Village of Darien, WI Chapter 18.28 Administration

[HISTORY: Adopted by the Board of Trustees of the Village of Darien 2-21-2022 by Ord. No. 317.[1] Amendments noted where applicable.]

[1] Editor's Note: This ordinance superseded former Ch. 18.28, Administration, adopted 10-19-2009 by Ord. No. 255.

§ 18.28.005 Official charged with administration.

Where a Zoning Administrator, planning agency or a board of appeals has already been appointed to administer a zoning ordinance adopted under §§ 59.69, 59.692 or 62.23(7), Wis. Stats., these officials shall also administer this title.

§ 18.28.010 Zoning Administrator.

A. Duties and Powers. The Zoning Administrator is authorized to administer this title and shall have the following duties and powers:

1. Advise applicants of the ordinance provisions, assist in preparing permit applications and appeals, and assure that the regional flood elevation for the proposed development is shown on all permit applications.

2. Issue permits and inspect properties for compliance with provisions of this title, and issue certificates of compliance where appropriate.

3. Inspect all damaged floodplain structures to determine if substantial damage to the structures has occurred.

4. Keep records of all official actions such as:

a. All permits issued, inspections made, and work approved.

b. Documentation of certified lowest floor and regional flood elevations.

c. Floodproofing certificates.

d. Records of water surface profiles, floodplain zoning maps and ordinances, nonconforming uses and structures including changes, appeals, variances and amendments.

e. All substantial damage assessment reports for floodplain structures.

f. List of nonconforming structures and uses.

5. Submit copies of the following items to the Department (WDNR) Regional office:

a. Within 10 days of the decision, a copy of any decisions on variances, appeals for map or text interpretations, and map or text amendments;

b. Copies of any case-by-case analyses, and other required information.

c. Copies of substantial damage assessments performed and all related correspondence concerning the assessments.

6. Investigate, prepare reports, and report violations of this title to the municipal zoning agency and attorney for prosecution. Copies of the reports shall also be sent to the Department (WDNR) Regional office.

7. Submit copies of amendments to the FEMA Regional office.

B. Land Use Permit. A land use permit shall be obtained before any new development or any structural; repair, modification or addition to an existing structure; or change in the use of a building or structure, including sewer and water facilities, may be initiated. Application to the Zoning Administrator shall include:

1. General information.

a. Name and address of the applicant, property owner and contractor;

b. Legal description, proposed use, and whether it is new construction or a modification.

2. Site development plan. A site plan drawn to scale shall be submitted with the permit application form and shall contain:

a. Location, dimensions, area and elevation of the lot;

b. Location of the ordinary highwater mark of any abutting navigable waterways;

c. Location of any structures with distances measured from the lot lines and street center lines;

d. Location of any existing or proposed on-site sewage systems or private water supply systems;

e. Location and elevation of existing or future access roads;

f. Location of floodplain and floodway limits as determined from the official floodplain zoning maps;

g. The elevation of the lowest floor of proposed buildings and any fill using the vertical datum from the adopted study - either National Geodetic Vertical Datum (NGVD) or North American Vertical Datum (NAVD);

h. Data sufficient to determine the regional flood elevation in NGVD or NAVD at the location of the development and to determine whether or not the requirements of Chs. 18.12 or 18.16 are met; and

i. Data to determine if the proposed development will cause an obstruction to flow or an increase in regional flood height or discharge according to Section 18.08.010. This may include any of the information noted in Section 18.12.030A.

3. Hydraulic and hydrologic studies to analyze development. All hydraulic and hydrologic studies shall be completed under the direct supervision of a professional engineer registered in the state. The study contractor shall be responsible for the technical adequacy of the study. All studies shall be reviewed and approved by the Department.

a. Zone A floodplains and in AE Zones within which a floodway is not delineated:

i. Hydrology.

[A] The appropriate method shall be based on the standards in Ch. NR 116.07(3), Wis. Adm. Code, Hydrologic Analysis: Determination of Regional Flood Discharge.

ii. Hydraulic modeling. The regional flood elevation shall be based on the standards in Ch. NR 116.07(4), Wis. Adm. Code, Hydraulic Analysis: Determination of Regional Flood Elevation and the following:

[A] Determination of the required limits of the hydraulic model shall be based on detailed study information for downstream structures (dam, bridge, culvert) to determine adequate starting WSEL for the study.

[B] Channel sections must be surveyed.

[C] Minimum four-foot contour data in the overbanks shall be used for the development of cross section overbank and floodplain mapping.

[D] A maximum distance of 500 feet between cross sections is allowed in developed areas with additional intermediate cross sections required at transitions in channel bottom slope including a survey of the channel at each location.

[E] The most current version of HEC-RAS shall be used.

[F] A survey of bridge and culvert openings and the top of road is required at each structure.

[G] Additional cross sections are required at the downstream and upstream limits of the proposed development and any necessary intermediate locations based on the length of the reach if greater than 500 feet.

[H] Standard accepted engineering practices shall be used when assigning parameters for the base model such as flow, Manning's N values, expansion and contraction coefficients or effective flow limits. The base model shall be calibrated to past flooding data such as high water marks to determine the reasonableness of the model results. If no historical data is available, adequate justification shall be provided for any parameters outside standard accepted engineering practices.

[I] The model must extend past the upstream limit of the difference in the existing and proposed flood profiles in order to provide a tie-in to existing studies. The height difference between the proposed flood profile and the existing study profiles shall be no more than 0.00 foot.

iii. Mapping. A work map of the reach studied shall be provided, showing all cross section locations, floodway/floodplain limits based on best available topographic data, geographic limits of the proposed development and whether the proposed development is located in the floodway.

[A] If the proposed development is located outside of the floodway, then it is determined to have no impact on the regional flood elevation.

[B] If any part of the proposed development is in the floodway, it must be added to the base model to show the difference between existing and proposed conditions. The study must ensure that all coefficients remain the same as in the existing model, unless adequate justification based on standard accepted engineering practices is provided.

b. Zone AE Floodplains.

i. Hydrology. If the proposed hydrology will change the existing study, the appropriate method to be used shall be based on Ch. NR 116.07(3), Wis. Adm. Code, Hydrologic Analysis: Determination of Regional Flood Discharge.

ii. Hydraulic model. The regional flood elevation shall be based on the standards in Ch. NR 116.07(4), Wis. Adm. Code, Hydraulic Analysis: Determination of Regional Flood Elevation and the following:

[A] Duplicate Effective Model. The Effective Model shall be reproduced to ensure correct transference of the model data and to allow integration of the revised data to provide a continuous FIS model upstream and downstream of the revised reach. If data from the effective model is available, models shall be generated that duplicate the FIS profiles and the elevations shown in the Floodway Data Table in the FIS report to within 0.1 foot.

[B] Corrected Effective Model. The Corrected Effective Model shall not include any man-made physical changes since the effective model date but shall import the model into the most current version of HEC-RAS for Department review.

[C] Existing (Pre-Project Conditions) Model. The Existing Model shall be required to support conclusions about the actual impacts of the project associated with the Revised (Post-Project) Model or to establish more up-to-date models on which to base the Revised (Post-Project) Model.

[D] Revised (Post-Project Conditions) Model. The Revised (Post-Project Conditions) Model shall incorporate the Existing Model and any proposed changes to the topography caused by the proposed development. This model shall reflect proposed conditions.

[E] All changes to the Duplicate Effective Model and subsequent models must be supported by certified topographic information, bridge plans, construction plans and survey notes.

[F] Changes to the hydraulic models shall be limited to the stream reach for which the revision is being requested. Cross sections upstream and downstream of the revised reach shall be identical to those in the effective model and result in water surface elevations and topwidths computed by the revised models matching those in the effective models upstream and downstream of the revised reach as required. The Effective Model shall not be truncated.

iii. Mapping. Maps and associated engineering data shall be submitted to the Department for review which meet the following conditions:

[A] Consistency between the revised hydraulic models, the revised floodplain and floodway delineations, the revised flood profiles, topographic work map, annotated FIRMs and/or Flood Boundary Floodway Maps (FBFMs), construction plans, bridge plans.

[B] Certified topographic map of suitable scale, contour interval, and a planimetric map showing the applicable items. If a digital version of the map is available, it may be submitted in order that the FIRM may be more easily revised.

[C] Annotated FIRM panel showing the revised 1% and 0.2% annual chance floodplains and floodway boundaries.

[D] If an annotated FIRM and/or FBFM and digital mapping data (GIS or CADD) are used then all supporting documentation or metadata must be included with the data submission along with the Universal Transverse Mercator (UTM) projection and State Plane Coordinate System in accordance with FEMA mapping specifications.

[E] The revised floodplain boundaries shall tie into the effective floodplain boundaries.

[F] All cross sections from the effective model shall be labeled in accordance with the effective map and a cross section lookup table shall be included to relate to the model input numbering scheme.

[G] Both the current and proposed floodways shall be shown on the map.

[H] The stream center line or profile baseline used to measure stream distances in the model shall be visible on the map.

iv. Expiration. All permits issued under the authority of this title shall expire no more than 180 days after issuance. The permit may be extended for a maximum of 180 days for good and sufficient cause. If the permitted work has not started within 180 days of the permit date, the development must comply with any regulation, including any revision to the FIRM or FIS, that took effect after the permit date.

C. Certificate of Compliance. No land shall be occupied or used, and no building which is hereafter constructed, altered, added to, modified, repaired, rebuilt or replaced shall be occupied until a certificate of compliance is issued by the Zoning Administrator, except where no permit is required, subject to the following provisions:

1. The certificate of compliance shall show that the building or premises or part thereof, and the proposed use, conform to the provisions of this title;

2. Application for such certificate shall be concurrent with the application for a permit;

3. If all ordinance provisions are met, the certificate of compliance shall be issued within 10 days after written notification that the permitted work is completed;

4. The applicant shall submit a certification signed by a registered professional engineer, architect or land surveyor that the fill, lowest floor and floodproofing elevations are in compliance with the permit issued. Floodproofing measures also require certification by a registered professional engineer or architect that the requirements of Section 18.28.050 are met.

5. Where applicable pursuant to Section 18.20.010D, the applicant must submit a certification by a registered professional engineer or surveyor of the elevation of the bottom of the lowest horizontal structural member supporting the lowest floor (excluding pilings or columns), and an indication of whether the structure contains a basement.

6. Where applicable pursuant to Section 18.20.010D, the applicant must submit certifications by a registered professional engineer or architect that the structural design and methods of construction meet accepted standards of practice as required by Section 18.20.010D.

D. Other Permits. Prior to obtaining a floodplain development permit the applicant must secure all necessary permits from federal, state, and local agencies, including but not limited to those required by the U.S. Army Corps of Engineers under Section 404 of the Federal Water Pollution Control Act, Amendments of 1972, 33 U.S.C. 1344.

§ 18.28.020 Zoning agency.

A. The Village of Darien Plan Commission shall:

1. Oversee the functions of the office of the Zoning Administrator.

2. Review and advise the governing body on all proposed amendments to this title, maps, and text.

3. Publish adequate notice pursuant to Ch. 985, Wis. Stats., specifying the date, time, place and subject of the public hearing.

B. This zoning agency shall not:

1. Grant variances to the terms of this title in place of action by the Board of Adjustment/Appeals; or

2. Amend the text or zoning maps in place of official action by the governing body.

§ 18.28.030 Board of Appeals.

The Board of Appeals, created under § 62.23(7)(e), Wis. Stats., for cities or villages, is hereby authorized or shall be appointed to act for the purposes of this title. The Board shall exercise the powers conferred by Wisconsin Statutes and adopt rules for the conduct of business. The Zoning Administrator may not be the secretary of the Board.

A. Powers and Duties. The Board of Appeals shall:

1. Appeals. Hear and decide appeals where it is alleged there is an error in any order, requirement, decision or determination made by an administrative official in the enforcement or administration of this title.

2. Boundary Disputes. Hear and decide disputes concerning the district boundaries shown on the official floodplain zoning map.

3. Variances. Hear and decide, upon appeal, variances from the ordinance standards.

B. Appeals to the Board.

1. Appeals to the Board may be taken by any person aggrieved, or by any officer or department of the municipality affected by any decision of the Zoning Administrator or other administrative officer. Such appeal shall be taken within 30 days unless otherwise provided by the rules of the Board, by filing with the official whose decision is in question, and with the Board, a notice of appeal specifying the reasons for the appeal. The official whose decision is in question shall transmit to the Board all records regarding the matter appealed.

2. Notice and hearing for appeals including variances.

a. Notice. The Board shall:

i. Fix a reasonable time for the hearing;

ii. Publish adequate notice pursuant to Wisconsin Statutes, specifying the date, time, place and subject of the hearing;

iii. Assure that notice shall be mailed to the parties in interest and the Department (WDNR) Regional office at least 10 days in advance of the hearing.

b. Hearing. Any party may appear in person or by agent. The Board shall:

i. Resolve boundary disputes according to Section 18.28.030C.

ii. Decide variance applications according to Section 18.28.030D.

iii. Decide appeals of permit denials according to Section 18.28.040.

3. Decision. The final decision regarding the appeal or variance application shall:

a. Be made within a reasonable time;

b. Be sent to the Department (WDNR) Regional office within 10 days of the decision;

c. Be a written determination signed by the chairman or secretary of the Board;

d. State the specific facts which are the basis for the Board's decision;

e. Either affirm, reverse, vary or modify the order, requirement, decision or determination appealed, in whole or in part, dismiss the appeal for lack of jurisdiction or grant or deny the variance application;

f. Include the reasons for granting an appeal, describing the hardship demonstrated by the applicant in the case of a variance, clearly stated in the recorded minutes of the Board proceedings.

C. Boundary Disputes. The following procedure shall be used by the Board in hearing disputes concerning floodplain district boundaries:

1. If a floodplain district boundary is established by approximate or detailed floodplain studies, the flood elevations or profiles shall prevail in locating the boundary.

2. In all cases, the person contesting the boundary location shall be given a reasonable opportunity to present arguments and technical evidence to the Board.

3. If the boundary is incorrectly mapped, the Board should inform the zoning committee or the person contesting the boundary location to petition the governing body for a map amendment according to Ch. 18.32, Amendments.

D. Variance.

1. The Board may, upon appeal, grant a variance from the standards of this title if an applicant convincingly demonstrates that:

a. Literal enforcement of the ordinance provisions will cause unnecessary hardship;

b. The hardship is due to adoption of the floodplain ordinance and unique property conditions, not common to adjacent lots or premises. In such case the ordinance or map must be amended;

c. The variance is not contrary to the public interest; and

d. The variance is consistent with the purpose of this title in Section 18.04.030.

2. In addition to the criteria in Subsection D1, to qualify for a variance under FEMA regulations, the Board must find that the following criteria have been met:

a. The variance shall not cause any increase in the regional flood elevation;

b. The applicant has shown good and sufficient cause for issuance of the variance;

c. Failure to grant the variance would result in exceptional hardship;

d. Granting the variance will not result in additional threats to public safety, extraordinary expense, create a nuisance, cause fraud on or victimization of the public, or conflict with existing local laws or ordinances;

e. The variance granted is the minimum necessary, considering the flood hazard, to afford relief.

3. A variance shall not:

a. Grant, extend or increase any use prohibited in the zoning district.

b. Be granted for a hardship based solely on an economic gain or loss.

c. Be granted for a hardship which is self-created.

d. Damage the rights or property values of other persons in the area.

e. Allow actions without the amendments to this title or map(s) required in Ch. 18.32, Amendments.

f. Allow any alteration of an historic structure, including its use, which would preclude its continued designation as an historic structure.

4. When a floodplain variance is granted, the Board shall notify the applicant in writing that it may increase risks to life and property and flood insurance premiums could increase up to $25 per $100 of coverage. A copy shall be maintained with the variance record.

§ 18.28.040 Review of appeals of permit denials.

A. The Zoning Agency (s. 18.28.020) or Board shall review all data related to the appeal. This may include:

1. Permit application data listed in Section 18.28.010B.

2. Floodway/floodfringe determination data in Section 18.20.010E.

3. Data listed in Section 18.12.030A2 where the applicant has not submitted this information to the Zoning Administrator.

4. Other data submitted with the application, or submitted to the Board with the appeal.

B. For appeals of all denied permits the Board shall:

1. Follow the procedures of Section 18.28.030;

2. Consider zoning agency recommendations; and

3. Either uphold the denial or grant the appeal.

C. For appeals concerning increases in regional flood elevation the Board shall:

1. Uphold the denial where the Board agrees with the data showing an increase in flood elevation. Increases may only be allowed after amending the flood profile and map and all appropriate legal arrangements are made with all adversely affected property owners as per the requirements of Ch. 18.32, Amendments; and

2. Grant the appeal where the Board agrees that the data properly demonstrates that the project does not cause an increase provided no other reasons for denial exist.

§ 18.28.050 Floodproofing standards.

A. No permit or variance shall be issued for a nonresidential structure designed to be watertight below the regional flood elevation until the applicant submits a plan certified by a registered professional engineer or architect that the floodproofing measures will protect the structure or development to or above the flood protection elevation and submits a FEMA Floodproofing Certificate. Floodproofing is not an alternative to the development standards in Chs. 18.08, 18.12, or 18.16 or Sections 18.20.010 or 18.20.030.

B. For a structure designed to allow the entry of floodwaters, no permit or variance shall be issued until the applicant submits a plan either:

1. Certified by a registered professional engineer or architect; or

2. Meeting or exceeding the following standards:

a. A minimum of two openings having a total net area of not less than one square inch for every square foot of enclosed area subject to flooding;

b. The bottom of all openings shall be no higher than one foot above grade; and

c. Openings may be equipped with screens, louvers, valves, or other coverings or devices provided that they permit the automatic entry and exit of floodwaters.

C. Floodproofing measures shall be designed, as appropriate, to:

1. Withstand flood pressures, depths, velocities, uplift and impact forces and other regional flood factors;

2. Protect structures to the flood protection elevation;

3. Anchor structures to foundations to resist flotation and lateral movement;

4. Minimize or eliminate infiltration of floodwaters;

5. Minimize or eliminate discharges into floodwaters;

6. Placement of essential utilities to or above the flood protection elevation; and

7. If any part of the foundation below the flood protection elevation is enclosed, the following standards shall apply:

a. The enclosed area shall be designed by a registered architect or engineer to allow for the efficient entry and exit of floodwaters without human intervention. A minimum of two openings must be provided with a minimum net area of at least one square inch for every one square foot of the enclosed area. The lowest part of the opening can be no more than 12 inches above the adjacent grade;

b. The parts of the foundation located below the flood protection elevation must be constructed of flood-resistant materials;

c. Mechanical and utility equipment must be elevated or floodproofed to or above the flood protection elevation; and

d. The use must be limited to parking, building access or limited storage.

§ 18.28.060 Public Information.

A. Place marks on structures to show the depth of inundation during the regional flood.

B. All maps, engineering data, and regulations shall be available and widely distributed.

C. All real estate transfers should show if any real property is in a floodplain zoning district.