This article is adopted pursuant to the authorization in Wis. Stats. §§ 62.23, 62.231, 59.692, and 281.31.

(Ord. No. 2010-O-09, § 22.201, 10-12-2010)

The uncontrolled development and use of the wetlands, rivers and streams, and the pollution of navigable waters of the city would adversely affect the public health, safety, convenience, and general welfare and impair the tax base. The state legislature has delegated responsibility to all municipalities to further the maintenance of safe and healthful conditions; prevent and control water pollution; protect spawning grounds, fish and aquatic life; control building sites, placement of structures and land uses; and preserve shore cover and natural beauty.

(Ord. No. 2010-O-09, § 22.202, 10-12-2010)

To promote the public health, safety, convenience and general welfare, and protect life, health and property this article has been established to:

(1)

Maintain the stormwater and floodwater storage capacity of wetlands;

(2)

Protect life, health and property;

(3)

Prevent and control water pollution by preserving wetlands which filter or store sediments, nutrients, heavy metals or organic compounds that would otherwise drain into navigable waters;

(4)

Protect fish spawning grounds, fish, aquatic life and wildlife by preserving wetlands and other fish and aquatic habitat;

(5)

Prohibit certain uses detrimental to the wetland area;

(6)

Preserve shore cover and natural beauty by restricting wetland excavation, filling and other earth moving activities;

(7)

Minimize expenditures of public monies for costly flood control projects;

(8)

Reduce rescue and relief efforts, generally undertaken at the expense of the tax paying public;

(9)

Prevent business interruptions which usually result in the loss of local incomes;

(10)

Reduce damage to public facilities such as utilities, municipal buildings, streets and bridges which may be located in the floodplains;

(11)

Prevent the occurrence of future flood blight areas on floodplains;

(12)

Discourage the victimization of unwary land and home buyers; and

(13)

Prevent increases in regional flood heights which could increase damage during floods and which may result in conflicts or litigation between property owners.

(Ord. No. 2010-O-09, § 22.203, 10-12-2010)

This article shall be known as the Wetland Overlay Zoning for the City of Fitchburg, Wisconsin.

(Ord. No. 2010-O-09, § 22.204, 10-12-2010)

Any development, as defined in section 22-651, in wetlands shall be in full compliance with the terms of this article. However, see section 22-691 for the standards applicable to nonconforming uses. It is the responsibility of the applicant to secure all other necessary permits from appropriate federal, state, and local agencies, including those required by the U.S. Army Corps of Engineers under section 404 of the Federal Water Pollution Control Act amendments of 1972, 33 USC 1344.

(Ord. No. 2010-O-09, § 22.211, 10-12-2010)

Unless specifically exempted by law, all cities, villages, towns, and counties are required to comply with this article and obtain all necessary permits. State agencies are required to comply if Wis. Stats. § 13.48(13) applies. The construction, reconstruction, maintenance and repair of state highways and bridges by the Wisconsin Department of Transportation are exempt when Wis. Stats. § 30.12(4)(a) applies.

(Ord. No. 2010-O-09, § 22.212, 10-12-2010)

(a)

This article supersedes all the provisions of any zoning ordinance enacted under Wis. Stats. § 62.23 which relate to wetlands, except that where another zoning ordinance is more restrictive than the provisions contained in this article, that ordinance shall continue in full force and effect to the extent of the greater restrictions, but not otherwise. The more restrictive of either the wetland district or floodplain district (see article X of this chapter for floodplain district regulations) regulations shall apply when a property is located in both zoning overlay districts.

(b)

This article is not intended to repeal, abrogate or impair any existing deed restrictions, covenants or easements. However, where this article imposes greater restrictions, the provisions of this article shall prevail.

(Ord. No. 2010-O-09, § 22.213, 10-12-2010)

In their interpretation and application, the provisions of this article shall be held to be minimum requirements and shall be liberally construed in favor of the city and shall not be deemed a limitation or repeal of any other powers granted by the state law. Where a provision of this article is required by a standard in Wis. Admin. Code ch. NR 117, and where the article provision is unclear, the provision shall be interpreted in light of the Wis. Admin. Code ch. NR 116 or Wis. Admin. Code ch. NR 117 standards in effect on the date of the adoption of the ordinance from which this article is derived or in effect on the date of the most recent text amendment to this article.

(Ord. No. 2010-O-09, § 22.214, 10-12-2010)

Should any portion of this article be declared invalid or unconstitutional by a court of competent jurisdiction, the remainder of this article shall not be affected.

(Ord. No. 2010-O-09, § 22.215, 10-12-2010)

The maps designated below are hereby adopted and made part of this article. They are on file in the office of the zoning administrator:

Wisconsin Wetland Inventory maps stamped "FINAL" on January 22, 1986.

(Ord. No. 2010-O-09, § 22.216, 10-12-2010)

(a)

The wetland zoning district includes all wetlands in the city which are two acres or more in size and are shown on the final wetland inventory map that has been adopted and made a part of this article in section 22-685.

(b)

When an apparent discrepancy exists between the wetland district boundary shown on the official zoning maps and the actual field conditions at the time the maps were adopted, the zoning administrator shall contact the appropriate district office of the department to determine if the wetland district boundary as mapped, is in error. If department staff concur with the zoning administrator that a particular area was incorrectly mapped as a wetland, the zoning administrator shall have the authority to immediately grant or deny a land use or building permit in accordance with the regulations applicable to the correct zoning district. In order to correct wetland mapping errors shown on the official zoning maps, the zoning administrator shall be responsible for initiating a map amendment within a reasonable period.

(Ord. No. 2010-O-09, § 22.217, 10-12-2010)

The following uses are permitted subject to the provisions of Wis. Stats. chs. 30 and 31 and the provisions of other local, state and federal laws, if applicable:

(1)

Activities and uses which do not require the issuance of a zoning permit, provided that no wetland alteration occurs:

a.

Hiking, fishing, swimming, boating and the following outside the urban service area: hunting, snowmobiling and trapping;

b.

The harvesting of wild crops, such as marsh hay, ferns, moss, wild rice, berries, tree fruits and tree seeds, in a manner that is not injurious to the natural reproduction of such crops;

c.

The practice of silviculture, including the planting, thinning and harvesting of timber;

d.

The pasturing of livestock;

e.

The cultivation of agricultural crops; and

f.

The construction and maintenance of duck blinds.

(2)

Uses which do not require the issuance of a zoning permit and which may involve wetland alterations only to the extent specifically provided below:

a.

The construction and maintenance of fences for the pasturing of livestock, including limited excavating and filling necessary for such construction or maintenance;

b.

The maintenance, repair, replacement and reconstruction of existing highways and bridges, including limited excavating and filling necessary for such maintenance, repair, replacement or reconstruction.

(Ord. No. 2010-O-09, § 22.218, 10-12-2010)

(a)

The following conditional uses may be allowed in the wetland district, including wetland alteration only to the extent specifically provided below and notification to the southern district office of the state department of natural resources at least ten days prior to the hearing and mailing a copy of the action on the conditional use to said office:

(1)

The construction and maintenance of roads which are necessary for the continuity of the municipal street system, the provision of essential utility and emergency services or to provide access to uses permitted under section 22-687, provided that:

a.

The road cannot, as a practical matter, be located outside the wetland;

b.

The road is designed and constructed to minimize the adverse impact upon the natural functions of the wetland listed in section 22-690(a);

c.

The road is designed and constructed with the minimum cross-sectional area practical to serve the intended use;

d.

Road construction activities are carried out in the immediate area of the roadbed only; and

e.

Any wetland alteration must be necessary for the construction or maintenance of the road.

(2)

The construction and maintenance of nonresidential buildings provided that:

a.

The building is used solely in conjunction with a use permitted in the wetland district or for the raising of waterfowl, minnows or other wetland or aquatic animals;

b.

The building cannot, as a practical matter, be located outside the wetland;

c.

The building does not exceed 500 square feet in floor area; and

d.

Only limited filling and excavating necessary to provide structural support for the building is allowed.

(3)

The establishment and development of public and private parks and recreation areas, outdoor education areas, historic, natural and scientific areas, game refuges and closed areas, fish and wildlife habitat improvement projects, game bird and animal farms, wildlife preserves and public boat launching ramps, provided that:

a.

Any private development allowed under this article shall be used exclusively for the permitted purpose;

b.

Only limited filling and excavating necessary for the development of public boat launching ramps, swimming beaches or the construction of park shelters or similar structures is allowed;

c.

The construction and maintenance of roads necessary for the uses permitted under this subsection are allowed only where such construction and maintenance meets the criteria in section 22-687; and

d.

Wetland alterations in game refuges and closed areas, fish and wildlife habitat improvement projects, game bird and animal farms, and wildlife preserves shall be for the purpose of improving wildlife habitat or to otherwise enhance wetland values.

(4)

The construction and maintenance of electric and telephone transmission lines and water, gas and sewer lines, and related facilities provided that:

a.

The transmission and distribution lines and related facilities cannot, as a practical matter, be located outside the wetland;

b.

Only limited filling or excavating necessary for such construction or maintenance is allowed; and

c.

Such construction or maintenance is done in a manner designed to minimize the adverse impact upon the natural functions of the wetland listed in section 22-690(a).

(5)

The construction and maintenance of line-haul railroad operations within railroad rights-of-way provided that:

a.

The line-haul railroad improvement cannot, as a practical matter, be located outside the wetland;

b.

Only limited filling for railroad beds or excavating for drainage necessary for such construction and maintenance is allowed; and

c.

Such construction or maintenance including vegetation cutting is done in a manner designed to minimize the adverse impact upon the natural functions of the wetlands listed in section 22-690(a).

(6)

The maintenance and repair of existing drainage systems, where permissible under Wis. Stats. § 30.20 to restore preexisting levels of drainage, including the minimum amount of filling necessary to dispose of dredged spoil, provided that the filling is permissible under Wis. Stats. ch. 30 and that dredged spoil is placed on existing spoil banks where possible.

(7)

The construction and maintenance of piers, docks and walkways, observation decks and trail bridges built on pilings, including limited excavating and filling necessary for such construction or maintenance.

(8)

The installation and maintenance of sealed tiles for the purpose of draining lands outside the wetland zoning district provided that such installation or maintenance is done in a manner designed to minimize the adverse impact upon the natural functions of the wetland listed in section 22-690(a).

(9)

Hunting, snowmobiling and trapping within the urban service area.

(Ord. No. 2010-O-09, § 22.21, 10-12-2010)

Any use not listed in section 22-687 is prohibited, unless the wetland or a portion of the wetland has been rezoned by amendment of this article in accordance with sections 22-687 and 22-720.

(Ord. No. 2010-O-09, § 22.220, 10-12-2010)

(a)

Rezoning of a wetland shall require amendment of the Final Wisconsin Wetland Inventory Map adopted in section 22-685 pursuant to procedures established in section 22-720. The city shall not rezone a wetland in a wetland zoning district, or any portion thereof, where the proposed rezoning may result in a significant adverse impact upon any of the following:

(1)

Stormwater and floodwater storage capacity;

(2)

Maintenance of dry season stream flow or the discharge of groundwater to a wetland, the recharge of groundwater from a wetland to another area or the flow of groundwater through a wetland;

(3)

Filtering or storage of sediments, nutrients, heavy metals or organic compounds that would otherwise drain into surface waters;

(4)

Shoreline protection against soil erosion;

(5)

Fish spawning, breeding, nursery or feeding grounds;

(6)

Wildlife habitat; or

(7)

Areas of special recreational, scenic or scientific interest, including scarce wetland types and habitat of endangered species. Upon notification of a proposed amendment as required by section 22-720, if the district office of the department determines that a proposed rezoning may have a significant adverse impact upon any of the criteria listed in this subsection (a), the department shall so notify the city of its determination either prior to or during the public hearing held on the proposed amendment.

(b)

If the department notifies the city plan commission in writing that a proposed amendment may have a significant adverse impact upon any of the criteria listed in subsection (a) of this section, that proposed amendment, if approved by the city shall not become effective until more than 30 days have elapsed since written notice of the council approval was mailed to the department, as required by section 22-720. If within the 30-day period, the department notifies the council or board that the department intends to adopt a superseding wetland zoning ordinance for the city under Wis. Stats. § 62.231(6) the proposed amendment shall not become effective until that ordinance adoption procedure is completed or otherwise terminated. The record of the council or board decision on the proposed amendment shall advise the petitioner of the provisions of this section.

(Ord. No. 2010-O-09, § 22.221, 10-12-2010)

(a)

Notwithstanding Wis. Stats. § 62.23(7)(h), the repair, reconstruction, renovation, remodeling or expansion of a legal nonconforming structure in existence at the time of adoption or subsequent amendment of this article adopted under Wis. Stats. § 62.231 or of an environmental control facility in existence on May 7, 1982, related to that structure, is permitted under Wis. Stats. § 62.231(5). Section 62.23(7)(h) applies to an environmental control facility that was not in existence on May 7, 1982, but was in existence on the effective date of this article or amendment.

(b)

The lawful use of a building, structure or property which existed at the time this article, or an applicable amendment to this article, took effect and which is not in conformity with the provisions of this article, including the routine maintenance of such a building or structure, may be continued, subject to the following conditions:

(1)

If a nonconforming use or the use of a nonconforming structure is discontinued for 12 consecutive months, any future use of the building, structure or property shall conform to the appropriate provisions of this article.

(2)

Any legal nonconforming use of property which does not involve the use of a structure and which existed at the time of the adoption or subsequent amendment of this article adopted under Wis. Stats. § 62.231 may be continued although such use does not conform with the provisions of the article. However, such nonconforming use may not be extended or increased.

(3)

The maintenance and repair of nonconforming boathouses which are located below the ordinary highwater mark of any navigable waters shall comply with the requirements of Wis. Stats. § 30.121.

(4)

Uses which are nuisances under common law shall not be permitted to continue as nonconforming uses.

(Ord. No. 2010-O-09, § 22.222, 10-12-2010)

The zoning administrator shall have the following duties and powers:

(1)

Advise applicants as to the provisions of this article, assist them in preparing permit applications and appeal forms.

(2)

Issue permits and certificates of compliance and inspect properties for compliance with this article.

(3)

Keep records of all official actions such as:

a.

All permits issued;

b.

Inspections made;

c.

Work approved;

d.

Records of water surface profiles, floodplain zoning maps and ordinances, nonconforming uses and structures including changes, appeals, variances and amendments.

(4)

Have access to any structure profiles, maps and ordinances, nonconforming uses and structures including changes, appeals, variances and amendments.

(5)

Investigate and report violations of this article to the appropriate municipal planning agency and the district attorney, corporation counsel or municipal attorney.

(Ord. No. 2010-O-09, § 22.231, 10-12-2010)

(a)

When required. Unless another section of this article specifically exempts certain types of development from this requirements, a zoning permit shall be obtained from the zoning administrator before any development, as defined in section 22-651, including any change in the use of an existing building or structure, is initiated.

(b)

Application. An application for a permit shall be made to the zoning administrator upon forms furnished and shall include the following information for the purpose of proper enforcement of these regulations:

(1)

General information.

a.

Name, address, and telephone number of applicant, property owner and contractor.

b.

Legal description of the property and a general description of the proposed use or development indicating new construction or modification to existing structures.

(2)

Site development plan. The site development plan shall be drawn to scale and submitted as a part of the permit application form and shall contain the following information:

a.

Location, dimensions, area and elevation of the lot noted on a copy of the wetland inventory map, if applicable;

b.

Location and boundaries of wetlands;

c.

Specifications and dimensions for areas of proposed wetland alteration;

d.

Location of the ordinary highwater mark of any abutting navigable waterways;

e.

Existing and proposed topographic and drainage features and vegetative cover;

f.

Location of any structures with distances measured from the lot lines and center line of all abutting streets or highways;

g.

Location of any existing or proposed on-site sewage systems or private water supply systems;

h.

Location and elevation of existing or future access roads.

(c)

Expiration. All permits issued under the authority of this article shall expire six months from the date of issuance.

(Ord. No. 2010-O-09, § 22.232, 10-12-2010)

(a)

Except where no zoning permit or conditional use permit is required, no land shall be occupied or used, and no building which is hereafter constructed, altered, added to, modified, rebuilt or replaced shall be occupied, until a certificate of compliance is issued by the zoning administrator, subject to the following provisions:

(1)

The certificate of compliance shall show that the building or premises or part thereof, and the proposed use, conform to the provisions of this article.

(2)

Application for such certificate shall be concurrent with the application for a permit.

(3)

The certificate of compliance shall be issued within ten days after notification of completion of the work specified in the permit, providing the building or premises or proposed use conforms with all the provisions of this article.

(b)

The zoning administrator may issue a temporary certificate of compliance for a building, premises or part thereof according to rules and regulations established by the municipality.

(c)

Upon written request from the owner, the zoning administrator shall issue a certificate of compliance for any building or premises existing at the time of adopting of this article, certifying after inspection, the extent and type of use made of the building or premises and whether or not such use conforms to the provisions of this article.

(d)

Other permits. The applicant must secure all necessary permits from federal, state, and local agencies, including those required by the U.S. Army Corps of Engineers under section 404 of the Federal Water Pollution Control Act, Amendments of 1972, 33 USC 1344.

(Ord. No. 2010-O-09, § 22.233, 10-12-2010)

The common council shall set fees for the following and include in the annual budget appendix fee schedule:

(1)

Zoning permits.

(2)

Certificates of compliance.

(3)

Board of appeals.

(4)

Rezonings, including PDDs.

(5)

Conditional use permits.

(Ord. No. 2010-O-09, § 22.234, 10-12-2010)

The mayor shall appoint a board of appeals under Wis. Stats. § 62.23(7)(e), consisting of five members subject to confirmation by the governing body. The board of appeals shall adopt rules for the conduct of their business as required by Wis. Stats. § 63.23(7)(e)3.

(1)

Powers and duties. The board of appeals shall:

a.

Appeals in overlay zoning districts. Hear and decide appeals where it is alleged there is error in any order, requirement, decision or determination made by an administrative official in the enforcement or administration of this article.

b.

Variances. May grant, upon appeal, a variance from the dimensional standards of this article pursuant to section 22-716.

(2)

Appeals to the board.

a.

Generally. Appeals to the board of appeals may be taken by any person aggrieved of by an officer, department, board or bureau of the community affected by any order, requirement decision, or determination of the official whose decision is in question. Such appeals shall be taken within 60 days as provided by the rules of the board, by filling with the official whose decision is in question, and with the board of appeals, a notice of appeal specifying the reasons for the appeal. The official whose decision is in question shall transmit to the board all the documents constituting the record concerning the matter appealed.

b.

Notice and hearing. The board of appeals shall fix a reasonable time for a hearing on the appeal or application. Public notice shall be provided by publishing the appropriate notice as required by state law with the notice specifying the date, time and place of the hearing and the matters to come before the board. Notice shall be mailed to the parties in interest. Written notice shall be given to the southern district office of the department at least ten days prior to hearing on proposed conditional uses. At the public hearing, any party may appear in person or by agent or attorney.

c.

Decision. A decision regarding the appeal or application shall be made as soon as practical. Copies of all decision on conditional uses, shall be submitted to the appropriate district office of the department within ten days after they are granted or denied. The final disposition of an application to the board of appeals shall be in the form of a written resolution or order signed by the chairman and secretary of the board. Such resolution shall state the specific facts which are the basis of the determination and shall either affirm, reverse, vary or modify the order, requirement, decision or determination appealed, in while or in part, dismiss the application for lack of jurisdiction or prosecution or grant the application.

(Ord. No. 2010-O-09, § 22.235, 10-12-2010)

(a)

The board of appeals may, upon appeal, grant a variance from the dimensional standards of this article where an applicant convincingly demonstrates that:

(1)

Literal enforcement of the provisions of the article will result in unnecessary hardship on the applicant;

(2)

The hardship is due to adoption of the article and special conditions unique to the property; and not common to a group of adjacent lots or premises (in such case the zoning ordinance or map must be amended); and

(3)

Such variance is not contrary to the public interest;

(4)

Such variance is consistent with the purpose of this article (section 22-678).

(b)

A variance shall not:

(1)

Allow development below regional flood elevations;

(2)

Grant or increase any use of property prohibited in the zoning district;

(3)

Be granted for a hardship based solely on an economic gain or loss;

(4)

Be granted for a hardship which is self created;

(5)

Damage the rights or property values of other persons in the area.

(Ord. No. 2010-O-09, § 22.236, 10-12-2010)

(a)

Any use listed as a conditional use in this article shall be permitted only after an application has been submitted to the zoning administrator and a conditional use permit has been granted by the plan commission, following the procedures in subsection (c) of this section. To secure information upon which to base its determination, the plan commission may require the applicant to furnish, in addition to the information required for a zoning permit, other pertinent information which is necessary to determine if the proposed use is consistent with the purpose of this article.

(b)

Conditions. Upon consideration of the permit application and the standards applicable to the permitted uses in this article, the plan commission shall attach such conditions to a conditional use permit, in addition to those required elsewhere in this article, as are necessary to further the purposes of this article as listed in section 22-678. Such conditions may include specifications for, without limitation because of specific enumeration: type of shore cover; erosion protection measures; increased side yard setbacks; specific sewage disposal and water supply facilities; landscaping and planting screens; period of operation; operational control; sureties; deed restrictions; location of piers; docks, parking areas and signs; and type construction.

(c)

Hearing applications for conditional use permits.

(1)

Notice and hearing. The plan commission shall fix a reasonable time for a hearing on the appeal or application. The plan commission shall give public notice by publishing a class 1 notice under Wis. Stats. ch. 985 specifying the date, time and place of the hearing and the matters to come before the board. Notice shall be mailed to the parties in interest. Written notice shall be given to the southern district office of the department at least ten days prior to hearings on proposed conditional uses. At the public hearing, any party may appear in person or by agent or attorney.

(2)

Decision. A decision regarding the appeal or application shall be made as soon as practical. Copies of all decision on conditional uses, shall be submitted to the appropriate district office of the department within ten days after they are granted or denied. The final disposition of an application to the board of appeals shall be in the form of a written resolution or order signed by the chairman and secretary of the board. Such resolution shall state the specific facts which are the basis of the determination and shall either affirm, reverse, vary or modify the order, requirement, decision or determination appealed, in while or in part, dismiss the application for lack of jurisdiction or prosecution or grant the application.

(Ord. No. 2010-O-09, § 22.237, 10-12-2010)

(a)

The board of appeals shall review all data constituting the basis for the appeal of permit denial. The data may include (where appropriate):

(1)

Permit application data listed in section 22-712;

(2)

Other data submitted to the zoning administrator with the application, or submitted to the board with the appeal.

(b)

For appeals of all denied permits the board shall:

(1)

Follow the procedures of section 22-715;

(2)

Consider any zoning agency recommendations;

(3)

Either uphold the denial or grant the appeal.

(Ord. No. 2010-O-09, § 22.238, 10-12-2010)

(a)

Where useful, marks on bridges or buildings or other markers may be set to show the depth of inundation during the regional flood at appropriate locations within the floodplain.

(b)

All available information in the form of maps, engineering data and regulations shall be readily available and should be widely distributed.

(c)

All legal descriptions of property in the floodplain should include information designating the floodplain zoning classification when such property is transferred.

(Ord. No. 2010-O-09, § 22.239, 10-12-2010)

The city may supplement or change the district boundaries and the regulations contained in this article according to Wis. Stats. § 62.23(7)(d)2, Wis. Admin. Code ch. NR 117, and the following:

(1)

The wetland district amendment provisions of section 22-690 apply.

(2)

A copy of each proposed text or map amendment shall be submitted to the appropriate district office of the department within five days of the submission of the proposed amendment to the plan commission.

(3)

All proposed text and map amendments shall be referred to the plan commission, and a public hearing shall be held as required by Wis. Stats. § 62.23(7)(d)2, following publication of a class 2 notice as defined in section 22-651. The appropriate district office of the department shall be provided with written notice of the public hearing at least ten days prior to such hearing.

(4)

A copy of the decision on each amendment shall be provided to the department district office within ten days of the decision. No map or text amendment shall become effective until reviewed and approved by the department.

(Ord. No. 2010-O-09, § 22.240, 10-12-2010)

See forfeitures schedule in chapter 70 for penalties for any person who violates or refuses to comply with any of the provisions of this article. Every violation of this article is a public nuisance and the creation thereof may be enjoined and the maintenance thereof may be abated by action at suit of the municipality, the state, or any citizen thereof pursuant to Wis. Stats. § 87.30(2).

(Ord. No. 2010-O-09, § 22.241, 10-12-2010)

Definitions of this article are the same as those found in section 22-651.

(Ord. No. 2010-O-09, § 22.250, 10-12-2010)