A.
Who may appeal. Appeals to the Zoning Board of Appeals may be taken
by any person aggrieved or affected by any decision of the Building
Inspector, Zoning Administrator, Planning Commission or Architectural
Control Commission as follows:
(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 Village is directly and adversely affected by the decision
being appealed.
B.
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 Village Clerk. The date of receipt of the decision shall not be counted in determining the term for filing of the appeal. Sundays and holidays shall be counted, except if the last day falls on a Saturday, Sunday or legal holiday, the time for filing shall be extended to the next secular day. See § 575-118 for further details.
[Amended 11-17-2022 by Ord. No. 2022-6]
C.
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 Zoning 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,
proceeding 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, on notice to the officer from whom the appeal
is taken and on due cause shown.
D.
Meetings.
(1)
Open to public. All meetings and hearings of the Zoning Board
of Appeals shall be open to the public, except that the Zoning Board
of Appeals 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
Zoning Board of Appeals office. Public notice of all regular and special
meetings shall be given to the public and news media as required by
the Wisconsin Open Meetings Law.
(2)
Special meetings. Special meetings may be called by the Chairman
or by the Secretary of the Zoning Board of Appeals 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)
Hearing. Hearings may be held at any regular or special meeting
at the time set by the Chairman.
(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.
E.
Powers of Zoning Board of Appeals. In addition to these powers enumerated
elsewhere in this Code of Ordinances, the Zoning 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, 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.
(2)
Variances. To hear and rule on appeals for variances 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 practical difficulty or unnecessary hardship, so that the spirit
and purposes of this chapter shall be observed and the public health,
safety, welfare and justice secured.
(3)
Interpretations. To hear and decide application for interpretations
of the zoning regulations and the boundaries of the zoning districts
after the Planning Commission has made a 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 Planning
Commission has made a review and recommendation. Whenever the Zoning
Board of Appeals permits such a substitution, the use may not thereafter
be changed without application.
(5)
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 Planning Commission has made a review
and recommendation. The permit shall be temporary, revocable, subject
to any condition required by the Zoning Board of Appeals and shall
be issued for a period not to exceed 12 months. Compliance with all
other provisions of this chapter shall be required.
F.
Zoning Board of Appeals action. In exercising the powers under Subsection E, the Zoning Board of Appeals 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.
G.
Voting.
(1)
Personal interest. No Zoning Board of Appeals member shall participate
in the decision of or vote upon any case in which the member is financially
interested, directly or indirectly, but the Chairman 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.
A.
Appeal and application forms. Every appeal or application shall be
made upon forms furnished by the Village Clerk which have been approved
by the Zoning Board of Appeals. A plat of survey prepared by a surveyor
registered in the State of Wisconsin or scale drawing shall accompany
each form showing the location and size of the property, existing
improvements, all abutting properties and improvements thereon and
any change or addition requested. The applicant or appellant shall
provide all information requested on the form and any additional information
requested, in writing, by the Chairman or Secretary of the Zoning
Board of Appeals which is necessary to inform the Board of the facts
of the appeal. Failure to supply such information shall be grounds
for dismissal of the appeal or application.
[Amended 11-17-2022 by Ord. No. 2022-6]
B.
Filing appeal or application. The appellant or applicant shall file
the required appeal form in duplicate with the Village Clerk. The
Village 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 Zoning Board of Appeals all notes or papers relating
to the order or decision from which the appeal is being taken.
[Amended 11-17-2022 by Ord. No. 2022-6]
C.
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.
D.
Fee. All appeals and applications shall be filed with the Village
Clerk and accompanied by payment of the appropriate fee as set forth
in the Village Board's adopted fee schedule. If the appellant or applicant
elects the contested-case method, he or she shall also pay the amount
determined by the Zoning Board of Appeals to cover the additional
administrative costs involved.
[Amended 11-17-2022 by Ord. No. 2022-6]
E.
Insufficient notice. No appeal or application shall be considered by the Zoning Board of Appeals unless it is made on the required form. Upon receipt of any communication purporting to be an appeal or application, the Village Clerk shall supply the applicant with the proper forms which must be filed within 10 days, in addition to the 30 days specified in § 575-117B, in order to be considered by the Zoning Board of Appeals.
[Amended 11-17-2022 by Ord. No. 2022-6]
A.
Notice of hearings. Notice of the time, date and place of the hearing
of an appeal or application shall be given in the following manner:
(1)
By mail or personal service to the appellant or applicant and
to the Zoning Administrator or other administrative official or body
from whose decision an appeal is taken, not less that 10 days prior
to the date of the hearing.
(2)
In every case involving a variance, conditional use, exception,
planned unit development or public utility exception, the Village
Clerk shall mail notice to the owners of record of all land within
the area included in the application and within 100 feet of any part
of the building or premises affected not less than 10 days prior to
the hearing. Names and last-known addresses of such owners shall be
furnished by the applicant at the time of filing the appeal or application.
[Amended 11-17-2022 by Ord. No. 2022-6]
(3)
By publication of a Class 1 notice under Ch. 985, Wis. Stats.
(4)
Notice of an application for a proposed special exception in
a shoreland-wetland district shall be mailed to the district office
of the Wisconsin Department of Natural Resources at least 10 days
prior to the hearing.
B.
Appearances. The appellant or applicant may appear in person or by
his agent or attorney. In the absence of an appearance for or against
an appeal or application, the Zoning Board of Appeals may dismiss
the appeal or application or may dispose of the matter on the record
before it.
C.
Compelling attendance of witnesses. The Chairman, or, in his absence,
the presiding officer, may compel the attendance of witnesses by subpoena.
Written request for subpoenas shall be filed with the Secretary of
the Zoning Board of Appeals not less than two days prior to the hearing
except by special permission of the Chairman.
D.
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 Chairman.
(b)
Appellant's side of the case.
(c)
Questions by Zoning Board of Appeals members.
(d)
Zoning Administrator's, other administrator or body whose decision
is being challenged, side of the case.
(e)
Questions by Zoning Board of Appeals members.
(f)
Statements by interested persons such as neighbors or abutting
landowners.
(g)
Questions by Zoning Board of Appeals 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 Chairman.
(b)
Appellant or applicant's opening statement.
(c)
Zoning Administrator's opening statement, or that of other administrator
or body whose decision is being challenged.
(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 Zoning Board of Appeals members.
(g)
Cross-examination. No more than one person for each party shall
cross examine witnesses. Chairman may limit the number of parties
who may cross-examine.
(h)
Zoning Administrator's case-in-chief, or that of other administrator
or body whose decision is being challenged.
(i)
Questions by Zoning Board of Appeals members.
(k)
Case-in-chief of other parties.
(l)
Questions by Zoning Board of Appeals members.
(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.
E.
Evidence and official notice. Except in contested case hearings,
written and oral testimony will be received. In contested case hearing,
no hearsay evidence will be allowed or relied upon as the sole evidence
of any factual determination. The Zoning Board of Appeals 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.
F.
Adjournments. When all appeals or applications cannot be disposed
of on the day set, the Zoning Board of Appeals 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 Zoning Board
of Appeals.
G.
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.
A.
Time of decision. The Zoning Board of Appeals 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
Chairman and Secretary of the Zoning Board of Appeals. 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, Village Clerk, the Secretary of the Planning
Commission and any Village committee involved.
[Amended 11-17-2022 by Ord. No. 2022-6]
C.
Basis of decision; findings. At the conclusion of a hearing, the
Zoning Board of Appeals 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 Zoning Board of Appeals
granting a variance, exception or conditional use or reversing any
action or order of the Administrator require the affirmative vote
of four members. Whenever at least four members of the Board are present
the Board may take action by a majority of the members present.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. II)]
E.
Conditions. Variances or conditions imposed in any permit shall be
stated in the decision or order embodying the Zoning Board of Appeals
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 Zoning Board of Appeals grants
an application or appeal affecting the use of any premises, such authorization
shall be deemed revoked unless the owner, occupant or his agent shall,
upon request, file with the Zoning Board of Appeals Secretary a written
report certifying that all conditions or limitations imposed by the
Zoning Board of Appeals have been conformed to and maintained. Variances,
substitutions or conditional use permits approved by the Zoning Board
of Appeals 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 Zoning Board of
Appeals shall be immediately filed with the Secretary who shall thereupon
forward the decision to the Village Clerk and mail a copy to the applicant
or appellant. Copies of decisions granting conditional uses or variances
in a shoreland or wetland district shall be mailed to the district
office of the Wisconsin Department of Natural Resources.
[Amended 11-17-2022 by Ord. No. 2022-6]
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 Zoning Board of Appeals 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 Zoning Board of Appeals 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 request and shall
be accompanied by necessary data and diagrams. Rehearings shall be
subject to the same notice requirements as original hearings.
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. A variance granted to a nonconforming
use shall bring that use into a greater degree of conformance with
the district and zoning requirements.
(2)
The Zoning 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 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 poor soil conditions, uniquely
applicable to the particular piece of property as distinguished from
those applicable to most or all property in the same district.
C.
Public hearing of application. The public hearing for a variance shall be conducted pursuant to § 575-119.
D.
Prohibited variances. The Zoning Board of Appeals shall not grant
use variances in 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 Zoning
Board of Appeals decision and shall not permit variances in yard,
area or other requirements of the district in which located.
E.
Action of the Zoning Board of Appeals; standards. No variance to
the provisions of this chapter shall be granted by the Zoning Board
of Appeals unless it finds beyond a reasonable doubt that all the
following facts and conditions exist and so indicates in the minutes
of its proceedings:
(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,
that do not apply generally to other properties in the same district
and the granting of the variance would not be of so general or recurrent
nature as to suggest that the Zoning oOrdinance 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. 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.
(5)
Absence of detriment. That the variance will not create substantial
detriment to adjacent property and will not materially impair or be
contrary to the purpose and spirit of this chapter or the public interest.
F.
Conditions. The Zoning 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.
Any persons or persons aggrieved by any decision of the Zoning
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 Zoning Board of Appeals.
