Recognizing that there may be situations where a zoning regulation that, if enforced, would cause unnecessary hardship to individual landowners, the state legislature established a mechanism to allow a municipality to issue a variance in those instances where a minor deviation would be appropriate to alleviate such hardship without circumventing or undermining the intent of the municipality's zoning regulations. This division describes the requirements and procedures for reviewing variance applications for dimensional standards.
The owner of the subject property may submit an application for a variance.
The general steps outlined below shall be used in the review of a variance application.
A. 
Submittal of application materials. The applicant submits a completed application and other required materials to the Zoning Administrator along with the application fee as may be established by the Village Board.
B. 
Determination of completeness. The Zoning Administrator reviews the submittal to make sure it is complete and ready for further review. A determination of completeness shall be made within 30 days of the submittal. If it is not complete, the Zoning Administrator will notify the applicant in writing of such deficiencies and that the applicant has three months from the date of the notice to resubmit the application or forfeit the application fee. The Zoning Administrator will take no further steps to process the application until the deficiencies are remedied. The incomplete application is retained as a public record. A determination that an application is complete means the application is ready for formal review and does not suggest the applicant has provided sufficient information in all regards or preclude the reviewing authority from requesting additional information it deems appropriate.
C. 
Review date. When the Zoning Administrator determines the application is complete, he or she schedules the review with the Zoning Board of Appeals consistent with its adopted calendar.
D. 
Special notice to Department of Natural Resources. If the application relates to the floodplain regulations or shoreland-wetland regulations in this chapter, the Zoning Administrator sends a copy of the application and public hearing notice to the regional office of the Wisconsin Department of Natural Resources via regular mail and/or email at least 10 calendar days before the date of the public hearing.
E. 
General notice. Consistent with Division 2 of Article 4, the Zoning Administrator provides for i) a Class 2 public notice, ii) property owner notification, and iii) meeting agenda notice.
F. 
Staff report preparation and distribution. The Zoning Administrator may prepare a written staff report as described in this division and provide a copy to each member of the Zoning Board of Appeals and the applicant. The Zoning Administrator provides a copy to interested people upon request.
G. 
Public hearing. Allowing for proper notice, the Zoning Board of Appeals holds a public hearing consistent with Division 3 of Article 4. Prior to the close of the public hearing, the applicant or the Board may request a continuance consistent with Division 3 of Article 4. If the public hearing is adjourned, the Zoning Board of Appeals may direct the Zoning Administrator, the Village Engineer, and/or Village Attorney to conduct additional research and to prepare such documents it deems necessary, including a preliminary decision document.
H. 
Decision. After the public hearing has been closed, the Zoning Board of Appeals, after considering the comments and the staff report, if any, makes a decision based on the decision criteria in this division to i) approve the variance, ii) approve the variance with conditions, or iii) deny the variance. The Zoning Board of Appeals may render its decision at the same meeting the public hearing is conducted or at a subsequent meeting.
I. 
Preparation of decision document. Based on the action of the Zoning Board of Appeals, the Zoning Administrator prepares a decision document consistent with this division.
J. 
Applicant notification. Within a reasonable time following the Zoning Board of Appeals' decision, but not more than 10 workdays, the Zoning Administrator sends the decision document to the applicant by regular mail and/or email.
K. 
Notification to department of natural resources. If the application relates to the floodplain regulations or shoreland-wetland regulations in this chapter, the Zoning Administrator sends a copy of the decision document to the regional office of the Wisconsin Department of Natural Resources via regular mail and/or email.
L. 
Acceptance by property owner. If the Zoning Board of Appeals grants the variance with one or more conditions of approval, the property owner must sign the decision document to acknowledge the terms of the approval and return the same to the Zoning Administrator within six months of the decision. Prior to the expiration of the previously specified time period, the property owner may submit a petition to the Zoning Administrator requesting an extension and the Zoning Administrator may, with cause, extend the period within which the decision document must be signed. If the signed decision document is not returned within the initial or extended time period, if any, the decision shall automatically become null and void without any further action by the Village at the expiration of such time limit. The decision document shall only become effective when all required signatures have been obtained and the original signature copy is returned to the Zoning Administrator.
M. 
Public record copy. A copy of the decision document is retained as a public record.
N. 
Additional procedural steps. If the Zoning Board of Appeals grants the variance, the applicant shall then follow other review procedures as may be required.
The Zoning Board of Appeals shall base its decision upon the standard for a variance described in § 62.23(7)(e)(7), Wis. Stats., and applicable judicial interpretations of such statute.
The following actions shall not be allowed by an area variance, and shall be deemed to be a use variance subject to the use variance standard in § 62.23(7)(e)7.(d), Wis. Stats.:
A. 
Expansion of a nonconforming use (e.g., expansion of area, increase in operational characteristics, etc.), or
B. 
Modification to lot size requirements so as to increase the permitted density or intensity of use.
In approving a variance, the Zoning Board of Appeals may impose such conditions and restriction as may be necessary to grant approval.
The application submittal shall include an application form as may be used by the Village and a project map prepared at an appropriate scale depicting the information listed in Appendix F.[1]
[1]
Code Editor's Note: Appendix F is included in Chapter 170A, Zoning Appendix.
The staff report should include the following:
A. 
Preliminary findings for the decision criteria listed in this division;
B. 
A preliminary recommendation to approve the application, approve the application with conditions, or deny the application;
C. 
A preliminary list of conditions for approval whether the staff recommendation is for approval or denial; and
D. 
Other information deemed necessary.
A. 
Approval. If an application for a variance is approved, the decision document should include the following:
(1) 
A statement that the variance is approved;
(2) 
A description of the variance;
(3) 
Reasons for the decision based on the criteria listed in this division;
(4) 
Conditions of approval, if any;
(5) 
If one or more conditions of approval are imposed, a statement indicating that the property owner must sign the decision document and return it to the Zoning Administrator to acknowledge acceptance of the same;
(6) 
A statement that the approval will automatically expire 12 months after the date of approval unless substantial work as authorized by the approval has commenced and continues in good faith to completion and that the Zoning Board of Appeals may, with cause, grant a one-time extension, not to exceed six months;
(7) 
A statement that the applicant may appeal the decision to a court of competent jurisdiction;
(8) 
A statement that an aggrieved person, other than the applicant, may appeal the decision and that any work done by the applicant as authorized by the approval is done at the applicant's risk;
(9) 
Other information the Zoning Board of Appeals or Zoning Administrator deems appropriate;
(10) 
The signature of the Chairperson of the Zoning Board of Appeals; and
(11) 
The date of the decision.
B. 
Denial. If the application for a variance is denied, the decision should include the following:
(1) 
A statement that the variance request is denied;
(2) 
A description of the proposed variance;
(3) 
Reasons for the decision based on the criteria listed in this division;
(4) 
A statement indicating that the denial does not limit the applicant's ability to resubmit a revised application for consideration, provided that there is a substantial change in the circumstances relating to the application;
(5) 
A statement that the decision may be appealed as provided for in this division;
(6) 
Other information the Zoning Board of Appeals or Zoning Administrator deems appropriate;
(7) 
The signature of the Chairperson of the Zoning Board of Appeals; and
(8) 
The date of the decision.
A. 
Generally. An approved variance merely sets aside the rule or regulation from which relief is sought. All other rules and regulations not part of the variance decision must be followed. The variance runs with the land.
B. 
Creation of nonconformity. If a variance is granted and creates a nonconforming situation, the premises is subject to all applicable provisions relating to nonconformities set forth in Article 15.
If the Zoning Board of Appeals denies a variance application, the Board may not rehear the same, or essentially the same, application unless there has been substantial change in the circumstances relating to the application.[1]
[1]
Editorial Note: See Tateoka v City of Waukesha Bd. of Zoning Appeals, 220 Wis.2d 656, 583 N.W. 2d 871 (Ct. App. 1998).
A variance approval shall automatically expire 12 months after the date of issuance unless substantial work has commenced under the permit and continues in good faith to completion. Upon petition and with cause, the Zoning Administrator may grant a one-time extension, not to exceed 12 months, provided that:
A. 
The permit holder requests the extension prior to the expiration of the permit;
B. 
The permit holder clearly demonstrates that circumstances beyond his or her control prevented the start of construction and the continuation of the same; and
C. 
The project complies with this chapter in effect at the time the extension is granted.
An aggrieved person may appeal a final decision made pursuant to this division by filing an appeal with a court of competent jurisdiction within 30 calendar days of the final decision.