1. ESTABLISHMENT. It is hereby established a Board of Zoning Appeals for the City of Waukesha for the purpose of hearing appeals and applications, and for the granting variances and exceptions to the provisions of this chapter.
2. COMPOSITION AND ORGANIZATION. See Section 3.05.
3. POWERS. The Board 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 any other administrative official in the enforcement of this section or of any ordinance adopted pursuant thereto.
   2. 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 difficulty or unnecessary hardship, so that the spirit and purpose of this Chapter shall be observed and the public safety, welfare, and justice secured.
      1. Additional Considerations. No variance to the provision of this chapter shall be granted by the Board unless it finds the following facts and conditions exist:
         1. That there are exceptional extraordinary circumstances or conditions applying to the property in question or to the intended use of the property that do no apply generally to other properties or classes of uses in the same district.
         2. That a variance is necessary for the preservation and enjoyment of substantial property rights possessed by other properties in the same zoning district in the same vicinity.
         3. That a variance is not being requested solely on the basis of economic gain or loss, and that self-imposed hardships are not being considered as grounds for the granting of a variance.
         4. That the authorizing of a variance shall not be of substantial detriment to adjacent properties and will not materially impair the purpose of this chapter or the public interest.
      2. Additional Considerations in Floodland Districts. No variance shall be granted where:
         1. Filling and development contrary to the purpose and intent of the Floodway Overlay District would result.
         2. A change in the boundaries of the Floodway Overlay District, Flood Storage Overlay District, or Floodfringe Overlay District would result.
         3. A lower degree of flood protection than a point two (2) feet above the 100-year recurrence interval flood for the particular area would result.
         4. Any residential or commercial basement or crawlway located below the 100-year recurrence interval flood elevation would result.
         5. Any change or alteration of an historic structure including its use would result in the structure losing its designation as an historic structure.
         6. An action contrary to the provisions of NR 116 of the Wisconsin Administrative Code would result.
   3. Substitution of Non-Conforming Uses. To hear and grant applications for substitution of a different nonconforming use for an existing nonconforming use provided no structural alterations are to be made. Whenever the Board permits such a substitution, the use may not thereafter be changed without application to the Board of Zoning Appeals.
   4. Interpretation of Zoning Map.
      1. General Considerations. Where the street or lot layout actually on the ground, or as recorded, differs from the street and lot lines as shown on the Zoning Map, the Board, after notice to the owners of the property and after public hearing, shall interpret the Map in such a way as to carry out the intent and purpose of this chapter. In case of any question as to the location of any boundary line between zoning districts, a request for interpretation of the Zoning Map may be made to the Board and a determination shall be made by it.
      2. Wetland Disputes. Whenever the Board 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 shall direct the Plan Commission to initiate appropriate action to rezone the property within a reasonable amount of time.
         
      3. Floodland Disputes. Whenever the Board 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. 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 shall advise the Plan Commission of its findings and the Plan Commission shall proceed to petition the Common Council for a map amendment.
4. APPLICATIONS AND APPEALS.
   1. Applications to the Board. An application, in cases in which the Board has original jurisdiction, may be taken by any property owner, including a tenant, or by a governmental officer, department, board or bureau. Such application shall be filed with the Zoning Administrator, who shall transmit it to the Board.
   2. Appeals. An appeal to the Board may be taken by any person aggrieved or by any officer, department, board or bureau of the City affected by any decision of the Zoning Administrator. Such appeal shall be taken within twenty (20) days after the decision, by filing with the Zoning Administrator and with the Board, a notice of appeal specifying the grounds thereof. The Zoning Administrator shall forthwith transmit to the Board all papers constituting the record upon which the action appealed from was taken.
   3. 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 Board after the notice of appeal shall have been filed with the officer, that by reason of facts stated in the certificate a stay would, in the officer's opinion, cause imminent peril to life or property. In such case proceedings shall not be stayed otherwise than by a restraining order which may be granted by the Board or by a court of record on application, on notice to the officer from whom the appeal is taken, and on due cause shown.
   4. Hearings and Fees. The Board shall fix a reasonable time for the hearing of the application or appeal, give ten (10) days public notice thereof, as well as written notice to the parties in interest and decide the same within a reasonable time. Each applicant or appeal shall be accompanied by a payment to the City Treasurer sufficient to cover the cost of publishing, posting and mailing the notices of the hearing or hearings. At the hearing, any party may appear in person, by agent or by an attorney.
   5. Notice to DNR. The Board of Zoning 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 (10) days prior to any public hearings. Final action on the application shall not be taken for thirty (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 the shoreland or to floodland regulations, and a copy of all decisions to shoreland and floodland appeals, shall be transmitted to the DNR within ten (10) days of the date of such decision.
   6. Decisions of the Board.
      1. The Board shall decide all applications and appeals within a reasonable time after the final hearing thereon. A certified copy of the Board's decision shall be transmitted to the applicant or appellant and to the Zoning Administrator. Such decision shall be binding upon the Zoning Administrator and observed by such person, and the Zoning Administrator shall incorporate the terms and conditions of the same in the permit to the applicant or appellant, whenever a permit is authorized by the Board. A decision of the Board shall not become final until five (5) days after the date such decision is made, unless the Board shall find the immediate taking effect of such decision is necessary for the preservation of personal rights or property and shall so certify on the record. The concurring vote of four (4) members of the Board shall be necessary to reverse any order, requirement, decision or determination of any such administrative official, or to decide in favor of the applicant on any matter upon which it is required to pass under any such ordinance, or to effect any variation in such ordinance. The grounds of every such determination shall be stated.
      2. In exercising its power the Board may, in conformity with Section 62.23(7)(e)7, Wisconsin Statutes, and the provisions of this chapter, 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.
      3. In authorizing a variance, the Board may attach thereto such conditions regarding the location, character, and other features of the proposed structure or use as it may deem necessary in the interest of the furtherance of the purposes of this chapter and in the public interest. In authorizing a variance with conditions, the Board shall require such evidence and may require a guarantee or bond as it deems necessary that the attached conditions are being and will be complied with.
5. APPLICANTS RECEIVING VARIANCES IN FLOODLANDS. Pursuant to Federal Regulations [44 CFR Part 60.6(5)], applicants receiving variances in floodlands shall be notified, in writing, by the Board 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 notification in its files.
6. RECONSIDERATIONS, REHEARINGS AND NEW APPLICATIONS.
   1. Reconsiderations, rehearings and new applications seeking the same relief concerning the same property after a previous application has been denied will not be heard by the Board unless a substantial change of conditions or circumstances has intervened between the time the matter was first decided by the Board and the subsequent application. A change of ownership or passage of time without additional conditions or circumstances will not justify another hearing before the Board.
   2. An applicant seeking a rehearing, reconsideration or is submitting a new application seeking the same relief concerning the same property, shall attach to the application a summary of the change of conditions or circumstances that have occurred since the first application was denied. The Board shall determine whether the application and supporting documents set forth such a change of facts or circumstances as would justify a rehearing, reconsideration or new application seeking the same relief. Unless the Board by a vote of four (4) members request further input from the applicant to clarify matters set forth in the application and supporting documents the Board's determination will be based on the application and supporting application and documentation.
7. APPEALS TO THE CIRCUIT COURT. Decisions of the Board of Zoning Appeals may be appealed in accordance with the provisions of Section 62.23(7)(e)10, Wisconsin Statutes.

(Cr. #66-01)