Amery City Zoning Code
ARTICLE XIV
Appeals
§ 450-114 Appeals to Zoning Board of Appeals.
A.
Scope of appeals. Appeals to the Zoning Board of Appeals may be taken by any person aggrieved or by any officer, department, board or bureau of the City affected by any decision of the administrative officer. Such appeal shall be taken within 30 days of the alleged grievance or judgment in question by filing with the officer(s) from whom the appeal is taken and with the Zoning Board of Appeals a notice of appeal specifying the grounds thereof, together with payment of a filing fee as may be established by the City Council. The officer(s) from whom the appeal is taken shall forthwith transmit to the Zoning Board of Appeals all papers constituting the record of appeals upon which the action appealed from was taken.
B.
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, 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, on notice to the officer from whom the appeal is taken and on due cause shown.
C.
Powers of Zoning Board of Appeals. In addition to those 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 or Building Inspector.
(2)
Variances. To hear and grant appeals for variances in accordance with the procedures and requirements of § 450-117. Use variances shall not be granted.
[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II)]
(3)
Interpretations. To hear and decide application for interpretations of the zoning regulations and the boundaries of the zoning districts after the Plan Commission has made a review and recommendation.
[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II)]
(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 Plan Commission has made a review and recommendation. Whenever the Board permits such a substitution, the use may not thereafter be changed without application.
[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II)]
(5)
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 Plan Commission has made a review and recommendation.
[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II)]
(6)
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 Plan 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.
[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II)]
(7)
Permits. The Board may reverse, affirm wholly or partly, modify the requirements appealed from and may issue or direct the issue of a permit.
D.
Appeals applications. Parties intending to appeal an authorized matter to the Zoning Board of Appeals shall file an application satisfying the requirements of § 450-117B, along with an application fee as prescribed in the Schedule of Fees.
§ 450-115 Hearing on appeals.
The Zoning Board of Appeals shall fix a reasonable time for the hearing, cause notice thereof to be published in the official newspaper not less than seven days prior thereto, cause notice to be given to the appellant or applicant and the administrative officer(s) appealed from by regular mail or by personal service not less than five days prior to the date of hearing. In every case involving a variance, notice shall also be mailed not less than five days prior to the hearing of the fee owners of record of all land within 100 feet of any part of the subject building or premises involved in the appeal.
§ 450-116 Decisions of Zoning Board of Appeals.
A.
Time frame. The Zoning Board of Appeals shall decide all appeals and applications within 30 days after the public hearing and shall transmit a signed copy of the Board's decision to the appellant or applicant and the Zoning Administrator.
B.
Conditions. Conditions may be placed upon any zoning permit ordered or authorized by this Board.
C.
Validity. Variances, substitutions or use permits granted by the Board shall expire within six months unless substantial work has commenced pursuant to such grant.
§ 450-117 Variances.
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 or create conditions causing greater harmful effects than the initial condition. A variance granted to a nonconforming use brings that use into 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, permit a lower degree of flood protection that the flood protection elevation for the particular area or permit standards lower than those required by state law.
[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II)]
(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 good soil conditions, uniquely applicable to the particular piece of property as distinguished from those applicable to most or all property in the same zoning district.
B.
Application for variance. The application for variance shall be filed with the Zoning Administrator. Applications may be made by the owner or lessee of the structure, land or water to be affected. The application shall contain the following information:
[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II)]
(1)
Name and address of applicant and all abutting and opposite property owners of record.
(2)
Statement that the applicant is the owner or the authorized agent of the owner of the property and a statement on why this matter is being brought before the Zoning Board of Appeals.
(3)
Address and description of the property.
(4)
A site plan showing an accurate depiction of the property.
(5)
Additional information required by the City Engineer, Plan Commission, Zoning Board of Appeals or Zoning Administrator.
[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II)]
(6)
Fee receipt in the amount prescribed by the Schedule of Fees.
C.
Public hearing of application. The Zoning Board of Appeals shall conduct at least one public hearing on the proposed variance. Notice of such hearing shall be given not more than 30 days and not less than 10 days before the hearing in one or more of the newspapers in general circulation in the City, and shall give due notice to the parties in interest, the Zoning Administrator and the Plan Commission. At the hearing the appellant or applicant may appear in person, by agent or by attorney. The Board shall thereafter reach its decision within 30 days after the final hearing and shall transmit a written copy of its decision to the appellant or applicant.
[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II)]
D.
Action of the Board. For the Board to grant a variance, it must find that:
(1)
Denial of variance may result in hardship to the property owner due to physiographical consideration. There must 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 Zoning Code should be changed.
[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II)]
(2)
The conditions upon which a petition for a variance is based are unique to the property for which variance is being sought and 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.
(3)
The purpose of the variance is not based exclusively upon a desire to increase the value or income potential of the property.
(4)
The granting of the variance will not be detrimental to the public welfare or injurious to the other property or improvements in the neighborhood in which the property is located.
(5)
The proposed variance will not undermine the spirit and general and specific purposes of the Zoning Code.
E.
Zoning Board of Appeals action. Parties may appeal decisions of the Zoning Board of Appeals under this section to the City Council ; the City Council shall follow the procedures applicable to the Zoning Board of Appeals under this section.
[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II)]
F.
Conditions. The Zoning Board of Appeals or the City Council on appeal 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.
Note: The Wisconsin Supreme Court, in state ex rel. Ziervogel v. Washington County Board of Adjustment (Case No. 02-1618, March 19, 2004), decided that there are two types of standards to be applied when considering variance requests, a "use" variance standard and an "area" variance standard. When considering an "area" variance, the test is the existence of an unnecessary hardship, whether compliance with the strict letter of the restrictions governing area, setbacks, frontage, height, bulk or density would unreasonably prevent the owner from using the property for a permitted purpose or would render conformity with such restrictions unnecessarily burdensome. When considering a "use" variance, to grant a variance it must be demonstrated that no reasonable use of the property would be possible without the variance.
[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II)]
§ 450-118 Review by court of record.
Any person 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.