There is established in section 2-4-4 of the City of Cedarburg Code of Ordinances a Zoning Board of Appeals for the City of Cedarburg for the purposes of hearing appeals and applications and for granting variances and exceptions to the provisions of this Zoning Ordinance.

The zoning board of appeals shall be composed as prescribed in section 2-4-4.

In addition to the powers enumerated in section 2-4-4, the zoning board of appeals shall have the following powers:

(a)

Errors. To hear and decide appeals when it is alleged there is error in any order, requirement, decision, or determination made by any administrative official.

(b)

Variances. To hear and grant appeals for variances as will not be contrary to the public interest, when, owing to special conditions, a literal enforcement will result in practical difficult or unnecessary hardship, so that the spirit and purposes of this chapter shall be observed and the public safety, welfare, and justice secured. Use variances shall not be granted.

(c)

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.

(d)

Permits. The board may reverse, affirm wholly, or partly modify the requirements appealed from, and may issue or direct the issue of a permit.

(e)

Assistance. The board may request assistance from other town officers, departments, commissions, and boards.

(f)

Oaths. The chairman may administer oaths and compel the attendance of witnesses.

Appeals of the decision of the zoning administrator or any administrative official concerning the literal enforcement of this chapter 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 within 30 days after the date of written notice of the decision or order of the zoning administrator or any administrative official. 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 applications shall include the following:

(a)

Name and address of the appellant or applicant and all abutting and opposite property owners of record.

(b)

Plat of survey prepared by a registered land surveyor showing all of the information required under section 13-1-225 for a zoning permit.

(c)

Additional information required by the city plan commission, city engineer, zoning board of appeals, or zoning administrator.

The zoning board of appeals shall fix a reasonable time and place for the hearing, shall give public notice thereof as specified in section 13-1-229 of this chapter and shall give due notice to the parties in interest, the zoning administrator, and the city plan commission. At the hearing the appellant may appear in person, by agent, or by attorney.

The zoning board of appeals shall transmit a copy of each application for a variance to conservancy regulations in a shoreland or to floodland regulations, and a copy of all shoreland and floodland appeals, to the Wisconsin Department of Natural Resources (DNR) for review and comment at least ten days prior to any public hearings. Final action on the application shall not be taken for 30 days or until the DNR has made its recommendation, whichever comes first. A copy of all decisions relating to variances to conservancy regulation in a shoreland or to floodland regulations, and a copy of all decisions to shoreland and floodland appeals shall be transmitted to the DNR within ten days of the date of such decision.

No variance to the provisions of this chapter shall be granted by the board unless it finds beyond a reasonable doubt that all the following facts and conditions exist and so indicate such in the minutes of its proceedings:

(a)

Preservation of intent. No variance shall be granted that is not consistent with the purpose and intent of the regulations for the district in which the development is located. No variance shall have the effect of permitting a use in any district that is not a stated permitted district.

(b)

Exceptional circumstances. There must be exceptional, extraordinary, or unusual circumstances or conditions applying to the property that do not apply generally to other properties in the same district, and the granting of the variance should not be of such general or recurrent nature as to suggest that the zoning chapter should be changed.

(c)

Economic hardship and self-imposed hardship not grounds for variance. No variance shall be granted solely on the basis of economic gain or loss. Self-imposed hardships shall not be considered as grounds for the granting of a variance.

(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. No variance shall be granted that will create substantial detriment to adjacent property or that will materially impair or be contrary to the purpose and spirit of this chapter or the public interest.

(f)

Additional requirements in floodland districts. No variance shall be granted where:

(1)

Filling and development contrary to the purpose and intent of the FWO Cedar Creek Floodway Overlay District or FCO Floodplain Conservancy District would result.

(2)

A change in the boundaries of the FWO Cedar Creek Floodway Overlay District, FCO 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 100 year recurrence interval flood for the particular would result.

(4)

Any action contrary to the provisions of Chapter NR 116 of the Wisconsin Administrative Code would result.

(a)

Wetland disputes. Whenever the board of appeals is asked to interpret a C-1 Conservancy 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 appeals shall direct the plan commission to initiate appropriate action to rezone the property within a reasonable amount of time.

(b)

Floodland disputes. Whenever the board of appeals is asked to interpret a floodland boundary where an apparent discrepancy exists between the federal Flood Insurance Study and actual field conditions, the following procedure shall be used. The floodland 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 of 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 appeals shall advise the plan commission of its findings and the plan commission shall proceed to petition the common council for a map amendment.

(a)

Time for decision. 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, zoning administrator, and plan commission.

(b)

Conditions may be placed upon any building permit ordered or authorized by this board.

(c)

Variances, substitutions, or use permits granted by the board shall expire within six months unless substantial work has commenced pursuant to such grant.

(d)

Applicants receiving variances in floodlands shall be notified, in writing, by the board of appeals that increased flood insurance premiums and threat to life and property may result from the granting of the variance. The board shall keep a record of the notifications in its files.

Any person or persons aggrieved by any decision of the zoning board of appeals may present to the 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 office of the zoning board of appeals.