(a) Purpose.
(1) A request for a variance may be made when an aggrieved party can submit proof that strict adherence to the provisions of this Zoning Code would cause him/her undue hardship or create conditions causing greater harmful effects than the initial condition.
A variance granted to a nonconforming use brings that use into conformance with the district and zoning requirements.
(2) The Zoning Board of Appeals may authorize upon appeal, in specific cases, such variance from the terms of the Zoning Code as will not be contrary to the public interest, where owing to special conditions a literal enforcement of the provisions of the Zoning Code will result in unnecessary hardship and so that the spirit of the Zoning Code shall be observed and substantial justice done. No variance shall have the effect of allowing in any district uses prohibited in that district, permit a lower degree of flood protection that the flood protection elevation for the particular area or permit standards lower than those required by state law.
(3) For the purposes of this Section, "unnecessary hardship" shall be defined as an unusual or extreme decrease in the adaptability of the property to the uses permitted by the zoning district which is caused by facts, such as rough terrain or good soil conditions, uniquely applicable to the particular piece of property as distinguished from those applicable to most or all property in the same zoning district.
(b) Application for Variances. The application for variation shall be filed with the Village Administrator. Applications may be made by the owner or lessee of the structure, land or water to be affected. The application shall contain the following information:
(1) Name and address of applicant and all abutting and opposite property owners of record.
(2) Statement that the applicant is the owner or the authorized agent of the owner of the property.
(3) Address and description of the property.
(4) A site plan showing an accurate depiction of the property.
(5) Additional information required by the Village Administrator, Building Inspector, Village Engineer, Zoning Board of Appeals and/or Zoning Administrator.
(c) Public Hearing of Application.
(1) The Zoning Board of Appeals shall conduct at least one (1) public hearing on the proposed variation. Notice of such hearing shall be given not more than thirty (30) days and not less than seven (7) days before the hearing in one (1) or more of the newspapers in general circulation in the Village, and shall give due notice to the parties in interest, the Zoning Administrator and the Village Board. At the hearing the appellant or applicant may appear in person, by agent or by attorney. The Zoning Board of Appeals shall thereafter reach its decision within thirty (30) days after the final hearing and shall transmit a written copy of its decision to the appellant or applicant, Zoning Administrator and Village Board.
(d) Action of the Zoning Board of Appeals. For the Zoning Board of Appeals to grant a variance, it must find that:
(1) Denial of variation may result in hardship to the property owner due to physiographical consideration. 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 Code should be changed.
(2) The conditions upon which a petition for a variation is based are unique to the property for which variation is being sought and 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.
(3) The purpose of the variation is not based exclusively upon a desire to increase the value or income potential of the property.
(4) The granting of the variation will not be detrimental to the public welfare or injurious to the other property or improvements in the neighborhood in which the property is located.
(5) The proposed variation will not undermine the spirit and general and specific purposes of the Zoning Code.
(e) Conditions. The Zoning Board of Appeals may impose such conditions and restrictions upon the premises benefited by a variance as may be necessary to comply with the standards established by this Chapter. Per Sec. 62.23(7)(e)7.e., Wis. Stats., the Village Board authorizes the Zoning Board of Appeals to impose an expiration date for a variance if such date relates to a specific date by which action or work authorized must be commenced or completed. In the absence of a different expiration date being established at the time of granting a variance, no order of the Zoning Board of Appeals granting a variance shall be valid for a period longer than eighteen (18) months from the date of such order unless within such period the erection or alteration of a building is started or the use is commenced per the variance approval.
(f) Standards for Qualifying For A Variance. To qualify for a variance, the applicant must demonstrate that their property meets the following three (3) requirements:
(1) Unique Property Limitations.
a. The applicant must show that the property has conditions that are unique or special to that property, that such unique physical characteristics prevent compliance with the regulations of this Zoning Code. Examples, but not limited to, of such conditions are physical limitations unique to the property such as wetlands or exceptionally unique steep slopes.
b. The following are non-exclusive examples of items Wisconsin courts have decided cannot be a basis for granting a variance under the "unique property limitation" test:
1. Financial considerations of the applicant.
2. The personal circumstances of the applicant (i.e. need for an expanded garage, a growing family, an unemployed family member returning home, etc.).
3. The existence of nearby Zoning Code violations.
4. Lack of objections from neighbors.
(2) No Harm To Public Interests. To qualify for a variance, the applicant must demonstrate that the proposed variance is not contrary to the public interest. In applying this test, the Zoning Board of Appeals must consider the impacts of the variance proposal, and, if setting a precedent, the cumulative impacts of similar projects on the interests of the neighbors, the overall Village of Edgar and the general public. Such factors are generally identified in Section 13-1-4.
(3) Unnecessary Hardship.
a. To qualify for a variance, the applicant must demonstrate that the special condition(s) of the property creates an unnecessary hardship. When determining whether an unnecessary hardship exists, the property as a whole shall be considered rather than a portion of the property.
b. The following are non-exclusive examples of items Wisconsin courts have decided cannot be a basis for granting a variance under the "unnecessary hardship" test:
1. Conditions which are self-imposed or created by a prior owner (i.e. owner expands home and then argues there is no suitable location for a proposed new garage).
2. Economic or financial hardship to the applicant (i.e. construction of a new garage in a complying location would cost more than placing the garage in a location requiring a variance).
3. Lack of objections from neighbors.
c. Due to Wisconsin court decisions, the "unnecessary hardship" determination requires that the Board of Appeals apply different tests for use variances and area variances:
1. For a use variance, unnecessary hardship can be determined to exist only if the property owner can show that he/she would have no reasonable use of the property without a variance. A use variance would permit a property owner to put property to an otherwise prohibited use.
2. For an area variance, unnecessary hardship can be determined to exist only if the property owner can show that compliance with the requirements of the Zoning Code would unreasonably prevent the property owner from using the land for a permitted purpose (leaving the property owner without any use that is permitted for the property under the Zoning Code) or would render conformity with such zoning restrictions unnecessarily burdensome. Area variances are intended to provide an increment of relief (usually small) from a physical dimensional requirement of the Zoning Code such as building height or setback requirements. In applying the test for an area variance, the Zoning Board of Appeals shall consider the purpose of the Zoning Code, the Zoning Code's restrictions on the applicant's property, and the cumulative effects granting of a variance would have on the neighborhood, community and on the public interests.
3. Unless the Zoning Board of Appeals finds that a property cannot be used for any permitted purpose, area variances shall not be granted for greater than a forty percent (40%) deviation in the area, setback, height or density requirements specified in this Chapter.
(Note: The above standards reflect the Wisconsin Supreme Court's decisions in State ex rel. Ziervogel v. Washington County Board of Adjustment, 2004 WI 23, 269 Wis. 2d 549, 676 N.W.2d 401 and State v. Waushara County Board of Adjustment, 2004 WI 56, _ Wis. 2d _, 679 N.W.2d 514).