A. Establishment. There is hereby established a Zoning Board of Appeals for the Village of Rochester for the purpose of hearing appeals and applications, and granting variances and exceptions to the provisions of this Chapter and other chapters of this Code as may be set forth therein.
B. Membership. The Zoning Board of Appeals shall consist of five members appointed by the Village President and confirmed by the Village Board. The members shall serve for such compensation, if any, as may be fixed by the Village Board. Removal shall be by a two-thirds vote of the Village Board and after public hearing.
1. Terms shall be for staggered three-year periods; for those first appointed, one shall serve for one year, two for two years, and two for three years.
2. The Chair shall be designated by the Village President.
3. Pursuant to Wis. Stat. s. 62.23(7)(e)2, the Village President shall appoint, for staggered terms of three years, two alternate members of such board, in addition to the five members above provided for. Annually, the Village President shall designate one of the alternate members as First Alternate and the other as Second Alternate. The First
Alternate shall act, with full power, only when a member of the board refuses to vote because of interest or when a member is absent. The Second alternate shall so act only when the First Alternate so refuses or is absent or when more than one member of the board so refuses or is absent.
4. A secretary and other employees may be employed by the Zoning Board of Appeals.
5. The Zoning Administrator shall attend all meetings for the purpose of providing technical assistance, but shall not be secretary of the Board.
6. Official Oaths shall be taken by all members in accordance with Wis. Stat. s. 19.01 within ten days of receiving notice of their appointments.
7. Vacancies shall be filled for the unexpired term of all members, including alternate members, in the same manner as appointments for a full term.
C. Organization. The Zoning Board of Appeals shall organize and adopt rules of procedure for its own government in accordance with the provisions of this Chapter.
1. Meetings shall be held at the call of the Chair and shall be open to the public.
2. Minutes of the proceedings and a record of all actions shall be kept by the secretary, 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 public record.
3. The Board of Appeals may take action if a quorum is present, by a majority vote of the members present, to take any action authorized by statute or this Code, unless a greater number of votes is required.
D. Powers.
1. 17 The Zoning Board of Appeals shall have the powers set forth in Wis. Stat. s. 62.23(7)(e) and all other powers provided by statute and Village Code, including but not limited to the following powers:
a. 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 in the enforcement of Wis. Stat. s. 62.23(7) or any ordinance adopted pursuant thereto.
b. Variances. To hear and decide appeals for variances as will not be contrary to the public interest, where, owing to special conditions, a literal enforcement will result in practical difficulty or unnecessary hardship, so that the spirit and purposes of this Code shall be observed and the public safety, welfare, and justice secured and substantial justice done. The Zoning Board of Appeals may authorize upon appeal variances where special conditions, such as terrain cover or nearby existing or potential land or water uses prevent applicant from meeting the provisions of this Chapter.
(1) In this section, “area variance” means 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 Zoning Board of Appeals under this Section. In this section, “use variance” means an authorization by the Zoning Board of Appeals for the use of land for a purpose that is otherwise not allowed or is prohibited by the applicable zoning ordinance.
(2) A property owner bears the burden of proving “unnecessary hardship,” as that term is used in this section, for an area variance, by demonstrating that strict compliance with a Zoning provisions 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 or, for a use variance, by demonstrating that strict compliance with a zoning ordinance would leave the property owner with no reasonable use of the property in the absence of a variance. 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, and that the unnecessary hardship was not created by the property owner.
(3) A variance granted under this Section shall expire one year after the date it was granted, or on a date specified by the Zoning Board of Appeals, if the action authorized by the variance has not been commenced. What constitutes commencement shall be specified by the Zoning Board of Appeals. If the Zoning Board of Appeals does not specify an expiration date for the variance, a variance granted under this section does not expire unless, at the time it is granted, the Zoning Board of Appeals specifies in the variance a specific date by which the action authorized by the variance must be commenced or completed.
(4) A variance granted under this Section runs with the land.
c. Interpretations and Boundary Lines. To hear and decide applications for interpretations of the zoning regulations and the boundaries of the zoning districts after the Village Plan Commission has made a review and recommendation.
d. Unclassified Uses and Special Exceptions. After the Plan Commission has made a review and recommendation, to hear and decide applications for unclassified and unspecified uses provided that such uses are similar in character to the principal uses permitted in the district, and to hear and decide applications for special exceptions provided that the waiver of the zoning regulations are justified under the circumstances. When making a decision on unclassified uses or special exceptions, the following provisions apply:
(1) If an applicant meets or agrees to meet all of the requirements and conditions specified in the Code or those imposed by the Plan Commission or the Village Board, the ZBA shall grant the application. Any condition imposed must be related to the purpose of the Code and be based on substantial evidence.
(2) The requirements and conditions described under subsection a. must be reasonable and, to the extent practicable, measurable and may include conditions such as the approval’s duration, transfer, or renewal. The applicant must demonstrate that the application and all requirements and conditions established by the Village relating to the application are or shall be satisfied, both of which must be supported by substantial evidence. The ZBA’s decision to approve or deny the application must be supported by substantial evidence, i.e., facts and information, other than merely personal preferences or speculation, directly pertaining to the requirements and conditions an applicant must meet to obtain approval and that reasonable persons would accept in support of a conclusion.
(3) Once granted, the approval shall remain in effect as long as the conditions upon which the approval was issued are followed, but the Village may impose conditions such as the approval’s duration, transfer, or renewal, in addition to any other conditions specified in the Code or by the Plan Commission.
e. Temporary Uses. To hear and decide appeals of denied applications for temporary use permits provided that such uses are of a temporary nature, do not involve the erection of a substantial structure, and are compatible with the neighboring uses, and the Village Plan Commission has made a review and denied that application. The permit shall be temporary, revocable, subject to any conditions required by the Zoning Board of Appeals, and shall be issued for a period not to exceed 12 months. Compliance with all other provisions of this Chapter shall be required.
f. Permits. In exercising the above mentioned powers such board may, in conformity with the provisions of such section, 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.
g. Other Appeals, Variances, Boundary Disputes, etc. See the applicable chapter.
2. Assistance. The Board may request assistance from other Village officers, departments, commissions, and boards.
3. Oaths. The Chair may administer oaths and compel the attendance of witnesses.
E. Appeals and Applications. Appeals from the decision of the Zoning Administrator or other official concerning the literal enforcement of this Code may be made by any person aggrieved or by any officer, department, board, or other body of the Village. Such appeals shall be filed with the secretary within 30 days after the date of written notice of the decision or order of the official. 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 with the secretary. Such appeals and applications shall include the following:
1. Name and Address of the appellant or applicant and all abutting and opposite property owners of record.
2. Plat of Survey prepared by a registered land surveyor, or a location sketch drawn to scale, showing all of the information required under Section 35-11 for a Zoning Permit.
3. Additional Information required by the Village Plan Commission, Village Engineer, Zoning Board of Appeals, Zoning Administrator or other official. For regulations set forth in other chapters, see also the appropriate Chapter.
F. Hearings. The Zoning Board of Appeals shall fix a reasonable time and place for the required public hearing, and shall give notice as specified in Section 35-240 of this Chapter unless a different notice is required by the appropriate Chapter. See the appropriate Chapter for DNR hearing notice requirements for shoreland-wetland, shoreland, floodplain, or other areas covered in a specific chapter. At the hearing the appellant or applicant may appear in person, by agent, or by attorney. Failure to appear may result in a decision based upon the available information.
G. Findings. No variance to the provisions of this Code shall be granted by the Board unless it finds beyond a reasonable doubt that all the following facts and conditions exist and so indicates in the minutes of its proceedings.
1. 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.
2. 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 of 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 ordinances should be changed.
3. 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.
4. Absence of Detriment. No variance shall be granted that will create substantial detriment to adjacent property and will materially impair or be contrary to the purpose and spirit of this Chapter or the public interest.
5. Additional Requirements. Additional requirements for a variance may be set forth in the applicable Chapter.
H. Decision. The Zoning Board of Appeals shall decide all appeals and applications within 30 days after the final hearing and shall transmit a signed copy of the Board's decision to the appellant or applicant, Zoning Administrator, Village Plan Commission and/or other official. Conditions may be placed upon any permit ordered or authorized by this Board. Variances, Substitutions, or Use Permits granted by the Board shall expire within six months unless substantial work has commenced pursuant to such grant. For decisions regarding floodplain areas, see Chapter 37.
I. Notice of Decision to DNR. See the appropriate Chapter for notice of decision requirements for shoreland-wetland, shoreland, floodplain, or other areas covered in a specific chapter.
J. Review by a Court of Record. Any person or persons aggrieved by any decision of the Zoning Board of Appeals may present to the court of record a petition duly verified setting forth that such decision is illegal and specifying the grounds of the illegality. Such petition shall be presented to the court within 30 days after the filing of the decision in the office of the Zoning Board of Appeals.
Notes
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