§ 18-253. Variance.

(a)

Purpose. The purpose of this section is to provide regulations which enable the village to hear and decide requests for permitted variation from the terms of this chapter as will not be contrary to the public interest; and, where owning to special factors, a literal enforcement of the provisions of this chapter would result in practical difficulty or unnecessary hardship, so that the spirit of this chapter shall be observed, public safety and welfare secured, and substantial justice done, as provided for by Wis. Stats. § 62.23(7)(e)(7).

(b)

Initiation of request. Proceedings for approval of a variance may be initiated by an application of the owner(s) of the subject property.

(c)

Application. Variance applications shall be printed on an application form provided for the purpose and filed with the village clerk. Said application shall be filed with the village clerk within 30 days from the date of denial and accompanied by a fee in accordance with the village fee schedule. In addition to all information required on the application form, the applicant shall supply the following:

(1)

A map of the subject property at a scale not less than one inch = 800 feet depicting:

a.

All lands for which the variance is proposed and all other lands within 200 feet of the boundaries of the subject property.

b.

Names and addresses of the owners of all lands on said map as the same appear on the current records of the Register of Deeds of Walworth County.

c.

Current zoning of the subject property and its environs, and the jurisdiction(s) which maintains that control.

d.

All lot dimensions of the subject property.

e.

A graphic scale and a north arrow.

(2)

A site plan of the subject property as proposed for development. Said site plan shall conform to any and all the requirements of section 18-245.

(3)

Written description of the proposed variance, including the type of specific requirements of the variance proposed for the subject property and evidence that the application is consistent with the comprehensive plan.

(d)

Review by the zoning administrator.

(1)

The zoning administrator shall determine whether the application is complete and fulfills the requirements of this chapter. If the application is determined to be incomplete, the zoning administrator shall notify the applicant.

(2)

The zoning administrator shall review the application and evaluate and comment on the written justification for the proposed variance provided in the application per the following:

a.

What exceptional or extraordinary circumstances or special factors are present which apply only to the subject property? The response to this question shall clearly indicate how the subject property contains factors which are not present on other properties in the same zoning district. Specifically:

1.

The hardship or difficulty shall be peculiar to the subject property and different from that of other properties, and not one which affects all properties similarly. Such a hardship or difficulty shall have arisen because of the unusual shape of the original acreage parcel; unusual topography or elevation; or because the property was created before the passage of the current, applicable zoning regulations, and is not economically suitable for a permitted use or will not accommodate a structure of reasonable design for a permitted use if all area, yard, green space, and setback requirements are observed.

2.

Loss of profit or pecuniary hardship shall not, in and of itself, be grounds for a variance.

3.

Self-imposed hardship shall not be grounds for a variance. Reductions resulting from the sale of portions of a property reducing the remainder of said property below buildable size or cutting off existing access to a public right-of-way or deed restrictions imposed by the owner's predecessor in title are considered to be such self-imposed hardships.

4.

Violations by, or variances granted to, neighboring properties shall not justify a variance.

5.

The alleged hardship shall not be one that would have existed in the absence of a zoning ordinance. (For example, if a lot were unbuildable because of topography in the absence of any or all setback requirements.)

b.

In what manner do the factors identified in subsection (2)a., above, prohibit the development of the subject property in a manner similar to that of other properties under the same zoning district? The response to this question shall clearly indicate how the requested variance is essential to make the subject property developable so that property rights enjoyed by the owners of similar properties can be enjoyed by the owners of the subject property.

c.

Would the granting of the proposed variance be of substantial detriment to adjacent properties? The response to this question shall clearly indicate how the proposed variance will have no substantial impact on adjacent properties.

d.

Would the granting of the proposed variance as depicted on the required site plan, result in a substantial or undue adverse impact on the character of the neighborhood, environmental factors, traffic factors, parking, public improvements, public property or rights-of-way, or other matters affecting the public health, safety or general welfare, either as they now exist or as they may in the future be developed as a result of the implementation of the intent, provisions, and policies of this chapter, the comprehensive plan, or any other plan, program, map, or ordinance adopted or under consideration pursuant to official notice by the village or other governmental agency having jurisdiction to guide growth and development? The response to this question shall clearly indicate how the proposed variance will have no substantial impact on such long-range planning matters.

e.

Have the factors which present the reason for the proposed variance been created by the act of the application or previous property owner or their agent (for example: previous development decisions such as building placement, floor plan, or orientation, lot pattern, or grading) after the effective date of this chapter. The response to this question shall clearly indicate that such factors existed prior to the effective date of this chapter and were not created by action of the applicant, a previous property owner, or their agent.

(3)

The zoning administrator shall evaluate the application to determine whether the request is in harmony with the recommendations of the comprehensive plan.

(4)

The zoning administrator shall prepare a written report addressing subsections (2)a. through (2)e., above, to be forwarded to the zoning board of appeals for review and action. If the zoning administrator determines that the proposal may be in conflict with the provisions of this chapter or the comprehensive plan, the zoning administrator shall note this determination in the report.

(e)

Public hearing. Within 30 days of filing of a complete application, the zoning board of appeals shall hold a public hearing in compliance with section 18-242 to consider the request.

(f)

Review and action by the zoning board of appeals.

(1)

Within 30 days after the holding of the public hearing, the zoning board of appeals shall make its findings per subsection (2), above, and its determination regarding the application. The zoning board of appeals may request further information and/or additional reports from the zoning administrator and/or the applicant. The zoning board of appeals may take final action on said request for approval of the requested variance at time of its initial meeting, or said proceedings may be continued from time to time for further consideration.

(2)

If the zoning board of appeals fails to make a determination within 30 days after said public hearing, then the request for the variance shall be considered denied.

(g)

Effect of denial. No application for a variance which has been denied (either wholly or in part) shall be resubmitted for a period of 12 months from the date of said order of denial, except on grounds of new evidence or proof of change of factors found valid by the zoning administrator.

(h)

Limited effect of a variance. Where the zoning board of appeals has granted a variance, such approval shall neither change the use classification of the building or premises, nor give it any status as a nonconforming use other than that which it has as a result of the variance. Granting of a variance shall be considered as unique to the variance granted, and shall not be construed as precedent for any other proposed variance.

(i)

Stay of proceedings. An application for a variance shall stay all legal proceedings furthering enforcement of any provisions of this chapter from which the applicant is requesting a variance, unless the zoning administrator certifies to the zoning board of appeals after the request for the variance has been filed, that by reason of the facts stated in the certificate a stay would, in his 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 zoning board of appeals, or by a court of record on application, on notice to the zoning administrator, and on due cause shown, Wis. Stats, § 62.23(7)(e)5.

(j)

Notice to the DNR. The zoning board of appeals shall transmit a copy of each application for a variance to regulations in the FW, FF, GFP, FSD, SW overlay districts to the DNR for review and comment at least ten days prior to any public hearings. Final action on the application shall not be taken for 30 days or until the DNR has made its recommendation, whichever comes first. A copy of all decisions relating to variances to shoreland conservancy regulations or to flood land regulations, and a copy of all decisions to shoreland conservancy and flood land appeals, shall be transmitted to the DNR within ten days of the date of such decision.

(Ord. No. 090412-02, § 1, 9-4-2012; Ord. No. 11-23-15-02, § 2, 11-23-2015)