A.
Scope of appeals. Appeals to the Board of Appeals may be taken by
any person aggrieved or by any officer, department, board or bureau
of the Village affected by any decision of the administrative officer.
Such appeal shall be taken within 30 days of the alleged grievance
or judgment in question by filing with the officer(s) from whom the
appeal is taken and with the Board of Appeals a notice of appeal specifying
the grounds thereof, together with payment of a filing fee as may
be established by the Village Board. The officer(s) from whom the
appeal is taken shall forthwith transmit to the Board of Appeals all
papers constituting the record of appeals upon which the action appeals
from was taken.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. III)]
B.
Stay of proceedings. An appeal shall stay all legal proceedings in
furtherance of the action appealed from, unless the officer from whom
the appeal is taken certifies to the Board of Appeals that, by reason
of facts stated in the certificate, a stay would, in his opinion,
cause immediate peril to life or property. In such cases, proceedings
shall not be stayed other than by a restraining order, which may be
granted by the Board of Appeals or by a court of record on application,
on notice to the officer from whom the appeal is taken and on due
cause shown.
C.
Powers of Zoning Board of Appeals. In addition to these powers enumerated
elsewhere in the Village Code, the Board of Appeals shall have the
following powers:
(1)
Errors. To hear and decide appeals where it is alleged there is error
in any order, requirement, decision or determination made by the Zoning
Administrator or Building Inspector.
(2)
Variances. To hear and grant appeals for variances in accordance with the procedures and requirements of § 485-99. Use variances shall not be granted.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. III)]
(3)
Interpretations. To hear and decide application for interpretations
of the zoning regulations and the boundaries of the zoning districts
after the Village Board has made an advisory review and recommendation.
(4)
Substitutions. To hear and grant applications for substitution of
more restrictive nonconforming uses for existing nonconforming uses,
provided no structural alterations are to be made and the Village
Board has made a review and recommendation. Whenever the Board permits
such a substitution, the use may not thereafter be changed without
application.
(5)
Unclassified uses. To hear and grant applications for unclassified
and unspecified uses, provided that such uses are similar in character
to the principal uses permitted in the district and the Village Board
has made a review and recommendation.
(6)
Temporary uses. To hear and grant applications for temporary uses
in any district, provided that such uses are of a temporary nature,
do not involve the erection of a substantial structure and are compatible
with the neighboring uses and the Village Board has made a review
and recommendation. The permit shall be temporary, revocable, subject
to any condition required by the Board of Zoning Appeals and shall
be issued for a period not to exceed 12 months. Compliance with all
other provisions of this chapter shall be required.
(7)
Permits. The Board of Appeals may reverse or affirm, wholly or in
part, or may modify any order, requirement, decision or determination
appealed from, and may make such order, requirement, decision or determination
as in its opinion ought to be made, and to that end shall have all
the powers of the officer from whom the appeal is taken, and may issue
or direct the issue of a permit.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. III)]
The Board of Appeals shall fix a reasonable time for the hearing,
cause a Class 1 notice thereof to be published in the official newspaper
not less than seven days prior thereto, cause notice to be given to
the appellant or applicant and the administrative officer(s) appealed
from by regular mail or by personal service not less than five days
prior to the date of hearing. In every case involving a variance,
notice shall also be mailed not less than five days prior to the hearing
to the fee owners of record of all land within 100 feet of any part
of the subject building or premises involved in the appeal.
A.
Time frame. The Board of Appeals shall decide all appeals and applications
within 30 days after the public hearing and shall transmit a signed
copy of the Board's decision to the appellant or applicant and the
Zoning Administrator.
B.
Conditions. Conditions may be placed upon any zoning permit ordered
or authorized by this Board.
C.
Validity. Variances, substitutions or use permits granted by the
Board shall expire within six months unless substantial work has commenced
pursuant to such grant.
A.
Purpose.
(1)
A request for a variance may be made when an aggrieved party can
submit proof that strict adherence to the provisions of this chapter
would cause him/her undue hardship or create conditions causing greater
harmful effects than the initial condition. A variance granted to
a nonconforming use brings that use into conformance with the district
and zoning requirements.
(2)
The Board of Appeals may authorize upon appeal, in specific cases,
such variance from the terms of this chapter as will not be contrary
to the public interest, where owing to special conditions a literal
enforcement of the provisions of this chapter will result in unnecessary
hardship and so that the spirit of this chapter shall be observed
and substantial justice done. No variance shall have the effect of
allowing in any district uses prohibited in that district, permit
a lower degree of flood protection than the flood protection elevation
for the particular area or permit standards lower than those required
by state law.
(3)
For the purposes of this section, "unnecessary hardship" shall be
defined as an unusual or extreme decrease in the adaptability of the
property to the uses permitted by the zoning district which is caused
by facts, such as rough terrain or good soil conditions, uniquely
applicable to the particular piece of property as distinguished from
those applicable to most or all property in the same zoning district.
B.
Application for variance. The application for a variance shall be
filed with the Zoning Administrator. Applications may be made by the
owner or lessee of the structure, land or water to be affected. The
application shall contain the following information:
(1)
Name and address of applicant and all abutting and opposite property
owners of record.
(2)
Statement that the applicant is the owner or the authorized agent
of the owner of the property.
(3)
Address and description of the property.
(4)
A site plan showing an accurate depiction of the property.
(5)
Additional information required by the Village Engineer, Village
Board, Zoning Board of Appeals or Zoning Administrator.
(6)
Fee receipt in the amount as determined by the Village Board.
C.
Public hearing of application. The Board of Appeals shall conduct
at least one public hearing on the proposed variance. Notice of such
hearing shall be given not more than 30 days and not less than 10
days before the hearing in one or more of the newspapers in general
circulation in the Village, and shall give due notice to the parties
in interest, the Zoning Administrator and the Village Board. At the
hearing the appellant or applicant may appear in person, by agent
or by attorney. The Board of Appeals shall thereafter reach its decision
within 30 days after the final hearing and shall transmit a written
copy of its decision to the appellant or applicant.
D.
Action of the Board. For the Board of Appeals to grant a variance,
it must find that:
(1)
Denial of a variance may result in hardship to the property owner
due to physiographical consideration. There must be exceptional, extraordinary
or unusual circumstances or conditions applying to the lot or parcel,
structure, use or intended use that do not apply generally to other
properties or uses in the same district and the granting of the variance
would not be of so general or recurrent nature as to suggest that
this chapter should be changed.
(2)
The conditions upon which a petition for a variance is based are
unique to the property for which a variance is being sought and that
such variance is necessary for the preservation and enjoyment of substantial
property rights possessed by other properties in the same district
and same vicinity.
(3)
The purpose of the variance is not based exclusively upon a desire
to increase the value or income potential of the property.
(4)
The granting of the variance will not be detrimental to the public
welfare or injurious to the other property or improvements in the
neighborhood in which the property is located.
(5)
The proposed variance will not undermine the spirit and general and
specific purposes of this chapter.
E.
Conditions. The Board of Appeals on appeal may impose such conditions
and restrictions upon the premises benefited by a variance as may
be necessary to comply with the standards established in this section.
F.
Standards for qualifying for a variance. To qualify for a variance,
the applicant must demonstrate that their property meets the following
three requirements:
(1)
Unique property limitations.
(a)
The applicant must show that the property has conditions that
are unique or special to that property; that such unique physical
characteristics prevent compliance with the regulations of this chapter.
Examples of such conditions include, but are not limited to, physical
limitations unique to the property such as wetlands or exceptionally
unique steep slopes.
(b)
The following are nonexclusive examples of items Wisconsin courts
have decided cannot be a basis for granting a variance under the "unique
property limitation" test:
(2)
No harm to public interests. To qualify for a variance, the applicant must demonstrate that the proposed variance is not contrary to the public interest. In applying this test, the Board of Appeals must consider the impacts of the variance proposal, and, if setting a precedent, the cumulative impacts of similar projects on the interests of the neighbors, the overall Village and the general public. Such factors are generally identified in § 485-4.
(3)
Unnecessary hardship.
(a)
To qualify for a variance, the applicant must demonstrate that
the special condition(s) of the property creates an unnecessary hardship.
When determining whether an unnecessary hardship exists, the property
as a whole shall be considered rather than a portion of the property.
(b)
The following are nonexclusive examples of items Wisconsin courts
have decided cannot be a basis for granting a variance under the "unnecessary
hardship" test:
[1]
Conditions which are self-imposed or created by a prior owner
(e.g., owner expands home and then argues there is no suitable location
for a proposed new garage).
[2]
Economic or financial hardship to the applicant (e.g., construction
of a new garage in a complying location would cost more than placing
the garage in a location requiring a variance).
[3]
Lack of objections from neighbors.
(c)
Due to Wisconsin court decisions, the "unnecessary hardship"
determination requires that the Board of Appeals apply different tests
for use variances and area variances:
[1]
For a use variance, unnecessary hardship can be determined to
exist only if the property owner can show that he/she would have no
reasonable use of the property without a variance. A use variance
would permit a property owner to put property to an otherwise prohibited
use.
[2]
For an area variance, unnecessary hardship can be determined
to exist only if the property owner can show that compliance with
the requirements of this chapter would unreasonably prevent the property
owner from using the land for a permitted purpose (leaving the property
owner without any use that is permitted for the property under this
chapter) or would render conformity with such zoning restrictions
unnecessarily burdensome. Area variances are intended to provide an
increment of relief (usually small) from a physical dimensional requirement
of this chapter, such as building height or setback requirements.
In applying the test for an area variance, the Board of Appeals shall
consider the purpose of this chapter, this chapter's restrictions
on the applicant's property, and the cumulative effects granting of
a variance would have on the neighborhood, community and on the public
interests.
[3]
Unless the Board of Appeals finds that a property cannot be
used for any permitted purpose, area variances shall not be granted
for greater than a 40% deviation in the area, setback, height or density
requirements specified in this chapter. (Note: The above standards
reflect the Wisconsin Supreme Court's decisions in State ex rel. Ziervogel
v. Washington County Board of Adjustment, 2004 WI 23, 269 Wis. 2d
549, 676 N.W.2d 401 and State v. Waushara County Board of Adjustment,
2004 WI 56, 271 Wis. 2d 547, 679 N.W.2d 514).
Any person or persons aggrieved by any decision of the Board
of Appeals may present to a court of record a petition, duly verified,
setting forth that such decision is illegal and specifying the grounds
of the illegality. Such petition shall be presented to the court within
30 days after the filing of the decision in the offices of the Board
of Appeals.[1]
