This chapter is adopted under the authority granted by §§ 62.23(7),
62.231, 66.1001, 87.30, and 281.31, Wis. Stats., and amendments thereto.
This chapter shall be known as, referred to, and cited as the
"Zoning Ordinance, City of New Berlin, Wisconsin," and is hereinafter
referred to as "this chapter."
The provisions of this chapter shall apply to all structures,
lands, water, and air within the corporate limits of the City of New
Berlin, including land owned by local, county, state, or federal agencies,
to the extent allowed by law.
The purpose of this chapter is to guide development in accordance
with the existing and future needs of the City and its Comprehensive
Plan, and to promote the health, safety, morals, comfort, prosperity,
and general welfare of the City of New Berlin, Wisconsin, residents
and other members of the public. In addition, this chapter is intended
to regulate and restrict the use of all structures, lands, air, and
waters and to:
A.
Regulate lot coverage and the size and location of all structures
so as to prevent overcrowding and to provide adequate sunlight, air,
sanitation, and drainage.
B.
Regulate population density and distribution so as to facilitate
the provision of adequate public service, schools, and utilities.
C.
Regulate parking, loading, and access and promote the safety and
efficiency of streets and highways.
D.
Secure safety from fire, flooding, pollution, contamination, and
other dangers.
E.
Stabilize and protect existing and potential property values.
F.
Preserve and protect the beauty of the City of New Berlin.
G.
Provide for proper and adequate drainage of all developed lands.
H.
Prevent and control erosion, sedimentation, and other pollution of
the surface and subsurface waters.
I.
Further the maintenance of safe and healthful surface water and groundwater
conditions.
J.
Prevent flood damage to persons and property and minimize expenditures
for flood relief and flood-control projects.
K.
Provide for and protect a variety of suitable commercial and industrial
sites.
L.
Protect the traffic-carrying capacity of existing and proposed arterial
streets and highways.
M.
Implement those municipal, county, watershed, and regional comprehensive
plans and the New Berlin Comprehensive Plan or components of such
plans adopted by the City of New Berlin.
N.
Provide for the administration and enforcement of this chapter and
to provide penalties for the violation of this chapter.
O.
Encourage infill development that is consistent with its context
and compatible with surrounding uses.
P.
Incorporate "new urbanism" concepts into new development projects
where practicable and appropriate.
Q.
Encourage compact and sustainable growth and development where appropriate.
R.
Promote green buildings and low-impact development design techniques
throughout the City.
S.
Facilitate the use of solar and wind energy devices as well as other
innovative alterative-energy and energy-saving techniques.
A.
Conflicts and relationship with other regulations.
(1)
When the provisions of this chapter are inconsistent with one another,
or when the provisions of this chapter conflict with provisions found
in other ordinances, codes, or regulations adopted by the City of
New Berlin, the more-restrictive provision shall govern unless the
terms of the provisions specify otherwise.
(2)
It shall be the developer's or applicant's responsibility to determine
and comply with all other applicable covenants, declarations or restrictions
of record, as well as county, state, or federal codes or regulations
governing development and land use activities.
B.
Relationship with private-party easements, covenants, or agreements.
This chapter is not intended to interfere with or abrogate any easements,
covenants, or agreements between parties, provided that, wherever
this chapter proposes a greater restriction upon the use of buildings
or land, upon the location or height of buildings or structures, or
upon requirements for open areas than those that are imposed or required
by such easements, covenants, or agreements between parties, the provisions
of this chapter shall govern. In no case shall the City be obligated
to enforce the provisions of any easements, covenants, or agreements
between parties.
The provisions of this chapter shall be held to be minimum requirements
necessary for the promotion of the public health, safety, and general
welfare and shall be liberally construed in favor of the City and
shall not be construed to be a limitation or repeal of any other authority
now possessed by the City of New Berlin.
A.
Meaning and intent. All provisions, terms, phrases, and expressions
contained in this chapter shall be construed according to this chapter's
stated purpose and intent.
B.
Text controls. In case of any difference of meaning or implication
between the text of this chapter and any heading, drawing, table,
or figure, the text shall control.
C.
Computation of time. Unless the terms of a specific provision state
otherwise (e.g., some provisions specify "business days"), periods
of time defined by a number of days shall mean a number of consecutive
calendar days, including all weekend days, holidays, and other nonbusiness/working
days; however, if the last day is a Saturday, Sunday, or legal holiday,
that day shall be excluded.
D.
Delegation of authority. Whenever a provision appears requiring the
head of a department or another officer or employee of the City to
perform an act or duty, that provision shall be construed as authorizing
the department head or officer to delegate the responsibility to subordinates,
unless the terms of the provision specify otherwise.
E.
Technical and nontechnical words. Words and phrases not otherwise
defined in this chapter shall be construed according to the common
and approved usage of the language, but technical words and phrases
not otherwise defined in this chapter that may have acquired a peculiar
and appropriate meaning in law shall be construed and understood according
to such meaning.
F.
Mandatory and discretionary terms. The word "shall" is always mandatory,
and the words "may" and "should" are always permissive.
G.
Conjunctions. Unless the context clearly suggests the contrary, conjunctions
shall be interpreted as follows:
H.
Tense and usage. Words used in one tense (past, present, or future)
include all other tenses, unless the context clearly indicates the
contrary. The singular shall include the plural, and the plural shall
include the singular.
I.
Gender. The masculine shall include the feminine, and vice versa.
J.
Terms. "The Developer's Handbook" and "developer's agreement" shall
have the same meaning as the "Development Handbook" and the "development
agreement" and are used interchangeably throughout various City documents.
[Added 10-11-2016 by Ord.
No. 2576]
If a court of competent jurisdiction adjudges any section, clause,
provision, or portion of this chapter invalid or unenforceable, the
remainder of this chapter shall not be affected thereby. If any application
of this chapter to a particular structure, land, or water is adjudged
invalid or unenforceable by a court of competent jurisdiction, such
judgment shall not be applicable to any other structure, land, or
water not specifically included in said judgment.
The purpose and intent of this chapter is to protect the City
from undue hazards. It is recognized, however, that the chapter and
the staff administering the chapter may encounter conditions that
were not foreseen in the drafting of the chapter. Accordingly:
A.
The degree of flood protection provided by the chapter is considered
reasonable for regulatory purposes and is based on engineering experience
and scientific methods of study. On rare occasions, larger floods
may occur or man-made or natural causes such as ice jams or bridge
openings restricted by debris may increase the flood height. Therefore,
this chapter does not imply that those areas outside of the delineated
floodplain or land uses permitted within the floodplain will be totally
free from flooding and the associated flood damages, nor shall this
chapter create a liability on the part of, or a cause of action against,
the City of New Berlin or any officer or employee thereof for any
flood damages that may result from reliance on this chapter.
B.
The City does not imply that development will not result in increased
traffic, which will require transportation improvements. This chapter
shall not assume liability on the part of, or a cause of action against,
the City of New Berlin or any officer or employee thereof for any
increase in traffic volumes, increased congestion, or personal or
property damages caused by traffic accidents.
C.
The City does not imply that development will not have an impact
on groundwater quality or the capacity of groundwater to serve private
wells. This chapter shall not assume liability on the part of, or
a cause of action against, the City of New Berlin or any officer or
employee thereof for any impact on groundwater quality or capacity.
All other ordinances or parts of ordinances of the City inconsistent
or conflicting with this chapter, to the extent of the inconsistency
only, are hereby repealed.
No structure, land, water, air, or part thereof shall hereafter
be located, erected, moved, reconstructed, extended, enlarged, converted,
structurally altered, used, or occupied without a zoning permit. No
structure, land, water, air, or part thereof shall hereafter be located,
erected, moved, reconstructed, extended, enlarged, converted, structurally
altered, used, or occupied without full compliance with the provisions
of this chapter and all other applicable local, county, and state
regulations.
Unless specifically exempted by law, all cities, villages, towns,
and counties are required to comply with this chapter and obtain all
required permits. State agencies are required to comply if § 13.48(13),
Wis. Stats., applies. The construction, reconstruction, maintenance,
and repair of state highways and bridges by the Wisconsin Department
of Transportation are exempt from compliance when § 30.12(4)(a),
Wis. Stats., applies.[1]
[1]
Editor's Note: See now § 30.2022(1), Wis. Stats.
A.
Effective date. This chapter shall take effect upon passage and adoption
by the Common Council and the filing of proof of posting or publication
in the office of the City Clerk.
B.
Violations continue. Any violation under previous ordinances repealed by this chapter shall continue to be a violation under this chapter and be subject to penalties and enforcement under Article X, unless the use, development, construction, or other activity complies with the provisions of this chapter.
C.
Legal nonconformities under previous ordinances. Any legal nonconformity
under any previous ordinances repealed by this chapter is also a legal
nonconformity under this chapter, as long as the situation that resulted
in the nonconforming status under the previous ordinances continues
to exist. If a nonconformity under the previous ordinances becomes
conforming because of the adoption of this chapter, then the situation
will no longer be a nonconformity.
D.
Approved projects.
(1)
Any building, structure, or development for which a permit was issued
prior to the effective date of this chapter may, at the applicant's
option, be completed in conformance with the issued permit and any
other applicable permits and conditions, even if such building, structure,
or development does not fully comply with provisions of this chapter.
(2)
If the building or structure is not completed within the time allowed
under the original permit or any extension granted, then the building,
structure, or development may be constructed, completed, or occupied
only in compliance with this chapter.
(3)
If construction is not commenced or completed according to the applicable
permit terms, the Director may, for good cause shown, grant an extension
of up to one year for such construction under the terms of the previously
applicable ordinance(s).
(4)
Any reapplication for an expired project approval shall meet the
standards in effect at the time of reapplication.
E.
Complete applications.
(1)
When an application has been submitted and determined to be complete
prior to the effective date of this chapter, the applicant may choose
to have the application reviewed and acted upon wholly under the terms
of the previous Zoning Ordinance. If the application is approved by
the Plan Commission or Common Council, the project may be developed
in accordance with the standards in effect at the time of application.
Any reapplication for an expired permit shall meet the standards in
effect at the time of reapplication.
(2)
Projects for which no application has been submitted and accepted
as complete prior to the effective date of this chapter shall be subject
to all requirements and standards of this chapter.
F.
Engineering standards. When developments are phased, later phases
shall be constructed in accordance with the engineering standards
and practices in effect at the time of construction.
A.
Establishment.
(1)
Base zoning districts. For the purpose of this chapter, the
City of New Berlin is hereby divided into the following 30 base zoning
districts:
[Amended 1-12-2016 by Ord. No. 2558; 10-13-2020 by Ord. No. 2642; 4-25-2023 by Ord. No. 2668]
|
A-1
|
Agricultural District
|
|
A-2
|
Agricultural and Rural Holding District
|
|
R-1/R-2
|
Rural Conservation Single-Family Residential
|
|
R-2E
|
Residential Estate Single-Family Residential District
|
|
R-3
|
Suburban Single-Family Residential District
|
|
R-4
|
Low-Density Single-Family Residential District
|
|
R-4.5
|
Medium-Density Single-Family Residential District
|
|
R-5
|
Medium-Density Single-Family Residential District
|
|
R-6
|
Section 35 Low-Density Single-Family Residential District
|
|
R-7
|
Quarry Park Low-Density Single-Family Residential District
|
|
Rd-1
|
Two-Family Residential District
|
|
Rm-1
|
Multiple-Family Residential District
|
|
B-1
|
Shopping Center District
|
|
B-2
|
General Retail Sales and Service District
|
|
B-3
|
General Bulk Sales District
|
|
B-5
|
Rural Commercial District
|
|
O-1
|
Office and Business Service District
|
|
O-2
|
Business Park Development District
|
|
O-3
|
Transitional Office District
|
|
M-1
|
Light Manufacturing District
|
|
M-2
|
General Industrial District
|
|
M-3
|
Section 34-35 Business Park Development District
|
|
I-1
|
Institutional District
|
|
P-1
|
Park and Recreation District
|
|
P-2
|
Section 35 Park Complex District
|
|
Q-1
|
Quarrying and Extractive District
|
|
L-1
|
Landfill District
|
|
C-1
|
Upland Resource Conservancy District
|
|
C-2
|
Shoreland Wetland Holding District
|
|
C-3
|
Permanent Open Space/Conservation Lands
|
(2)
Flood hazard overlay districts. There are hereby established
within the City of New Berlin three flood hazard overlay districts,
which shall be known as:
[Amended 9-23-2014 by Ord. No. 2529]
|
FWO
|
Floodway Overlay District
|
|
FFO
|
Floodplain Fringe Overlay District
|
|
FSO
|
Flood Storage District
|
(3)
Special overlay districts. There are hereby established within
the City of New Berlin two special overlay districts, which shall
be known as:
[Amended 4-22-2014 by Ord. No. 2522]
|
PUD
|
Planned Unit Development Overlay District
|
|
SPO
|
Special Plan Overlay District
|
B.
District boundaries established. Boundaries of these districts are
hereby established as shown on the maps entitled "Zoning Map —
City of New Berlin, Wisconsin," and "Adopted Floodplain Zoning Map
— City of New Berlin, Wisconsin" (refer to § 275-65.22E(2)(a)[1]),
including all revisions to the Zoning Map and Floodplain Zoning Map
through the effective date of this chapter.[1] The content of these maps and in particular all notations
and references shown on the maps are as much a part of this chapter
as though specifically described herein. This chapter hereby incorporates
herein any future changes or any later Zoning Maps and Floodplain
Zoning Maps that may be adopted by ordinance of the Common Council
from time to time.
[Amended 9-23-2014 by Ord. No. 2529; 6-11-2019 by Ord. No. 2620]
[1]
Editor's Note: The Zoning Map and Floodplain Zoning Map are
on file in the office of the Department of Community Development.
C.
Source of C-1 and C-2 boundaries.
(1)
Boundaries of the C-1 Upland Resource Conservancy District were
based on the delineation of primary environmental corridors, secondary
environmental corridors, and isolated natural areas as shown in the
Land Use and Urban Design Plan for the City of New Berlin: 2010 and
information supplied to the City by SEWRPC. C-1 Conservancy Districts
may also include buffers, significant natural areas, environmental
easements shown on development plan approvals, poor soils as shown
in the Soil Survey of Milwaukee and Waukesha Counties, Wisconsin,
published by the United States Department of Agriculture in July 1971,
and previous City of New Berlin C-1 District zoning boundaries. These
zoning districts are updated by rezoning requests supported by field
delineations.
(2)
Boundaries of the C-2 Shoreland Wetland Holding District were
initially based on the following data, which reflect the best data
available to the City at the time, and are updated by rezoning requests
supported by field delineations:
(a)
Wisconsin Wetland Inventory Maps for the City of New Berlin,
dated April 10, 1986, and stamped "Final." The Wisconsin Wetland Inventory
Maps were used to illustrate the wetlands utilizing the best statewide
cartographic information available at that time. The City declares,
however, that the Wisconsin Wetland Inventory Maps do not exhibit
exact wetland boundaries but are used as supplemental information.
(b)
Wetland maps for the City of New Berlin marked "City of New
Berlin Wetlands; Source City of New Berlin Planning Department; Completed
December 1987 – Revised." These maps show wetlands requiring
protection by § 62.231, Wis. Stats.; wetlands protected
by Army Corps of Engineers Section 404; and other wetlands inside
New Berlin environmental corridors.
(c)
Wetlands field staked by a field biologist and surveyed by a
Wisconsin registered land surveyor and approved by applicable regulating
authorities, which might include the Southeastern Wisconsin Regional
Planning Commission and/or DNR.
D.
Interpretation of district boundaries. Where uncertainty exists as
to boundaries of districts as shown on the Zoning Map, the following
rules shall apply:
(1)
The district boundaries in all districts, except the C-1, C-2,
C-3, FWO, FFO, PUD, and SPO Districts, shall be construed to follow:
corporate limits; United States Public Land Survey lines; lot, subdivision,
and property lines; center lines of streets, highways, alleys, easements,
and railroad rights-of-way; or such lines extended; unless otherwise
noted on the Zoning Map. Boundaries not capable of being determined
by these methods shall be measured from the Zoning Map shown at a
scale of one inch equals 200 feet and rounded to the nearest ten-foot
interval.
(2)
The C-3, PUD, and SPO District boundaries shall be construed
to follow the metes-and-bounds description used to describe the area.
(3)
The C-1 Upland Resource Conservancy District boundaries shall
be measured from the Zoning Map shown at a scale of one inch equals
200 feet and rounded to the nearest ten-foot interval.
(a)
For areas field-staked by a field biologist and/or SEWRPC, surveyed
by a Wisconsin registered land surveyor and approved by the Southeastern
Wisconsin Regional Planning Commission, the most recent metes-and-bounds
description prepared by a Wisconsin registered land surveyor shall
be interpreted as the C-1 Upland Resource Conservancy District boundary.
(b)
For all other areas that are not field-staked and surveyed,
a metes-and-bounds description shall be prepared in accordance with
§ 275-37B(3)(c).
(4)
C-2 Shoreland Wetland Holding District boundary interpretation.
(a)
For areas field-staked by a field biologist and surveyed by
a Wisconsin registered land surveyor and approved by applicable regulating
authorities, which might include the Southeastern Wisconsin Regional
Planning Commission, United States Army Corps of Engineers (ACOE)
and/or the DNR; the most-recent metes-and-bounds description prepared
by a Wisconsin registered land surveyor shall be interpreted as the
C-2 Shoreland Wetland Holding District boundary.
(5)
(Reserved)
E.
Vacation. Vacation of public streets and alleys shall cause the vacated
land to be automatically placed in the same district as the abutting
side to which the vacated land reverts.
F.
Annexation. Annexations to or consolidations within the City subsequent
to the effective date of this chapter shall be placed in the A-2 Agricultural
and Rural Holding District, unless the annexation ordinance temporarily
places the land in another district. Within one year, the City Plan
Commission shall evaluate and recommend a permanent classification
to the Common Council.
G.
Zoning Map. Certified copies of the Zoning Map shall be adopted and
approved with the text as part of this chapter and shall be available
to the public in the office of the Department of Community Development.
H.
Transitional provisions.
(1)
All areas in the R-1 and R-2 Districts shall be placed in the
R-1/R-2 District.
(2)
All areas in the B-4 District shall be governed by the regulations
of the B-2 District. Any action requiring Plan Commission approval
or review on areas zoned B-4 shall include a rezone petition to an
existing zoning district.
(3)
All areas currently zoned C-2 Shoreland Wetland Districts shall be placed into the C-2 Shoreland Wetland Holding District and shall be subject to the wetland registration process as described in § 275-37E.
(a)
All registered wetlands shall be subject to the setbacks and regulations of the C-2 Shoreland Wetland Holding District as set forth in § 275-37 of this chapter.
(b)
The C-2 boundary shall apply unless a wetland registration has
been completed/approved.
(c)
For purposes of the setback and other land use provisions of
this chapter, the registered wetland boundary shall apply. The C-2
boundary shall apply where there is no wetland registration showing
on the property.
(4)
Section 34-35 transitional provisions: South Moorland Road Corridor.
Section 35 is an area that is envisioned to be a mix of business park
industrial, office, retail, residential, and passive and active park
uses. In order to implement the conceptual neighborhood plan, the
City has created three new zoning districts specifically for this
geographic area. They include a new R-6 (Section 35 Low-Density Single-Family
Residential), M-3 (Section 34 and 35 Business Park Development District)
and P-2 (Section 35 Park Complex District). The City's Comprehensive
Plan, Chapter 10, Land Use, Figure 10.5, identifies the future land
uses for this area. Below, Figure I-1 identifies the pending designated
zoning districts. All projects that require rezoning within this respective
area shall be rezoned in accordance with Zoning Code Figure I-1 and
future Plan Commission and Common Council actions. See map below.
[Added 1-12-2016 by Ord.
No. 2558]
|
Figure I-1 South Moorland Road Corridor Designated Zoning
Districts
 |
(5)
All areas currently located within the P-1 District are conforming
under the current adoption of the code, as of August 24, 2021.
[Added 8-24-2021 by Ord. No. 2652]
