Town of Trenton, WI Article XIII Appeals and Variances

§ 380-124 Board of Adjustment.

A. Scope of appeals. Appeals to the Board of Adjustment may be taken by any person aggrieved or by any officer, department, board or bureau of the Town affected by any decision of the administrative officer. Such appeal shall be taken within reasonable 30 days of the alleged grievance or judgment in question by filing with the officer(s) from whom the appeal is taken and with the Board of Adjustment a notice of appeal specifying the grounds thereof, together with payment of a filing fee as prescribed in § 380-118. The officer(s) from whom the appeal is taken shall forthwith transmit to the Board of Adjustment all papers constituting the record of appeal upon which the action appealed from was taken.

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 Adjustment that, by reason of facts stated in the certificate, a stay would, in his/her opinion, cause immediate peril to life or property. In such cases, proceedings shall not be stayed otherwise than by a restraining order which may be granted by the Board of Adjustment or by a court of record on application, on notice to the officer from whom the appeal is taken and on due cause shown.

C. Meetings.

(1) Open to public. All meetings and hearings of the Board of Adjustment shall be open to the public, except that the Board may go into executive session to deliberate after a hearing or an appeal. The final vote on an appeal shall be taken in open session by roll call vote, recorded and open for public inspection in the Board's office. Public notice of all regular and special meetings shall be given to the public and news media as required by the Wisconsin Open Meeting Law.[1]

[1] Editor's Note: See §§ 19.81 to 19.98, Wis. Stats.

(2) Special meetings. Special meetings may be called by the Chairperson or by the Secretary of the Board of Adjustment at the request of two members. Notice of a special meeting shall be mailed to each member at least 48 hours prior to the time set for the meeting, or announcement of the meeting shall be made at any meeting at which all members are present.

(3) Hearings. Hearings may be held at any regular or special meeting at the time set by the Chairperson.

(4) Quorum. A quorum for any meeting or hearing shall consist of four members, but a lesser number may meet and adjourn to a specified time.

(5) Minutes. Minutes of the proceedings and a record of all actions shall be kept by the Secretary, or other designated person, showing the vote of each member upon each question, the reasons for the Board's determination, and its findings of fact. These records shall be immediately filed in the office of the Board and shall be a public record.

(6) Required vote. The concurring vote of four members of the Board of Adjustment shall be necessary to correct an error, grant a variance, make an interpretation and permit a temporary, unclassified or substituted use.[2]

[2] Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II).

D. Powers of Board of Adjustment.

(1) In addition to those powers enumerated elsewhere in this Code,[3] the Board of Adjustment shall have the following powers:

(a) Errors. To hear and decide appeals where it is alleged there is error in any order, requirement, decision or determination made by the Zoning Administrator, Building Inspector or other administrative official in the enforcement of the Zoning Code or any ordinance adopted under § 61.35, 62.23, 62.231 (wetlands), 87.30 or 281.31 (floodplains) or Ch. 91 (farmland preservation), Wis. Stats.

(b) Variances. To hear and rule on appeals for variances in accordance with the procedures and requirements of § 380-128.[4]

[4] Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II).

(c) Interpretations. To hear and decide applications for interpretation of the zoning regulations and the boundaries of the zoning districts after the Plan Commission has made a review and recommendation.

(d) Substitutions. To hear and grant applications for substitution of more restrictive nonconforming uses for existing nonconforming uses, provided that no structural alterations are to be made and the Plan Commission has made a review and recommendation. Whenever the Board permits such a substitution, the use may not thereafter be changed without application.

(e) Unclassified uses. To hear and grant applications for unclassified and unspecified uses, provided that such uses are similar in character to the principal uses permitted in the district and the Plan Commission has made a review and recommendation.

(f) Temporary uses. To hear and grant applications for temporary uses in any district, provided that such uses are of a temporary nature, do not involve the erection of a substantial structure and are compatible with the neighboring uses and the Plan Commission has made a review and recommendation. The permit shall be temporary, revocable, subject to any condition required by the Board of Adjustment and shall be issued for a period not to exceed 12 months. Compliance with all other provisions of this chapter shall be required.

[3] Editor's Note: See Ch. 15, § 15-4, Board of Adjustment.

(2) Permits. The Board may reverse, affirm, wholly or partly, modify the requirements appealed from and may issue or direct the issue of a permit.

(3) Assistance. The Board may request assistance from other Town officers, departments, commissions and boards.

(4) Oaths. The Chairperson may administer oaths and compel the attendance of witnesses.

E. Board action. In exercising the powers under Subsection D, the Board of Adjustment may reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination appealed from and may make such order, requirement, decision or determination as ought to be made and to that end shall have all the powers of the officer from whom the appeal is taken and may issue or direct the issuance of a permit.

F. Voting.

(1) Personal interest. No Board of Adjustment member shall participate in the decision of or vote upon any case in which the member is financially interested, directly or indirectly, but the Chairperson shall direct an alternate member to act instead. Disqualification of a member for interest shall not decrease the number of votes required for acting upon any matter, but such member may be counted in determining whether a quorum is present for the transaction of business.

(2) Record of vote. The Secretary shall record the vote of each member on every question in the minutes or, if the member is absent or fails to vote, shall indicate such fact in the record of the proceedings.

§ 380-125 Filing of applications and appeals.

A. Time of appeal. Appeals shall be filed within 30 days after the date of receipt of the written decision or order from which the appeal is taken by filing in duplicate a notice of appeal with the Town Clerk. The date of receipt of the decision shall not be counted in determining the time for filing of the appeal. Sundays and holidays shall be counted, except that if the last day falls on a Saturday, Sunday or legal holiday, the time for filing shall be extended to the next secular day.

B. Who may appeal. Appeals or applications to the Board may be made by:

(1) The owner, mortgagee, purchaser under a land contract, optionee or occupant under a written lease for one year or more of the property for which relief is sought.

(2) Any officer (other than the Zoning Administrator), department, board or bureau affected by a decision or order of the Zoning Administrator.

(3) Any person aggrieved and whose use and enjoyment of property within the Town is directly and adversely affected by a decision or order of the Building Inspector or Zoning Administrator or the requested Board action.

C. Appeal and application forms.

(1) Appeals shall be filed with the Secretary within 30 days after the date of written notice of the decision or order of the Zoning Administrator. Applications may be made by the owner or lessee of the structure, land or water to be affected at any time and shall be filed with the Town Clerk. Such appeals and applications shall include the following:

(a) Name and address of the appellant or applicant and all abutting and opposite property owners of record.

(b) Plat of survey prepared by a registered land surveyor showing all of the information required for a zoning permit.

(c) Additional information required by the Town Plan Commission, Town Engineer, Board of Adjustment, Zoning Administrator or Building Inspector.

(2) Failure to supply required information shall be grounds for dismissal of the appeal or application.

D. Filing appeal or application. The appellant or applicant shall file the required appeal form in duplicate with the Town Administrator. The Town Clerk shall deliver one copy to the Zoning Administrator or other officer or body from whose decision an appeal is taken. Upon receipt of an appeal, the Zoning Administrator or other officer or body responsible for the original determination shall transmit to the Secretary of the Board of Adjustment all notes or papers relating to the order or decision from which the appeal is being taken.

E. Election to have appeal or application handled as a contested case. The applicant or appellant may elect to have the appeal or application handled as a contested case. The appeal or application form shall explain that a contested case includes the right of all parties to cross-examine witnesses, to object to improper evidence and to have a record of the proceedings made by a court reporter or qualified stenographer or by tape recording. Election to have the matter treated as a contested case must be made in writing at the time of filing of the appeal or application.

F. Insufficient notice. No appeal or application shall be considered by the Board of Adjustment unless it is made on the required form. Upon receipt of any communication purporting to be an appeal or application, the Town Administrator shall supply the applicant with the proper forms which must be filed within 10 days, in addition to the 30 days specified in Subsection A, in order to be considered by the Board of Adjustment.

§ 380-126 Hearings.

A. Notice of public hearings.

(1) Notice of any public hearing which the Board of Adjustment is required to hold shall specify the date, time and place of hearing and the matter to be presented at the hearing. Pursuant to Ch. 985, Wis. Stats., the notice shall be published as a Class 2 notice in a newspaper of general circulation in the Town of Trenton at least once each week for two consecutive weeks, the last publication of which shall be at least one week before the public hearing.

(2) Notice of the public hearing shall be mailed to all parties in interest at least 10 days before the hearing. Parties in interest shall be defined as the petitioner, the clerk of any municipality whose boundaries are within 1,000 feet of any lands included in the petition and all lands lying within 200 feet of lands included in the petition. The failure to give any notice to any property owner shall not invalidate the action taken by the Board of Adjustment.

B. Time of hearing; docketing. Each appeal or application properly filed shall be numbered serially, docketed in a special book provided therefor and placed upon the calendar by the Secretary of the Board of Adjustment. Cases docketed more than 15 days preceding a regular meeting shall be set for hearing at such meeting. Cases docketed seven days or less prior to a regular meeting shall be scheduled by the Secretary, or his/her designee, for a hearing on the second regular meeting day thereafter unless otherwise directed by the Chairperson.

C. Appearances. The appellant or applicant may appear in person or by his/her agent or attorney. In the absence of an appearance for or against an appeal or application, the Board of Adjustment may dismiss the appeal or application or may dispose of the matter on the record before it.

D. Oath. Unless waived by the appellant or applicant and the Chairperson, all witnesses shall be sworn before testifying by the Chairperson or presiding officer.

E. Compelling attendance of witnesses. The Chairperson or, in his/her absence, the presiding officer may compel the attendance of witnesses by subpoena. Written request for subpoenas shall be filed with the Secretary of the Board of Adjustment not less than two days prior to the hearing except by special permission of the Chairperson.

F. Order of hearing. Appeals and applications shall be heard in numerical order except for good cause shown.

G. Order of business.

(1) General hearing. At the hearing, the order of business shall be as follows:

(a) Statement of the nature of the case by the Chairperson.

(b) Appellant's side of the case.

(c) Questions by Board members.

(d) Zoning Administrator's side of the case.

(e) Questions by Board members.

(f) Statements by interested persons such as neighbors or abutting landowners.

(g) Questions by Board members.

(h) Appellant's or applicant's rebuttal.

(2) Contested cases. If the applicant or appellant elects to have his or her appeal or application treated as a contested case, the order of business shall be as follows:

(a) Call to order by the Chairperson.

(b) Appellant or applicant's opening statement.

(c) Zoning Administrator's opening statement.

(d) Opening statement of persons aggrieved and other interested parties. The right to make an opening statement is limited to persons who will present evidence.

(e) Applicant's or appellant's case-in-chief.

(f) Questions by Board members.

(g) Cross-examination. No more than one person for each party shall cross-examine witnesses. The Chairperson may limit the number of parties who may cross-examine.

(h) Zoning Administrator's case-in-chief.

(i) Questions by Board members.

(j) Cross-examination as under Subsection G(2)(g).

(k) Case-in-chief of other parties.

(l) Questions by Board members.

(m) Cross-examination under Subsection G(2)(g).

(n) Rebuttal by appellant or applicant. Rebuttal is limited to matters raised by the adverse parties by way of evidence or argument.

(o) Statements of opinion of neighbors or abutting landowners, not subject to cross-examination.

(p) Closing statements of those who made or waived opening statements.

H. Evidence and official notice. Except in contested case hearings, written and oral testimony will be received. In contested case hearings, no hearsay evidence will be allowed or relied upon as the sole evidence of any factual determination. The Board of Adjustment may take official notice of the ordinances of the municipality, the zoning and location of the subject property and geographical features or other facts which are common knowledge in the municipality or can be verified by reference to public record. In contested case hearings, all witnesses shall be sworn and no person shall be permitted to testify unless he or she submits to cross-examination. See § 227.45, Wis. Stats.

I. Adjournments. When all appeals or applications cannot be disposed of on the day set, the Board of Adjustment may adjourn from day to day or to a day certain, as it may order, and such adjourned day shall be construed as a continuance of the hearing. Notice of such adjournment shall be given to the absent members of the Board of Adjustment.

J. Withdrawal. An appellant or applicant may withdraw an appeal at any time prior to the decision, but a pending motion to grant or dismiss the appeal shall have precedence over withdrawal. Withdrawal of the appeal shall not entitle the appellant or applicant to remission of the filing fee.

§ 380-127 Decision and disposition of cases.

A. Time of decision. The Board of Adjustment shall render its decision either at the termination of the hearing or within 30 days thereafter and shall notify the parties in interest and the Zoning Administrator in writing of its decision.

B. Form of decision. The final disposition of an appeal or application shall be in the form of a written decision or order signed by the Chairperson and Secretary of the Board of Adjustment. Such decision shall state the reasons for the Board's determination with findings of fact and conclusions of law and shall either affirm, reverse, vary or modify the order, requirement, decision or determination appealed, in whole or in part, dismiss the appeal or grant or deny the special exception, conditional use or variance. Copies of the decision shall be sent to the applicant, Town Clerk and the Secretary of the Plan Commission.

C. Basis of decision; findings. At the conclusion of a hearing, the Board should reduce to writing its findings of fact and conclusions of law regarding the proper interpretation and application of the Zoning Code.

D. Vote required. All orders or decisions of the Board of Adjustment granting a variance, exception or conditional use or reversing any action or order of the Administrator require the affirmative vote of four members. Whenever only four members of the Board are present and the vote stands three to one in favor of the appellant or applicant, the matter shall be laid over for consideration and final determination at the next meeting of the Board or a special meeting noticed and called for that purpose.

E. Conditions. Variances or conditions imposed in any permit shall be stated in the decision or order embodying the Board's decision and shall also be set forth in the building, conditional use or occupancy permit issued under that order by the Zoning Administrator. A permit shall be valid only as long as the conditions upon which it is granted are observed. Whenever the Board grants an application or appeal affecting the use of any premises, such authorization shall be deemed revoked unless the owner, occupant or his/her agent shall, upon request, file with the Board Secretary a written report certifying that all conditions or limitations imposed by the Board have been conformed to and maintained. Variances, substitutions or conditional use permits approved by the Board shall expire six months after issuance if the performance of work is required and substantial work has not commenced.

F. Filing of decision. Every order or decision of the Board of Adjustment shall be immediately filed with the Secretary who shall thereupon forward the decision to the Town Clerk and mail a copy to the applicant or appellant. Copies of decisions granting conditional uses or variances in a floodplain, shoreland or wetland district shall be mailed to the district office of the Wisconsin Department of Natural Resources.

G. Reconsideration.

(1) Resubmission. No appeal or application which has been dismissed or denied shall be considered again without material alteration or revision within one year of the Board's decision, except pursuant to court order or by motion to reconsider made by a member voting with the majority or as provided in Subsection G(2) below.

(2) Rehearing. No rehearing shall be held except upon the affirmative vote of four or more members of the Board upon finding that substantial new evidence is submitted which could not reasonably have been presented at the previous hearing. Requests for rehearing shall be in writing, shall state the reasons for the request and shall be accompanied by necessary data and diagrams. Rehearings shall be subject to the same notice requirements as original hearings.

§ 380-128 Variances.

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 Zoning Code would cause him undue hardship or create conditions causing greater harmful effects than the initial condition. A variance granted to a nonconforming use brings that use into conformance with the district and zoning requirements.

(2) The Board of Appeals may authorize upon appeal, in specific cases, such variance from the terms of the Zoning Code as will not be contrary to the public interest where, owing to special conditions, a literal enforcement of the provisions of the Zoning Code will result in unnecessary hardship and so that the spirit of the Zoning Code shall be observed and substantial justice done. No variance shall have the effect of allowing in any district uses prohibited in that district, permit a lower degree of flood protection that the flood protection elevation for the particular area or permit standards lower than those required by state law.

[Amended 3-15-2022 by Ord. No. Z2022-03-01]

(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.

(4) Variances relating to livestock facility siting.

[Added 8-21-2023 by Ord. No. Z2023.08.01]

(a) The Town is not authorized to grant a variance from the state requirements related to livestock facility siting, except as provided in § 93.90, Wis. Stats., and Ch. ATCP 51, Wis. Adm. Code.

(b) The Town may reduce general setbacks specified in the AE District, but the setbacks shall not be less than:

[1] One hundred feet for setbacks to roads and property lines.

[2] Two hundred fifty feet for new manure storage structures.

B. Application for variation. The application for variation shall be filed pursuant to § 380-125.

C. Public hearing of application. The public hearing for a variance shall be conducted pursuant to § 380-126.

D. Prohibited variances. The Board of Appeals shall not grant use variances in floodplain or wetland and conservancy districts. In all other districts, no use variance shall be granted unless the applicant has first petitioned for a zoning amendment or a conditional use permit, if applicable, and upon a showing that no lawful and feasible use of the subject property can be made in the absence of such variance. Any use variance granted shall be limited to the specific use described in the Board's decision and shall not permit variances in yard, area or other requirements of the district in which located.

[Amended 3-15-2022 by Ord. No. Z2022-03-01]

E. Action of the Board of Appeals; standards. No variance to the provisions of this Zoning Code shall be granted by the Board of Appeals unless it finds beyond a reasonable doubt that all of the following facts and conditions exist and so indicates such in the minutes of its proceedings:

[Amended 3-15-2022 by Ord. No. Z2022-03-01]

(1) Preservation of intent. No variance shall be granted that is not consistent with the purpose and intent of the regulations for the district in which the development is located. No variance shall have the effect of permitting a use in any district that is not a stated permitted use, accessory use or conditional use in that particular district.

(2) Exceptional circumstances. 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 of uses in the same district, and the granting of the variance should not be of so general or recurrent nature as to suggest that the Zoning Code should be changed.

(3) Economic hardship and self-imposed hardship not grounds for variance. No variance shall be granted solely on the basis of economic gain or loss. Self-imposed hardships shall not be considered as grounds for the granting of a variance.

(4) Preservation of property rights. The variance must be necessary for the preservation and enjoyment of substantial property rights possessed by other properties in the same district and same vicinity.

(5) Absence of detriment. No variance shall be granted that will create substantial detriment to adjacent property or that will materially impair or be contrary to the purpose and spirit of this Zoning Code or the public interest.

F. Conditions. The Board of Appeals may impose such conditions and restrictions upon the premises benefited by a variance as may be necessary to comply with the standards established in this section. A variance that is granted but not commenced within two years of the date of grant of the variance shall expire two years from the grant date.

[Amended 2-19-2021 by Ord. No. 2021.02.02]

§ 380-129 Review by court of record.

Any person or persons aggrieved by any decision of the Board of Adjustment 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 Adjustment.