[Added 4-10-1989; amended 12-6-2004 by Ord. No. 04-54]
On April 10, 1989, the Village Board of Trustees
established a Zoning Board of Appeals for the Village of Pleasant
Prairie for the purpose of hearing and deciding appeals and applications
for variances from the provisions of the Village Zoning Ordinance
and which are in harmony with the purpose and intent of that ordinance.
Furthermore, on March 3, 1997, the Village Board of Trustees granted
to the Zoning Board of Appeals the authority to decide applications
for interpreting the Village Automatic Fire Sprinkler Ordinance[1] and Chapter 370, Building and Mechanical Code.
A.
The Zoning Board of Appeals shall consist of five
members and two alternates appointed by the Village President and
confirmed by the Village Board.
B.
Terms for Zoning Board of Appeals members shall be
for a period of three years, except that of those first appointed,
one shall serve for one year, two for two years and two for three
years. Terms for the alternate members shall be for a period of three
years, except that of those first appointed, one shall serve for two
years and one shall serve for three years. Annually, the Village President
shall designate one of the alternates as first alternate and the other
as second alternate.
C.
Members of the Zoning Board of Appeals shall be eligible
for such position only if they reside within the Village. In making
appointments to the Zoning Board of Appeals, the Village President
and the Village Board shall attempt to appoint individuals having
a background in land use planning, geography, urban affairs, or such
other prior experience in related areas whenever feasible. Prior membership
on the Zoning Board of Appeals or Plan Commission shall constitute
prior experience. Attempts should be made to ensure that individuals
appointed to the Zoning Board of Appeals have no conflict of interest
with said appointment. Vacancies shall be filled for the unexpired
term of any member whose seat becomes vacant in the same manner as
appointments for a full term.
D.
The Village President shall designate one of the members
Chair.
E.
The actual and necessary expenses incurred by Zoning
Board of Appeals in the performance of its duties shall be paid and
allowed as in cases of other claims against the Village. The Village
Board may likewise compensate members of the Zoning Board of Appeals
and such assistants as may be authorized by the Village Board.
F.
Official oaths shall be taken by all members in accordance
with § 19.01, Wis. Stats., within five days of receiving
notice of their appointments.
[Amended 7-20-2020 by Ord. No. 20-18]
G.
Three members of the Zoning Board of Appeals shall
constitute a quorum.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. II)]
A.
The Zoning Board of Appeals may adopt rules, not in
conflict with either state law or Village ordinances, as necessary
to carry into effect the regulations of the Village. Meetings of the
Zoning Board of Appeals shall be held once a month or at the call
of the Chair and at such other time as the Zoning Board of Appeals
may determine. The Chair, or in his/her absence the Acting Chair,
may administer oaths and compel the attendance of witnesses. All meetings
of the Zoning Board of Appeals shall be open to the public and tape
recorded. The days and time shall be established by resolution and
approved by the Village Board.
[Amended 11-16-2009 by Ord. No. 09-57; 5-16-2011 by Ord. No. 11-15; 11-4-2019 by Ord. No. 19-35]
C.
The Zoning Board of Appeals shall keep minutes of
its proceedings, showing the vote of each member upon each question;
if a member is absent or fails to vote, indicating such fact; the
reasons for the determination; and its findings of fact, examinations
and other official actions. All minutes shall be filed in the office
of the Zoning Board of Appeals and shall be a public record unless
a closed session of the Zoning Board of Appeals is permitted under
§ 19.85, Wis. Stats. Records shall not be destroyed except
pursuant to law. Where necessary, conclusions and orders of the Zoning
Board of Appeals may be filed with the Register of Deeds Office. For
purpose of this article, the Community Development Department shall
be deemed to be the office of the Zoning Board of Appeals.
A.
The Zoning Board of Appeals shall have the following
powers:
(1)
To hear and decide appeals as may be authorized by § 62.23(7)(e)7, Wis. Stats., and Chapter 420, Zoning Ordinance.
(2)
To hear and to authorize upon appeal in specific cases such variance(s) from the terms of Chapter 420, Zoning Ordinance, as will not be contrary to the public interest or when, owing to special circumstances, a literal enforcement of the Zoning Ordinance will result in unnecessary hardship and so that the spirit of the Zoning Ordinance shall be observed and substantial justice done.
(3)
To hear and grant applications for substitution of
more or equally restrictive nonconforming uses for existing nonconforming
uses, provided that no structural alterations are to be made. Whenever
the Zoning Board of Appeals permits such a substitution, the use may
not thereafter be changed without application and hearing.
(5)
To hear and to decide applications or interpretations, upon appeal of the specific case, from § 180-16 of this Code, regarding automatic fire sprinklers, when, owing to special circumstances, a literal enforcement of the provision will result in an unnecessary hardship and so that the spirit of the ordinance shall be observed and substantial justice done. The appeal shall not be contrary to the public interest.
(6)
To hear and to decide applications or interpretation, upon appeal of the specific case, from Chapter 370, Building and Mechanical Code, when, owing to special circumstances, a literal enforcement of the provision will result in an unnecessary hardship and so that the spirit of the ordinance shall be observed and substantial justice done. The appeal shall not be contrary to any other Village, state or other agency requirements or to the public interest.
(7)
To hear and to decide applications or interpretations, upon appeal of the specific cases, from Chapters 298 and 381 of this Code, regarding stormwater management and stormwater drainage system facilities and construction site maintenance and erosion control, respectively, when, owing to special circumstances, a literal enforcement of the provisions will result in an unnecessary hardship and so that the spirit of the ordinance shall be observed and substantial justice done. The appeal shall not be contrary to the public interest.
[Added 5-18-2009 by Ord. No. 09-32]
B.
No variance shall have the effect of permitting any
use in a zoning district that is prohibited in that zoning district,
nor shall a variance have the effect of a rezoning.
C.
The Zoning Board of Appeals may reverse, affirm wholly
or partly or modify the order, requirement, decision, or determination
appealed from and may make such order, requirement, decision or determination
as ought to be made.
D.
The Zoning Board of Appeals may request assistance
from other Village officers, departments, commission, and boards.
A.
Appeals to the Zoning Board of Appeals may be taken by any persons aggrieved or by any officer, department, board or bureau of the Village affected by any order, requirement, decision or determination of an administrative officer or body in the enforcement of § 62.23, Wis. Stats., Chapter 420, Zoning Ordinance, or any other ordinance adopted pursuant to § 62.23, Wis. Stats. Such appeals shall be commenced by filing with the administrative officer or body and with the Zoning Board of Appeals a notice of appeal specifying the grounds thereof. Such notice of appeal shall be filed within 30 days after the date of written notice of the decision or order. The administrative officer or body shall forthwith transfer to the Zoning Board of Appeals all the papers constituting the record upon which the action appealed from was taken. In addition, such appeals and application shall include the following as deemed appropriate by the Zoning Board of Appeals:
(1)
Names, addresses and phone numbers of the applicant,
owner of the site, architect, professional engineer, contractor, and
authorized agent if applicable.
(2)
A description of the subject site by lot, block and
recorded subdivisions or by metes and bounds, address of the subject
site, tax parcel number, type of structure, existing or proposed use
of the structure or site, the zoning district within which the subject
site is located, classification of the subject site either being conforming
or nonconforming in its use, and whether or not the property is located
within a shoreland or floodplain area.
(3)
A plat of survey and/or site plan consisting of a survey prepared by a Wisconsin professional land surveyor or other map drawn to scale and approved by the Community Development Department, showing all of the information required by Chapter 420, Zoning Ordinance, for a zoning permit. In addition, the plat of survey or site plan shall show the location, elevation and use of any abutting lands and the location and foundation elevations of structures within 50 feet of the subject site, soil map, ordinary high-water mark of any navigable waterway, and one-hundred-year floodplain on or within 50 feet of the subject site, and the existing and proposed landscaping. For variances located within the one-hundred-year floodplain see § 420-131 of Chapter 420, Zoning Ordinance.
[Amended 7-20-2020 by Ord. No. 20-18]
B.
Any application for a variance under this article
shall be accompanied by a sworn statement by the owner of the subject
property or the applicant for a variance for said property that said
property and its use will be operated in accordance with the provisions
of this article.
[Amended 7-20-2020 by Ord. No. 20-18]
An appeal shall stay all proceedings in furtherance
of the action appealed from unless the administrative official or
body whose decision is appealed from shall certify to the Zoning Board
of Appeals after the notice of appeal shall have been filed that,
by reason of facts stated in the certificate, a stay would cause imminent
peril to life or property. In such case, notice shall be given to
the appellant and proceedings shall not be stayed otherwise than by
a restraining order, which may be granted by the Zoning Board of Appeals
or by a court of record on application and notice to the administrative
official and for good cause shown.
A.
Upon receipt of a petition for a variance, the Zoning
Administrator shall place the matter on the agenda for a public hearing
before the Zoning Board of Appeals; provided, however, that such petition
satisfies the requirements of this article.
B.
Notice of the aforementioned public hearing shall be published as a Class 1 notice pursuant to Ch. 985, Wis. Stats., (See exception in Chapter 1, Article III, entitled "Publication and Posting of Notices," of the Village Code.) and the Wisconsin Open Meeting Law, § 19.81, Wis. Stats. Further, notice of such public hearing shall be mailed by first class mail, not less than 10 days prior to the public hearing, to the last known address of the applicant, the owners of the subject lot or site, the owners of all real property located within 100 feet of the subject lot or site and to all other parties of interest as defined in Chapter 420, Zoning Ordinance. Failure to receive notice shall not invalidate any action taken by the Zoning Board of Appeals. After publication and notice, the petitioner may request the Zoning Board of Appeals for a one-month postponement of the public hearing for good cause and no further publication or notice shall be required; provided, however, that notice of the adjourned hearing date is given in the record at the time of the published hearing. With respect to properties located within the floodplain areas, a copy of the application for a variance shall be given to the Wisconsin Department of Natural Resources.
[Amended 7-20-2020 by Ord. No. 20-18]
In hearing a petition requesting an appeal or
a variance, the Zoning Board of Appeals shall call the petition at
the public hearing. Upon the call of the petition, the petition shall
be read by the Chair of the Zoning Board of Appeals, and, at the conclusion
thereof, the Chair shall hear and receive any evidence or sworn testimony
presented by the petitioner or his authorized agent or attorney. At
the conclusion of the petitioner's presentation, the Chair shall ask
for any public comments related to the petition. Any relevant and
material evidence or sworn testimony presented by interested individuals
either in favor of or in opposition to the petition shall be received
by the Chair; provided, however, that said evidence or sworn testimony
is properly identifiable for the record. Lastly, the Chair may ask
for a recommendation from a representative of the Community Development
Department.
Upon receiving the recommendation of the Community Development Department, the Zoning Board of Appeals may table the petition for a period of up to three months from the date of public hearing so as to allow the petitioner an opportunity to provide any further information deemed pertinent by the Zoning Board of Appeals or so as to allow the Zoning Board of Appeals members an opportunity to view the site or similar situations already in existence if a comparison is warranted in accordance with the guidelines set forth in § 18-41 below or to consider the conditions for allowing the appeal or variance.
En route to view a site as provided for in § 18-40 of this article, Zoning Board of Appeal members traveling together or visiting the site at the same time shall refrain from discussing Zoning Board of Appeals business. Furthermore, testimony shall not be received during such view nor shall any argument be heard. The Zoning Board of Appeals may, however, gather information and ask questions, provided that information, data, and questions and answers are recited into the record if that information will not be entered by testimony or exhibits.
Upon having received all evidence and hearing
all sworn testimony relating to the petition, the Zoning Board of
Appeals shall review the site plan, existing and proposed structures,
architectural plans, neighboring land and water uses, parking areas,
driveway locations, highway access, traffic generation and circulation,
drainage, sewage and water systems, the proposed operation, the effects
of the proposed use, structure, operation and improvement upon flood
damage protection, water quality, shoreland cover, natural beauty
and wildlife habitat, and any other pertinent requirements deemed
necessary by the Zoning Board of Appeals when considering the standards
set forth in this article. Upon completion of said review, the Zoning
Board of Appeals Chair shall entertain a motion that the Zoning Board
of Appeals either grant or deny the appeal or application for a variance
based upon specific findings and conclusions which shall be part of
the Zoning Board of Appeals written decision and minutes.
A.
The property owner bears the burden of proving an unnecessary hardship
by:
[Amended 7-20-2020 by Ord. No. 20-18]
(1)
Demonstrating that strict compliance with the Zoning Ordinance would
unreasonably prevent the property owner from using the property owner's
property for a permitted purpose; or rendering conformity with the
Zoning Ordinance unnecessarily burdensome or leaving the property
owner with no reasonable use of the property in the absence of a variance.
(2)
Proving that the unnecessary hardship is based on conditions unique
to the property, rather than considerations personal to the property
owner, and that the unnecessary hardship was not created by the property
owner.
B.
In making its decision, the Zoning Board of Appeals shall determine
that all of the following standards and requirements are met:
[Amended 7-20-2020 by Ord. No. 20-18]
(1)
That the property owner has demonstrated the unnecessary hardship
exists;
(2)
That the variance(s) requested is (are) the minimum variance(s) needed
to alleviate difficulties or hardships;
(4)
That granting the variance(s) applied for will not affect the public
health, safety, morals and welfare of the community and other properties
in the area; and
C.
A variance may be granted, for example, for reasons of topography, environmental protection or where permitted by State Statute, but in no event may a variance be granted where the primary reason for obtaining a variance is to obtain a more profitable use of the property, personal inconvenience, construction errors, economic reasons, self-created hardships, or where the property is presently a nonconforming use. Furthermore, variances may not be granted for the purpose of altering the sanitary requirements of Chapter 420, Zoning Ordinance, except for existing structures.
[Amended 7-20-2020 by Ord. No. 20-18]
D.
The Zoning Board of Appeals, in considering the propriety
of granting a variance, shall not consider the number of persons for
or against the granting of a variance.
E.
Variances may be granted in the form of an area or
distance variance; however, use variances shall be specifically prohibited
under this article.
In order to ensure that any variance so granted by the Zoning Board of Appeals is consistent with the spirit of Chapter 420, Zoning Ordinance, and recognizing that there could be situations where the spirit of the Zoning Ordinance could be observed only if conditions were imposed upon the granting of the variance, the Zoning Board of Appeals is specifically empowered to grant a variance upon conditions, such as, but not limited to, landscaping, type of construction, hours of operation, traffic patterns, parking requirements, yard sizes, time periods, deed restrictions, bonds, etc., and further provided that in the absence of said conditions being met, said variance shall be null and void.
A.
The concurring vote of a majority of the Zoning Board of Appeals members present at the meeting shall be necessary to reverse any order, requirement, decision or determination of the administrative official or body appealed from, or to decide in favor of the applicant on any matter upon which it is required to pass under this article, or to effect any variation in Chapter 420, Zoning Ordinance.
[Amended 1-15-2007 by Ord. No. 07-02; 7-20-2020 by Ord. No. 20-18]
B.
The Zoning Board of Appeals shall decide all appeals
and applications in compliance with the Wisconsin Open Meeting Law[1] and within 30 days after final hearing and shall transmit
a signed copy of the Zoning Board of Appeals decision and order to
the appellant or applicant and the administrative official or body
whose decision was appealed along with the Zoning Board of Appeals
findings and conclusions and a statement as to which members of the
Zoning Board of Appeals viewed the property in question and the date
of such viewing.
[1]
Editor's Note: See §§ 19.81
to 19.89, Wis. Stats.
In exercising the above-mentioned powers, the
Zoning Board of Appeals may, in conformity with the provisions of
this article, 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 was taken.
Any member of the Zoning Board of Appeals having
a conflict of interest in any matter coming before the Zoning Board
of Appeals shall refrain from any voting or discussion either prior
to, at or after the matter has been heard by the Zoning Board of Appeals.
The Zoning Board of Appeals shall transmit a
copy of each application for a variance to floodplain regulations
to the Wisconsin Department of Natural Resources (WI DNR) and to the
Army Corps of Engineers (ACOE) for review and comment. Final action
on the application shall not be taken for 30 days or until such time
as the WI DNR and ACOE have made their recommendations, whichever
comes first. A copy of all decisions relating to variances to floodplain
regulations shall be transmitted to the WI DNR and ACOE within 10
date of such decision.
A.
Where an error in judgment or procedure resulted in
granting an improper variance or in denying an appeal, a motion to
reconsider made by a Zoning Board of Appeals member or upon motion
of any interested party may be considered and the prior action of
the Zoning Board of Appeals rescinded if vested rights are not violated.
B.
A petition for a variance having been denied or a
decision or order of an administrative official or body having been
affirmed, a petition seeking a similar variance or relief shall not
be entertained by the Zoning Board of Appeals until the expiration
of a minimum of one year.
Any decision of the Zoning Board of Appeals
may be appealed as provided in § 62.23(7)(e)10, Wis. Stats.
Any variance granted by the Zoning Board of
Appeals or by a court of law shall not be valid unless recorded by
the Village with the Kenosha County Register of Deeds. Any recording
fees shall be paid by the applicant. In addition, the Community Development
Department shall keep a record of all such variances.
