[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 and Chapter 370, Building and Mechanical Code.
The Zoning Board of Appeals shall consist of five members and two alternates appointed by the Village President and confirmed by the Village Board.
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.
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.
The Village President shall designate one of the members Chairman.
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.
Official oaths shall be taken by all members in accordance with § 19.01, Wis. Stats., within 10 days of receiving notice of their appointments.
Four members of the Zoning Board of Appeals shall constitute a quorum.
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 on the fourth Tuesday of each month at 6:00 p.m. or at the call of the Chairman and at such other time as the Zoning Board of Appeals may determine. The Chairman, or in his/her absence the Acting Chairman, 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.
[Amended 11-16-2009 by Ord. No. 09-57; 5-16-2011 by Ord. No. 11-15]
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 any administrative official or to decide in favor of the applicant in any matter on which it is required to pass under Chapter 420, Zoning Ordinance, or to effect any variation in Chapter 420, Zoning Ordinance
[Amended 1-15-2007 by Ord. No. 07-02]
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.
The Zoning Board of Appeals shall have the following powers:
To hear and decide appeals as may be authorized by § 62.23(7)(e)7, Wis. Stats., and Chapter 420, Zoning Ordinance.
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.
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.
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.
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.
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]
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.
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.
The Zoning Board of Appeals may request assistance from other Village officers, departments, commission, and boards.
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:
Names, addresses and phone numbers of the applicant, owner of the site, architect, professional engineer, contractor, and authorized agent if applicable.
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.
A plat of survey and/or site plan consisting of a survey prepared by a land surveyor registered by the State of Wisconsin 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.
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.
An appeal shall stay all proceedings and 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 and 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.
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.
Notice of the aforementioned public hearing shall be published as a Class 1 notice in a newspaper of general circulation within the Village pursuant to Ch. 985, Wis. Stats., 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.
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 Chairman of the Zoning Board of Appeals, and, at the conclusion thereof, the Chairman 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 Chairman 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 Chairman; provided, however, that said evidence or sworn testimony is properly identifiable for the record. Lastly, the Chairman 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 Chairman 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.
In determining whether a variance is to be granted, the following standards and guidelines shall be met. In making its decision, these standards and guidelines shall be addressed by the Zoning Board of Appeals.
The existence of special conditions or exceptional circumstances on the land in question.
The experiencing of unnecessary hardships or practical difficulties on the land in question either presently or in the future.
That these hardships or difficulties are the result of the aforementioned special conditions existing on the land and are not self-inflicted.
That the existence of these special conditions will restrict the use of the land if the Zoning Ordinance is applied literally so as to render land useless.
That the limitation on the use of the land does not apply generally to other properties in the district.
That limiting the use of the property will not afford compensating gains to the public health, safety and welfare.
That the variance(s) requested is (are) the minimum variance(s) needed to alleviate difficulties or hardships.
That granting the variance(s) applied for will not affect the public health, safety, morals welfare of the community and other properties in the area.
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.
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.
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.
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 administrate 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]
The Zoning Board of Appeals shall decide all appeals and applications in compliance with the Wisconsin Open Meeting Law 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.
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.
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.
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.