There is hereby established a Board of Appeals for the City of Elkhorn in accordance with Wis. Stat. § 62.23(7)(e) for the purpose of hearing appeals and applications and granting variances and exceptions to the provisions of this chapter in harmony with the purpose and intent of this chapter.

(Ord. No. 24-06, § 1 (Exb. A), 6-17-2024; Ord. No. 14-05, §§ 1, 2, 2014.)

(1)

Composition. The Board of Appeals shall consist of 5 members appointed by the Mayor and approved by the Common Council. The Mayor shall make his nominations at least one month prior to their appointment.

(2)

Officers. The Board of Appeals shall choose its own chairperson and vice chairperson. The Chairperson shall preside at all meetings of the Board, except that in the event of their absence or disability, the Vice-Chairperson shall preside. In the absence of both the Chairperson and the Vice-Chairperson, the longest standing Board Member shall preside.

(3)

Terms; Compensation. The 5 members shall be appointed for staggered 3 year terms by the Mayor with approval by the Common Council, each term commencing May 1. Initially, members existing on July 15, 2024, shall be reappointed by the Mayor with approval by the Common Council on that date and the terms of the various members shall be staggered so that two terms shall expire each year for two consecutive years and one term shall expire in the third year. There shall be no compensation received by the members for their service on the Board.

(4)

Alternate Members. Two alternate members may be appointed by the Mayor for staggered terms of 3 years. Initially, the two existing alternate members shall be reappointed by the Mayor on July 15, 2024, and the terms of the two alternate members shall be staggered so that one term shall expire each year.

(a)

Annually, the mayor shall designate one of the alternate members as 1st alternate and the other as 2nd alternate. Initially, the two existing alternate members shall be re-designated by the Mayor on July 15, 2024.

(b)

17.12-2(7), with regard to removal and the filling of vacancies, shall apply to such alternates.

(c)

The 1st alternate shall act, with full power, only when a member of the board abstains from voting or when a member is absent.

(d)

The 2nd alternate shall so act only when the 1st alternate so abstains from voting or is absent or when more than one member of the board so abstains or is absent.

(5)

City Administration. The Zoning Administrator shall attend all meetings for the purpose of providing technical assistance when requested by the Board of Appeals and to address the matter when requested by the City to take an official position.

(6)

Official Oaths. Official oaths shall be taken by all members in accordance with Section 19.01, Wis. Stats. within 10 days of receiving notice of their appointment.

(7)

Vacancies. Vacancies shall be filled for the unexpired term in the same manner as appointments for a full term.

(Ord. No. 24-06, § 1 (Exb. A), 6-17-2024; Ord. No. 14-05, §§ 1, 2, 2014.)

(1)

Rules of Procedure. The Board may adopt such rules of procedure as it deems necessary for the conduct of its proceedings.

(2)

Meetings shall be held at the call of the Chairperson and at such other times as the Board may determine. All meetings of the Board shall be open to the public.

(3)

Minutes. Minutes of the proceedings and a record of all actions shall be kept by the Board, showing the vote of each member upon each question, the reasons for the Board's determination, and its finding of facts. These records shall be immediately filed in the office of the Board and shall be a public record.

(4)

Quorum. The presence of a majority of the Board members or of Board members and alternates shall constitute a quorum.

(5)

Voting Requirement. The concurring vote of a majority of the members present shall be necessary to correct an error; grant a variance; make an interpretation; and permit a temporary, unclassified or substituted use.

(Ord. No. 24-06, § 1 (Exb. A), 6-17-2024; Ord. No. 14-05, §§ 1, 2, 2014.)

The Board of Appeals shall have the following powers granted in Wis. Stat. § 62.23(7)(e)(7):

(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 another administrative official in the enforcement of the zoning code of the City of Elkhorn.

(2)

Special Exceptions. To hear and decide special exception to the terms of the ordinance upon which such board is required to pass under such ordinance.

(3)

Variances. To hear and approve variances where owing to special conditions, a literal enforcement will result in practical difficulty or unnecessary hardship. Such variance shall not be contrary to the public interest and shall be so conditioned that the spirit and purposes of this chapter shall be observed and the public safety, welfare and justice secured. See 17.12-6 for more information.

(4)

Public Utility Uses. The board may permit in appropriate cases, and subject to appropriate conditions and safeguards in harmony with the general purpose and intent of the ordinance, a building or premises to be erected or used for such public utility purposes in any location which is reasonably necessary for the public convenience and welfare.

(5)

Interpretations. To hear and decide applications for interpretations of the zoning regulations and the location of the boundaries of the zoning districts after the City Plan Commission has made a review and recommendation.

(6)

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 Zoning Administrator has made a review and recommendation. Whenever the Board permits such a substitution, the use may not thereafter be changed without application.

(7)

Permits. The Board may reverse, affirm wholly or partly or modify the order, requirement, decision or determination as ought to be made.

(8)

Assistance. The Board may request assistance from other City officers, departments, commissions and boards.

(9)

Oaths. The Chairperson, or Vice-Chairperson in their absence, may administer oaths and compel the attendance of witnesses.

(Ord. No. 24-06, § 1 (Exb. A), 6-17-2024; Ord. No. 14-05, §§ 1, 2, 2014.)

(1)

Appeals to the Board of Appeals may be made by any person aggrieved by, or by any officer, department, board or bureau of the City affected by a decision of the Zoning Administrator or another administrative official in the enforcement of the zoning code of the City of Elkhorn. Such appeals shall be filed in the Office of the Zoning Administrator within 90 days after the date of written notice of the decision or order of the Zoning Administrator. 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 in the office of the Zoning Administrator. Applications deemed incomplete shall not be accepted by the City. Complete applications for such appeals 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 land surveyor registered in the State of Wisconsin or other map drawn to scale and approved by the City Zoning Administrator, showing all of the information required under Section 17.14-3 for a Zoning Permit;

(c)

Additional information required by the City Zoning Administrator, the Board of Appeals or the City Plan Commission.

(d)

Fee receipt from the Zoning Administrator for the fee required by the schedule of fees adopted by the Common Council as found in Chapter 23 of the Municipal Code.

(Ord. No. 24-06, § 1 (Exb. A), 6-17-2024; Ord. No. 14-05, §§ 1, 2, 2014.)

(1)

Purpose. The Board of Appeals, after a public hearing, may determine and vary the regulations of this Chapter in harmony with their general purpose and intent, only in the specific instances hereinafter set forth, where the Board of Appeals makes findings of fact according to 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 Chapter.

(2)

Definitions.

(a)

"Area Variance" shall mean a modification to a dimensional, physical, or locational requirement such as a setback, frontage, height, bulk, or density restriction for a structure that is granted by the board of appeals under this Section.

(b)

"Use Variance" shall mean an authorization by the Board of Appeals under this Section for the use of land for a purpose that is otherwise not allowed or is prohibited by the applicable zoning ordinance.

(3)

Burden of Proof.

(a)

A property owner bears the burden of proving "unnecessary hardship," as that term is used in this subdivision, for an Area Variance, by demonstrating that strict compliance with a zoning ordinance would unreasonably prevent the property owner from using the property owner's property for a permitted purpose or would render conformity with the zoning ordinance unnecessarily burdensome.

(b)

A property owner bears the burden of proving that for a Use Variance, demonstrating that strict compliance with the Chapter would leave the property owner with no reasonable use of the property in the absence of a variance.

(c)

In all circumstances, a property owner bears the burden of proving that the "unnecessary hardship" is based on conditions unique to the property, rather than considerations personal to the property owner; it was not created by the property owner or self-imposed; and it is not economic in nature (see Sec. 17.12-8 Findings).

(4)

Requirements.

(a)

No variance to the provisions of this Chapter (except as otherwise provided) shall be granted by the Board of Appeals unless it finds that if the variance is granted it would not be contrary to the public interest; a literal enforcement of this Chapter provisions would result in practical difficulties or unnecessary hardship due to special conditions; the spirit of this Chapter is preserved; public safety and welfare are secured and substantial justice done; and a determination if the property owners has met the burden of proof in this Section. In reviewing the application and evidence relating to a variance the Board of Appeals shall consider the findings statements set forth in this Chapter.

(b)

Variances and appeals related to any property in a Floodplain shall comply with Article 17.17, Floodplain Zoning Ordinance.

(5)

Authorized Variances. Variances from the zoning regulations of this Chapter shall be the authority of the Board of Appeals only according to the standards established in this Chapter. This Chapter shall not apply to decisions of the Common Council or Plan Commission ("Plan Commission") relating to the following: Building ("Building") Site and Operational Plans; signs of a temporary or permanent nature; rezonings or Conditional Use requests.

(Ord. No. 24-06, § 1 (Exb. A), 6-17-2024; Ord. No. 14-05, §§ 1, 2, 2014.)

(1)

General. The Board of Appeals shall hold a public hearing upon each application within a reasonable time of the date of filing of a complete application. The Board of Appeals shall fix a time and place for the hearing, publish a Class 2 notice thereof and shall give due notice to the parties in interest, the Zoning Administrator and the City Plan Commission. Notice of the public hearing shall be given to the Zoning Administrator and mailed to all parties-in-interest at least 10 days before the hearing. Parties-in-interest shall be defined as the applicant, the clerk of any municipality within 100 feet of any lands included in the petition, the Wisconsin Department of Natural Resources, if applicable, and the owners of all lands included in the application and all lands lying within 300 feet of lands included in the petition. At the hearing the appellant or applicant may appear in person, by agent or by attorney.

(2)

Conduct of Public Hearing. The Chairperson, or Vice-Chairperson in their absence, of the Board of Appeals shall place all witnesses under oath. The Board of Appeals shall hear all relevant evidence presented for and against the application. The Chairperson of the Board of Appeals may rule on exceptions to evidence and permit examination of witnesses.

(Ord. No. 24-06, § 1 (Exb. A), 6-17-2024; Ord. No. 14-05, §§ 1, 2, 2014.)

(1)

Board Action Pursuant to Powers. In accordance with Section 62.23(7), Wis. Stats., and amendments thereto, in exercising the powers of the Board (see Section 17.12-4 of this chapter) the Board may 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 is taken, and may issue or direct the issue of a permit.

(2)

Variance Requirements. No variance to the provisions of this Chapter shall be granted by the Board unless it finds by a preponderance of the evidence that all the following facts and conditions exist and so indicates 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 use accessory use, or conditional use in that particular district unless the Board of Appeals determines after application and hearing in accordance with this Section, that the property owner has no other reasonable use of the property in accordance with Section 17.12-6(3)(b).

(b)

Exceptional Circumstances. 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 Ordinance 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. 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.

(e)

Absence of Detriment. That the variance will not create substantial detriment to adjacent property and will not materially impair or be contrary to the purpose and spirit of this chapter or the public interest.

(Ord. No. 24-06, § 1 (Exb. A), 6-17-2024; Ord. No. 14-05, §§ 1, 2, 2014.)

(1)

The Board of Appeals shall decide all appeals and applications within 30 days after the final hearing.

(a)

Required Vote. The concurring vote of the majority of a quorum (A quorum being 3 or more members) of the Board of Appeals shall be necessary to make a decision, grant a variance, exception, or substitution.

(b)

Decision Letter. Every Decision shall be signed by the Chairperson, or Vice-Chairperson, and attested to by the Board Secretary as evidence of the action of the Board. The original Decision letter shall be sent to the Applicant. Copies of each Decision letter shall be filed with the Board's record of the case at the City Hall, the office of the Board of Appeals, and the Zoning Administrator, to the Wisconsin Department of Natural Resources, if applicable.

(c)

Conditions may be placed upon any zoning permit ordered or authorized by this Board.

(d)

Expiration of Variance. Variances, substitutions or use permits granted by the Board shall expire within 6 months unless substantial work has commenced pursuant to such grant or within the completion date established by the Board. For the purpose of this code section, "commenced" means that permits have been applied for and obtained and onsite construction has started. Thereafter, the required timelines are established by issued permits.

1.

Extensions of time. Upon written application, the Board may grant one or more consecutive extensions of 90 days each.

(e)

WI DNR. Final action on Floodplain appeals and variance requests shall not be taken for 30 days or until the Wisconsin Department of Natural Resources has made a recommendation, whichever comes first. All decisions shall be submitted to the local WI DNR office within 10 days after the decision.

(2)

Finality of Decision; Resubmittal. No appeal that has been dismissed or denied shall be considered again within one year except: on a motion to reconsider the vote made by a member voting with the majority within 30 days of the date of the decision, or on a request for a re-hearing. All decisions and findings of the Board of Appeals on any application for a variance, after a public hearing, shall, in all instances be the final administrative decision and shall be subject to judicial review.

(3)

Re-Hearing. No request to grant a re-hearing shall be entertained unless substantial new evidence is submitted which could not reasonably have been presented at the previous hearing. In all cases, the request for a re-hearing shall be in writing listing the reasons for the request and shall be duly verified and accompanied by the necessary data and diagrams. The party requesting the re-hearing shall be notified to appear before the Board on a date to be set by the Board, of which the requestor shall be notified. If a motion to grant a re-hearing receives the affirmative votes of 3 or more members of the Board, the case shall be put on the calendar for a re-hearing. Re-hearings shall be subject to the same requirements as the original hearing.

(Ord. No. 24-06, § 1 (Exb. A), 6-17-2024; Ord. No. 14-05, §§ 1, 2, 2014.)

In accordance with Wis. Stat. § 62.23(7)(e)(10), and amendments thereto, any person or persons, jointly or severally aggrieved by any decision of the Board of Appeals, or any taxpayer or any officer, department, board or bureau of the municipality, may appeal pursuant to Wis. Stat. § 62.23(7)(e)(10) within 30 days after the filing of the decision in the office of the Board of Appeals.

(Ord. No. 24-06, § 1 (Exb. A), 6-17-2024)