will provide, as a condition of the reclamation permit, financial assurance as required by § 275-63E upon granting of the reclamation permit and before mining begins.

(e) To avoid duplication, the permit application and submittals required under this subsection may, by reference, incorporate existing plans or materials that meet the requirements of this section.

D. Reclamation plan.

(1) Reclamation plan required. An operator who conducts or plans to conduct nonmetallic mining shall submit to the City a reclamation plan that meets all of the following requirements and complies with the standards of § 275-63B.

(2) Existing site information. The reclamation plan shall include information sufficient to describe the existing natural and physical conditions of the site, including but not limited to:

(a) Maps of the nonmetallic mining site including the general location, property boundaries, the aerial extent, geologic composition and depth of the nonmetallic mineral deposit, the distribution, thickness and type of topsoil, the location of surface waters and the existing drainage patterns, the approximate elevation of ground water, as determined by existing hydrogeologic information. In specific instances where the existing hydrogeologic information is insufficient for purposes of the reclamation plan, the applicant may supplement the information with the opinion of a licensed professional geologist or hydrologist.

(b) Topsoil or topsoil substitute material, if required to support revegetation needed for reclaiming the site to approved post-mining land use, can be identified using county soil surveys or other available information, including that obtained from a soil scientist or the University of Wisconsin soil science extension agent or other available information resources.

(c) Information available to the mine operator on biological resources, plant communities, and wildlife use at and adjacent to the proposed or operating mine site.

(d) Existing topography as shown on contour maps of the site at five-foot contour intervals to be specified by the regulatory authority.

(e) Location of man-made features on or near the site.

(f) For proposed nonmetallic mining sites that include previously mined areas, a plan view drawing showing the location and extent of land previously affected by nonmetallic mining, including the location of stockpiles, wash ponds and sediment basins.

Note: Some of or all of the information required above may be shown on the same submittal, i.e., the site map required by § 275-63D(2)(a) may also show topography required by § 275-63D(2)(d).

(3) Post-mining land use.

(a) The reclamation plan shall specify a proposed post-mining land use for the nonmetallic mine site. The proposed post-mining land use shall be consistent with local land use plans and local zoning at the time the plan is submitted, unless a change to the land use plan or zoning is proposed. The proposed post-mining land use shall also be consistent with all applicable local, state, or federal laws in effect at the time the plan is submitted.

[1] Note: A proposed post-mining land use is necessary to determine the type and degree of reclamation needed to correspond with that land use. The post-mining land use will be key in determining the reclamation plan. Final slopes, drainage patterns, site hydrology, seed mixes and the degree of removal of mining-related structures, drainage structures, and sediment control structures will be dictated by the approved post-mining land use.

(b) Land used for nonmetallic mineral extraction in areas zoned under an exclusive agricultural use ordinance pursuant to § 91.75, Wis. Stats., shall be restored to agricultural use.[1] Note: Section 91.75(9), Wis. Stats., contains this requirement; § 91.01(1), Wis. Stats., defines the term "agricultural use."[2]

[1] Editor's Note: Chapter 91 of the Wisconsin Statutes was repealed and recreated with revised numbering pursuant to 2009 Wisconsin Act 28.

[2] Editor's Note: See now § 91.01(2), Wis. Stats.

(4) Reclamation measures. The reclamation plan shall include a description of the proposed reclamation, including methods and procedures to be used and a proposed schedule and sequence for the completion of reclamation activities for various stages of reclamation of the nonmetallic mining site. The following shall be included:

(a) A description of the proposed earthwork and reclamation, including final slope angles, highwall reduction, benching, terracing and other structural slope stabilization measures, and, if necessary, a site-specific engineering analysis performed by a registered professional engineer as provided by NR 135.10(1) and (2).

(b) The methods of topsoil or topsoil substitute material removal, storage, stabilization and conservation that will be used during reclamation.

(c) A plan or map which shows anticipated topography of the reclaimed site and any water impoundments or artificial lakes needed to support the anticipated future land use of the site.

(d) A plan or map which shows surface structures, roads and related facilities after the cessation of mining.

(e) The estimated cost of reclamation for each stage of the project or the entire site if reclamation staging is not planned.

(f) A revegetation plan, which shall include timing and methods of seedbed preparation, rates and kinds of soil amendments, seed application timing, methods and rates, mulching, netting and any other techniques needed to accomplish soil and slope stabilization.

(g) Quantifiable standards for revegetation adequate to show that a sustainable stand of vegetation has been established which will support the approved post-mining land use. Standards for revegetation may be based on the percent vegetative cover, productivity, plant density, diversity or other applicable measures.

(h) A plan and, if necessary, a narrative showing erosion-control measures to be employed during reclamation activities. These shall address how reclamation activities will be conducted to minimize erosion and pollution of surface water and groundwater.

(i) A description of any areas which will be reclaimed on an interim basis sufficient to qualify for the waiver of fees pursuant to § 275-63T(2) and (4) and which will be subsequently disturbed prior to final reclamation. Descriptions shall include an identification of the proposed areas involved, methods of reclamation to comply with the standards in § 275-63B and timing of interim and final reclamation. Note: Some of the information required by this subsection may be combined to avoid duplication, e.g., a single map may show anticipated post-mining topography required by § 275-63D(4)(c) as well as structures and roads as required by § 275-63D(4)(d).

(j) A description of how the reclamation plan addresses the long-term safety of the reclaimed mining site. The description shall include a discussion of site-specific safety measures to be implemented at the site and include measures that address public safety with regard to adjacent land uses. Note: Safety measures include visual warnings, physical barriers, slope modifications such as reclamation blasting, scaling of the rock face, and creation of benches. Other measures may be employed if found to be equivalent by a registered professional engineer.

(5) Criteria for successful reclamation. The reclamation plan shall contain criteria for assuring successful reclamation in accordance § 275-63B(8).

(6) Certification of reclamation plan. The operator shall provide a signed certification that reclamation will be carried out in accordance with the reclamation plan. If the operator does not own the land, the landowner or lessor, if different from the operator or owner, shall also provide signed certification that they concur with the reclamation plan and will allow its implementation.

(7) Existing plans and approvals. To avoid duplication of effort, the reclamation plan required by § 275-63D may, by reference, incorporate existing plans or materials that meet the requirements of this section.

(8) Approval of reclamation plan. The City shall approve, conditionally approve or deny the reclamation plan submitted under this section in writing in accordance with § 275-63G(2) for mines that apply for a reclamation permit in conformance with § 275-63C. Conditional approvals of reclamation plans shall be made according to § 275-63G(5), and denials of reclamation plans shall be made pursuant to § 275-63H. The operator shall keep a copy of the reclamation plan approved under this subsection at the mine site or, if not practicable, at the operator's nearest place of business.

E. Financial assurance.

(1) Financial assurance requirements. All operators of nonmetallic mining sites in the City shall prepare and submit a proof of financial assurance that meets the following requirements:

(a) Notification. The regulatory authority shall provide written notification to the operator of the amount of financial assurance required under § 275-63E(1)(c).

(b) Filing. Following approval of the nonmetallic mining reclamation permit and as a condition of the permit, the operator shall file a financial assurance with the City. The financial assurance shall provide that the operator shall faithfully perform all requirements in this section, an applicable reclamation ordinance and the reclamation plan. Financial assurance shall be payable exclusively to the City. In cases where one or more other regulatory authorities regulate a nonmetallic mining site, all financial assurance shall be made payable to the City only if it currently has primary regulatory responsibility.

(c) Amount and duration of financial assurance. The amount of financial assurance shall equal as closely as possible the cost to the City of hiring a contractor to complete either final reclamation or progressive reclamation according to the approved reclamation plan. The amount of financial assurance shall be reviewed periodically by the City to assure it equals outstanding reclamation costs. Any financial assurance filed with the City shall be in an amount equal to the estimated cost for reclaiming all sites the operator has under project permits. The City may accept a lesser initial amount of financial assurance, provided that the permittee initiates a process to continuously increase the amount of financial assurance until it is adequate to effect reclamation. An escrow account may be established that is based on production gross sales and serves to provide regular payments to an account that is designed to grow to the amount necessary to guarantee performance of reclamation by the expected time of final reclamation. The period of the financial assurance is dictated by the period of time required to establish the post-mining land use declared and approved of in the reclamation plan. This may extend beyond the permit if required to accomplish successful and complete implementation of the reclamation plan.

(d) Form and management. Financial assurance shall be provided by the operator and shall be by a bond or an alternate financial assurance. Financial assurance shall be payable to the City and released upon successful completion of the reclamation measures specified in the reclamation plan. Alternate financial assurances may include, but are not limited to, cash, certificates of deposit, irrevocable letters of credit, irrevocable trusts, established escrow accounts, demonstration of financial responsibility by meeting net worth requirements, or government securities. Any interest from the financial assurance shall be paid to the operator. Certificates of deposit shall be automatically renewable or other assurances shall be provided before the maturity date. Financial assurance arrangements may include, at the discretion of the City, a blend of different options for financial assurance, including a lien on the property on which the nonmetallic mining site occurs or a combination of financial assurance methods.

(e) Multiple projects. Any operator who obtains a permit from the City for two or more nonmetallic mining sites may elect, at the time the second or subsequent site is approved, to post a single financial assurance in lieu of separate financial assurance instruments for each nonmetallic mining site. When an operator elects to post a single financial assurance in lieu of separate financial assurances for each mining site, no financial assurances previously posted on individual mining sites shall be released until the new financial assurance has been accepted by the City.

(f) Multiple jurisdictions. In cases where more than one regulatory authority has jurisdiction, a cooperative financial security arrangement may be developed and implemented by the regulatory authorities to avoid requiring the permittee to prove financial assurance with more than one regulatory authority for the same nonmetallic mining site. Financial assurance is required for each site and two or more sites of less than one acre by the same operator, except that governmental units are not required to obtain financial assurance.

(g) Certification of completion and release.

[1] The operator shall notify the regulatory authority, by filing a notice of completion, at the time that he or she determines that reclamation of any portion of the mining site or the entire site is complete. The City shall inspect the mine site or portion thereof that was the subject of the notice of completion to determine if reclamation has been carried out in accordance with the approved reclamation plan. The City may partially release the financial assurance if it determines that compliance with a portion of the reclamation plan has been achieved and requires no waiting period. After determining that reclamation is complete, the City shall issue a certificate of completion and shall release the financial assurance or appropriately reduce the financial assurance in the case of reclamation of a portion of the mining site.

[2] The City shall make a determination of whether or not the certification in § 275-63E(1)(g)[1] can be made within 60 days of the receipt of the request.

[3] The City may make a determination under this subsection that:

[a] Reclamation is not yet complete;

[b] It is not possible to assess whether reclamation is complete due to weather conditions, snow cover or other relevant factors;

[c] Reclamation is complete in a part of the mine; or

[d] Reclamation is fully complete.

(h) Forfeiture. Financial assurance shall be forfeited if any of the following occur:

[1] A permit is revoked under § 275-63O and the appeals process has been completed.

[2] An operator ceases mining operations and fails to reclaim the site in accordance with the reclamation plan.

(i) Cancellation. Financial assurance shall provide that it may not be canceled by the surety or other holder or issuer except after not less than a ninety-day notice to the City in writing by registered or certified mail. Not less than 30 days prior to the expiration of the ninety-day notice of cancellation, the operator shall deliver to the City a replacement proof of financial assurance. In the absence of this replacement financial assurance, all mining shall cease until the time it is delivered and in effect.

(j) Changing methods of financial assurance. The operator of a nonmetallic mining site may change from one method of financial assurance to another. This may not be done more than once a year unless required by an adjustment imposed pursuant to § 275-63E(1)(i). The operator shall give the City at least 60 days' notice prior to changing methods of financial assurance and may not actually change methods without the written approval of the City.

(k) Bankruptcy notification. The operator of a nonmetallic mining site shall notify the regulatory authority by certified mail of the commencement of voluntary or involuntary proceeding under the Bankruptcy Code, 11 U.S.C. et seq., naming the operator as debtor, within 10 days of commencement of the proceeding.

(l) Adjustment of financial assurance. Financial assurance may be adjusted when required by the City. The City may notify the operator in writing that adjustment is necessary and the reasons for it. The City may adjust financial assurance based upon prevailing or projected interest or inflation rates or the latest cost estimates for reclamation.

(m) Net-worth test.

[1] Only an operator that meets the definition of "company" in § 289.41(1)(b), Wis. Stats., may use the net-worth method of providing financial assurance.

[2] The operator shall submit information to the regulatory authority in satisfaction of the net-worth test requirements of § 289.41(4), Wis. Stats. The criteria in § 289.41(6)(b), (d), (e), (f), (g), (h) and (i), Wis. Stats., shall apply.

[3] An operator using the net-worth test to provide financial assurance for more than one mine shall use the total cost of compliance for all mines in determining the net worth to reclamation cost ratio in accordance with § 289.41(6), Wis. Stats.

[4] Determinations under the net-worth test shall be done in accordance with § 289.41(5), Wis. Stats.

[5] In addition, the operator shall submit a legally binding commitment to faithfully perform all compliance and reclamation work at the mine site that is required under this section.

(2) Private nonmetallic mines. The operator of any nonmetallic mining site that applies for a reclamation permit in conformance with § 275-63C shall submit the proof of financial assurance required by § 275-63E(1) as specified in the reclamation permit issued to it under this section.

(3) Public nonmetallic mining. The financial assurance requirements of this section do not apply to nonmetallic mining conducted by the State of Wisconsin, a state agency, board, commission or department, or the City.

F. Public notice and right of hearing.

(1) Reclamation plan hearing. The City shall provide public notice and the opportunity for a public informational hearing as set forth below:

(a) Public notice.

[1] When the City receives an application to issue a reclamation permit, it shall publish a public notice of the application no later than 30 days after receipt of a complete application that satisfies § 275-63C.

[2] The notice shall briefly describe the mining and reclamation planned at the nonmetallic mining site. The notice shall be published as a Class 1 notice pursuant to § 985.07(1), Wis. Stats., in the official newspaper of the City. The notice shall mention the opportunity for public hearing pursuant to this section and shall give the locations at which the public may review the application and all supporting materials, including the reclamation plan.

[3] Copies of the notice shall be forwarded by the City to the county or applicable local zoning board, the county and applicable local planning organization, the County Land Conservation Officer, and owners of land within 300 feet of the boundaries of the parcel or parcels of land on which the site is located.

(b) Hearing. The City shall provide for an opportunity for a public informational hearing on an application or request to issue a nonmetallic mining reclamation permit as follows:

[1] If it conducts a zoning-related hearing on the nonmetallic mine site, the City shall provide the opportunity at this hearing to present testimony on reclamation-related matters. This opportunity shall fulfill the requirement for public hearing for a nonmetallic mining reclamation permit required by this section. The City shall consider the reclamation-related testimony in the zoning-related hearing in deciding on a permit application pursuant to this section.

[2] If there is no opportunity for a zoning-related hearing on the nonmetallic mine site as described in § 275-63F(1)(b)[1], opportunity for public hearing required by this section shall be provided as follows: Any person residing within, owning property within, or whose principal place of business is within 300 feet of the boundary of the parcel or parcels of land in which the nonmetallic mining site is located or proposed may request a public informational hearing. The City shall hold a public hearing if requested by any of these persons within 30 days of the actual date of public notice under § 275-63F(1)(a).

[a] This public informational hearing shall be held no sooner than 30 days nor later than 60 days after being requested. The hearing shall be conducted as an informational hearing for the purpose of explaining and receiving comment from affected persons on the nature, feasibility and effects of the proposed reclamation. Notice of the public informational hearing shall follow the general notice procedures of § 275-20D of the City Municipal Code.

[b] The subject matter and testimony at this informational hearing shall be limited to reclamation of the nonmetallic mine site. Note: Informational hearings are limited to reclamation of the nonmetallic mining site. Regulatory authority staff conducting the hearings should make it clear that the hearings may not cover non- reclamation matters because they are beyond the scope of NR 135 reclamation. Nonreclamation matters are those related to zoning or subject to other local authority. These matters may include but are not limited to: traffic, setbacks, blasting, dewatering, hours of operation, noise or dust control or the question of whether to use the land for mining.

(2) Local transportation-related mines. No public notice or informational hearing is required for a nonmetallic mining reclamation permit issued to a local transportation-related mine pursuant to § 275-63G(3).

G. Issuance of nonmetallic mining reclamation permit.

(1) Permit required. No person may engage in nonmetallic mining or nonmetallic mining reclamation in the City without first obtaining a reclamation permit issued under this section, except for nonmetallic mining sites that are exempt from this section under § 275-63A(7)(a) or (b).

(2) Permit issuance. Applications for reclamation permits for nonmetallic mining sites that satisfy § 275-63C shall be issued a reclamation permit or otherwise acted on as provided below.

(a) Unless denied pursuant to § 275-63H, the City shall approve in writing a request that satisfies the requirements of § 275-63C to issue a nonmetallic mining reclamation permit for the proposed nonmetallic mine.

(b) The City may not issue an approval without prior or concurrent approval of the reclamation plan that meets the requirements of § 275-63D. The regulatory authority may issue a reclamation permit subject to conditions in § 275-63G(5), if appropriate. The permit decision shall be made no sooner than 30 days nor later than 90 days following receipt of the complete reclamation permit application that meets the requirement in § 275-63C and reclamation plan that meets the requirements in § 275-63D, unless a public hearing is held pursuant to § 275-63F. If a public hearing is held, the regulatory authority shall issue the reclamation permit, subject to conditions pursuant to § 275-63G(5), if appropriate, or shall deny the permit as provided in § 275-63H, no later than 60 days after completing the public hearing.

(c) Permits issued pursuant to this subsection shall require compliance with a reclamation plan that has been approved and satisfies the requirements of § 275-63D and provision by the applicant of financial assurance required under § 275-63E and payable to the City prior to beginning mining.

(3) Automatic permit for local transportation-related mines.

(a) The City shall automatically issue an expedited permit under this subsection to any borrow site that:

[1] Will be opened and reclaimed under contract with the City within a period not exceeding 36 months;

[2] Is a nonmetallic mine which is intended to provide stone, soil, sand or gravel for the construction, reconstruction, maintenance or repair of a highway, railroad, airport facility or other transportation facility under contract with the City;

[3] Is regulated and will be reclaimed under contract with the City in accordance with the requirements of the Wisconsin Department of Transportation concerning the restoration of nonmetallic mining sites;

[4] Is not a commercial source;

[5] Will be constructed, operated and reclaimed in accordance with applicable zoning requirements, if any; and

[6] Is not otherwise exempt from the requirements of this section under § 275-63A(7)(b)[10].

(b) In this subsection, "municipality" has the meaning defined in § 299.01(8), Wis. Stats.

(c) Automatic permits shall be issued under this subsection in accordance with the following provisions:

[1] The applicant shall notify the City of the terms and conditions of the contract with respect to reclamation of the proposed borrow site.

[2] The applicant shall provide evidence to the City to show that the borrow site and its reclamation will comply with applicable zoning requirements, if any.

[3] The City shall accept the contractual provisions incorporating requirements of the Wisconsin Department of Transportation in lieu of a reclamation plan under § 275-63D.

[4] The City shall accept the contractual provisions in lieu of the financial assurance requirements in § 275-63E.

[5] The public notice and hearing provisions of § 275-63F do not apply to nonmetallic mining sites that are issued automatic permits under this subsection. Note: Local public notice and hearing requirements, if any, regarding zoning decisions still apply.

[6] Mines permitted under this subsection shall pay an annual fee to the City as provided in § 275-63R but shall not be subject to the plan review fee provided in § 275-63Q. The total annual fee, including the share of the Wisconsin Department of Natural Resources, shall not exceed the total amounts listed in Table 1 and 2 of § NR 135.39, Wis. Adm. Code. Note: Fees may not be assessed for local transportation-related mines permitted under this subsection under § 275-63R that are greater than allowed by § NR 135.23(1)(g), Wis. Adm. Code. See the note following § 275-63R(3)(b) for details of this fee limitation.

[7] The City shall issue the automatic permit within seven days of the receipt of a complete application.

[8] If the borrow site is used to concurrently supply materials for other than the local transportation project, the automatic permitting in this subsection still applies, provided the site will be reclaimed under a contractual obligation with the City in accordance with the Wisconsin Department of Transportation requirements.

[9] Notwithstanding § 275-63P, the operator of a borrow site under this subsection is required to submit only the information in an annual report necessary to identify the borrow site and to determine the applicable annual fee. Note: A reclamation permit is not required under this section for nonmetallic mining sites that are operated to provide materials for construction, maintenance and repair of transportation facilities that are subject to the Wisconsin Department of Transportation concerning restoration of the nonmetallic mining site, as provided by s. 295.16(1)(c), Stats.

(4) Expedited review. Any operator of a nonmetallic mining site may request expedited review of a reclamation permit application under § 275-63G(4)(a) or (b) as follows:

(a) The operator may submit a request for expedited permit review with payment of the expedited review fee specified in § 275-63Q(2). This request shall state the need for such expedited review and the date by which such expedited review is requested.

(b) The operator may submit a request for expedited review under this subsection if the applicant requires a reclamation permit to perform services under contract with the City. This request for expedited review shall state the need for expedited review and shall include a copy of the applicable sections of the contract and the date by which the expedited review is requested.

(c) Following receipt of a request under this subsection, the City shall inform the applicant of the estimated date for decision on issuance of the permit. If the applicant then elects not to proceed with the expedited review, the fee paid under § 275-63G(4)(a) shall be returned.

(d) Expedited review under this subsection shall not waive, shorten or otherwise affect the public notice and right of hearing pursuant to § 275-63F. This subsection does not impose an obligation upon the regulatory authority to act upon a permit application under this subsection by a specific date.

(5) Permit conditions. Any decision under this section may include conditions as provided below:

(a) The City may issue a reclamation permit or approve a reclamation plan subject to general or site-specific conditions if needed to assure compliance with the nonmetallic mining reclamation requirements of this section. The approval may not include condition that are not related to reclamation. Note: It is not appropriate for the regulatory authority to impose conditions on a reclamation permit, or the approval of a reclamation plan that address matters not directly related to nonmetallic mining reclamation. These matters may include but are not limited to: traffic, setbacks, blasting, dewatering, hours of operation, noise or dust control or the question of whether to use the land for mining.

(b) One required condition of the issued permit shall be that the new mine obtain financial assurance pursuant to § 275-63E prior to beginning mining.

H. Permit denial. An application for a nonmetallic mining reclamation permit shall be denied as set forth below:

(1) An application to issue a nonmetallic mining reclamation permit shall be denied, within the time frame for permit issuance specified in § 275-63G, if the City finds any of the following:

(a) The applicant has, after being given an opportunity to make corrections, failed to provide to the City an adequate permit application, reclamation plan, financial assurance or any other submittal required by Ch. NR 135, Wis. Adm. Code, or this section.

(b) The proposed nonmetallic mining site cannot be reclaimed in compliance with the reclamation standards contained in this section, Ch. NR 135, Wis. Adm. Code, or Subchapter I of Ch. 295, Wis. Stats.

(c) The applicant, or its agent, principal or predecessor has, during the course of nonmetallic mining in Wisconsin within 10 years of the permit application or modification request being considered, shown a pattern of serious violations of this section or of federal, state or local environmental laws related to nonmetallic mining reclamation. The following may be considered in making this determination of a pattern of serious violations:

[1] Results of judicial or administrative proceedings involving the operator or its agent, principal or predecessor.

[2] Suspensions or revocations of nonmetallic mining reclamation permits pursuant to this section, other reclamation ordinances or Ch. NR 135, Wis. Adm. Code.

[3] Forfeitures of financial assurance.

(d) A denial under this subsection shall be in writing and shall contain documentation of reasons for denial.

(2) A decision to deny an application to issue a reclamation permit may be reviewed under § 275-63M.

I. Alternative requirements.

(1) Scope of alternative requirements approvable. An operator of a nonmetallic mining site may request an alternative requirement to the reclamation standards established in § 275-63B. The City may approve an alternative requirement to the reclamation standards established in this section if the operator demonstrates and the City finds that all of the following criteria are met:

(a) The nonmetallic mining site, the surrounding property or the mining plan or reclamation plan has a unique characteristic which requires an alternative requirement.

(b) Unnecessary hardship which is peculiar to the nonmetallic mining site or plan will result unless the alternative requirement is approved.

(c) Reclamation in accordance with the proposed alternative requirement will achieve the planned post-mining land use and long-term site stability in a manner that will not cause environmental pollution or threaten public health, safety or welfare.

(2) Procedures.

(a) The operator of a nonmetallic mining site requesting an alternate requirement in § 275-63I(1) shall demonstrate all the criteria in § 275-63I(1). This shall be submitted in writing to the Department of Community Development by certified mail at: 3805 S. Casper Drive, New Berlin, WI 53151.

(b) DCD shall within 45 days within receipt of a complete application schedule the matter for hearing before the Plan Commission and shall provide notice of the hearing to the applicant. At the time of the hearing the Plan Commission shall consider whether the application meets the requirements of § 275-63I(1) above. A quorum of the Plan Commission must be present to consider the matter as they deem appropriate in support of their application the application for alternate requirement will be approved upon a majority vote of the members present of the Plan Commission. The Plan Commission shall take action on the application within 90 days of receipt of the complete application.

(c) In the event that the application for alternative requirements has already been considered by the Plan Commission as part the standard review process said application will be forwarded to the Board of Appeals for consideration in accordance with the process as stated in § 275-63I(2)(b) above.

(d) The City shall, within 90 days of receipt of the complete application, approve, conditionally approve or deny the request in writing, based on the City's determination of compliance with the criteria under § 275-63I(1). The written response shall include reasons and documentation as to why the request was or was not approved.

(e) A request for an alternative requirement may be incorporated as part of an application to issue or modify a nonmetallic mining reclamation permit.

(3) Transmittal of decision on request for alternative requirement. The decision on a request for alternate reclamation requirements shall be in writing to the applicant and shall include documentation of why the alternate requirement was or was not approved.

(4) Notice to Wisconsin Department of Natural Resources. The City shall provide notice to the Wisconsin Department of Natural Resources as set forth in this section. Written notice shall be given to the Wisconsin Department of Natural Resources at least 10 days prior to any public hearing held under § 275-63I(2) on a request for an alternate requirement under this section. A copy of any written decision on alternative requirements shall be submitted to the Wisconsin Department of Natural Resources within 10 days of issuance.

J. Permit duration.

(1) A nonmetallic mining reclamation permit issued under this section shall last through operation and reclamation of the nonmetallic mining site, unless suspended or revoked pursuant to § 275-63O.

(2) If the mine operator is not the landowner, the reclamation permit duration shall not exceed the duration of the mine lease unless the lease is renewed or the permit is transferred to a subsequent lessee pursuant to § 275-63K.

K. Permit transfer. A nonmetallic mining reclamation permit issued under this section shall be transferred to a new owner or operator upon satisfaction of the following conditions:

(1) A nonmetallic mining reclamation permit may be transferred to a new operator upon submittal to the City of proof of financial assurance and a certification in writing by the new permit holder that all conditions of the permit will be complied with.

(2) The transfer is not valid until financial assurance has been submitted by the new operator and accepted by the City and the City makes a written finding that all conditions of the permit will be complied with. The previous operator shall maintain financial assurance until the new operator has received approval and provided the financial assurance under this section.

L. (Reserved)

M. Review. Any permitting decision or action made by the City under this section may be reviewed as set forth in this section. Notwithstanding §§ 68.001, 68.03(8) and (9), 68.06 and 68.10(1)(b), Wis. Stats., any person who meets the requirements of § 227.42(1), Wis. Stats., may obtain a contested case hearing under § 68.11, Wis. Stats., on the City's decision to issue, deny or modify a nonmetallic mining reclamation permit.

N. Permit modification.

(1) By the City. A nonmetallic mining reclamation permit issued under this section may be modified by the City if it finds that, due to changing conditions, the nonmetallic mining site is no longer in compliance with Ch. NR 135, Wis. Adm. Code, or this section. Such modification shall be by an order modifying the permit in accordance with § 275-63W. This modifying order may require the operator to amend or submit new application information, reclamation plan, proof of financial assurance or other information needed to ensure compliance with Ch. NR 135, Wis. Adm. Code, or this section.

(2) At the operator's option. If the operator of any nonmetallic mine that holds a reclamation permit issued under this section desires to modify such permit or reclamation plan approved under this section, it may request such modification by submitting a written application for such modification to the Department of Community Development by certified mail at: 3805 S. Casper Drive, New Berlin, WI 53151. The application for permit or plan modification shall be acted on using the standards and procedures of this section.

(3) Required by the operator. The operator of any nonmetallic mine that holds a reclamation permit issued under this section shall request a modification of such permit if changes occur to the area to be mined, the nature of the planned reclamation, or other aspects of mining required by the reclamation plan approved pursuant to this section. Such application for permit modification shall be acted on using the standards and procedures of this section. Note: Modification of the permit must be requested by the operator in such circumstances under § NR 135.27, Wis. Adm. Code.

(4) Review. All actions by the City on permit modifications requested or initiated under this section are subject to review under § 275-63M.

O. Permit suspension and revocation.

(1) Grounds. The City may suspend or revoke a nonmetallic mining reclamation permit issued pursuant to this section if it finds the operator has done any of the following:

(a) Failed to submit a satisfactory reclamation plan within the time frames specified in this section.

(b) Failed to submit or maintain financial assurance as required by this section.

(c) Failed on a repetitive and significant basis to follow the approved reclamation plan.

(2) Procedures. If the City finds grounds for suspending or revoking a nonmetallic mining reclamation permit set forth in § 275-63O(1), it may issue a special order suspending or revoking such permit as set forth in § 275-63W(2).

(3) Consequences.

(a) If the City makes any of the findings in § 275-63O(1), it may suspend a nonmetallic mining reclamation permit for up to 30 days. During the time of suspension, the operator may not conduct nonmetallic mining at the site, except for reclamation or measures to protect human health and the environment as ordered by the regulatory authority pursuant to § 275-63W.

(b) If the City makes any of the findings in § 275-63O(1), it may revoke a nonmetallic mining reclamation permit. Upon permit revocation, the operator shall forfeit the financial assurance it has provided pursuant to this section to the City. The City may use forfeited financial assurance to reclaim the site to the extent needed to comply with this section and the applicable reclamation ordinance.

P. Annual operator reporting.

(1) Contents and deadline. Annual reports that satisfy the requirements of this section shall be submitted by the operators of nonmetallic mining sites.

(a) Contents. The annual report required by this section shall include all of the following:

[1] The name and mailing address of the operator.

[2] The location of the nonmetallic mining site, including legal description, tax key number or parcel identification number, if available.

[3] The identification number of the applicable nonmetallic mining permit, if assigned by the City.

[4] The acreage currently affected by nonmetallic mining extraction and not yet reclaimed.

[5] The amount of acreage that has been reclaimed to date on a permanent basis and the amount reclaimed on an interim basis.

[6] A plan, map or diagram, accurately showing the acreage described in § 275-63P(1), (4) and (5).

[7] The following certification, signed by the operator:

"I certify that this information is true and accurate, and that the nonmetallic mining site described herein complies with all conditions of the applicable nonmetallic mining reclamation permit and Ch. NR 135, Wis. Adm. Code."

(b) Deadline. The annual report shall cover activities on unreclaimed acreage for the previous calendar year and be submitted by January 31.

(c) When reporting may end. Annual reports shall be submitted by an operator for all active and intermittent mining sites to the City for each calendar year until nonmetallic mining reclamation at the site is certified as complete pursuant to § 275-63T(3) or at the time of release of financial assurance pursuant to § 275-63E(1)(g).

(2) Inspection in lieu of report. The City may, at its discretion, obtain the information required in § 275-63P(1) for a calendar year by written documentation of an inspection it completes during a calendar year, as set forth in this subsection. If the City obtains and documents the required information, the annual report need not be submitted by the operator. If the City determines that the operator need not submit an annual report pursuant to this subsection, it shall advise the operator in writing at least 30 days before the end of the applicable calendar year. In that case, the City shall require the operator to submit the certification required in § 275-63P(1)(a)[7].

(3) Retention of annual reports. Annual reports submitted under § 275-63P(1) or inspection records that replace them under § 275-63P(2) shall be retained by the City within the Department of Community Development for at least 10 years after the calendar year to which they apply. These records, or complete and accurate copies of them, shall be made available to the Wisconsin Department of Natural Resources upon written request or during its inspection or audit activities carried out pursuant to Ch. NR 135, Wis. Adm. Code.

Q. Plan review fees.

(1) Amount and applicability. A person who intends to operate a nonmetallic mining site for which a permit application has been submitted under § 275-63C shall submit a nonrefundable plan review fee in accordance with the fee schedule shown in NR 135.39(5) Table 3. Plan review fees shall be submitted to the Department of Community Development in person or via certified mail at: 3805 S. Casper Drive, New Berlin, WI 53151. No plan review fee may be assessed under this section for any local transportation-related mining receiving an automatic permit under § 275-63G(3). A separate plan review fee shall be paid under this section for any modification to an existing reclamation plan submitted pursuant to § 275-63N.

(2) Expedited plan review fee. A person who intends to operate a nonmetallic mining site for which a permit application has been submitted under § 275-63C may obtain expedited reclamation plan review by paying a fee of 1.5 times the plan review fee. Such fee shall be in addition to that required in § 275-63Q(1).

(3) Relation to annual fee. Any reclamation plan review fee or expedited reclamation plan review fee collected under this section shall be added to and collected as part of the first annual fee collected under § 275-63R.

R. Annual fees.

(1) Areas subject to fees, procedures, deadline amount.

(a) Operators of all nonmetallic mining sites subject to reclamation permits issued under this section shall pay annual fees to the City of New Berlin, to the attention of the Department of Community Development, by certified mail, at: 3805 S. Casper Drive, New Berlin, WI 53151.

(b) Fees paid under this section shall be calculated based on the unreclaimed areas of a nonmetallic mining site, as defined below:

[1] "Unreclaimed acre" or "unreclaimed acres" means those unreclaimed areas in which nonmetallic mining has occurred after August 1st, 2001 and areas where nonmetallic mining reclamation has been completed but is not yet certified as reclaimed under § 275-63E(1)(g). However, the term does not include any areas described in § 275-63R(1)(b)[2].

[2] "Unreclaimed acre" or "unreclaimed acres" does not include:

[a] Those areas where reclamation has been completed and certified as reclaimed under § 275-63E(1)(g).

[b] Those areas previously affected by nonmetallic mining but which are not used for nonmetallic mining after August 1st, 2001.

[c] Those portions of nonmetallic mining sites which are included in an approved nonmetallic mining reclamation plan but are not yet affected by nonmetallic mining.

[d] Areas previously mined but used after August 1, 2001 for a nonmining activity, including stockpiling of materials, provided the stockpiles are associated with onsite industrial processes, used for an industrial activity unrelated to nonmetallic mining such as an asphalt plant, concrete batch plant, block and tile operation or other industry that uses products produced from nonmetallic mining.

[e] Those areas within a nonmetallic mining site which the City has determined to have been successfully reclaimed on an interim basis in accordance with § 275-63T(2) and (3).

[3] Fees shall be assessed on active acres only and shall not be assessed on acreage where nonmetallic mining is proposed and approved but where no nonmetallic mining has yet taken place.

(c) Fees assessed pursuant to this section shall be based on the number of unreclaimed acres at the end of the year. Such fees apply to a calendar year of any part of a year in which nonmetallic mining takes place, until final reclamation is certified as complete under § 275-63T. Fees shall be paid to the City no later than January 31 for the previous year.

(d) If reclamation has already occurred on portions of a nonmetallic mining site, the fees for such portions may be submitted with a request that they be held by the City pending certification of completed reclamation pursuant to § 275-63T(3) and § 275-63E(1)(g). Upon such certification, the City shall refund that portion of the annual fee that applies to the reclaimed areas. If the City fails to make a determination under § 275-63T(3) and § 275-63E(1)(g) within 60 days of the request, it shall refund that portion of the annual fee that applies to the reclaimed areas.

(e) The amount collected shall equal the Wisconsin Department of Natural Resources share as described in § 275-63R(2), the share of the City described in § 275-63R(3), and, if applicable, the reclamation plan review fee as described in § 275-63Q.

(2) Wisconsin Department of Natural Resources' share of fee.

(a) Fees paid under this section shall, except where provided in § 275-63R(2)(b), include a share for the Wisconsin Department of Natural Resources equal to the amount specified in § NR 135.39(3) Table 1, Wis. Adm. Code.

(b) For nonmetallic mining sites at which no nonmetallic mining has taken place during a calendar year, the share for the Wisconsin Department of Natural Resources shall be $15.

(c) The City of New Berlin shall forward fees collected under this subsection to the Wisconsin Department of Natural Resources by March 31 of the year for which they were collected.

(3) The City's share of fee.

(a) Fees paid under this section shall also include an annual fee due to the City, which shall be as shown in § NR 135.39(4) Table 2, Wis. Adm. Code. By state law, City fees under this section may only be used to support reasonable expenses associated with administration of this section and shall not exceed the numbers as established by the state.

(b) The annual fee collected by the City under this subsection for local transportation-related mines issued permits under § 275-63G(3) may not exceed the amounts set forth in NR 135.39(5) Table 3. The amount listed in the aforementioned table shall be the total fee assessed on such nonmetallic mine, and shall include both a share for the Wisconsin Department of Natural Resources and the City.

S. Regulatory reporting and documentation.

(1) Reporting. The City shall send an annual report to the Wisconsin Department of Natural Resources by March 31 for the previous calendar year. The reports shall include the following information for the previous year's nonmetallic mining reclamation program:

(a) The total number of nonmetallic mining reclamation permits in effect.

(b) The number of new permits issued within the jurisdiction of the City.

(c) The number of acres approved for nonmetallic mining and the number of acres newly approved in the previous year.

(d) The number of acres being mined or unreclaimed acres.

(e) The number of acres that have been reclaimed and have had financial assurance released pursuant to § 275-63E(1)(g).

(f) The number of acres that are reclaimed and awaiting release from the financial assurance requirements of this section pursuant to § 275-63T(1) and (2).

(g) The number and nature of alternative requirements granted, permit modifications, violations, public hearings, enforcement actions, penalties that have been assessed and bond or financial assurance forfeitures.

(2) Documentation. The City shall, to the best of its ability, maintain the information set forth below and make it available to the Wisconsin Department of Natural Resources for that agency's audit of the City's reclamation program pursuant to Ch. NR 135, Wis. Adm. Code:

(a) Documentation of compliance with Ch. NR 135, Wis. Adm. Code, and this section.

(b) The procedures employed by the City regarding reclamation plan review and the issuance and modification of permits.

(c) The methods for review of annual reports received from operators.

(d) The method and effectiveness of fee collection.

(e) Procedures to accurately forward the Wisconsin Department of Natural Resources' portion of collected fees in a timely fashion.

(f) Methods for conducting onsite compliance inspections and attendant reports, records and enforcement actions.

(g) Responses to citizen complaints.

(h) The method of and accuracy in determining the amount of the financial assurance obtained from the operator to guarantee reclamation performance.

(i) The maintenance and availability of records.

(j) The number and type of approvals for alternative requirements issued pursuant to § 275-63I.

(k) The method of determining the success of reclamation in meeting the criteria contained in the reclamation plan and subsequently releasing the financial assurance pursuant to § 275-63E(1)(g).

(l) Any changes in local regulations, ordinances, funding and staffing mechanisms or any other factor which might affect the ability of the City to implement its nonmetallic mining reclamation program under this section.

(m) The amount of fees collected in comparison to the amount of money actually expended for nonmetallic mining reclamation program administration.

(n) Any other performance criterion necessary to ascertain compliance with Ch. NR 135, Wis. Adm. Code.

T. Completed reclamation: reporting, certification and effect.

(1) Reporting of completed reclamation. The operator of a nonmetallic mining site may certify completion of reclamation for a portion or all of the nonmetallic mining site pursuant to a reclamation plan prepared and approved pursuant to this section.

(2) Reporting of interim reclamation. The operator of a nonmetallic mining site may report completion of interim reclamation as specified in the reclamation plan for the site prepared and approved pursuant to this chapter and Chapter NR 135, Wisconsin Administrative Code. Reporting of interim reclamation shall be done according to the procedures in § 275-63T(1).

(3) Certification of completed reclamation. The City shall inspect a nonmetallic mining site for which reporting of reclamation or interim reclamation has been submitted pursuant to this subsection within 60 days of receipt and make a determination in writing in accordance with 275-63E(1)(g)[3]. If it is determined:

(a) That interim or final reclamation is complete, including revegetation as specified in a reclamation plan that conforms with § 275-63D, the City shall issue the mine operator a written certificate of completion for the applicable area.

(4) Effect of completed reclamation. If reclamation is certified by the City as complete under § 275-63T(3) for part or all of a nonmetallic mining site, then:

(a) No fee shall be assessed under § 275-63R for the area so certified.

(b) The financial assurance required by § 275-63E shall be released or appropriately reduced in the case of completion of reclamation for a portion of the mining site.

(c) For sites which are reported as interim reclaimed under § 275-63T(2) and so certified under § 275-63T(3), financial assurance for reclaiming the certified area shall be reduced only if the City determines that the balance is sufficient to ensure final reclamation of the entire site.

(5) Effect of inaction following report of completed reclamation. If no written response as required by § 275-63T(3) for an area of the mine site reported as reclaimed or interim reclaimed is given within 60 days of receiving such request, any annual fee paid to the City for it under § 275-63R shall be refunded.

U. Permit termination. When all final reclamation required by a reclamation plan conforming to § 275-63D and required by this section is certified as complete pursuant to § 275-63E(1)(g) and § 275-63T(3), the City shall issue a written statement to the operator of the nonmetallic mining site, thereby terminating the reclamation permit.

V. Right of entry and inspection. For the purpose of ascertaining compliance with the provisions of Subchapter I of Ch. 295, Wis. Stats., Ch. NR 135, Wis. Adm. Code, or this section, any authorized officer, agent, employee or representative of the City may inspect any nonmetallic mining site subject to this section as provided below:

(1) No person may refuse entry or access onto a nonmetallic mining site of a duly authorized officer, employee or agent of the City or the Wisconsin Department of Natural Resources who presents appropriate credentials to inspect the site for compliance with the nonmetallic mining reclamation permit, this section, Ch. NR 135, Wis. Adm. Code, or Subchapter I of Ch. 295, Wis. Stats.

(2) Any person who enters the site under this right of inspection shall obtain training and provide his/her own safety equipment needed to comply with any federal, state or local laws or regulations controlling persons on the nonmetallic mining site.

W. Orders and citations.

(1) Enforcement orders. The City may issue orders as set forth in § 295.19(1)(a), Wis. Stats., to enforce Subchapter I of Ch. 295, Wis. Stats., Ch. NR 135, Wis. Adm. Code, this section, a permit issued pursuant to this section, or a reclamation plan required by § 275-63D and a permit issued under this section. A violation of this section, an order or permit issued pursuant to this section, or a reclamation plan required by § 275-63D and a permit issued under this section shall be considered a violation of Subchapter I of Ch. 295, Wis. Stats., and Ch. NR 135, Wis. Adm. Code.

(2) Special orders. The City may issue a special order as set forth in § 295.19(1)(b) and (c), Wis. Stats., suspending or revoking a nonmetallic mining reclamation permit pursuant to § 275-63O, or directing an operator to immediately cease an activity regulated under Subchapter I of Ch. 295, Wis. Stats., Ch. NR 135, Wis. Adm. Code, or this section until the necessary plan approval is obtained.

(3) Review of orders. A person holding a reclamation permit who is subject to an order pursuant this section shall have the right to review the order in a contested case hearing under § 68.11, Wis. Stats., notwithstanding the provisions of §§ 68.001, 68.03(8) and (9), 68.06 and 68.10(1)(b), Wis. Stats.

(4) Citations. The City may issue a citation under § 66.0113, Wis. Stats., and § 1-18 of the City of New Berlin Municipal Code to collect forfeitures to enforce Subchapter I of Ch. 295, Wis. Stats., Ch. NR 135, Wis. Adm. Code, this section, a permit issued pursuant to this section, or a reclamation plan required by § 275-63D and a permit issued under this section. The issuance of a citation under this subsection shall not preclude proceeding under any other ordinance or law relating to the same or any other matter. Proceeding under any other ordinance or law relating to the same or any other matter shall not preclude the issuance of a citation under this subsection.

(5) Enforcement. The City may submit any order issued under § 275-63W to abate violations of this section to a District Attorney, Corporation Counsel, Municipal Attorney or the Attorney General for enforcement. The District Attorney, Corporation Counsel, Municipal Attorney or the Attorney General may enforce those orders.

X. Penalties. Any violation of Subchapter I of Ch. 295, Wis. Stats., Ch. NR 135, Wis. Adm. Code, this section, a permit issued pursuant to this section, or a reclamation plan required by § 275-63D and a permit issued under this section may result in forfeitures as provided in § 295.19(3), Wis. Stats., as follows:

(1) Any person who violates Ch. NR 135, Wis. Adm. Code, or an order issued under § 275-63W may be required to forfeit not less than $25 nor more than $1,000 for each violation. Each day of continued violation is a separate offense. While an order issued under § 275-63W is suspended, stayed or enjoined, this penalty does not accrue.

(2) Except for the violations referred to in § 275-63X(1), any person who violates Subchapter I of Ch. 295, Wis. Stats., Ch. NR 135, Wis. Adm. Code, any reclamation plan approved pursuant to this section, or an order issued pursuant to § 275-63W shall forfeit not less than $10 nor more than $5,000 for each violation. Each day of violation is a separate offense. While an order issued under § 275-63W is suspended, stayed or enjoined, this penalty does not accrue.

§ 275-64 (Reserved) [1]

[1] Editor's Note: Former § 275-64, Standards, was repealed 4-25-2023 by Ord. No. 2668.

§ 275-65 Floodplain zoning.

[Amended 4-25-2023 by Ord. No. 2668; 8-29-2023 by Ord. No. 2675]

A. Statutory authorization, findings of fact, statement of purpose, title and general provisions.

(1) Statutory authorization. This section is adopted pursuant to the authorization in §§ 61.35 and 62.23, Wis. Stats., and the requirements in § 87.30, Wis. Stats.

(2) Finding of fact. Uncontrolled development and use of the floodplains and rivers of this municipality would impair the public health, safety, convenience, general welfare and tax base.

(3) Statement of purpose. This section is intended to regulate floodplain development to:

(a) Protect life, health and property;

(b) Minimize expenditures of public funds for flood control projects;

(c) Minimize rescue and relief efforts undertaken at the expense of the taxpayers;

(d) Minimize business interruptions and other economic disruptions;

(e) Minimize damage to public facilities in the floodplain;

(f) Minimize the occurrence of future flood blight areas in the floodplain;

(g) Discourage the victimization of unwary land and home buyers;

(h) Prevent increases in flood heights that could increase flood damage and result in conflicts between property owners; and

(i) Discourage development in a floodplain if there is any practicable alternative to locate the activity, use or structure outside of the floodplain.

(4) Title. This section shall be known as the "Floodplain Zoning Ordinance for the City of New Berlin, Wisconsin."

(5) General provisions.

(a) Areas to be regulated. This section regulates all areas that would be covered by the regional flood or base flood as shown on the Flood Insurance Rate Map (FIRM) or other maps approved by DNR. Base flood elevations are derived from the flood profiles in the Flood Insurance Study (FIS) and are shown as AE, A1-30, and AH Zones on the FIRM. Other regulatory zones are displayed as A and AO Zones. Regional flood elevations (RFE) may be derived from other studies. If more than one map or revision is referenced, the most-restrictive information shall apply.

(b) Official maps and revisions. The boundaries of all floodplain districts are designated as A, AE, AH, AO or A1-30 on the maps based on the Flood Insurance Study (FIS) listed below. Any change to the base flood elevations (BFE) in the Flood Insurance Study (FIS) or any changes to the boundaries of the floodplain or floodway in the FIS or on the Flood Insurance Rate Map (FIRM) must be reviewed and approved by the DNR and FEMA through the letter of map change process (see § 275-65H) before they are effective. No changes to regional flood elevations (RFEs) on non-FEMA maps shall be effective until approved by the DNR. These maps and revisions are on file in the office of the Department of Community Development, City of New Berlin. If more than one map or revision is referenced, the most current restrictive shall apply.

[1] Based on the FIS:

[a] Flood Insurance Rate Map (FIRM) Panel Numbers 55133C0218H, 55133C0219H, 55133C0238H, 55133C0239H, 55133C0327H, 55133C0329H, 55133C0331H, 55133C0332H, 55133C0334H, 55133C0342H, 55133C0351H, 55133C0352H, 55133C0353H, 55133C0354H, 55133C0361H and 5133C0362H, dated October 19, 2023, with corresponding profiles that are based on the Waukesha County Flood Insurance Study (FIS), dated October 19, 2023, Volumes 55133CV001D, 55133CV002D, 55133CV003D, 55133CV004D and 55133CV005D, are hereby incorporated in the City of New Berlin Floodplain Ordinance and the floodplain districts as set forth in § 275-65 as well as the City of New Berlin Zoning Map.

[b] Flood Insurance Rate Map (FIRM) Panel Numbers 55133C0333G, 55133C0337G, and 55133C0341G, dated November 5, 2014.

[2] Maps based upon other studies. Any maps referenced in this section must be approved by the DNR and be more restrictive than those based on the FIS at the site of the proposed development.

[a] Any 100-year dam failure analyses as approved from time to time by the DNR and FEMA.

[b] All DNR- and FEMA-approved floodplain maps, flood profiles, floodway data tables, regional or base flood elevations, letters of map amendment, letters of map revision and other information are on file in the office of the Department of Community Development, City of New Berlin.

[c] Waukesha County Flood Storage Maps, Panel Numbers 12 and 16, dated October 19, 2023, approved by the DNR.

(c) Establishment of floodplain zoning districts. The regional floodplain areas are divided into four districts as follows:

[1] The Floodway District (FW) is the channel of a river or stream and those portions of the floodplain adjoining the channel required to carry the regional floodwaters and are contained within AE Zones as shown on the FIRM, or within A Zones shown on the FIRM when determined according to § 275-65E(1)(e).

[2] The Floodfringe District (FF) is that portion of the floodplain between the regional flood limits and the floodway and displayed as AE Zones on the FIRM, or when floodway limits have been determined according to § 275-65E(1)(e) within A Zones shown on the FIRM.

[3] The General Floodplain District (GFP) is those areas that have been or may be covered by floodwater during the regional flood and do not have a BFE or floodway boundary determined, including A, AH, and AO Zones on the FIRM.

[4] The Flood Storage District (FSD) is that area of the floodplain where storage of floodwaters is calculated to reduce the regional flood discharge.

(d) Locating floodplain boundaries. Discrepancies between boundaries on the Official Floodplain Zoning Map and actual field conditions shall be resolved using the criteria in Subsection A(5)(d)[1] or [2] below. If a significant difference exists, the map shall be amended according to § 275-65H. The Director can rely on a boundary derived from a profile elevation to grant or deny a land use permit, whether or not a map amendment is required. The Director shall be responsible for documenting actual predevelopment field conditions and the basis upon which the district boundary was determined and for initiating any map amendments required under this section. Disputes between the Director and an applicant over the district boundary line shall be settled according to § 275-65G(3)(c) and the criteria in Subsection A(5)(d)[1] and [2] below. Where the flood profiles are based on established base flood elevations from the FIRM, FEMA must approve any map amendment or revision pursuant to § 275-65H.

[1] If flood profiles exist, the map scale and the profile elevations shall determine the district boundary. The regional or base flood elevations shall govern if there are any discrepancies.

[2] Where flood profiles do not exist, the location of the boundary shall be determined by the map scale.

(e) Removal of lands from floodplain.

[1] Compliance with the provisions of this section shall not be grounds for removing land from the floodplain unless it is filled at least two feet above the regional or base flood elevation, the fill is contiguous to land outside the floodplain, and the map is amended pursuant to § 275-65H. Note: This procedure does not remove the requirements for the mandatory purchase of flood insurance. The property owner must contact FEMA to request a letter of map change (LOMC).

[2] The delineation of any of the Floodplain Districts may be revised by the community where natural or man-made changes have occurred and/or where more detailed studies have been conducted. However, prior to any such change, approval must be obtained from the Wisconsin Department of Natural Resources and Federal Emergency Management Agency. A completed letter of map revision is a record of the approval. The floodplain administrator shall not sign a community acknowledgement form unless all criteria set forth in the following paragraphs are met:

[a] The land and/or land around the structure must be filled at least two feet above the regional or base flood elevation;

[b] The fill must be contiguous to land outside the floodplain; Applicant shall obtain floodplain development permit before applying for a LOMR or LOMR-F.

[3] Removal of lands from the floodplain may also occur by operation of § 87.30(1)(e), Wis. Stat if a property owner has obtained a letter of map amendment from the federal emergency management agency under 44 C.F.R. 70.

(f) Compliance.

[1] No structure or use within the areas regulated by this section shall hereafter be located, erected, constructed, reconstructed, repaired, extended, converted, enlarged, or altered without full compliance with the terms of this section and all other applicable local, state, and federal regulations that apply to uses within the jurisdiction of these regulations.

[2] Failure to obtain a floodplain development permit shall be a violation of these regulations and shall be punishable in accordance with § 275-65I.

[3] Floodplain development permits issued on the basis of plans and applications approved by the Floodplain Administrator authorize only the use, and arrangement, set forth in such approved plans and applications, or amendments thereto if approved by the Floodplain Administrator. Use, arrangement, or construction contrary to that authorized shall be deemed a violation of these regulations and punishable in accordance with § 275-65I.

(g) Municipalities and state agencies regulated.

[1] Unless specifically exempted by law, all cities, villages, towns, and counties are required to comply with this section and obtain all necessary permits. State agencies are required to comply if § 13.48(13), Wis. Stats., applies.

[2] The construction, reconstruction, maintenance and repair of state highways and bridges by the Wisconsin Department of Transportation is exempt when § 30.2022, Wis. Stats., applies. Although exempt from a local zoning permit and permit fees, DOT must provide sufficient project documentation and analysis to ensure that the community is in compliance with Federal, State, and local floodplain standards.

[3] If a local transportation project is located within a Zone A floodplain and is not a WisDOT project under § 30.2022, then the road project design documents (including appropriate detailed plans and profiles) may be sufficient to meet the requirements for issuance of a local floodplain permit if the following apply:

[a] The applicant provides documentation to the Floodplain Administrator that the proposed project is a culvert replacement or bridge replacement under twenty-foot span at the same location;

[b] The project is exempt from a DNR permit under § 30.123(6)(3);

[c] The capacity is not decreased;

[d] The top road grade is not raised, and;

[e] No floodway data is available from a federal, state, or other source. If floodway data is available in the impacted area from a federal, state, or other source that existing data must be utilized by the applicant in the analysis of the project site.

(h) Abrogation and greater restrictions.

[1] This section supersedes all the provisions of any municipal zoning ordinance enacted under § 62.23 or § 87.30, Wis. Stats., which relates to floodplains. If another ordinance is more restrictive than this section, that ordinance shall continue in full force and effect to the extent of the greater restrictions, but not otherwise.

[2] This section is not intended to repeal, abrogate or impair any existing deed restrictions, covenants or easements. If this section imposes greater restrictions, the provisions of this section shall prevail.

(i) Interpretation. In their interpretation and application, the provisions of this section are the minimum requirements liberally construed in favor of the governing body and are not a limitation on or repeal of any other powers granted by the Wisconsin Statutes. If a provision of this section required by Ch. NR 116, Wis. Adm. Code, is unclear, the provision shall be interpreted in light of the standards in effect on the date of the adoption of this section or in effect on the date of the most recent text amendment to this section.

(j) Warning and disclaimer of liability. The flood protection standards in this section are based on engineering experience and research. Larger floods may occur or the flood height may be increased by man-made or natural causes. This section does not imply or guarantee that nonfloodplain areas or permitted floodplain uses will be free from flooding and flood damages. This section does not create liability on the part of, or a cause of action against, the municipality or any officer or employee thereof for any flood damage that may result from reliance on this section.

(k) Severability. Should any portion of this section be declared unconstitutional or invalid by a court of competent jurisdiction, the remainder of this section shall not be affected.

(l) Annexed areas for cities and villages. The Waukesha County floodplain zoning provisions in effect on the date of annexation shall remain in effect and shall be enforced by the municipality for all annexed areas until the municipality adopts and enforces an ordinance which meets the requirements of Ch. NR 116, Wis. Adm. Code, and 44 CFR 59-72, National Flood Insurance Program (NFIP). These annexed lands are described on the municipality's Official Zoning Map. County floodplain zoning provisions are incorporated by reference for the purpose of administering this section and are on file in the office of the municipal Director. All plats or maps of annexation shall show the regional flood elevation and the location of the floodway.

B. General standards applicable to all floodplain districts.

(1) General standards. The community shall review all permit applications to determine whether proposed building sites will be reasonably safe from flooding.

(a) If a proposed building site is in a flood-prone area, all new construction and substantial improvements shall:

[1] Be designed or modified and adequately anchored to prevent flotation, collapse, or lateral movement of the structure resulting from hydrodynamic and hydrostatic loads, including the effects of buoyancy;

[2] Be constructed with materials resistant to flood damage;

[3] Be constructed by methods and practices that minimize flood damages;

[4] Mechanical and utility equipment must be elevated to or above the flood protection elevation.

(b) If a subdivision or other proposed new development is in a floor-prone area, the community shall assure that:

[1] Such proposed subdivision or other proposed new development is consistent with the need to minimize flood damage within the flood-prone area;

[2] Public utilities and facilities, such as sewer, gas, electrical, and water systems, are located and constructed to minimize or eliminate flood damages;

[3] Adequate drainage shall be provided to reduce exposure to flood hazards, and all subdivision proposals (including manufactured home parks) shall include regional flood elevation and floodway data for any development that meets the subdivision definition of this section and all other requirements in § 275-65G(1)(b).

(2) Hydraulic and hydrologic analyses.

(a) No floodplain development shall:

[1] Obstruct flow, defined as development which blocks the conveyance of floodwaters by itself or with other development, causing any increase in the regional flood height; or

[2] Cause any increase in the regional flood height due to floodplain storage area lost.

(b) The Director shall deny permits if it is determined the proposed development will obstruct flow or cause any increase in the regional flood height, based on the officially adopted FIRM or other adopted map, unless the provisions of § 275-65H are met.

(3) Watercourse alterations. No land use permit to alter or relocate a watercourse in a mapped floodplain shall be issued until the local official has notified, in writing, all adjacent municipalities, the Department and FEMA regional offices and required the applicant to secure all necessary state and federal permits. The standards of § 275-65B(2) must be met, and the flood-carrying capacity of any altered or relocated watercourse shall be maintained. As soon as is practicable, but not later than six months after the date of the watercourse alteration or relocation and pursuant to § 275-65H, the applicant shall apply, with community acknowledgement, for a letter of map revision (LOMR) from FEMA. Any such alterations must be reviewed and approved by FEMA and the DNR through the LOMC process.

(4) Chapters 30 and 31, Wis. Stats., development. Development which requires a permit from the Department under Chs. 30 and 31, Wis. Stats., such as docks, piers, wharves, bridges, culverts, dams and navigational aids, may be allowed if the necessary permits are obtained and amendments to the Floodplain Zoning Ordinance are made according to § 275-65H.

(5) Public or private campgrounds. Public or private campgrounds shall have a low flood damage potential and shall meet the following provisions:

(a) The campground is approved by the Department of Agriculture, Trade and Consumer Protection;

(b) A land use permit for the campground is issued by the Director;

(c) The character of the river system and the elevation of the campground are such that a seventy-two-hour warning of an impending flood can be given to all campground occupants;

(d) There is an adequate flood warning procedure for the campground that offers the minimum notice required under this section to all persons in the campground. This procedure shall include a written agreement between the campground owner, the municipal emergency government coordinator and the chief law enforcement official which specifies the flood elevation at which evacuation shall occur, personnel responsible for monitoring flood elevations, types of warning systems to be used and the procedure for notifying at-risk parties, and the methods and personnel responsible for conducting the evacuation;

(e) This agreement shall be for no more than one calendar year, at which time the agreement shall be reviewed and updated, by the officials identified in Subsection B(5)(d) above, to remain in compliance with all applicable regulations, including those of the State Department of Agriculture, Trade and Consumer Protection and all other applicable regulations;

(f) All mobile recreational vehicles places on the site must meet one of the following:

[1] Only camping units that are fully licensed, if required, and ready for highway use are allowed (a mobile recreational vehicle is ready for highway use if it is on its wheels or jacking system, is attached to the site only by quick-disconnect utilities and security devices and has no permanently attached additions); or

[2] The camping units shall not occupy any site in the campground for more than 180 consecutive days, at which time the recreational vehicle must be removed from the floodplain for a minimum of 24 hours; or

[3] Meet the requirements in either § 275-65C, D, or E(1) for the floodplain district in which the structure is located.

(g) All camping units that remain on site for more than 30 days shall be issued a limited authorization by the campground operator, a written copy of which is kept on file at the campground. Such authorization shall allow placement of a camping unit for a period not to exceed 180 days and shall ensure compliance with all the provisions of this section;

(h) The municipality shall monitor the limited authorizations issued by the campground operator to assure compliance with the terms of this section;

(i) The campground shall have signs clearly posted at all entrances warning of the flood hazard and the procedures for evacuation when a flood warning is issued; and

(j) All service facilities, including but not limited to refuse collection, electrical service, gas lines, propane tanks, sewage systems and wells, shall be properly anchored and placed at or floodproofed to the flood protection elevation.

(k) Standards for structure in a campground:

[1] All structures must comply with section § 275-65B(5) or meet the applicable requirements in § 275-65C, D, or E(1) for the floodplain district in which the structure is located;

[2] Deck/landing. A portable landing may be allowed for a camping unit for each entry provided that the landing is not permanently attached to the ground or camping unit, is no more than 200 square feet in size, shall be portable, contain no walls, or roof, and can be removed from the campground by a truck and/or trailer. Sections of such portable landings may be placed together to form a single deck not greater than 200 square feet at one entry point. Provisions for the removal of these temporary landings during flood events must be addressed within the written agreement with the municipality compliant with § 275-65B(5)(d). Any such deck/landing structure may be constructed at elevations lower than the flood protection elevation but must not obstruct flow of flood waters or cause any increase in flood levels during the occurrence of the regional flood.

[3] Decks/patios that are constructed completely at grade may be allowed, but must also comply with applicable shoreland zoning standards.

[4] Camping equipment and appurtenant equipment in the campground may be allowed provided that the equipment is not permanently attached to the ground or camping unit, is not used as a habitable structure, and must not obstruct flow of flood waters or cause any increase in flood levels during the occurrence of the regional flood. Provisions for the removal of this equipment during flooding events shall be addressed within the written agreement with the municipality compliant with § 275-65B(5)(d).

[5] Once a flood warning in the written agreement has been issued for the campground, the campground owner or the designated operator shall ensure that all persons, camping units, decks, camping equipment and appurtenance equipment in the campground shall be evacuated within the timelines specified within the written agreement with the municipality compliant with the § 275-65B(5)(d).

(l) A land use permit shall be obtained as provided under § 275-65G(1)(b) before any development; repair, modification or addition to an existing structure; or change in the use of a building or structure, including sewer and water facilities, may be initiated.

C. Floodway District (FW).

(1) Applicability. This section applies to all floodway areas on the Floodplain Zoning Maps and those identified pursuant to § 275-65E(1)(e).

(2) Permitted uses. The following open space uses are allowed in the Floodway District and the floodway areas of the General Floodplain District if they are not prohibited by any other ordinance, they meet the standards in § 275-65C(3) and (4), and all permits or certificates have been issued according to § 275-65G(1):

(a) Agricultural uses, such as farming, outdoor plant nurseries, horticulture, viticulture and wild crop harvesting.

(b) Nonstructural industrial and commercial uses, such as loading areas, parking areas and airport landing strips.

(c) Nonstructural recreational uses, such as golf courses, tennis courts, archery ranges, picnic grounds, boat ramps, swimming areas, parks, wildlife and nature preserves, game farms, fish hatcheries, shooting, trap and skeet activities, hunting and fishing areas and hiking and horseback riding trails, subject to the fill limitations of § 275-65C(3)(d).

(d) Uses or structures accessory to open space uses or classified as historic structures that comply with § 275-65C(3) and (4).

(e) Extraction of sand, gravel or other materials that complies with § 275-65C(3)(d).

(f) Functionally water-dependent uses, such as docks, piers or wharves, dams, flowage areas, culverts, navigational aids and river crossings of transmission lines, and pipelines that comply with Chs. 30 and 31, Wis. Stats.

(g) Public utilities, streets and bridges that comply with § 275-65C(3)(c).

(h) Portable latrines that are removed prior to flooding and systems associated with recreational areas and Department-approved campgrounds that meet the applicable provisions of local ordinances and Ch. 383 Wis. Adm. Code.

(i) Public or private wells used to obtain potable water for recreational areas that meet the requirements of local ordinance and Chs. NR 811 and NR 812, Wis. Adm. Code.

(j) Wastewater treatment ponds or facilities permitted under Ch. NR 110.15(3)(b), Wis. Adm. Code.

(k) Sanitary sewer or water supply lines to service existing or proposed development located outside the floodway that complies with the regulations for the floodplain area occupied.

(3) Standards for development in floodway areas.

(a) General.

[1] Any development in the floodway shall comply with § 275-65B and have a low flood damage potential.

[2] Applicants shall provide an analysis calculating the effects of this proposal on the regional flood height to determine the effects of the proposal according to § 275-65B(2) and § 275-65G(1)(b)[3]: The analysis must be completed by a registered professional engineer in the state of Wisconsin.

[3] Any encroachment in the regulatory floodway is prohibited unless the data submitted for Subsection C(3)(a)[2] above demonstrates that the encroachment will cause no increase in flood elevations in flood events up to the base flood at any location or removes the encroached area from the regulatory floodway as provided in § 275-65A(5)(e).

(b) Structures. Structures accessory to permanent open space uses, including utility and sanitary facilities, or functionally dependent on a waterfront location may be allowed by permit if the structures comply with the following criteria:

[1] The structure is not designed for human habitation and does not have a high flood damage potential and is constructed to minimize flood damage;

[2] Shall either have the lowest floor elevated to or above the flood protection elevation or shall meet all the following standards:

[a] Have the lowest floor elevated to or above the regional flood elevation and be dry floodproofed so that the structure is watertight with walls substantially impermeable to the passage of water and completely dry to the flood protection elevation without human intervention during flooding;

[b] Have structural components capable of meeting the provision of § 275-65C(3)(b)[7] and;

[c] Be certified by a registered professional engineer or architect, through the use of a Federal Emergency Management Agency Floodproofing Certificate, that the design and methods of construction are in accordance with § 275-65C(3)(b)[7].

[3] Must be anchored to resist flotation, collapse and lateral movement;

[4] Mechanical and utility equipment must be elevated to, or above, the flood protection elevation; and

[5] They must not obstruct the flow of floodwaters or cause any increase in flood levels during the occurrence of the regional flood.

[6] For a structure designed to allow the automatic entry of floodwaters below the Regional Flood Elevation, the applicant shall submit a plan that meets Subsection C(3)(b)[1] through [5] above and meets or exceeds the following standards:

[a] The lowest floor must be elevated to or above the regional flood elevation;

[b] A minimum of two openings having a total net area not less than one square inch for every square foot of enclosed area subject to flooding;

[c] The bottom of all such openings shall be no higher than one foot above the lowest adjacent grade; openings may be equipped with screens, louvers, or other coverings or devices, provided that they permit the automatic entry and exit of floodwaters, otherwise must remain open;

[d] The use must be limited to parking, building access or limited storage.

[7] Certification. Whenever floodproofing measures are required, a registered professional engineer or architect shall certify that the following floodproofing measures will be utilized, where appropriate, and are adequate to withstand the flood depths, pressures, velocities, impact and uplift forces and other factors associated with the regional flood:

[a] Reinforcement of floors and walls to resist rupture, collapse, or lateral movement caused by water pressures or debris buildup;

[b] Construction of well, water supply systems and waste treatment systems so as to prevent the entrance of flood waters in such systems and must be in accordance with provision in § 275-65C(4)(d) and (e);

[c] Subsurface drainage systems to relieve external pressures on foundation walls and basement floors;

[d] Cutoff valves on sewer lines or the elimination of gravity flow basement drains; and

[e] Placement of utilities to or above the flood protection elevation.

(c) Public utilities, streets and bridges. Public utilities, streets and bridges may be allowed by permit if:

[1] Adequate floodproofing measures are provided to the flood protection elevation; and

[2] Construction meets the development standards of § 275-65B(2).

(d) Fills or deposition of materials. Fills or deposition of materials may be allowed by permit if:

[1] The requirements of § 275-65B(2) are met;

[2] No material is deposited in navigable waters unless a permit is issued by the Department pursuant to Ch. 30, Wis. Stats., and a permit pursuant to Section 404 of the Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. § 1344, has been issued, if applicable, and all other requirements have been met;

[3] The fill or other materials will be protected against erosion by riprap, vegetative cover, sheet piling or bulkheading; and

[4] The fill is not classified as a solid or hazardous material.

(4) Prohibited uses. All uses not listed as permitted uses in § 275-65C(2) are prohibited, including the following uses:

(a) Habitable structures, structures with high flood damage potential, or those not associated with permanent open-space uses;

(b) Storing materials that are buoyant, flammable, explosive, or injurious to property, water quality, or human, animal, plant, fish or other aquatic life;

(c) Uses not in harmony with or detrimental to uses permitted in the adjoining districts;

(d) Any private or public sewage systems, except portable latrines that are removed prior to flooding and systems associated with recreational areas and Department-approved campgrounds that meet the applicable provisions of local ordinances and Ch. SPS 383, Wis. Adm. Code;

(e) Any public or private wells which are used to obtain potable water, except those for recreational areas that meet the requirements of local ordinances and Chs. NR 811 and NR 812, Wis. Adm. Code;

(f) Any solid or hazardous waste disposal sites;

(g) Any wastewater treatment ponds or facilities, except those permitted under § NR 110.15(3)(b), Wis. Adm. Code; and

(h) Any sanitary sewer or water supply lines, except those to service exiting or proposed development located outside the floodway which complies with the regulations for the floodplain area occupied.

D. Floodfringe District (FF).

(1) Applicability. This section applies to all floodfringe areas shown on the Floodplain Zoning Maps and those identified pursuant to § 275-65E(1)(e).

(2) Permitted uses. Any structure, land use, or development is allowed in the Floodfringe District if the standards in § 275-65D(3) are met, the use is not prohibited by this chapter or any other ordinance or regulation, and all permits or certificates specified in § 275-65G(1) have been issued.

(3) Standards for development in floodfringe areas. § 275-65B(1) shall apply in addition to the following requirements according to the use requested. Any existing structure in the floodfringe must meet the requirements of § 275-65F.

(a) Residential uses. Any structure, including a manufactured home, which is to be newly constructed or moved into the floodfringe area shall meet or exceed the following standards. Any existing structure in the floodfringe must meet the requirements of § 275-65F.

[1] All new construction, including placement of manufactured homes, and substantial improvement of residential structures, shall have the lowest floor elevated to or above the flood protection elevation on fill. The fill around the structure shall be one foot or more above the regional flood elevation extending at least 15 feet beyond the limits of the structure. No area may be removed from the floodfringe district unless it can be shown to meet § 275-65A(5)(e).

[2] Notwithstanding Subsection D(3)(a)[1] above, a basement or crawlspace floor may be placed at or above one foot above the regional flood elevation if the basement or crawlspace is designed to make all portions of the structure below the flood protections elevation watertight with walls substantially impermeable to the passage of water and with structural components having the capability of resisting hydrostatic and hydrodynamic loads and effects of buoyancy. No floor of any kind is allowed lower than one foot above the regional flood elevation.

[3] Contiguous dryland access shall be provided from a structure to land outside of the floodplain, except as provided in [4] below.

[4] In developments where existing street or sewer line elevations make compliance with Subsection D(3)(a)[3] above impractical, the municipality may permit new development and substantial improvements where roads are below the regional flood elevation if:

[a] The municipality has written assurance from police, fire and emergency services that rescue and relief will be provided to the structure(s) by wheeled vehicles during a regional flood event; or

[b] The municipality has a DNR-approved emergency evacuation plan that follows acceptable hazard mitigation planning guidelines.

(b) Accessory structures or uses. In addition to § 275-65B(1), new construction and substantial improvements of accessory structures shall be constructed on fill with the lowest floor at or above the regional flood elevation.

(c) Commercial uses. In addition to § 275-65B(1), any commercial structure which is erected, altered or moved into the floodfringe area shall meet the requirements of § 275-65D(3)(a). Subject to the requirements of § 275-65D(3)(e), storage yards, surface parking lots and other such uses may be placed at lower elevations if an adequate warning system exists to protect life and property.

(d) Manufacturing and industrial uses. In addition to § 275-65B(1), any manufacturing or industrial structure which is erected, altered or moved into the floodfringe area shall have the lowest floor elevated to or above the flood protection elevation or meet the floodproofing standards in § 275-65G(5). Subject to the requirements of 275-65D(3)(e), storage yards, surface parking lots and other such uses may be placed at lower elevations if an adequate warning system exists to protect life and property.

(e) Storage of materials. Materials that are buoyant, flammable, explosive, or injurious to property, water quality or human, animal, plant, fish or aquatic life shall be stored at or above the flood protection elevation or floodproofed in compliance with § 275-65G(5). Adequate measures shall be taken to ensure that such materials will not enter the water body during flooding.

(f) Public utilities, streets and bridges. All utilities, streets and bridges shall be designed to be compatible with comprehensive floodplain development plans, and:

[1] When failure of public utilities, streets and bridges would endanger public health or safety, or where such facilities are deemed essential, construction or repair of such facilities shall only be permitted if they are designed to comply with § 275-65G(5).

[2] Minor roads or nonessential utilities may be constructed at lower elevations if they are designed to withstand flood forces to the regional flood elevation.

(g) Sewage systems. All sewage disposal systems shall be designed to minimize or eliminate infiltration of floodwater into the system, pursuant to § 275-65G(5)(c), to the flood protection elevation and shall meet the provisions of all local ordinances and Ch. SPS 383, Wis. Adm. Code.

(h) Wells. All wells shall be designed to minimize or eliminate infiltration of floodwaters into the system, pursuant to § 275-65G(5)(c), to the flood protection elevation and shall meet the provisions of Chs. NR 811 and NR 812, Wis. Adm. Code.

(i) Solid waste disposal sites. Disposal of solid or hazardous waste is prohibited in floodfringe areas.

(j) Deposition of materials. Any deposited material must meet all the provisions of this section.

(k) Manufactured homes.

[1] Owners or operators of all manufactured home parks and subdivisions shall provide adequate surface drainage to minimize flood damage and prepare, secure approval of and file an evacuation plan, indicating vehicular access and escape routes, with local emergency management authorities.

[2] In existing manufactured home parks, all new homes, replacement homes on existing pads, and substantially improved homes shall:

[a] Have the lowest floor elevated to the flood protection elevation; and

[b] Be anchored so they do not float, collapse or move laterally during a flood.

[3] Outside of existing manufactured home parks, including new manufactured home parks and all single units outside of existing parks, all new, replacement and substantially improved manufactured homes shall meet the residential development standards for the floodfringe in § 275-65D(3)(a).

(l) Mobile recreational vehicles. All mobile recreational vehicles must be on site for less than 180 consecutive days and be either:

[1] Fully licensed and ready for highway use (a mobile recreational vehicle is ready for highway use if it is on its wheels or jacking system, is attached to the site only by quick-disconnect utilities and security devices and has no permanently attached additions); or

[2] Shall meet the elevation and anchoring requirements in § 275-65D(3)(k)[2] and [3].

E. Other floodplain districts. Other floodplain districts may be established under this chapter and reflected on the Floodplain Zoning Map. These districts may include General Floodplain Districts and Flood Storage Districts.

(1) General Floodplain District (GFP).

(a) Applicability. The provisions for this district shall apply to development in all floodplains mapped as A, AO, AH and in AE Zones within which a floodway is not delineated on the Flood Insurance Rate Maps identified in § 275-65A(5)(b)[1].

(b) Floodway boundaries. For proposed development in zone A, or in zone AE within which a floodway is not delineated on the Flood Insurance Rate Map identified in § 275-65A(5)(b)[1], the boundaries of the regulatory floodway shall be determined pursuant to § 275-65E(1)(e). If the development is proposed to encroach upon the regulatory floodway, the development is subject to the standards of § 275-65C. If the development is located entirely within the floodfringe, the development is subject to the standards of § 275-65D.

(c) Permitted uses. Pursuant to § 275-65E(1)(e), it shall be determined whether the proposed use is located within a floodway or floodfringe area. Those uses permitted in floodway (§ 275-65C(2)) and floodfringe areas (§ 275-65D(2)) are allowed within the General Floodplain District, according to the standards of § 275-65E(1)(d), provided that all permits or certificates required under § 275-65G(1) have been issued.

(d) Standards for development in the General Floodplain District. § 275-65C applies to floodway areas, determined pursuant to § 275-65E(1)(e); § 275-65D applies to floodfringe areas, determined pursuant to § 275-65E(1)(e).

[1] New construction and substantial improvements of structures in Zone AO shall have the structure's lowest floor, including basement, elevated:

[a] To or above the depth, in feet, as shown on the FIRM above the highest adjacent natural grade, plus one additional foot of freeboard; or

[b] If the depth is not specified on the FIRM, to or above three feet above the highest adjacent grade.

[2] New construction and substantial improvement of structures in Zone AH shall have the lowest floor, including basement, elevated to or above the flood protection elevation; or

[3] In AO/AH Zones, provide plans showing adequate drainage paths to guide floodwaters around structures.

[4] All development in Zones AO and AH shall meet the requirements of § 275-65D applicable to flood fringe areas.

(e) Determining floodway and floodfringe limits. Upon receiving an application for development within Zone A, or within Zone AE where a floodway has not been delineated on the Flood Insurance Rate Maps, the Director shall:

[1] Require the applicant to submit two copies of an aerial photograph or a plan which shows the proposed development with respect to the General Floodplain District limits, stream channel, and existing floodplain developments, along with a legal description of the property, fill limits and elevations, building floor elevations and floodproofing measures, and the flood zone as shown on the FIRM.

[2] Require the applicant to furnish any of the following information deemed necessary by the Department to evaluate the effects of the proposal upon flood heights and flood flows, regional flood elevation, and to determine floodway boundaries:

[a] A hydrologic and hydraulic study as specified in § 275-65G(1)(b)[3];

[b] A plan (surface view) showing elevations or contours of the ground; pertinent structure, fill or storage elevations; size, location and layout of all proposed and existing structures on the site; location and elevations of streets, water supply, and sanitary facilities; soil types; and other pertinent information;

[c] Specifications for building construction and materials, floodproofing, filling, dredging, channel improvement, storage, water supply and sanitary facilities.

(2) Flood storage district. The Flood Storage District delineates that portion of the floodplain where storage of floodwaters has been taken into account and is relied upon to reduce the regional flood discharge. The district protects the flood storage areas and assures that any development in the storage areas will not decrease the effective flood storage capacity which would cause higher flood elevations.

(a) Applicability. The provisions of this subsection apply to all areas within the Flood Storage District (FSD), as shown on the Official Floodplain Zoning Maps.

(b) Permitted uses. Any use or development which occurs in a Flood Storage District must meet the applicable requirements in § 275-65D(3).

(c) Standards for development in Flood Storage Districts.

[1] Development in a Flood Storage District shall not cause an increase equal or greater than 0.00 feet in the height of the regional flood.

[2] No development shall be allowed which removes flood storage volume unless an equal volume of storage as defined by the redevelopment ground surface and the regional flood elevation shall be provided in the immediate area of the proposed development to compensate for the volume of storage which is lost (compensatory storage). Excavation below the groundwater table is not considered to provide an equal volume of storage.

[3] If compensatory storage cannot be provided, the area may not be developed unless the entire area zoned as Flood Storage District, on this waterway, is rezoned to the Floodfringe District. This must include a revision to the floodplain study and map done for the waterway to revert to the higher regional flood discharge calculated without floodplain storage, as per § 275-65H of this section.

[4] No area may be removed from the Flood Storage District unless it can be shown that the area has been filled to the flood protection elevation and is contiguous to other lands lying outside of the floodplain.

F. Nonconforming uses.

(1) General.

(a) Applicability.

[1] The standards in this section shall apply to all uses and building that do not conform to the provisions contained within a floodplain zoning ordinance or with § 87.30, Wis. Stats., and §§ NR 116.12-14, Wis Adm. Code and 44 CFR 59-72. These standards shall apply to all modifications or additions to any nonconforming use or structure and to the use of any structure or premises which was lawful before the passage of this section or any amendment thereto. A party asserting existence of a lawfully established nonconforming use or structure has a burden of proving that the use or structure was complaint with the floodplain zoning ordinance in effect at the time the use or structure was created.

[2] As permit applications are received for additions, modifications, or substantial improvements to nonconforming buildings in the floodplain, municipalities shall develop a list of those nonconforming buildings, their present equalized assessed value and a list of the costs of those activities associated with changes to those buildings.

(b) The existing lawful use of a structure or its accessory use which is not in conformity with the provisions of this section may continue, subject to the following conditions:

[1] No modifications or additions to a nonconforming use or structure shall be permitted unless they comply with this section. The words "modification" and "addition" include, but are not limited to, any alteration, addition, modification, structural repair, rebuilding or replacement of any such existing use, structure or accessory structure or use. Maintenance is not considered a modification; this includes painting, decorating, paneling and other nonstructural components and the maintenance, repair or replacement of existing private sewage or water supply systems or connections to public utilities. Any costs associated with the repair of a damaged structure are not considered maintenance. The construction of a deck that does not exceed 200 square feet and that is adjacent to the exterior wall of a principal structure is not an extension, modification or addition. The roof of the structure may extend over a portion of the deck in order to provide safe ingress and egress to the principal structure.

[2] If a nonconforming use or the use of a nonconforming structure is discontinued for 12 consecutive months, it is no longer permitted, and any future use of the property, and any structure or building thereon, shall conform to the applicable requirements of this section.

[3] The municipality shall keep a record which lists all nonconforming uses and nonconforming structures, their present equalized assessed value, the cost of all modifications or additions which have been permitted, and the percentage of the structure's total current value those modifications represent.

[4] No modification or addition to any nonconforming structure or any structure with a nonconforming use which, over the life of the structure, would equal or exceed 50% of its present equalized assessed value shall be allowed unless the entire structure is permanently changed to a conforming structure with a conforming use in compliance with the applicable requirements of this section. Contiguous dryland access must be provided for residential and commercial uses in compliance with § 275-65D(3)(a). The costs of elevating the lowest floor of a nonconforming building or a building with a nonconforming use to the flood protection elevation are excluded from the 50% provisions of this subsection.

[5] No maintenance on a per event basis to any nonconforming structure or any structure with a nonconforming use, the cost of which would equal or exceed 50% of its present equalized assessed value, shall be allowed unless the entire structure is permanently changed to a conforming structure with a conforming use in compliance with the applicable requirements of this section. Contiguous dryland access must be provided for residential and commercial uses in compliance with § 275-65D(3)(a). Maintenance to any nonconforming structure, which does not exceed 50% of its present equalized assessed value on a per event basis, does not count against the cumulative calculations over the life of the structure for substantial improvement calculations.

[6] If, on a per-event basis, the total value of the work being done under Subsection F(1)(b)[4] and [5] above equals or exceeds 50% of the present equalized assessed value, the work shall not be permitted unless the entire structure is permanently changed to a conforming structure with a conforming use in compliance with the applicable requirements of this section. Contiguous dryland access must be provided for residential and commercial uses in compliance with § 275-65D(3)(a).

[7] Except as provided in Subsection F(1)(b)[8] below, if any nonconforming structure or any structure with a nonconforming use is destroyed or is substantially damaged, it cannot be replaced, reconstructed or rebuilt unless the use and the structure meet the current ordinance requirements. A structure is considered substantially damaged if the total cost to restore the structure to its predamaged condition equals or exceeds 50% of the structure's present equalized assessed value.

[8] For nonconforming buildings that are substantially damaged or destroyed by a nonflood disaster, the repair or reconstruction of any such nonconforming building shall be permitted in order to restore it to the size and use in effect prior to the damage event, provided that the minimum requirements are met and all required permits have been granted prior to the start of construction.

[a] Residential structures:

[i] Shall have the lowest floor, including basement, elevated to or above the flood protection elevation using fill, pilings, columns, posts or perimeter walls. Perimeter walls must meet the requirements of § 275-65G(5)(b).

[ii] Shall be anchored to prevent flotation, collapse, or lateral movement of the structure resulting from hydrodynamic and hydrostatic loads, including the effects of buoyancy, and shall be constructed with methods and materials resistant to flood damage.

[iii] Shall be constructed with electrical, heating, ventilation, plumbing and air-conditioning equipment and other service facilities that are designed and/or elevated so as to prevent water from entering or accumulating within the components during conditions of flooding.

[iv] In A Zones, obtain, review and utilize any flood data available from a federal, state or other source.

[v] In AO Zones with no elevations specified, shall have the lowest floor, including basement, meet the standards in § 275-65E(1)(d).

[vi] In AO Zones, shall have adequate drainage paths around the structure on slopes to guide floodwaters around and away from the structure.

[b] Nonresidential structures:

[i] Shall meet the requirements of Subsection F(1)(b)[8][a][i] through [vi] above.

[ii] Shall either have the lowest floor, including basement, elevated to or above the regional flood elevation or, together with attendant utility and sanitary facilities, shall meet the standards in § 275-65G(5)(a) or (b).

[iii] In AO Zones with no elevations specified, shall have the lowest floor, including basement, meet the standards in § 275-65E(1)(d).

(c) A nonconforming historic structure may be altered if the alteration will not preclude the structure's continued designation as an historic structure, the alteration will comply with § 275-65C(3)(a), flood-resistant materials are used, and construction practices and floodproofing methods that comply with § 275-65G(5) are used. Repair or rehabilitation of historic structures shall be exempt from the development standards of § 275-65F(1)(b)[8][a] if it is determined that the proposed repair or rehabilitation will not preclude the structure's continued designation as an historic structure and is the minimum necessary to preserve the historic character and design of the structure.

(2) Floodway district.

(a) Modifications or additions. No modification or addition shall be allowed to any nonconforming structure or any structure with a nonconforming use in the Floodway District, unless such modification or addition:

[1] Has been granted a permit or variance which meets all ordinance requirements;

[2] Meets the requirements of 275-65F(1);

[3] Shall not increase the obstruction to flood flows or regional flood height; and

[4] Any addition to the existing structure shall be floodproofed, pursuant to § 275-65G(5), by means other than the use of fill, to the flood protection elevation; and

[5] If any part of the foundation below the flood protection elevation is enclosed, the following standards shall apply:

[a] The enclosed are shall be designed by a registered architect or engineer to allow for the efficient entry and exit of floodwaters without human intervention. A minimum of two openings must be provided with a minimum net area of at least one square inch for every one square foot of the enclosed area. The lowest part of the opening can be no more than 12 inches above the adjacent grade;

[b] The parts of the foundation located below the flood protection elevation must be constructed of flood-resistant materials;

[c] Mechanical and utility equipment must be elevated or floodproofed to or above the flood protection elevation; and

[d] The use must be limited to parking, building access or limited storage.

(b) No new onsite sewage disposal system, or addition to an existing onsite sewage disposal system, except where an addition has been ordered by a government agency to correct a hazard to public health, shall be allowed in a Floodway District. Any replacement, repair or maintenance of an existing on-site sewage disposal system in a Floodway District shall meet the applicable requirements of all municipal ordinances, § 275-65G(5)(c) and Ch. SPS 383, Wis. Adm. Code.

(c) No new well or modification to an existing well used to obtain potable water shall be allowed in the Floodway District. Any replacement, repair or maintenance of an existing well in a Floodway District shall meet the applicable requirements of all municipal ordinances, § 275-65G(5)(c) and Chs. NR 811 and NR 812, Wis. Adm. Code.

(3) Floodfringe district.

(a) No modification or addition shall be allowed to any nonconforming structure or any structure with a nonconforming use unless such modification or addition has been granted a permit or variance by the municipality and meets the requirements of § 275-65D(3), except where (b) below is applicable.

(b) Where compliance with the provisions of Subsection F(3)(a) above would result in unnecessary hardship and only where the structure will not be used for human habitation or be associated with a high flood damage potential, the Board of Appeals, using the procedures established in § 275-65G(3), may grant a variance from those provisions of Subsection F(3)(a) above for modifications or additions, using the criteria listed below. Modifications or additions which are protected to elevations lower than the flood protection elevation may be permitted if:

[1] No floor is allowed below the regional flood elevation for residential or commercial structures;

[2] Human lives are not endangered;

[3] Public facilities, such as water or sewer, shall not be installed;

[4] Flood depths shall not exceed two feet;

[5] Flood velocities shall not exceed two feet per second; and

[6] The structure shall not be used for storage of materials as described in § 275-65D(3)(e).

(c) All new private sewage disposal systems, or additions to, replacement, repair or maintenance of a private sewage disposal system, shall meet all the applicable provisions of all local ordinances, § 275-65G(5)(c) and Ch. SPS 383, Wis. Adm. Code.

(d) All new wells, or additions to, replacement, repair or maintenance of a well, shall meet the applicable provisions of this section, § 275-65G(5)(c) and Chs. NR 811 and NR 812, Wis. Adm. Code.

(4) Flood Storage District. No modifications or additions shall be allowed to any nonconforming structure in a flood storage area unless the standards outlined in § 275-65E(2)(c) are met.

G. Administration. The Director of Community Development shall administer this section.

(1) Director.

(a) Duties and powers. The Director is authorized to administer this section and shall have the following duties and powers:

[1] Advise applicants of the chapter provisions, assist in preparing permit applications and appeals, and assure that the regional flood elevation for the proposed development is shown on all permit applications.

[2] Issue permits and inspect properties for compliance with provisions of this section and issue certificates of compliance where appropriate.

[3] Inspect and assess all damaged floodplain structures to determine if substantial damage to the structures has occurred.

[4] Keep records of all official actions, such as:

[a] All permits issued, inspections made, and work approved.

[b] Documentation of certified lowest floor and regional flood elevations.

[c] Floodproofing certificates.

[d] Records of water surface profiles, Floodplain Zoning Maps and ordinances, nonconforming uses and structures, including changes, appeals, variances and amendments.

[e] All substantial damage assessment reports for floodplain structures.

[f] List of nonconforming structures and uses.

[5] Submit copies of the following items to the Department's regional office:

[a] Within 10 days of the decision, a copy of any decisions on variances, appeals for map or text interpretations, and map or text amendments.

[b] Copies of any case-by-case analyses, and other required information.

[c] Copies of substantial damage assessments performed and all related correspondence concerning the assessments.

[6] Investigate, prepare reports, and report violations of this section to the Municipal Department of Community Development and Attorney for prosecution. Copies of the reports shall also be sent to the Department's regional office.

[7] Submit copies of amendments to the FEMA regional office.

(b) Land use permit. A land use permit shall be obtained before any new development; repair, modification or addition to an existing structure; or change in the use of a building or structure, including sewer and water facilities, may be initiated. All applications shall be submitted on the appropriate forms and in numbers as required by the Director. For projects requiring a land use permit, the Plan Commission shall review and take action for these projects upon receiving a written report from the Department of Community Development. Application submittals shall include, but not be limited to, the following information:

[1] General information.

[a] Name and address of the applicant, property owner and contractor.

[b] Legal description, proposed use, and whether it is new construction or a modification.

[2] Site development plan. A site plan, drawn to scale, shall be submitted with the permit application form and shall contain:

[a] Location, dimensions, area and elevation of the lot;

[b] Location of the ordinary high-water mark of any abutting navigable waterways;

[c] Location of any structures, with distances measured from the lot lines and street center lines;

[d] Location of any existing or proposed on-site sewage systems or private water supply systems;

[e] Location and elevation of existing or future access roads;

[f] Location of floodplain and floodway limits as determined from the Official Floodplain Zoning Maps;

[g] The elevation of the lowest floor of proposed buildings and any fill using the vertical datum from the adopted study, North American Vertical Datum (NAVD);

[h] Data sufficient to determine the regional flood elevation in NAVD at the location of the development and to determine whether or not the requirements of § 275-65C or § 275-65D are met; and

[i] Data to determine if the proposed development will cause an obstruction to flow or an increase in regional flood height or discharge according to § 275-65B(2). This may include any of the information noted in § 275-65C(3)(a).

[3] Hydraulic and hydrologic studies to analyze developments. All hydraulic and hydrologic studies shall be completed under the direct supervision of a professional engineer registered in the state. The study contractor shall be responsible for the technical adequacy of the study. All studies shall be reviewed and approved by DCD.

[a] Zone A floodplains and in AE Zones within which a floodway is not delineated:

[i] Hydrology. The appropriate method shall be based on the standards in Ch. NR 116.07(3), Wis. Adm. Code, Hydrologic Analysis: Determination of Regional Flood Discharge.

[ii] Hydraulic modeling. The regional flood elevation shall be based on the standards in Ch. NR 116.07(4), Wis. Adm. Code, Hydraulic Analysis: Determination of the Regional Flood Elevation, and the following:

[A] Determination of the required limits of the hydraulic model shall be based on detailed study information for downstream structures (dam, bridge, or culvert) to determine adequate starting WSEL for the study.

[B] Channel sections must be surveyed.

[C] Minimum four-foot contour data in the overbanks shall be used for the development of cross section overbank and floodplain mapping.

[D] A maximum distance of 500 feet between cross sections is allowed in developed areas, with additional intermediate cross sections required at transitions in channel bottom slope, including a survey of the channel at each location.

[E] The most current version of HEC-RAS shall be used.

[F] A survey of bridge and culvert openings and the top of road is required at each structure.

[G] Additional cross sections are required at the downstream and upstream limits of the proposed development and any necessary intermediate locations based on the length of the reach if greater than 500 feet.

[H] Standard accepted engineering practices shall be used when assigning parameters for the base model, such as flow, Manning's N values, expansion and contraction coefficients, or effective flow limits. The base model shall be calibrated to past flooding data, such as high-water marks, to determine the reasonableness of the model results. If no historical data is available, adequate justification shall be provided for any parameters outside standard accepted engineering practices.

[I] The model must extend past the upstream limit of the difference in the existing and proposed flood profiles in order to provide a tie-in to existing studies. The height difference between the proposed flood profile and the existing study profiles shall be no more than 0.00 feet.

[iii] Mapping. A work map of each of the reach studied shall be provided, showing all cross section locations, floodway/floodplain limits based on best available topographic data, geographic limits of the proposed development, and whether the proposed development is located in the floodway.

[A] If the proposed development is located outside of the floodway, then it is determined to have no impact on the regional flood elevation.

[B] If any part of the proposed development is in the floodway, it must be added to the base model to show the difference between existing and proposed conditions. The study must ensure that all coefficients remain the same as in the existing model, unless adequate justification based on standard accepted engineering practices is provided.

[b] Zone AE floodplains.

[i] Hydrology. If the proposed hydrology will change the existing study, the appropriate method shall be based on the standards in Ch. NR 116.07(3), Wis. Adm. Code, Hydrologic Analysis: Determination of Regional Flood Discharge.

[ii] Hydraulic modeling. The regional flood elevation shall be based on the standards in Ch. NR 116.07(4), Wis. Adm. Code, Hydraulic Analysis: Determination of the Regional Flood Elevation, and the following:

[A] Duplicate effective model. The Effective Model shall be reproduced to ensure correct transference of the model data and to allow integration of the revised data to provide a continuous FIS model upstream and downstream of the revised reach. If data from the Effective Model is available, models shall be generated that duplicate the FIS profiles and the elevations shown in the Floodway Data Table in the FIS report to within 0.1 foot.

[B] Corrected effective model. The Corrected Effective Model shall not include any man-made physical changes since the Effective Model date but shall import the model into the most-current version of HEC-RAS for Department review.

[C] Existing (preproject conditions) model. The Existing Model shall be required to support conclusions about the actual impacts of the project associated with the Revised (Post-Project) Model or to establish more up-to-date models on which to base the Revised (Post-Project) Model.

[D] Revised (Post-Project Conditions) Model. The Revised (Post-Project Conditions) Model shall incorporate the Existing Model and any proposed changes to the topography caused by the proposed development. This model shall reflect proposed conditions.

[E] All changes to the Duplicate Effective Model and subsequent models must be supported by certified topographic information, bridge plans, construction plans and survey notes.

[F] Changes to the hydraulic models shall be limited to the stream reach for which the revision is being requested. Cross sections upstream and downstream of the revised reach shall be identical to those in the Effective Model and result in water surface elevations and top widths computed by the Revised Models matching those in the Effective Models upstream and downstream of the revised reach as required. The Effective Model shall not be truncated.

[iii] Mapping. Maps and associated engineering data shall be submitted to the Department for review which meet the following conditions:

[A] Consistency between the revised hydraulic models, the revised floodplain and floodway delineations, the revised flood profiles, topographic work map, annotated FIRMs and/or Flood Boundary/Floodway Maps (FBFMs), construction plans, and bridge plans.

[B] Certified topographic map of a suitable scale, contour interval, and a planimetric map showing the applicable items. If a digital version of the map is available, it may be submitted in order that the FIRM may be more easily revised.

[C] Annotated FIRM panel showing the revised 1% and 0.2% annual chance floodplains and floodway boundaries.

[D] If an annotated FIRM and/or FBFM and digital mapping data (GIS or CADD) are used, then all supporting documentation or metadata must be included with the data submission along with the Universal Transverse Mercator (UTM) projection and State Plan Coordinate System in accordance with FEMA mapping specifications.

[E] The revised floodplain boundaries shall tie into the effective floodplain boundaries.

[F] All cross sections from the Effective Model shall be labeled in accordance with the effective map and a cross-section lookup table shall be included to relate to the model input numbering scheme.

[G] Both the current and proposed floodways shall be shown on the map.

[H] The stream center line or profile baseline used to measure stream distances in the model shall be visible on the map.

[4] Expiration. All permits issued under the authority of this section shall expire no more than 180 days after issuance. The permit may be extended for a maximum of 180 days for good and sufficient cause. If the permitted work has not started within 180 days of the permit date, the development must comply with any regulation, including any revision to the FIRM or FIS, that took effect after the permit date.

(c) Certificate of compliance. No land shall be occupied or used, and no building which is hereafter constructed, altered, added to, modified, repaired, rebuilt or replaced shall be occupied, until a certificate of compliance is issued by the Director, except where no permit is required, subject to the following provisions:

[1] The certificate of compliance shall show that the building or premises or part thereof, and the proposed use, conform to the provisions of this section.

[2] Application for such certificate shall be concurrent with the application for a permit.

[3] If all ordinance provisions are met, the certificate of compliance shall be issued within 10 days after written notification that the permitted work is completed.

[4] The applicant shall submit a certification signed by a registered professional engineer, architect or land surveyor that the fill, lowest floor and floodproofing elevations are in compliance with the permit issued. Floodproofing measures also require certification by a registered professional engineer or architect that the requirements of § 275-65G(5) are met.

[5] Where applicable pursuant to § 275-65E(1)(d), the applicant must submit a certification by a registered professional engineer or surveyor of the elevation of the bottom of the lowest horizontal structural member supporting the lowest floor (excluding pilings or columns), and an indication of whether the structure contains a basement.

[6] Where applicable pursuant to § 275-65E(1)(d), the applicant must submit certification by a registered professional engineer or architect that the structural design and methods of construction meet accepted standards of practice as required by § 275-65E(1)(d).

(d) Other permits. Prior to obtaining a floodplain development permit, the applicant must secure all necessary permits from federal, state, and local agencies, including those required by the United States Army Corps of Engineers under Section 404 of the Federal Water Pollution Control Act, Amendments of 1972, 33 U.S.C. § 1344.

(2) Department of community development.

(a) The Department of Community Development shall review and advise the Plan Commission and the Common Council on all proposed amendments to this section, maps and text.

(3) Board of appeals. The Board of Appeals, created under § 62.23(7)(e), Wis. Stats., is hereby authorized or shall be appointed to act for the purposes of this section. The Board shall exercise the powers conferred by Wisconsin Statutes and adopt rules for the conduct of business. The Director shall not be the Secretary of the Board.

(a) Powers and duties. The Board of Appeals shall:

[1] Appeals: hear and decide appeals where it is alleged there is an error in any order, requirement, decision or determination made by the Department of Community Development in the enforcement or administration of this section.

[2] Boundary disputes: hear and decide disputes concerning the district boundaries shown on the Official Floodplain Zoning Map.

[3] Variances: hear and decide, upon appeal, variances from the article standards.

(b) Appeals to the Board.

[1] Appeals to the Board may be taken by any person aggrieved or by any officer or department of the municipality affected by any decision of the Director. Such appeal shall be taken within 30 days, unless otherwise provided by the rules of the Board, by filing with the official whose decision is in question, and with the Board, a notice of appeal specifying the reasons for the appeal. The official whose decision is in question shall transmit to the Board all records regarding the matter appealed.

[2] Notice and hearing for appeals, including variances.

[a] Notice. The Board shall:

[i] Fix a reasonable time for the hearing;

[ii] Publish adequate notice pursuant to Wisconsin Statutes, specifying the date, time, place and subject of the hearing; and

[iii] Assure that notice shall be mailed to the parties in interest and the Department's regional office at least 10 days in advance of the hearing.

[b] Hearing. Any party may appear in person or by agent. The Board shall:

[i] Resolve boundary disputes according to § 275-65G(3)(c);

[ii] Decide variance applications according to § 275-65G(3)(d); and

[iii] Decide appeals of permit denials according to § 275-65G(4).

[3] Decision. The final decision regarding the appeal or variance application shall:

[a] Be made within a reasonable time;

[b] Be sent to the Department's regional office within 10 days of the decision;

[c] Be a written determination signed by the Chairman or Secretary of the Board;

[d] State the specific facts which are the basis for the Board's decision;

[e] Either affirm, reverse, vary or modify the order, requirement, decision or determination appealed, in whole or in part, dismiss the appeal for lack of jurisdiction, or grant or deny the variance application; and

[f] Include the reasons for granting an appeal, describing the hardship demonstrated by the applicant in the case of a variance, clearly stated in the recorded minutes of the Board proceedings.

(c) Boundary disputes. The following procedure shall be used by the Board in hearing disputes concerning floodplain district boundaries:

[1] If a floodplain district boundary is established by approximate or detailed floodplain studies, the flood elevations or profiles shall prevail in locating the boundary;

[2] The person contesting the boundary location shall be given a reasonable opportunity to present arguments and technical evidence to the Board; and

[3] If the boundary is incorrectly mapped, the Board should inform the Department of Community Development or the person contesting the boundary location to petition the Common Council for a map amendment according to § 275-65H.

(d) Variances.

[1] The Board may, upon appeal, grant a variance from the standards of this section if an applicant convincingly demonstrates that:

[a] Literal enforcement of the section provisions will cause unnecessary hardship;

[b] The hardship is due to adoption of the Floodplain Ordinance and unique property conditions not common to adjacent lots or premises. In such case, the ordinance or map must be amended;

[c] The variance is not contrary to the public interest; and

[d] The variance is consistent with the purposes of this section in § 275-65A(3).

[2] In addition to the criteria in Subsection G(3)(d)[1] above, to qualify for a variance under FEMA regulations, the following criteria have been met:

[a] The variance shall not cause any increase in the regional flood elevation;

[b] Variances can only be granted for lots that are less than 1/2 acre and are contiguous to existing structures constructed below the RFE;

[c] The applicant has good and sufficient cause for issuance of the variance;

[d] Failure to grant the variance would result in exceptional hardship;

[e] Granting the variance will not result in additional threats to public safety, extraordinary expense, create a nuisances, cause fraud on or victimization of the public, or conflict with existing local laws or ordinances;

[f] The variance granted is the minimum necessary, considering the flood hazard, to afford relief.

[3] A variance shall not:

[a] Grant, extend or increase any use prohibited in the zoning district.

[b] Be granted for a hardship based solely on an economic gain or loss.

[c] Be granted for a hardship which is self-created.

[d] Damage the rights or property values of other persons in the area.

[e] Allow actions without the amendments to this section or map(s) required in § 275-65H.

[f] Allow any alteration of an historic structure, including its use, which would preclude its continued designation as an historic structure.

[4] When a floodplain variance is granted, the Board shall notify the applicant in writing that it may increase risks to life and property and flood insurance premiums could increase up to $25 per $100 of coverage. A copy shall be maintained with the variance record.

(4) Review of appeals of permit denials.

(a) The Department of Community Development, § 275-65G(2), and the Board of Appeals shall review all data related to the appeal. This may include:

[1] Permit application data listed in § 275-65G(1)(b).

[2] Floodway/Floodfringe determination data in § 275-65E(1)(e).

[3] Data listed in § 275-65C(3)(a)[2] where the applicant has not submitted this information to the Director.

[4] Other data submitted with the application or submitted to the Board with the appeal.

(b) For appeals of all denied permits, the Board shall:

[1] Follow the procedures of 275-65G(3);

[2] Consider Department of Community Development recommendations; and

[3] Either uphold the denial or grant the appeal.

(c) For appeals concerning increases in regional flood elevation, the Board shall:

[1] Uphold the denial where the Board agrees with the data showing an increase in flood elevation. Increases may only be allowed after amending the flood profile and map and all appropriate legal arrangements are made with all adversely affected property owners as per the requirements of § 275-65H; and

[2] Grant the appeal where the Board agrees that the data properly demonstrates that the project does not cause an increase, provided no other reasons for denial exist.

(5) Floodproofing standards.

(a) No permit or variance shall be issued for a nonresidential structure designed to be watertight below the regional flood elevation until the applicant submits a plan certified by a registered professional engineer or architect that the floodproofing measures will protect the structure or development to or above the flood protection elevation and submits a FEMA floodproofing certificate. Floodproofing is not an alternative to the development standards in § 275-65B, C, D, or E(1).

(b) For a structure designed to allow the entry of floodwaters, no permit or variance shall be issued until the applicant submits a plan either:

[1] Certified by a registered professional engineer or architect; or

[2] That meets or exceeds the following standards:

[a] A minimum of two openings having a total net area of not less than one square inch for every square foot of enclosed area subject to flooding shall be provided;

[b] The bottom of all openings shall be no higher than one foot above grade; and

[c] Openings may be equipped with screens, louvers, valves, or other coverings or devices, provided that they permit the automatic entry and exit of floodwaters.

(c) Floodproofing measures shall be designed, as appropriate, to:

[1] Withstand flood pressures, depths, velocities, uplift and impact forces and other regional flood factors;

[2] Protect structures to the flood protection elevation;

[3] Anchor structures to foundations to resist flotation and lateral movement;

[4] Minimize or eliminate infiltration of floodwaters; and

[5] Minimize or eliminate discharges into floodwaters.

[6] Placement of essential utilities to or above the flood protection elevation; and

[7] If any part of the foundation below the flood protection elevation is enclosed, the following standards shall apply:

[a] The enclosed area shall be designed by a registered architect or engineer to allow for the efficient entry and exit of flood waters without human intervention. A minimum of two openings must be provided with a minimum net area of at least one square inch for every one square foot of the enclosed area. The lowest part of the opening can be no more than 12 inches above the adjacent grade;

[b] The parts of the foundation located below the flood protection elevation must be constructed of flood-resistant materials;

[c] Mechanical and utility equipment must be elevated or floodproofed to or above the flood protection elevation; and

[d] The use must be limited to parking, building access or limited storage.

(6) Public information.

(a) Place marks on structures to show the depth of inundation during the regional flood.

(b) All maps, engineering data and regulations shall be available and widely distributed.

(c) All real estate transfers should show what floodplain zoning district any real property is in.

H. Amendments.

(1) General.

(a) Obstructions or increases may only be permitted if amendments are made to this section, the Official Floodplain Zoning Maps, floodway lines and water surface profiles, in accordance with Subsection H(1)(b) below.

[1] In AE Zones with a mapped floodway, no obstructions or increases shall be permitted unless the applicant receives a conditional letter of map revision from FEMA and amendments are made to this section, the Official Floodplain Zoning Maps, floodway lines and water surface profiles, in accordance with Subsection H(1)(b) below. Any such alterations must be reviewed and approved by FEMA and the DNR.

[2] In A Zones, increases equal to or greater than 1.0 foot may only be permitted if the applicant receives a conditional letter of map revision from FEMA and amendments are made to this section, the Official Floodplain Maps, floodway lines, and water surface profiles, in accordance with Subsection H(1)(b) below.

(b) The Common Council shall change or supplement the Floodplain Zoning District boundaries and this section in the manner outlined in § 275-65H(2). Actions which require an amendment to the article and/or submittal of a letter of map change (LOMC) include, but are not limited to, the following:

[1] Any fill or floodplain encroachment that obstructs flow causing any increase in the regional flood height.

[2] Any change to the floodplain boundaries and/or watercourse alterations on the FIRM.

[3] Any change to any other officially adopted Floodplain Maps listed in § 275-65A(5)(b)[2].

[4] Any fill in the floodplain which raises the elevation of the filled area to a height at or above the flood protection elevation and is contiguous to land lying outside the floodplain.

[5] Correction of discrepancies between the water surface profiles and Floodplain Zoning Maps.

[6] Any upgrade to a floodplain zoning ordinance text required by § NR 116.05, Wis. Adm. Code, or otherwise required by law, or for changes by the municipality.

[7] All channel relocations and changes to the maps to alter floodway lines or to remove an area from the floodway or the floodfringe that is based on a base flood elevation from a FIRM requires prior approval by FEMA.

(2) Procedures. Ordinance amendments may be made upon petition of any interested party according to the provisions of § 62.23, Wis. Stats. Such petitions shall include all necessary data required by § 275-65E(1)(e) and § 275-65G(1)(b). The land use permit shall not be issued until a letter of map revision is issued by FEMA for the proposed changes.

(a) The proposed amendment shall be referred to the Department of Community Development for a public hearing and recommendation to the Common Council. The amendment and notice of public hearing shall be submitted to the Department's regional office for review prior to the hearing. The amendment procedure shall comply with the provisions of § 62.23, Wis. Stats.

(b) No amendments shall become effective until reviewed and approved by the Department.

(c) All persons petitioning for a map amendment that obstructs flow causing any increase in the regional flood height shall obtain flooding easements or other appropriate legal arrangements from all adversely affected property owners and notify local units of government before the amendment can be approved by the Common Council.

I. Enforcement and penalties.

(1) Any violation of the provisions of this section by any person shall be unlawful and shall be referred to the City Attorney, who shall expeditiously prosecute all such violators. A violator shall, upon conviction, forfeit to the municipality a penalty of not less than $10 and not more than $50 for each offense, together with the taxable cost of such action. Each day that the violation exists shall constitute a separate offense. Every violation of this section is a public nuisance, and the creation may be enjoined and the maintenance may be abated by action at suit of the municipality, the state, or any citizen thereof pursuant to § 87.30, Wis. Stats.

J. Definitions. See § 275-70.