There is hereby established a Board of Zoning and Building Appeals in the City of Franklin for the purpose of hearing appeals and applications, and granting variations and exceptions to the provisions of Chapter 30 "Building Code" of the City of Franklin Municipal Code and this Ordinance in harmony with the purpose and intent of the Unified Development Ordinance.
The Board of Zoning and Building Appeals shall consist of five
members appointed by the Mayor and confirmed by the Common Council.
In addition:
A.
Terms. Terms of the Board of Zoning and Building
Appeals shall be staggered three-year periods.
B.
Chairman. The chairman of the Board of Zoning and
Building Appeals shall be designated by the Mayor.
C.
Alternate Member. Two alternate members of the Board
of Zoning and Building Appeals, designated first alternative and second
alternative respectfully may be appointed by the Mayor for a term
of three years and shall act only when a regular member is absent
or refused to vote because of conflict of interest.
D.
Zoning Administrator and Building Inspector. The
Zoning Administrator shall attend, and the Building Inspector may
attend, all meetings of the Board of Zoning and Building Appeals for
the purpose of providing technical assistance when requested by the
Board.
E.
Secretary. The Zoning Administrator, or Zoning Administrator's
assignee, shall be the recording secretary of the Board of Zoning
and Building Appeals.
F.
Official Oaths. Official Oaths shall be taken by
all members of the Board of Zoning and Building Appeals in accordance
with § 19.01 of the Wisconsin Statutes within 10 days of
receiving notice of their appointment.
G.
Vacancies. Vacancies of the Board of Zoning and
Building Appeals shall be filled for the unexpired term in the same
manner as appointments for a full term within one-month of the occurrence
of the vacancy.
H.
"Statement of Economic Interest" Requirements. Members
shall comply with the City of Franklin's "Statement of Economic Interest"
policy requirements.
I.
Decisions. The concurring vote of four members of
the board shall be necessary to reverse any order, requirement, decision
or determination of any such administrative official, or to decide
in favor of the applicant on any matter upon which it is required
to pass, or to effect any variation in such Ordinance.
The Board of Zoning and Building Appeals shall organize and
adopt rules of procedure for its own government in accordance with
the provisions of this Ordinance.
A.
Meetings. Meetings of the Board of Zoning and Building
Appeals shall be held at the call of the Chairman and shall be open
to the public.
B.
Minutes. Minutes of the proceedings of the Board
of Zoning and Building Appeals and a record of all actions shall be
kept by the Secretary, showing the vote of each member upon every
question, the reasons for the Board's determination, and its findings
of facts. These records shall be immediately filed in the office of
the Board and shall be a public record.
The Board of Zoning and Building Appeals shall have the following powers pertaining to the City of Franklin's zoning regulations and Chapter 30 "Building Code" of the City of Franklin's Municipal Code:
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 or the Building Inspector; and also
where it is alleged there is an error in any order, requirement, decision
or determination made by the Fire Official, to hear and decide an
appeal of such error pursuant to and upon the standards set forth
in §§ 26.10 and 26.11 of the City of Franklin Municipal
Code.
B.
Variances and Minor Variances. To hear and grant
applications for variances (except variances relating to land divisions)
pursuant to the provisions of § 62.23(3) of the Wisconsin
Statutes as amended from time to time and to hear and grant applications
for minor variances pursuant to this Division of this Ordinance. Use
variances shall not be granted. No variance shall be granted which
may vary any term or provision of this Unified Development Ordinance
as it pertains to any property which is subject to a Special Use resolution
or a Planned Development District ordinance or vary any term of such
Special Use resolution or Planned Development District ordinance itself,
unless the application for such variance is specifically authorized
within such Special Use resolution or Planned Development District
ordinance.
C.
Interpretations. To hear and decide applications
for interpretation of the zoning regulations, also to hear and decide
disputes relative to the boundaries of the zoning districts after
the City 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 no structural alterations are to be made and the City
Plan Commission has made a review and recommendation. Whenever the
Board of Zoning and Building Appeals 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 City Plan Commission has made a review and recommendation.
F.
Permits. The Board of Zoning and Building Appeals
may reverse, affirm wholly or partly, modify the requirements appealed
from, and may issue or direct the issue of a permit.
G.
Assistance. The Board of Zoning and Building Appeals
may request assistance from other City officers, departments, commissions,
and boards.
H.
Area Exceptions. The Board of Zoning and Building
Appeals may hear and grant applications for an area exception.
I.
Oaths. The Chairman of the Board of Zoning and Building
Appeals may administer oaths and compel the attendance of witnesses.
J.
Variances to the Land Division and Platting Provisions
of this Ordinance. The granting of variances to the land division
and platting related aspects of this Ordinance shall be the sole charge
of the City Plan Commission [See State ex rel. Westbrook v. City of
New Berlin, 120 Wis. 2d 256, 354 N.W.2d 206 (Ct. App. 1984)].
A.
General Application Requirements. Appeals from the decision of the Zoning Administrator and the Building Inspector concerning the literal enforcement of this Ordinance or Chapter 30 of the Municipal Code may be made by any person aggrieved, or by any officer, department, board, or bureau of the City. Such appeals shall be filed with the Secretary of the Board of Zoning and Building Appeals within 30 days after the date of written notice of the decision or order of the Zoning Administrator or Building Inspector. 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 Secretary. Such appeals and application shall include that information and data as required under § 15-9.0110 of this Ordinance.
B.
Applications Relating to Floodplain-Related Mapping
Disputes. The following procedure shall be used by the Board of Zoning
and Building Appeals in settling disputes of a floodplain zoning district
boundary:
1.
The flood district boundary shall be determined
by use of the flood profiles contained in an engineering study, or
where such information is not available, by experience flood maps
or any other evidence available to the Board.
2.
The person contesting the location of the district
boundary shall be given the opportunity to present his own technical
evidence. Where it is determined that the floodplain is incorrectly
mapped, the Board of Zoning and Building Appeals shall advise the
City Plan Commission of its findings and the City Plan Commission
shall proceed to petition the Common Council for a map amendment.
A.
Purpose. The Board of Zoning and Building Appeals, after a public hearing, may determine and vary the regulations of this Ordinance and Chapter 30 "Building Code" of the City of Franklin Municipal Code in harmony with their general purpose and intent, only in the specific instances hereinafter set forth, where the Board of Zoning and Building Appeals makes findings of fact in accordance with the standards hereinafter prescribed, and further finds that there are practical difficulties or particular hardships in the way of carrying out the strict letter of the regulations of this Ordinance.
B.
Application and Notice of Hearing.
1.
Variance (except Minor Variances). An application
for a variance shall be filed in writing with the Zoning Administrator.
The application shall contain such information as set forth in § 15-9.0111
of this Ordinance. Prior to decisions on such petitions, the Board
of Zoning and Building Appeals shall hold a public hearing thereon,
notice of which shall be mailed to the petitioner and to the owners
of all property deemed by the Board of Zoning and Building Appeals
to be affected thereby, and also advertised at least 10 days prior
to the public hearing in the official newspaper of the City. The cost
of notifying affected property owners and the cost of advertising
the notice of the public hearing shall be borne by the petitioner.
2.
Minor Variances. Appeals from the decision of the Zoning Administrator and the Building Inspector concerning the literal enforcement of this ordinance or Chapter 30 of the Municipal Code with regard to the accessory buildings of 150 square feet or less in area, decks and fences may be made by the owner of the structure or land to be affected. Such appeals may be filed with the Secretary within 30 days after the date of written notice of the decision or order of the Zoning Administrator or Building Inspector, or if such decision or order of the Zoning Administrator or Building Inspector has been made prior to the effective date of this ordinance and no appeal has been taken therefrom, then 60 days from the effective date of this ordinance, whichever date occurs later. Applications for a minor variance may be made by the owner of the structure or land to be affected at any time and shall be filed with the Secretary. The Board of Zoning and Building Appeals shall fix a reasonable time and place for the hearing, give public notice thereof at least 10 days prior, and shall give written notice by regular mail to the applicant and all abutting and opposite property owners of record, by mailing at least seven days in advance of the hearing. At the hearing the applicant may appear in person, by agent or by attorney.
C.
Findings and Factors.
1.
Variances (except Minor Variances). No variance
to the provisions of this Ordinance (except as otherwise provided)
shall be granted by the Board of Zoning and Building Appeals unless
it finds that if the variance is granted it would not be contrary
to the public interest; a literal enforcement of the Ordinance provisions
would result in practical difficulties or unnecessary hardship due
to special conditions; the spirit of the Ordinance is preserved; public
safety and welfare are secured and substantial justice done. In reviewing
the application and evidence relating to a variance the Board of Zoning
and Building Appeals shall consider the findings statements set forth
in § 15-10.0209 of this Ordinance.
2.
Minor Variances. No minor variances to the provisions
of this ordinance or the building code shall be granted by the Board
unless it finds by a preponderance of the evidence, considering the
interests of the abutting and opposite property owners and the public
that there exist conditions under which a literal enforcement of the
building codes and zoning regulations of this Ordinance as to the
subject structure would result in a substantial burden to the appellant
or applicant and no material impact upon the community, so that the
spirit and purpose of such regulations be observed and the safety,
welfare and health of the public and the abutting and opposite property
owners be protected. In reviewing the application and evidence relating
to a minor variance, the Board of Zoning and Building Appeals shall
consider the following factors and indicate its findings in the minutes
of the proceedings:
a.
The change sought by the minor variation shall be
consistent with the intent of the zoning regulations for the district
in which the property is located;
b.
No substantial detriment to or material impairment
of adjacent property shall be created by minor variances;
c.
The Board of Zoning and Building Appeals may consider
such other factors which appear relevant to the grant or denial of
the minor variance.
D.
Authorized Variances. Variances from the regulations
of this Ordinance shall be granted by the Board of Zoning and Building
Appeals only in accordance with the standards established in this
Section, and may be granted only in the following instances and in
no others:
1.
To permit any yard or setback less than the yard
or setback required by the applicable regulations;
2.
To permit the use of a lot or lots for a use otherwise
prohibited solely because of insufficient area or width of the lot
or lots, but in no event shall the respective area and width of the
lot or lots be less than 90% of the required area and width;
3.
To permit the same off-street parking facility to
qualify as required facilities for two or more uses, provided the
substantial use of such facility by each user does not take place
at approximately the same hours of the same days of the week;
4.
To reduce the applicable off-street parking or loading
facilities required by not more than one parking space or loading
space or 20% of the applicable regulations, whichever number is greater;
5.
To increase by not more than 25% the maximum distance
that required parking spaces are permitted to be located from the
use served;
6.
To increase by not more than 20% of the gross area
of any sign;
7.
To increase by not more than 10% the maximum gross
floor area of any use or principal structure (not including accessory
structures) so limited by the applicable regulations;
8.
To exceed any of the authorized variations allowed
under this Section, when a lot of record or a zoning lot, vacant or
legally used on the effective date of this Ordinance, is by reason
of the exercise of the right of eminent domain by any authorized governmental
body or by reason of a nonconveyance under threat of an eminent domain
proceeding reduced in size so that the remainder of said lot of record
or zoning lot or structure of said lot does not conform with one or
more of the regulations of the district in which said lot of record
or zoning lot or structure is located.
9.
Applicants Receiving Variances in Floodplains. Pursuant
to Federal regulations set forth in 44 CFR Part 60.6(5), applicants
receiving variances in floodplains shall be notified, in writing,
by the Board of Zoning and Building Appeals that increased flood insurance
premiums and increased threat to life and property may result from
the granting of the variance. The Board shall keep a record of the
notification in its files.
A.
General. Appeals from interpretations rendered by
the Zoning Administrator may be taken to the Board of Zoning and Building
Appeals.
B.
Standards for Use Interpretations. The following
standards shall govern both the Zoning Administrator and the Board
of Zoning and Building Appeals on appeals from the Zoning Administrator
in issuing use interpretations:
1.
No use interpretation shall be given with respect
to the residential zoning districts.
2.
Any use defined in either Divisions 15-3.0600 or
15-11.0100 of this Ordinance shall be interpreted as therein defined.
3.
No use interpretation shall permit a use (listed
as a permitted use or a special use in any district) to be established
in any district in which such use is not so listed.
4.
No use interpretation shall permit a use in any
district unless evidence is presented demonstrating that it shall
comply with each use limitation established for that particular district.
5.
No use interpretation shall permit a use in a district
unless such use is substantially similar to other uses permitted in
such district and is more similar to such other uses than to uses
permitted or specially permitted in a more restrictive district.
6.
If the proposed use is most similar to a use permitted
only as a special use in the district in which it is proposed to be
located, then any use interpretation permitting such use shall be
conditioned upon the issuance of a Special Use Permit for such use
pursuant to Divisions 15-3.0700 and 15-9.0100 of this Ordinance.
7.
No use interpretation shall permit the establishment
of any use that would be inconsistent with the district intent statement
of the district in question.
8.
Subject to the foregoing conditions and limitation,
as set forth in this Section, in rendering use interpretations the
Zoning Administrator and Board of Zoning and Building Appeals shall
be guided by the SIC use classification system and methodology described
herein.
C.
Effect of Favorable Use Interpretations. No use
interpretation finding a particular use to be permitted or specially
permitted in a particular district shall authorize the establishment
of such use nor the development, construction, reconstruction, alteration,
or moving of any building or structure, but shall merely authorize
the preparation, filing, and processing of applications for any permits
and approvals that may be required by the codes and ordinances of
the City of Franklin including, but not limited to Zoning Compliance
Permit, Special Use Permit, Building Permit, or any other required
permit.
D.
Limitations on Favorable Use Interpretations. Limitations
on favorable use interpretations are as follows:
1.
Subject to an extension of time granted by the City
Plan Commission, no use interpretation finding a particular use to
be permitted or specially permitted in a particular district shall
be valid for a period longer than six months from the date of issue
unless a Building Permit is issued and construction is actually begun
within the six-month period of time and is thereafter diligently pursued
to completion, or a Zoning Compliance Permit or Special Use Permit
is obtained and a use commenced within that period.
2.
A use interpretation finding a particular use to
be permitted or specially permitted in a particular district shall
be deemed to authorize only the particular use for which it was issued,
and such permit shall not be deemed to authorize any allegedly similar
use for which a separate use interpretation has not been issued. Such
permit shall automatically expire and cease to be of any force or
effect if the particular use for which it was issued shall, for any
reason, be discontinued for a period of 12 consecutive months or more.
E.
Wetland and Floodplain Mapping Interpretations and/or
Disputes.
1.
Wetland Mapping Interpretation and/or Disputes.
When the Board of Zoning and Building Appeals is asked to interpret
a SW District boundary where an apparent discrepancy exists between
the City's Final Wetland Inventory Map and actual field conditions,
the City shall contact the Wisconsin Department of Natural Resources
(DNR) to determine if the wetland inventory map is in error. If the
DNR staff concurs that the particular area was incorrectly mapped
as a wetland, the Board of Zoning and Building Appeals shall direct
the City Plan Commission to initiate appropriate action to rezone
the property within a reasonable amount of time.
2.
Floodplain Mapping Interpretation and/or Disputes.
When the Board of Zoning and Building Appeals is asked to interpret
a floodplain boundary where an apparent discrepancy exists between
the federal Flood Insurance Study and actual field conditions, the
following procedure shall be used. The floodplain boundary shall be
determined by uses of the flood profiles contained in an engineering
study or, where such information is not available, by experience flood
maps or any other evidence available to the Board of Zoning and Building
Appeals. The person contesting the location of the district boundary
shall be given the opportunity to present his own technical evidence.
Where it is determined that the floodplain is incorrectly mapped,
the Board of Zoning and Building Appeals shall advise the City Plan
Commission of its findings and the City Plan Commission shall proceed
to petition the Common Council for a map amendment.
A.
Purpose. The Common Council may determine and grant
a Special Exception to the stream, shore buffer, navigable water-related,
wetland, wetland buffer, and wetland setback provisions of this Ordinance,
and to allow improvements or enhancements to a natural resource feature
in harmony with the general purpose and intent of this Ordinance and
in accordance with the specific rules set forth in this Section, where
the Common Council makes findings of fact in accordance with the standards
hereinafter prescribed, and further finds that there are circumstances
which under the standards allow for the granting of a Special Exception
to the stream, shore buffer, navigable water-related, wetland, wetland
buffer, and wetland setback provisions of this Ordinance, and to allow
improvements or enhancements to a natural resource feature.
B.
Special Exception Grant to the Shore Buffer, Navigable
Water-Related, Wetland, Wetland Buffer, and Wetland Setback Regulations
and for Improvements or Enhancements to a Natural Resource Feature.
The Common Council, after a public hearing before and the review and
recommendation of the Plan Commission, and the review and recommendation
of the Environmental Commission, provided it is submitted to the Common
Council within 45 days of the Environmental Commission's receipt of
a copy of the application for the Special Exception, may grant a Special
Exception to the stream, shore buffer, wetland, wetland buffer, and
wetland setback regulations of this Ordinance and for improvements
or enhancements to a natural resource feature. If the Plan Commission
does not hold the public hearing and deliver its recommendation to
the Common Council within 45 days of the date of the filing of the
application for the Special Exception, the Common Council may hold
the public hearing and make its determination without receiving such
recommendation. The public hearing shall be preceded by a class 2
notice, under Ch. 985, Stats. and notice to the applicant and to all
owners of properties or portions of properties within 500 feet of
the lands described in the application, mailed not less than 10 days
prior to the hearing, with the ownership to be determined by the records
on file in the Office of the City Assessor; notice to one of joint
or incommon owners being notice to all. Upon the hearing the Chairman
shall: explain the purpose of the hearing and describe how testimony
will be received; present a brief summary of the application and any
recommendation received from the Plan Commission or the Environmental
Commission; afford each interested person or a representative the
opportunity to present facts, opinions or arguments at the hearing;
administer an oath or affirmation to any person appearing; and keep
a record of the hearing by way of a recording device. Upon the hearing,
the Chairman may: limit oral presentations if the hearing would be
unduly lengthened by repetitious testimony; question or allow others
present to question the persons appearing; and continue or postpone
the hearing to a specified date, time and place. At the hearing, the
applicant and any interested person may be represented by an attorney
and may present evidence and call and examine witnesses and cross-examine
witnesses of another party. The applicant shall be heard first. The
decision of the Common Council upon any decision under this Section
shall be in writing, state the grounds of such determination, be filed
in the Office of the City Planning Manager and be mailed to the applicant.
1.
The applicant shall have the burden of proof to
present evidence sufficient to support the findings required under
sub. 2 below.
2.
A Special Exception to the stream, shore buffer,
navigable water-related, wetland, wetland buffer and wetland setback
regulations of this Ordinance and for improvements or enhancements
to a natural resource feature may be granted only upon a finding,
by not fewer than four members of the Common Council that:
a.
That the condition(s) giving rise to the request
for a Special Exception were not self-imposed by the applicant (this
subsection a. does not apply to an application to improve or enhance
a natural resource feature); and
b.
Compliance with the stream, shore buffer, navigable
water-related, wetland, wetland buffer, and wetland setback requirement
will:
c.
The Special Exception,
including any conditions imposed under this Section will:
i)
Be consistent with the existing character of the
neighborhood; and
ii)
Not effectively undermine the ability to apply
or enforce the requirement with respect to other properties; and
iii)
Be
in harmony with the general purpose and intent of the provisions of
this Ordinance prescribing the requirement; and
iv)
Preserve or enhance the functional values of the
stream or other navigable water, shore buffer, wetland, wetland buffer,
and/or wetland setback in co-existence with the development.
d.
In making its determinations,
the Common Council shall consider factors such as:
i)
Characteristics of the real property, including,
but not limited to, relative placement of improvements thereon with
respect to property boundaries or otherwise applicable setbacks;
ii)
Any exceptional, extraordinary, or unusual circumstance
or conditions applying to the lot or parcel, structure, use, or intended
use that do not apply generally to other properties or uses in the
same district;
iii)
Existing
and future use of property; useful life of improvements at issue;
disability of an occupant;
iv)
Aesthetics;
v)
Degree of noncompliance with the requirement allowed
by the Special Exception;
vi)
Proximity to and character of surrounding property;
vii)
Zoning
of the area in which property is located and neighboring area;
viii)
Any
negative affect upon adjoining property;
ix)
Natural features of the property;
x)
Environmental impacts;
xi)
A recommendation from the Environmental Commission
as well as a review and recommendation prepared by an Environmental
Commission-selected person knowledgeable in natural systems; and
xii)
The
practicable alternatives analysis required by § 15-9.0110C.4.
of this Ordinance and the overall impact of the entire proposed use
or structure, performance standards and analysis with regard to the
impacts of the proposal, proposed design solutions for any concerns
under the Ordinance, executory actions which would maintain the general
intent of the Ordinance in question, and other factors relating to
the purpose and intent of the Ordinance section imposing the requirement.
3.
Conditions of Special Exception Grant to the Stream,
Shore Buffer, Navigable Water-Related, Wetland, Wetland Buffer, and
Wetland Setback Regulations and for Improvements or Enhancements to
a Natural Resource Feature. Any Special Exception granted under the
authority of this Section shall be conditioned upon the applicant
first obtaining all other necessary approval(s) from all other applicable
governmental agencies and shall also set forth conditions that the
Common Council deems necessary, including, but not limited to, conditions
that:
b.
Require the performance of additional actions related
to the mitigation (any mitigation required or allowed shall be pursuant
to the mitigation standards set forth in § 14-4.0103 of
this Ordinance, which standards shall be applied whether or not the
proposed development would otherwise be subject to or entitled to
the application of such standards, i.e., wetland mitigation in a residential
development) or enhancement of impacts resulting from the Special
Exception including limited or long-term maintenance to assure improvement
or enhancement is achieved; or
c.
Prescribe a limitation on the action effectively
authorized by the Special Exception, even though such a limitation
does not otherwise appear in the requirement from which the Special
Exception is sought.
d.
Require payment or reimbursement by the applicant
to the City of any costs, expenses, professional fees (including the
fees of a person recognized with knowledge and experience in natural
systems) or legal fees reasonably incurred by the City in reviewing
or processing the application for Special Exception. The Common Council
may also require the posting of a bond or letter of credit to cover
the costs of such expenses and fees. An applicant may obtain the review
of the amounts imposed under this Subsection pursuant to Division
15-10.0500 of this Ordinance.
4.
Intent of Special Exception Activities. It is intended
that activities limited to the improvement or enhancement of a natural
resource feature constitute "development" for which a Special Exception
may be granted.
A.
Statement of Purpose. The development and execution
of this Unified Development Ordinance is based upon the division of
the City into districts, within which districts, the use of land and
buildings, and bulk and location of buildings and structures in relation
to the land, are mutually compatible and substantially uniform. However,
there are certain area and dimensional and bulk specifications that
cannot be allowed without consideration, in each case, of the impact
of those specifications upon neighboring land or public facilities.
Such specifications are classified as area exceptions. The following
provisions are thus established to regulate the area exceptions which
require special consideration.
B.
Authority of the Board of Zoning and Building Appeals.
The Board of Zoning and Building Appeals, upon review and recommendation
of the Plan Commission shall, within a reasonable time, grant or deny
any application for an area exception. Prior to the granting of an
area exception, the Board shall make findings based upon the evidence
presented that the standards herein prescribed are being complied
with.
C.
Permitted Area Exceptions. Area exceptions for front and rear yard setbacks, side yard offsets, minimum side yard on corner lots, lot area, lot width, maximum lot coverage, maximum height of principle and accessory structures and minimum living area per dwelling unit, granted pursuant to the terms and provisions of this Section are permitted, subject to all of the terms and provisions of this Section, in all districts, provided, however, that area exceptions to area and dimensional requirements as otherwise set forth in this Unified Development Ordinance may only be granted to those setback and yard and area requirements as specified above, and in no event shall the setback or yard and area requirements be reduced to less than three feet in any residential zoning district or to less than five feet in any other zoning district, and provided further, that area exceptions to bulk requirements as otherwise set forth in this Unified Development Ordinance may only be granted to those building bulk requirements as specified above, and in no event shall the building bulk requirements be increased or decreased by more than 20%. No area exception may be granted to any natural resource protection standard, feature, buffer, setback or other natural resource area or dimensional requirements, such requirements only being subject to exception by way of Special Exception granted pursuant to § 15-10.0208 or as may otherwise be specifically provided in Part 4 of this Unified Development Ordinance.
D.
Eligibility for Area Exception. Any person, firm,
corporation or organization having a freehold interest or a possessory
interest entitled to exclusive possession, or a contractual interest
which may become a freehold possessory interest, or an exclusive possessory
interest and which is specifically enforceable in the land for which
an area exception is sought may file an application for an area exception
if one or more of the conditions of eligibility in the applicable
district is met.
E.
Application for Area Exception. An application for
an area exception shall be filed with the Office of the Planning Manager.
The application shall be accompanied by such plans and other information
as may be prescribed by the Planning Manager or the Board of Zoning
and Building Appeals and an application fee of $300. It shall include
a statement in writing by the applicant and adequate information to
enable the Planning Manager to make a determination on eligibility,
based on the requirements for the district in which the property is
located, and to enable the Board of Zoning Building Appeals to determine
if the standards set forth in Subsection G., below, are met.
F.
Hearing on Application. Upon receipt of an eligible
application for an area exception, the Plan Commission shall hold
a public hearing on each application and make a recommendation to
the Board of Zoning and Building Appeals. If the Board of Zoning and
Building Appeals does not receive a recommendation from the Plan Commission
within 45 days of the filing of the application for an area exception,
the Board of Zoning and Building Appeals may hold hearings without
first receiving the recommendation. Notice of the time, place and
purpose of such hearing shall be given by publication of a Class 1
Notice, pursuant to Ch. 985, Wis. Stats., said time, place and purpose
of such hearing shall also be delivered by regular mail to the applicant
and to all owners of properties or portions of properties within 500
feet of the lands described in the application, mailed not less than
10 days prior to the hearing, with the ownership to be determined
by the records on file in the Office of the City Assessor; notice
to one of joint or in-common owners being notice to all.
G.
Standards. The Board of Zoning and Building Appeals
shall grant no area exception unless such Board shall find, upon proof
submitted and borne by the applicant, that all of the following conditions
are present:
1.
That the area exception will not be detrimental
to or endanger the public health, safety, comfort or general welfare.
2.
That the uses, values and enjoyment of other property
in the neighborhood for purposes already established shall be in no
foreseeable manner substantially impaired or diminished by the area
exception.
3.
That the area exception will not impede the normal
and orderly development and improvement of the surrounding property
for uses permitted in the district.
4.
That the area exception will not impair an adequate
supply of light and air to adjacent property, or substantially increase
the congestion in the public streets, or increase the danger of fire
within the neighborhood.
5.
That the area exception shall be in harmony with
the general purpose and intent of this Unified Development Ordinance.
H.
Conditions. The Board of Zoning and Building Appeals,
in considering and granting an application for an area exception,
may condition the granting of an area exception on compliance with
the standards in Section G. above and with other conditions, including,
but not limited to, landscaping, lighting, and site plan changes.
In all cases in which area exceptions are granted, the Board of Zoning
and Building Appeals shall require such evidence and guarantees as
it may deem necessary as proof that the conditions stipulated in connection
therewith are being and will be complied with.
I.
Order of the Board of Zoning and Building Appeals.
The concurring vote of four members of the Board of Zoning and Building
Appeals shall be necessary to grant an area exception. No order of
the Board of Zoning and Building Appeals granting an area exception
shall be valid for a period longer than one year from the date of
such order unless a building permit is obtained within such period,
and the erection or alteration of a building is started, or the use
is commenced within such period.
J.
Effect of Denial of Application. No application
for an area exception which has been denied wholly or in part by the
Board of Zoning and Building Appeals shall be resubmitted for a period
of one year from the date of said denial, unless placed on file without
prejudice, except on the grounds of new evidence or proof of change
of conditions found to be valid by the Board of Zoning and Building
Appeals.
A.
General. The Board of Zoning and Building Appeals
shall fix a reasonable time and place for the hearing, give public
notice thereof at least 10 days prior, and shall give due notice to
the parties of interest, the Zoning Administrator or Building Inspector,
and the City Plan Commission. For all floodplain and shoreland wetland
hearings, notice of the hearing shall be given by publication of a
Class 2 notice under the provisions of Chapter 985 of the Wisconsin
Statutes. At the hearing the appellant or applicant may appear in
person, by agent, or by attorney.
B.
Floodplain and Shoreland Wetland Areas. In those
cases involving floodplains and shoreland wetlands, the Board of Zoning
and Building Appeals shall transmit a copy of, and a copy of all shoreland
and floodplain appeals to the Wisconsin Department of Natural Resources
(DNR) for review and comment at least 10 days prior to any public
hearings. Final action on the application shall not be taken for at
least 30 days, or until the DNR has made its recommendation, whichever
comes first. A copy of all decisions relating to variances to regulations
in a shoreland or to floodplain regulations, and a copy of all shoreland
and floodplain applications shall be transmitted to the DNR within
10 days of the date of such a decision.
C.
Conduct of Public Hearing. The Chairman of the Board
of Zoning and Building Appeals shall place all witnesses under oath.
The Board of Zoning and Building Appeals shall hear all relevant evidence
presented for and against the application. The Chairman of the Board
of Zoning and Building Appeals may rule on exceptions to evidence
and permit examination of witnesses.
No variance to the provisions of this Ordinance shall be granted
by the Board unless it finds beyond a reasonable doubt that all the
following facts and conditions exist and so indicates in the minutes
of its proceedings.
A.
Preservation of Intent. Variances shall be 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 special use in that particular district.
B.
Exceptional Circumstances. There shall 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 or uses in the same district and the granting of the variance would not be of so general or recurrent nature as to suggest that the Unified Development Ordinance or Chapter 30 "Building Code" of the City of Franklin Municipal Code should be changed.
C.
Economic Hardship and Self-Imposed Hardship Not
Grounds for Variance. Variance shall not be granted solely on the
basis of economic gain or loss. Self-imposed hardships shall not be
considered as grounds for the granting of the variance.
D.
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.
E.
Absence of Detriment. Variances shall not be granted
that will create substantial detriment to adjacent property and will
materially impair or be contrary to the purpose and spirit of this
Ordinance or the public interest.
F.
Additional Requirements in Floodplain Districts.
Variance shall not be granted where:
1.
Filling and development contrary to the purpose
and intent of the FW Floodway District and the FC Floodplain Conservancy
District would result.
2.
A change in the boundaries of the FW Floodway District,
FC Floodplain Conservancy District, or the FFO Floodplain Fringe Overlay
District would result.
3.
A lower degree of flood protection than a point
two feet above the one-hundred-year recurrence interval flood for
the particular area would result.
4.
Any action contrary to the provisions of Chapter
NR 116 of the Wisconsin Administrative Code as amended would result.
A.
Variances (except Minor Variances). The Board of
Zoning and Building Appeals shall decide all appeals and applications
within 30 days after the final hearing and shall transmit a signed
copy of the Board of Zoning and Building Appeals' decision to the
appellant or applicant, Zoning Administrator, Building Inspector,
and City Plan Commission. The concurring vote of four members of the
Board of Zoning and Building Appeals shall be necessary to grant a
variation.
1.
Conditions. Conditions may be placed upon any Zoning
Compliance Permit ordered or authorized by the Board of Zoning and
Building Appeals.
2.
Expiration of Variances, Substitutions, and Permits.
Variances, substitutions, or use permits granted by the Board shall
expire within six months unless substantial work has commenced pursuant
to such grant.
3.
Copy of All Decisions on Floodplain Appeals or Variance
Requests to be Transmitted to the DNR. A copy of all decisions on
floodplain appeals or variance requests shall be transmitted to the
DNR within 10 days of their effective date.
B.
Minor Variances. The Board of Zoning and Building
Appeals shall decide all appeals and minor variances within 30 days
after the final hearing. The concurring vote of four members of the
board shall be necessary to grant a minor variance. The board shall
transmit a signed copy of the board's decision to the appellant or
applicant, and Zoning Administrator and file a copy of same with the
office of the Building Inspector for maintenance as a permanent record.
1.
Conditions. Conditions may be placed upon any grant
of minor variance ordered or authorized by this Board.
2.
Expiration of Minor Variance. Any minor variance
granted by the Board of Zoning and Building Appeals shall expire within
six months unless substantial work has commenced pursuant to such
grant.
3.
Structural Repairs or Alterations. Any grant of
a minor variance by the Board of Zoning and Building Appeals shall
state that the total structural repairs or alterations to the subject
structure shall not, from the date of the decision and during the
structure's life, exceed 25% of the value of the structure and that
no additions shall be made to the structure.
Any person or persons, jointly or severally aggrieved by any
decision of the Board of Zoning and Building Appeals, or any taxpayer,
or any officer, department, board or bureau of the City, so aggrieved,
may, within 30 days after the filing of the decision in the office
of the Board of Zoning and Building Appeals, commence an action seeking
the remedy available by certiorari, pursuant to § 62.23(7)(e)1.,
Stats., as amended.
