[HISTORY: Adopted by the Board of Supervisors of Oneida County
by Ord. No. 30-2006. Amendments
noted where applicable.]
(1) Authority. The Oneida County Board of Adjustment is established under
authority of § 59.694, Wis. Stats., and the County Zoning
and Shorelands Protection Ordinance, as amended. Its organization
and procedures shall be governed by Wisconsin law, these Rules, and
other applicable Oneida County ordinances. The Board assumes the responsibilities,
duties, and powers as provided therein, and by related statutes or
laws. These Rules are supplementary to the provisions of the Oneida
County Zoning and Shorelands Protection Ordinance as they relate to
the procedures of the Board of Adjustment.
(2) Conflict and Severability. In case of conflict between these Rules
and other Oneida County ordinances, Wis. Admin. Code, or Wis. Stats.,
the more restrictive provisions shall prevail unless precluded by
superior authority. In such case, all portions of these Rules not
in such conflict shall continue in full force and effect.
(3) Title. The official title of the Board is Oneida County Board of
Adjustment.
(4) Definitions. Unless otherwise indicated by the context in these rules:
ALTERNATE MEMBER
A person duly appointed to serve in Board proceedings when
one or more Regular Members is absent or has recused himself/herself.
APPEAL
Appeals from actions by administrative officials or County
committees, requests for grant of variances and requests for interpretations.
APPEAR or APPEARANCE
At a meeting or hearing means to be physically present.
[Amended by Ord. No. 1-2009; Res. No. 95-2009]
APPELLANT
The person entering the appeal or that person's attorney,
agent, or other authorized representative.
BOARD
The County Board of Adjustment, and each and every member
thereof.
CHAIRPERSON
When presiding at a meeting or hearing means the member actually
presiding regardless of whether having been elected to that office.
DIRECTOR
The Oneida County Zoning Director or his/her legal representative
or agent thereof.
EXERCISE
Of a permit or other privilege granted by Board action means
to obtain all required permits and to substantially commence work;
including beginning excavation if that is part of the grant.
MEETING
Also means "hearing" where appropriate and shall include
on-site inspections when applicable.
MEMBER
Either a regular or alternate member of the Board.
REGULAR MEMBER
A person who has been duly appointed to serve regularly in
all proceedings of the Board.
SECRETARY
The regular member elected to that office and any other person
performing prescribed duties under the direction of the Secretary.
ZONING ORDINANCE
The Oneida County Zoning and Shorelands Protection Ordinance
and any other applicable ordinance.
(5) Membership. The Board shall consist of five regular members and two
alternate members, each appointed for staggered terms of three years
by the Chairperson of the Oneida County Board subject to approval
by the Oneida County Board. Members must reside within the County
but outside the city limits of any incorporated city or village at
the time of appointment. No two members may reside in the same town.
Annually, the Chairperson of the Oneida County Board shall designate
one of the alternate members as first alternate and the other as second
alternate.
(6) Participation. The regular members shall participate in all proceedings
of the Board except in the case of a conflict of interest, disqualification,
excused absence, or other manifest inability to serve. The first alternate
shall act, with full power, only when a regular member refuses to
participate because of a conflict of interest or when a regular member
is absent. The second alternate shall act only when the first alternate
refuses to participate because of a conflict of interest or is absent,
or if more than one regular member refuses to participate because
of a conflict of interest or is absent.
(7) Conflict of Interest.
(a)
Any member who has any direct or significant indirect interest
in a matter before the Board shall not participate in any of the proceedings
of such matter at any meeting or hearing at which the matter is under
consideration. However, a member may choose to temporarily step down
from the Board and testify as a witness in that matter. In such case,
that member shall not participate in subsequent Board proceedings
on that matter.
(b)
A conflict of interest shall be deemed to exist when:
1.
The member is the appellant or spouse of the appellant, or is
related to the appellant within the third degree of consanguinity,
or is the spouse or in loco parentis of someone so related; or
2.
The appellant is the employer, employee or partner of the member,
or is a corporation in which the member is a major shareholder or
has a major financial interest; or
3.
The member owns property within 300 feet of property which is
the subject of the appeal.
(8) Ex Parte Disqualification. A member may disqualify himself/herself
from participating in any proceeding whenever the appellant has sought
to influence the vote of the member on that matter outside of the
public hearing.
(9) Limitations. Nothing herein shall be construed to give or grant to
the Board the authority to alter or change the Zoning Ordinance or
zoning or other official maps of the County, which authority is reserved
to the County Board of Supervisors.
(10) Office of Record. The office of record of the Board shall be at the
same location as that of the Oneida County Zoning Director, which,
at the time of adoption of these rules is the Oneida County Courthouse,
Rhinelander, Wisconsin. The mailing address shall be the same as that
of the Oneida County Zoning Director which, at the time of adoption
of these rules, is Post Office Box 400, Rhinelander, WI 54501-0400.
All records of the Board shall be available for public inspection
at the office of record during the legal working hours as designated
by the Oneida County Board of Supervisors.
(1) Officers. The Board shall elect a chairperson, a vice chairperson,
and a secretary from among its regular members at the annual organizational
meeting in July. No member shall hold more than one office. These
officers shall hold office for one year, or until their successors
are elected. The Board may, at any meeting or hearing, elect from
among its regular members the replacement for an officer who is unable
to continue to perform the duties of that office. The officer, so
elected as a replacement, shall serve until the next organizational
meeting of the Board.
(2) Duties of Officers.
(a)
Chairperson. The Chairperson shall preside over and direct the conduct of all meetings and hearings of the Board, may administer oaths, may compel the attendance of witnesses through the issuance of subpoenas, and shall sign restraining orders when approved by the Board in accordance with §
17.05(12) of these rules. The Chairperson shall, subject to these rules and further instructions from the Board, determine the dates, times, and locations of meetings; direct the official business of the Board; supervise the work of the Secretary; and decide all points of procedure or order. The Chairperson may be overruled by a majority vote of the members present and voting.
(b)
Vice Chairperson. The Vice Chairperson shall assume the duties
and authority of the Chairperson or the Secretary in the absence or
inability of either to serve.
(c)
Secretary. The Secretary shall record and maintain permanent
minutes of the Board's proceedings, showing the vote of each
member upon every question, or if absent or failing to vote, indicating
that fact; shall keep records of its official actions; shall accurately
reduce to writing the testimony of those appearing before the Board
and keep a verbatim recording of all hearings; shall record the names
and addresses of all persons appearing before the Board in person,
or by attorney, agent, or representative; and shall, subject to direction
of the Board and Chairperson, conduct the correspondence of the Board;
have published in the official Oneida County newspaper, public notices
of meetings and hearings as required by law and these rules of procedure;
file minutes and records in the office of record of the Board, which
minutes and records shall be a public record; and shall be the custodian
of the files of the Board and keep all records. County staff shall
assist the Secretary in performing these clerical duties.
(3) Other Assistance.
(a)
Clerical assistance, including a person to act as recording
secretary for all Board proceedings, shall be provided by the Director.
The Director or a staff member designated by the Director may attend
and advise the Board at meetings, on-site inspections, and hearings,
except closed executive sessions and unless determined otherwise by
the Chairperson.
(b)
The County Corporation Counsel, or designated representative,
shall be the legal counsel for the Board, except in those cases where
independent legal counsel is obtained. In case of conflict, the Board
shall request independent legal counsel from the County Finance and
Insurance Committee. Advice of counsel shall be received before disposition
of any question of law or matter requiring legal advice, as determined
by the Board.
[Amended by Ord. No. 88-2008; Ord. No. 1-2009; Res. No. 95-2009]
(1) Open to Public. In accordance with the state Open Meeting Law, all
proceedings of the Board shall be open to the public, except that,
with prior public notice, the Board may go into closed executive session
to consider, or to consult with, legal counsel on litigation to which
the Board may be, or is, a party. Formal decisions on all matters
shall be rendered in open session.
(2) Date, Time and Location. Meetings and hearings shall be held at the call of the Chairperson and at such other times as the Board may determine. Public notice of hearings shall be made in accordance with law and as prescribed in §
17.05(11) herein. Written notice to each member and the Director shall be hand delivered or sent by mail or electronic means not less than two business days prior to a hearing or meeting date. Should a member or the Director not receive written notice but nevertheless be present, or represented in the case of the Director, unless excused for good cause by the Chairperson, the requirement for written notice is waived.
(3) Quorum. A quorum sufficient for the conduct of business at any meeting
shall be a majority of members, but not less than three.
(4) General Order of Business. The general order of business shall be:
(b)
WI Open Meeting Law statement.
(d)
Approval of minutes of previous meeting.
(g)
Any other lawful business.
(h)
Closed executive session to discuss litigation.
(5) Rules of Order. Robert's Rules of Order in the most recent published
version shall govern during meetings and hearings except where otherwise
prescribed by law, ordinance, or these rules.
(6) Voting.
(a)
Who Shall Vote. Unless absent or abstaining for good cause which
shall be disclosed, each member, including the Chairperson and alternate
member(s) acting instead of regular members, shall vote on each motion
or other decision to be taken by the Board.
(b)
Abstention. Any member having a conflict of interest or ex parte
disqualification as defined in these Rules in any matter before the
Board shall not participate in the discussion of, or decision on,
that matter. A member may choose to temporarily step down from the
Board and testify as a witness in that matter. A member shall announce
an intent to abstain from an appeal, and the reason(s) therefore,
at the beginning of the proceedings of that appeal and prior to each
vote thereon. Such announcement and abstention shall be recorded in
the minutes of the proceedings. In that event, one or both alternate
members shall be seated to replace regular members.
(c)
Decision. Each action of the Board shall be taken by majority
affirmative vote of at least three of the members. A tie vote shall
cause the action to fail. The action of the majority shall be the
action of the entire Board, which speaks as a single entity.
(d)
Record of Vote. The Secretary shall record the vote of each
member on every question. If a member is absent, or is present but
abstains or otherwise does not vote, and is replaced in voting by
an alternate, that fact shall be entered in the record of proceedings.
(7) Compensation, Travel, and Other Personal Expenses. Members, including
alternates attending, even if not seated, shall be compensated for
time, travel, and other expenses as allowed by the County Board. Assisting
administrative staff, when required to travel as part of the official
duties in conjunction with proceedings of the Board, shall be entitled
to reimbursement of travel and other personal expenses as allowed
by the County Board, without requiring specific Board approval in
each instance.
[Amended by Ord. No. 88-2008]
(1) General Powers. The powers and duties of the Board are identified
in applicable sections of the state statutes and in the Zoning Ordinance.
The Board shall have the following general powers:
(a)
To hear and decide appeals where it is alleged there is error
in any order, requirement, decision, interpretation or determination
made by an administrative official, the Director or the Planning and
Zoning Committee in the enforcement of § 59.69 87.30(b)
or 145.20 Wis. Stats., or of any part of the Zoning, Floodplain or
Private Onsite Wastewater Treatment System Ordinance.
(b)
To hear and decide appeals for conditional use permits denied
by the County Planning and Zoning Committee as provided under the
Zoning Ordinance.
(c)
To authorize, upon appeal, such variance from the terms of the
Zoning Ordinance as meet the requirements for unnecessary hardship,
unique physical property limitation, and no harm to public interest.
(2) Scope of Orders. In exercising the foregoing powers, and consistent
with statutes and case law, the Board may reverse or affirm, wholly
or partly, or may modify the order, requirement, decision or determination
appealed from, and may make such order, requirement, decision or determination
as ought to be made, and to that end shall have all the powers of
the officer or committee from whom the appeal is taken, and may issue
or direct the issuance of a permit, or authorize a privilege, subject
to conditions and limitations where deemed appropriate by the Board.
On appeals from actions by the Planning and Zoning Committee, the
Board may decide to review the record of evidence presented to the
Committee. It may also decide to take new testimony and evidence to
supplement the record presented to the Committee, regardless of whether
new. In either event, the Board shall then render an independent de
novo decision.
(1) Who May File. Appeals to the Board shall be filed with the Board
and the Director. Appeals shall be accepted from any person aggrieved,
or agent thereof, or from any officer, department, board, or bureau
of the municipality affected, or agent thereof. An aggrieved person
may be any person or legal entity, including a corporation or partnership,
having an interest in the matter being appealed, including any property
involved in the action, and including a potential purchaser who has
made an offer to purchase, or a purchaser under a land contract or
a tenant for one year or more. Neighbors and residents or other property
owners near a property involved may also appeal on a showing of injury
to themselves or to the use and enjoyment of property they own or
occupy. The Board may dismiss appeals which do not have standing for
an appeal as described herein.
(2) Form of Appeal. Appeals shall be submitted on the form prescribed
by the Board of Adjustment. The appellant shall provide all applicable
information requested on the form. If specific property is involved,
a scale drawing shall accompany each appeal form showing the location
and size of the property; existing structures, wells, and sanitary
systems; all abutting properties and structures thereon; and change
or addition requested. The appellant shall state all plans for future
development or construction which may affect the property or the action
on this appeal. The appellant shall also provide any additional information
requested in writing by the Chairperson, Secretary, or their authorized
representative. All documents shall be submitted in triplicate. Failure
to submit the appeal on the proper form or to supply the requested
additional information at or before the hearing without good cause
shall be sufficient grounds for dismissal, or denial of the appeal,
or continuance of the hearing until such information is received by
the Board.
(3) Copies to be Sent. The Director shall promptly transmit the original
appeal and associated documents to the Board. In the case of appeals
affecting property in the shoreland or floodplain districts, one copy
of the appeal shall also be sent to the state DNR. Each regular member,
and each alternate who may be required to serve or requests, shall
receive one copy of the appeal with the Notice of Public Hearing and
meeting agenda. Said copies shall be transmitted not less than five
business days before the public hearing.
(4) Time to File.
(a)
Consideration. To be considered by the Board, an appeal must
be received at the Board office of record within 30 calendar days
of written or constructive notification of the action to be appealed.
If the appellant has been mailed a copy or other written notice of
the action being appealed, notification shall be deemed effected on
the date of hand delivery to the affected individual or agent thereof,
or upon deposit in the U.S. mails showing the last known address of
the appellant or agent thereof and with sufficient first class postage
affixed. If not notified in writing, constructive notice of the action
being appealed shall be the date the appellant found out, or reasonably
should have found out, about the action to be appealed. In such case,
the appeal must show when and the circumstances of the earliest knowledge
received about the action being appealed. The Board may reject a late
appeal which it deems does not meet the constructive notice deadline.
(b)
Proper Form. If a written communication appearing, or purporting,
to be an appeal is received within the period allowed for appeal but
is not in the proper form, one extension of 10 calendar days shall
be automatically allowed beyond the original thirty-day deadline.
In that case, the Secretary shall, within three business days of receipt
of such a communication, cause to be delivered or mailed to the appellant
the proper appeal form.
(c)
Appeal Deadline. The appeal deadline shall be determined by
counting the day after the effective date of written or constructive
notification by the Director and all ensuing calendar days, including
intervening Saturdays, Sundays, and Federal legal holidays. Should
the final day of the appeal period fall on a day the Board office
is not open for business, the filing deadline date shall be extended
to the next day it is open for business. Appeals must be received
at the Board office by close of business on the final day allowed
for appeals.
(5) Reasons to be Stated. The reason for the appeal must be stated and
the reasons why the appeal should be granted must also be stated by
the appellant:
(a)
If a variance is requested, the variance requested must be specifically
stated and facts should be stated upon which findings may be made
by the Board to address statutory and case law criteria and justify
the granting of the variance.
(b)
If an appeal is based upon a disputed or uncertain interpretation
of the ordinance, the specific section of the ordinance in question
must be identified, along with the appellant's interpretation
and supporting rationale.
(c)
If an appeal alleges an error or abuse of discretion of the
Director or Planning and Zoning Committee, the specific error or abuse
must be clearly and fully identified and facts stated as to why it
is in error or abusive.
(6) Refusal to Hear Appeal. The Board may refuse to hear an appeal upon
the failure of the appellant to supply the required information called
for on the forms and as further reasonably required by the Director,
and/or Board Secretary.
(7) Property Owner's Consent. The appeal form shall bear the signature
of the owner of the property affected, or legal agent thereof, or
shall be accompanied by a letter from that owner or agent acknowledging
the filing of the appeal. As an exception, the signature or consent
of the owner or legal agent shall not be required where the appellant
is in an adversary position with the owner. In that case, the appellant
shall attach to the appeal form a signed statement explaining why
the signature or consent of the owner or legal agent thereof cannot
reasonably be obtained.
(8) Filing Procedure. The appellant shall submit the required appeal
form with accompanying information and evidence of payment of the
filing fee to the Secretary at the Board office of record and to the
Director. Upon receipt, the Director shall make available to the Board
all papers and other evidence constituting the complete record of
the action on which the appeal purports to be based, along with any
other files or copies of documents which may relate to the appeal.
(9) Filing Fee. All appeals submitted to the Board must be accompanied
by evidence of payment to the County Treasurer of the fee prescribed
by the County Board. No appeal will be acted upon without payment
of that fee. Such fee is not refundable regardless of final disposition
of the appeal. As an exception, if the appeal is withdrawn or otherwise
disposed of prior to first publication of the notice of public hearing,
the Director or the Board may authorize a refund of the unexpended
portion of the fee.
(10) Time for Hearing. Each appeal shall be considered by the Board as
soon as is reasonably possible, normally within 60 calendar days of
date of receipt of the appeal, provided there is sufficient time between
the date of the appeal and the date of the meeting for the required
hearing notices to be published.
(11) Notice of Hearing. Notice of the time, date, and place of the hearings
and related on-site inspections shall be given as follows:
(a)
Notice shall be hand delivered or sent by certified U.S. mail,
not less than five business days prior to the hearing to:
1.
Appellant, Director and their representative(s) or agent(s),
if known.
2.
The owners of record of all lands within 100 feet of any part
of land involved in the appeal and next contiguous property owners
on all sides.
3.
All other known parties believed to have an interest, including
municipalities, community organizations, and affected state agencies.
(b)
If the hearing is not to be conducted as a contested case, a
combined Class 2 notice and Open Meeting Law notice, in accordance
with § 59.55(6) and § 19.84(2), Wis. Stats., shall
be published in the official County newspaper. The notice shall be
published during two consecutive weeks with the last publication occurring
at least seven consecutive calendar days prior to the hearing. The
notice shall include the appellant's name; the nature of the
appeal; the location and description of property involved; the fact
that an on-site inspection shall be conducted when applicable and
the approximate time; the date, time, and place of the hearing; the
fact that testimony and other pertinent evidence will be accepted
at the hearing; the time and purpose of any closed executive sessions;
and who should attend (i.e., concerned, affected, or interested persons).
(c)
If the hearing is to be conducted as a contested case, a combined
Class 2 notice and Open Meeting Law notice shall be published including
additional information specified in § 227.44(2), Wis. Stats.
The first notice of a contested case hearing shall be published not
less than 10 days prior to the scheduled hearing.
(12) Effect of Appeal. A timely appeal shall stay all proceedings and
furtherance of the action appealed from, unless the officer from whom
the appeal is taken shall certify to the Board, after the notice of
appeal shall have been filed with said officer that by reason of facts
stated in the certificate a stay would cause imminent peril to life
or property. In such case, proceedings shall not be stayed, otherwise
than by a restraining order, which may be granted by the Board, or
by a Court of Record, on application and notice to the officer from
whom the appeal is taken and on due cause shown.
(13) Representative Filing. An appellant may file an appeal personally
or by an attorney, agent, or other representative.
(14) Contested Case Appeal Request. An appellant or other interested party
may request that the appeal be handled as a contested case appeal
in accordance with § 227.44, Wis. Stats.
(a)
A request to have the matter treated as a contested appeal must
be made in writing to the Chairperson within 30 days of written or
constructive notice of the matter to be appealed and not later than
five business days prior to a scheduled hearing. A final determination
on whether to handle the appeal as a contested case appeal shall be
at the discretion of the Chairperson.
(b)
If a request that a hearing be conducted as a contested case
is approved, the requestor shall be responsible for payment of a fee
determined by the County Board to cover the additional administrative
costs involved and any additional expense if rescheduling a hearing
is necessary to meet public notice requirements in § 224.44(2),
Wis. Stats.
(1) On-Site Inspections.
(a)
Unless determined to be unnecessary by the Chairperson, an on-site
inspection shall be conducted prior to the first public hearing on
each appeal. The inspection shall be conducted on the same day, and
prior to, that hearing. The Board, accompanied by the Director or
a member of his/her staff, or, when possible, the member of the staff
who acted on the matter under appeal, shall visit the site in a body
on the date and approximate time announced in the public notice.
(b)
Should a member be absent for good reason during the on-site
inspection, and a decision not be reached on the appeal that same
day, the absent member may make an independent site inspection. That
inspection shall be made only with prior approval of the Chairperson
and the appellant or agent thereof, and under arrangements agreeable
to the latter. The conduct of such an independent on-site inspection
shall be announced and recorded in the proceedings when next the appeal
is heard by the Board.
(c)
The appellant shall give directions to the site. The property
owner shall cause to be clearly marked the property lines if applicable,
proposed structure outlines, location of sanitary facilities, well,
and other pertinent physical features prior to the arrival of the
Board. The appellant, or a representative thereof, shall be present
to guide the Board. Other interested persons and members of the general
public shall be allowed to enter on the property with the Board and
to hear and observe the proceedings. Should the appellant or representative
agent thereof be absent without good cause, or entrance on the property
be denied to the Board or the public, the Board may dismiss, deny,
or continue the appeal.
(d)
Measurements and photographs may be taken as deemed appropriate
by the Board and/or the Director or staff member. Questions, comments,
and discussion during the inspection shall be limited insofar as possible
to the dimensions, location, and appearance of the property, structures,
and other physical features, and shall not constitute testimony in
the appeal.
(e)
The Secretary, or in the Secretary's absence a member designated
by the Chairperson, shall record who was present at the inspection
along with a summary of the observations made and general substance
of discussion held, and any other pertinent matters, all of which
shall become a part of the record of the appeal.
(2) Appearance. The appellant shall appear in person, or be represented
in person by an attorney, agent, or other representative. If the appellant
does not appear and is not represented by a person present at the
hearing, and at the on-site inspection if conducted, the Board may
dismiss, deny, or continue the appeal, or may dispose of it entirely
on the basis of testimony and evidence from others. Testimony shall
be accepted only from persons physically present.
[Amended by Ord. No. 1-2009; Res. No. 95-2009]
(3) Oath. No oath shall be given at an on-site inspection since no testimony
shall be taken or recorded thereat. All persons testifying or presenting
evidence at a hearing shall first present themselves before the Board,
shall identify themselves by name, address, and interest in the appeal,
and shall be placed under oath. Attorneys appearing with a client
shall not be sworn unless testifying in their own right. The oath
may be administered by the Chairperson or other member under the Chairperson's
direction. The oath shall be substantially as follows:
Do you solemnly declare and affirm that the testimony and other
evidence you shall give in this matter shall be the truth, the whole
truth, and nothing but the truth, to the best of your knowledge, under
penalty of perjury?
(4) Compelling Attendance of Witnesses. The Chairperson may compel the
attendance of witnesses by subpoena.
(5) Order of Appeals Heard. Appeals shall be numbered and heard in the
order the appeal fee was paid except by order of the Chairperson or
the Board for good cause.
(6) Hearing Order of Business. The order of business at a hearing shall
be:
(a)
Call to order by Chairperson.
(b)
Roll call by Chairman or Secretary.
(c)
Introduction of members and staff assistants by Chairperson.
(d)
Reading of public notice of meeting by Secretary.
(e)
Hearing on each appeal:
1.
Reading of public notice by Secretary.
2.
Consider question of jurisdiction, if applicable.
3.
Reading of correspondence by Secretary as appropriate.
5.
Director and/or opposition's side.
6.
Testimony of other interested persons.
8.
Director and/or opposition's rebuttal.
9.
Appellant's closing statement.
10.
Closing of hearing on appeal by Chairperson.
(f)
Consideration and further questions by members.
(g)
Motions and votes for disposition of appeals.
(7) Determination of Jurisdiction. Following the reading of the public
notice, the Board may hear arguments on the question of jurisdiction
and request that briefs be filed on the point. The Board may proceed
with the hearing and the taking of testimony in any event and reserve
its determination on a jurisdictional question until after the hearing
is closed and render a decision on the merits as if it had jurisdiction.
At any point, the Board may make an immediate determination and close
the hearing upon a finding that it lacks jurisdiction. If the Board
determines by motion that it lacks jurisdiction, the Secretary shall
record the decision as a vote to dismiss the request.
(8) Continuances. When all appeals cannot be disposed of on the day set,
the Board may adjourn, from day to day or to a certain future day
as it may order, to complete consideration of undecided appeals. Such
adjourned day shall be construed as a continuance of the hearing.
The Board may also continue consideration of an appeal on the request
of the appellant or Director for good cause. The date, time, and place
of the next adjourned day shall be announced prior to adjournment.
Notice of such adjournment shall be given to absent members. Notice
shall also be given to the Director and appellants of continued appeals
if not represented at the hearing when the continued hearing date,
time, and place is announced. Such notice may be by telephone if the
next adjourned day is less than four working days hence. If four or
more working days hence, such notice shall be given in writing by
hand delivery or via the U.S. mails.
(9) Withdrawal. An appellant may withdraw an appeal at any time prior
to the decision thereon, but if a motion is pending to act on the
appeal, that motion shall have precedence.
(10) Conduct, Recording, and Filing.
(a)
Hearings shall be conducted as quasi-judicial proceedings.
(b)
The entire hearing shall be tape recorded and reduced to writing,
which shall be retained in the official record of the appeal. Documents
and other evidence presented shall be noted in the hearing record
and incorporated into the official file on the appeal.
(c)
Any party or member of the public may make a record of the proceedings
by any means which does not disturb the hearing or others present
at the discretion of the Chairperson.
(11) Parties Not to Interrupt. Orderly procedure requires that each side
shall proceed without interruption by the other. All arguments and
pleadings shall be addressed to the Chairperson. Questioning or arguments
between individuals shall not be permitted.
(12) Questions and Debate. During the hearing, the Chairperson and members
may ask questions and make appropriate comments pertinent to the appeal.
However, no debate or argument with the appellant or any witness shall
be allowed. The Chairperson and members may direct any question to
the appellant or to any person speaking in order to bring out all
relevant facts, circumstances, and conditions affecting the appeal
and may call for questions from members of the staff, the appellant
or representative thereof, or any other interested person present.
(13) Presentation of Evidence. All supporting evidence for and against
each appeal shall be presented to the assembled Board. The appellant
shall be responsible for the presentation of all information supporting
the appellant's appeal. The Board may take administrative notice
of the ordinances of the County, and laws of the state, case law and
other relevant facts not reasonably subject to dispute on its own
motion or motion of a party.
(14) Additional Evidence. The Board may take an appeal under advisement
for later consideration and determination, or may defer action whenever
it concludes that additional evidence is needed or further study is
required.
(15) Rules of Evidence. The Board shall not be bound by judicial rules
of evidence, but it may exclude irrelevant, immaterial, incompetent,
unduly argumentative, or repetitious testimony or evidence. In contested
case appeal hearings, § 227.44, Wis. Stats., shall apply.
(16) Chairperson to Rule on Admissibility. The Chairperson shall rule
on all questions relating to the admissibility of evidence, which
ruling may be overruled by a majority of the Board.
(17) Interested Persons May Testify. All persons having an interest in
the appeal may attend the hearing and may request an opportunity to
testify provided they identify themselves and sign the list of persons
attending the hearing. All testimony shall be under oath.
(1) Majority Vote Required. The affirmative vote of a majority of all
members hearing an appeal, but not less than two affirmative votes,
shall be necessary for final action by the Board on any matter in
question before it. A tie vote resulting from the absence or abstention
of a member shall cause the motion to fail. The action of the majority
shall be the action of the entire Board, which speaks as a single
entity.
(2) Time of Decision. Unless continued at the request of the appellant
or Director, or for other good cause, the Board shall render a decision
on each appeal at the conclusion of the hearing thereon, or within
30 days thereafter.
(3) Form of Decision. The decision on an appeal shall be in a form prescribed
by the Board. The decision shall be in writing and shall be signed
by the Secretary or Chairperson. The decision shall indicate the findings
of fact and conclusions of law in the appeal and the rationale for
the Board's decision. The decision shall clearly indicate that
the appeal is dismissed (for lack of jurisdiction or prosecution),
granted in whole or in part or subject to specific conditions, or
denied. When applicable, the decision shall specify the subsequent
action to be taken by the Director.
(4) Variances. Section 9.84 of the Oneida County Zoning and Shoreland
Ordinance is incorporated herein by reference and made a part hereof
as though fully set forth fully.
(5) Conditions. Conditions imposed by the Board in the granting of any
appeal shall be specifically stated in the decision and shall be fully
set forth in any subsequent order or permit issued by the Director.
Permits issued or variances approved under a conditional approval
by the Board shall be valid only so long as the conditions are observed.
Any violation of conditions specified may result in revocation of
a permit or other privilege granted by the Board after notice and
an opportunity to be heard. The appellant shall report in writing
to the Director within 30 days after the terms or special conditions
specified in the decision that such terms or conditions are met.
(6) Filing and Notice of Decision. Every Board decision on an appeal
shall be officially filed in the office of record of the Board not
later than by close of business of the third business day after the
rendering of the decision unless a later date is set by motion of
the Board. Each decision shall be a public record. A copy of the findings
and decision shall be sent to the appellant by certified mail within
two business days after the filing of the decision. A copy shall be
furnished to the Director within two working days of the official
filing of the decision.
[Amended by Ord. No. 1-2009; Res. No. 95-2009]
(7) Closure of Appeal. An appeal will be considered as heard and closed
at such time as the Board grants, denies, rejects, or dismisses an
appeal by motion or when it is considered closed by operation of these
rules.
(8) Deadline for Action on Granted Appeal. Unless otherwise specified
by the Board, any permit and/or other privilege granted as part of
a decision must be exercised by the appellant within two years of
official filing of the decision. If not exercised within the time
allowed, the permit and/or other privilege shall be automatically
null and void. However, an extension for exercise of the permit or
privilege may be granted by the Board upon written application by
the appellant without additional fee and for good cause as determined
by the Board.
(9) Decision to Relate to Specific Property. When property is involved
in an appeal, the decision of the Board shall apply to the property
rather than to any individual, is valid only for the specific premises
in the appeal, and is not transferable to other properties.
(10) Informal Advice not Binding. No informal request for advice or action
on moot questions shall be accepted or considered by the Board. Any
advice, opinion or information given by any individual member or any
other official or employee of County in a matter before the Board
shall not be binding on the Board.
(11) Appeals to be Determined Individually. No decision of the Board shall
set a binding precedent. Each appeal shall be decided upon its merits
and upon the attendant circumstances, provided the Board shall not
act arbitrarily or capriciously.
(12) Decisions to be Filed with the State. Decisions on floodplain and
shoreland-wetland zoning appeals, variances and conditional uses shall
be sent to the regional office of the DNR. Decisions granting variances
or exceptions in exclusive agricultural districts shall be sent to
the Wisconsin Department of Agriculture, Trade and Consumer Protection.
Decisions involving substantial health and safety matters shall be
sent to the Wisconsin Department of Industry, Labor, and Human Relations.
Said decisions shall be furnished to the specified agencies within
10 days of the official filing date.
(13) Action in Circuit Court. Any person or persons jointly or severally aggrieved by any decision of the Board; any taxpayer; or any governmental officer, department, board or bureau; may petition the Circuit Court for a writ of certiorari to review the legality of such decision in whole or in part, within 30 days after the filing of the decision of the Board. The expiration of the thirty-day period in which petition may be filed with the Court shall be determined in the same manner as specified in §
17.05(4)(c) of these rules, unless otherwise determined by the Court.
(1) Refiling Rule. No appeal if substantially similar to an appeal which
has been acted upon by the Board shall be considered again within
one year of the official filing of the decision, except as hereinafter
provided. A petition that seeks relief that could have been requested
in a previously filed petition that has already been acted upon by
the Board will not again be heard by the Board. A change of ownership
or the passage of time shall not constitute a basis for another hearing
before the Board.
(2) Reopening, Rehearing, Reversal of a Decision. The Board shall not
reopen, re-hear, and/or reverse a decision previously made on an appeal
unless there is public necessity or other good cause to do so, such
as a significant procedural error. In such case, a new and properly
noticed hearing shall be held on the appeal reopened. The evidence
in the previous hearing shall be made a part of the evidence before
the new hearing. Additional evidence shall be accepted.
(3) Board Action on Petition to Reopen or Re-Hear an Appeal. A majority
vote shall be sufficient to reopen or re-hear an appeal. The decision
to grant or deny a petition to reopen or re-hear shall restate the
basis for the petition, the reason why the Board granted or denied
the petition and the vote of the Board members. If a petition is granted,
the scope of the hearing may be limited to the matters that constitute
the basis of the petition to reopen or re-hear the appeal and the
matter shall be subject to all of the Board's applicable rules
of procedure.
(4) Effect of Petition to Reopen or Re-Hear. The filing of a petition
to reopen or re-hear shall stop the running of the thirty-day period
during which an action must be commenced seeking the remedy available
by certiorari. If the Board decides to not reopen or re-hear the appeal,
the remaining balance of the said thirty-day period will begin to
run from the date the written decision to not reopen the appeal is
filed in the office of record of the Board. If the Board decides to
reopen the appeal a hearing shall be scheduled and any decision filed
by the Board shall be subject to a new thirty-day period during which
such certiorari action must be commenced.
(1) Supplements. These rules of procedure may be supplemented by unanimous
vote of all members at any meeting, provided written notice of the
proposed action, including the complete wording proposed, has been
given to each member at least 10 calendar days before such meeting,
and provided that public notice shall have been given of a proposed
action to supplement these rules, and further provided that no supplement
shall be contrary to law or Oneida County ordinances. Upon adoption
of such supplements, the Board may submit them to the County Board
through the Planning and Zoning Committee for consideration as an
amendment to this chapter of the Oneida County code.
(2) Suspension of Rules. This section and provisions of these Rules prescribed
by law or other ordinance, including public notice requirements, may
not be suspended by action of the Board. Any other part of these rules
or Robert's Rules of Order may be temporarily suspended for an
explicitly stated good cause at any meeting by unanimous vote of all
Members present. Such temporary suspension shall not extend beyond
adjournment of that meeting or hearing at which the suspension was
approved.