(a) The granting or denial in whole or in part after application of an initial permit, (including a conditional use permit), license, right, privilege or authority, with the exception, however, of the granting or denial of a variance or any other decision of the Board of Adjustments and with the exception of any amendment made pursuant to section 12.58 of this ordinance.

(b) The suspension, revocation or nonrenewal of an existing permit, license, right, privilege or authority.

(c) Any decision of the historical preservation commission made pursuant to section 12.37.020 of this ordinance.

(d) The failure to list a particular principal or accessory use in sections 12.20 through 12.26 of this ordinance or the failure to list a home occupation in section 12.21.020 of this ordinance. [Code § 12.35-2.]

(a) Forwarding a written request by mail or hand delivery to the authority which made the determination within 30 days after having been advised and notified of such determination.

(b) Including in said request for review the ground or grounds upon which the person aggrieved contends that the decision should be modified or reversed.

(c) Requesting that the review shall be made by the officer, employee, agent, agency, committee, board, commission or body who made the initial determination.

Failure to make a request as noted above to the proper party shall not preclude the person aggrieved from review unless such failure has caused prejudice to the municipal authority. [Code § 12.35-5.]

(a) The request for review made to the officer, employee, agent, agency, committee, board, commission or body who made the initial determination shall review the initial determination within 15 days of the receipt of a request for review. This time for review may be extended by written agreement with the person aggrieved.

(b) The person aggrieved may file with the request for review or within the time agreed with the municipal authority written evidence and argument in support of the person’s position with respect to the initial determination.

(c) The authority making the initial determination may affirm, reverse or modify the initial determination and shall mail or deliver to the person aggrieved a copy of the decision on review, which shall state the reasons for such decision. The decision shall advise the person aggrieved of the right to appeal the decision, the time within which appeal shall be taken and the office or person with whom the notice of appeal shall be filed. Appeals from a decision shall be taken within 30 days of notice of such decision by filing with or mailing to the authority making the decision and to the Kenosha County Board of Adjustments, written notice of the appeal. The appeal shall be allowed by the Board of Adjustments, however, only where the person aggrieved did not have a hearing substantially in compliance with section 68.11 of the Wisconsin Statutes when the initial determination was made. [Code § 12.35-6.]

(a) Time of hearing. Within 15 days of the receipt of the notice of appeal filed pursuant to section 12.55.060(c) of this ordinance an administrative appeal hearing shall be held. The Kenosha County Department of Planning and Development shall serve the appellant with notice of such hearing before the Board of Adjustments by mail or personal service at least 10 days before such hearing.

(b) Conduct of hearing. At the hearing, the appellant and the determining authority may be represented by counsel and may present evidence and call and examine witnesses and cross-examine witnesses of the other party. Such witnesses shall be sworn by the person conducting the hearing before the Board of Adjustments which shall make the decision on the administrative appeal. The decision maker may issue subpoenas. The hearing may employ such other procedures as deemed applicable and appropriate and as set forth in section 12.56 of this ordinance. In reviewing decisions pursuant to section 12.35.020(d) of this ordinance dealing with similarities between intended principal and accessory uses and those provided for in the ordinance, the Board of Adjustments may make whatever use it deems advisable of the United States Government Office of Management and Budgets Standard Industrial Classification Manual in determining similarities.

(c) Record of hearing. The person conducting the hearing or a person employed for that purpose shall take notes of the testimony and shall mark and preserve all exhibits. The person conducting the hearing may, and upon request of the appellant shall, cause the proceedings to be taken by a stenographer or by a recording device, the expense thereof to be paid by the Kenosha County Department of Planning and Development. [Code § 12.35-7.]

(a) The seeking of a review pursuant to this section of the ordinance does not preclude a person aggrieved from seeking relief from the Kenosha County Board of Supervisors.

(b) If in the course of legislative review under this section a determination is modified, such modification and any evidence adduced before the Kenosha County Board of Supervisors shall be made part of the record on review before any court of law.

(c) The Kenosha County Board of Supervisors need not conduct the type of hearing required under section 68.11 of the Wisconsin Statutes. [Code § 12.35-10.]

(a) The Board of Adjustments shall consist of three members and two (2) alternates appointed by the County executive and approved by the County board of supervisors. The County executive shall make his nominations at least one month prior to their appointment. The incumbent member of the Board of Adjustments whose term of office has expired shall remain in office only until such time as permitted by state statute.

(b) Terms for board members shall be for a period of three (3) years. Incumbent members shall continue to serve until their terms expire. The County executive shall annually designate one of the alternate members as the 1st alternate and the other the 2nd alternate. The first alternate shall act, with full power, only when a member of the board of adjustment refused to vote because of a conflict of interest or when a member is absent. The 2nd alternate shall act only when the first alternate refuses to vote because of a conflict of interest or is absent, or if more than one member of the board of adjustment refuses to vote because of a conflict of interest or is absent.

(c) Members of the Board of Adjustment shall be eligible for such position only in the event that they reside within the County of Kenosha and outside the limits of incorporated areas providing, however, that no two members shall reside in the same town. In making appointments to the Board of Adjustments, the County executive and the County board of supervisors shall attempt to make appointments to the Board of Adjustments of 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 Board of Adjustments or on a Town Planning Commission shall constitute prior experience. Attempts should be made to ensure that individuals appointed to the Board of Adjustments have no conflict of interest with said appointment.

(d) The Board of Adjustments shall choose its own chairman every year.

(e) Office room shall be provided by the County Board and the actual and necessary expenses incurred by the Board of Adjustments in the performance of its duties shall be paid and allowed as in cases of other claims against the County. The County Board may likewise compensate the members of said Board and such assistants as may be authorized by said County Board. 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.

(f) Official oaths shall be taken by all members in accordance with section 19.01 of the Wisconsin Statutes within ten (10) days of receiving notice of their appointments. The Department of Planning and Development shall be represented at all meetings for the purpose of providing technical assistance when requested by the Board of Adjustments. [Code § 12.36-3.]

(a) Chapter 2 of the Municipal Code of Kenosha County shall apply to all rules and procedures to be followed by the Board of Adjustment. In addition, the Board of Adjustment may adopt further rules, not in conflict with either state law or county ordinances, as necessary to carry into effect the regulations of the County Board. Meetings of the Board shall be held at the call of the Chairman and at such other times as the Board may determine. Such Chairman, or in his absence the acting chairman, may administer oaths and compel the attendance of witnesses. All meetings of the Board shall be open to the public and tape recorded. The Board shall keep minutes of its proceedings showing the vote of each member upon each question, or, if absent or failing to vote, indicating such fact, and shall keep records of its examinations and other official actions, all of which shall be immediately filed in the office of the Board and shall be a public record. For purpose of this Ordinance the Kenosha County Department of Planning and Development shall be deemed to be the office of the Board of Adjustments until such time as a separate office has been established for said board.

(b) The concurring vote of a majority of the Board 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 upon which it is required to pass under this ordinance, or to affect any variation in this ordinance.

(c) Minutes of the proceedings and the taped 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 findings of fact. These records shall be immediately filed in the office of the board and shall be a public record unless a closed session of the Board is permitted under section 19.85 of the Wisconsin Statutes. Records shall not be destroyed except pursuant to law. Where necessary, conclusions and orders of the Board may be filed with the Register of Deeds Office. [Code § 12.36-4.]

(a) The Board of Adjustments shall have the following powers:

(b) No variance shall have the effect of permitting any use in a district that is prohibited in that district, nor shall a variance have the effect of a re-zoning.

(c) The Board 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.

(d) The Board may request assistance from other County officers, departments, commissions, and boards.

(e) The Chairman may administer oaths and compel the attendance of witnesses by subpoena. [Code § 12.36-5.]

(a) Appeals to the Board of Adjustments may be taken by any persons aggrieved or by any officer, department, committee or bureau of the County or municipality affected by a decision of the Department of Planning and Development. Such appeal shall be filed in triplicate in the Department of Planning and Development within thirty (30) days after the date of written notice of the decision or order. 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 Department of Planning and Development. Such appeals shall be commenced by filing with the Department of Planning and Development and with the Board of Adjustment a notice of appeal specifying the grounds thereof. The Department of Planning and Development shall forthwith transfer to the Board 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 Board of Adjustment:

(b) Any application for a variance under this ordinance 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 ordinance.

(c) For appeals concerning increases in regional flood elevation the Board shall:

(a) Upon receipt of a petition for a variance, the Department of Planning and Development shall place the matter on the agenda for a public hearing before the Kenosha County Board of Adjustments provided, however, that the requirements of section 12.06.040 of this ordinance have been complied with.

(b) Notice of the aforementioned public hearing shall be published as a Class 2 notice in a newspaper of general circulation within Kenosha County pursuant to Chapter 985 of the Wisconsin Statutes and the Wisconsin Open Meeting Law, section 19.81 to 19.98 of the Wisconsin Statutes. In addition, notice of said public hearing shall be mailed by certified mail, return receipt requested, to the last known address of all abutting property owners. Failure to receive notice shall not invalidate any action taken by the Board of Adjustments. After publication and notice, the petitioner may request the Board of Adjustments 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 Department of Natural Resources at least 10 days prior to the hearing date. (11/5/84)

(c) Upon receiving a petition for an appeal or variance, the Department of Planning and Development shall forward a copy of the petition to the town board and/or town planning commission of the town wherein the parcel is located and of any other town that may be immediately adjacent or opposite of such parcel and shall allow such board or planning commission 45 days to comment on said application. Within said period of 45 days, the town board and/or planning commission shall forward their recommendation to the County board of adjustments regarding the appeal along with standards or conditions which are found by them to be necessary for the allowance of a variance. Said standards or conditions or recommendation to grant or deny the variance or appeal shall not be binding on the board of adjustments or county board. [Code § 12.36-8.]

(a) In determining whether a variance is to be granted, the following standards and guidelines must be met in view of the evidence presented and in making its decision, these standards and guidelines shall be addressed by the Board of Adjustment:

(b) Variances 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 this ordinance except for existing structures.

(c) The Board of Adjustments in considering the propriety of granting a variance shall not consider the number of persons for or against the granting of a variance but shall base their decision solely upon the equities of the situation involved.

(d) Variances may be granted in the form of an area or distance variance, however, use variances shall be specifically prohibited under this Ordinance.

(e) When a floodplain variance is granted the Board shall notify the applicant in writing that it may increase risks to life and property and flood insurance premiums could increase up to $25.00 per $100.00 of coverage. A copy shall be maintained with the variance record.

A variance within any floodland district shall not:

(a) The concurring vote of the majority of the Board shall be necessary to reverse any order, requirement, decision or determination of the Department of Planning and Development, or to decide in favor of the applicant on any matter upon which it is required to pass under this ordinance, or to affect any variation in this ordinance.

(b) The Board of Adjustment shall decide all appeals and applications in compliance with the Wisconsin Open Meeting Law and within thirty (30) days after final hearing and shall transmit a signed copy of the Board’s decision and order to the appellant or applicant and the Department of Planning and Development along with the Board’s Findings and Conclusions and a statement as to which members of the board viewed the property in question and the date of such viewing.

(c) Variances granted by the Board that require issuance of a zoning permit shall expire within one year of approval unless the zoning permit is issued. Zoning permits issued in accordance with Board of Adjustments approval may not be renewed without Board of Adjustment approval. Variances are approved for specific sizes and dimensions. No additions shall be approved which affect the area for which the variance was granted unless approved by the Board of Adjustments. (8/6/02)

(d) Applicants receiving variances in the FPO Floodplain Overlay District shall be notified, in writing, by the Board of Adjustment that increased flood insurance premiums and risk to life and property may result from the granting of the variance. The Board shall keep a record of the notifications in its files. (3/1/94) [Code § 12.36-15.]

(a) 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 board member or upon motion of any interested party, may be considered and the prior action of the Board rescinded if vested rights are not violated.

(b) A petition for a variance having been denied or a decision or order of the Department of Planning and Development having been affirmed, a petition seeking a similar variance or relief shall not be entertained by the Board of Adjustments until the expiration of a minimum of one year. [Code § 12.36-19.]

(a) Any party to a proceeding resulting in a final determination pursuant to section 12.55.080 of this ordinance may seek review thereof by writ of certiorari within 30 days of receipt of the final determination. The court may affirm or reverse the final determination, or remand to the decision maker for further proceedings consistent with the court’s decision.

(b) If review is sought of a final determination, the record of the proceedings shall be transcribed at the expense of the person seeking review. A transcript shall be supplied to anyone requesting the same at the requester’s expense. If the person seeking review establishes impecuniousness to the satisfaction of the reviewing court, the court may order the proceedings transcribed at the expense of the municipality and the person seeking review shall be furnished a free copy of the transcript. By stipulation, the court may order a synopsis of the proceedings in lieu of a transcript. The court may otherwise limit the requirement for a transcript. [Code § 12.37-1.]

(a) Appeal. Any person or persons jointly or severally, aggrieved by any decision of the Board of Adjustment, or any taxpayer, or any officer, department, board or bureau of the municipality, may present to a court of record a petition, duly verified, setting forth that such decision is illegal, in whole or in part, specifying the ground of illegality. Such petition shall be presented to the court within thirty days after the filing of the decision in the office of the Board.

(b) Certiorari. Upon the presentation of such petition, the court may allow a writ of certiorari directed to the Board of Adjustment to review such decision of the Board of Adjustment and shall prescribe therein the time within which a return thereto must be made and served upon the realtor’s attorney, which shall not be less than ten days and may be extended by the court. The allowance of the writ shall not stay proceedings upon the decision appealed from, but the court may, on application, and notice to the board and for good cause shown, grant a restraining order.

(c) Return to Writ. The Board of Adjustment shall not be required to return the original papers acted upon it, but it shall be sufficient to return certified or sworn copies thereof or of such portions thereof as may be called for by such writ. The return shall concisely set forth such other facts as may be pertinent and material to show the grounds of the decisions appealed from and shall be verified.

(d) Court decision. If upon the hearing, it shall appear to the court that testimony is necessary for the proper disposition of the matter, it may take evidence or appoint a referee to take such evidence as it may direct and report the same to the court with his findings of fact and conclusions of law, which shall constitute a part of the proceedings upon which the determination of the court may be made. The court may reverse or affirm, wholly or partly, or may modify the decision brought up for review.

(e) Costs. Costs shall not be allowed against the board unless it shall appear to the court that it acted with gross negligence or in bad faith or with malice in making the decision appealed from. All issues in any proceeding under this section shall have preference over all other civil actions and proceedings.

(f) Representation. The Corporation Counsel’s office shall represent the Department of Planning and Development in the appeal of any decision of the Board of Adjustment. Opinions to and representation of the Board of Adjustment shall be limited solely to matters of procedure and not substance by the Corporation Counsel’s office. [Code § 12.37-2.]