HomeMy WebLinkAboutItem IV PLAN COMMISSION STAFF REPORT SEPTEMBER 15,2020
ITEM IV: PUBLIC HEARING: TEXT AMENDMENTS TO THE ZONING ORDINANCE
GENERAL INFORMATION
Applicant: Department of Community Development
Actions Requested:
The City of Oshkosh Department of Community Development requests review and approval of
amendments to the Oshkosh Zoning Ordinance.
Applicable Ordinance Provisions:
Section 30-380 of the Zoning Ordinance establishes the ability of the Common Council, on its own
motion or on petition after first submitting the proposal to the City Plan Commission, to amend,
supplement or change Zoning District boundaries or regulations of the Zoning Ordinance.
BACKGROUND INFORMATION
The City of Oshkosh adopted a new zoning ordinance which went into effect on January 1, 2017.
Since the adoption of the ordinance, staff has noticed a number of code sections that should be
modified following further examination.
ANALYSIS
Staff proposes amendments to the following Zoning Ordinance code sections:
Section 30-22 (A) regarding definitions for accessory structures
Amend Section (A)(5) to include structures located less than 5 feet from the principal building
under attached accessory structure definition. Amend Section(A)(6) to include structures located
5 feet or more from principal building under detached accessory structure definition.
This change is intended to provide consistency with 30-72(K)(1)which requires separation from
principal structures for accessory uses. This will provide clarity to determine setback and area
requirements for accessory structures.
Section 30-86 (A) regarding residential accessory structures
Amend Section (A)(2) to include detached and accessory structures for total combined area.
This revision is intended to clarify that both detached and attached residential accessory
structures contribute toward the maximum permitted area of a lot.
Section 30-172 regarding vehicular access standards
Remove Section (B) Applicability and renumber the Section.
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Chapter 30 contains a broad applicability ordinance in 30-10,which confirms that Chapter 30
applies to all properties, all development activity, and all uses of land and property within the
City of Oshkosh. When the new zoning code was put in place in 2017,the zoning code was
drafted with performance standards that contained their own specific and separate applicability
provisions. It was never the intent of the City to create separate applicability provisions for
performance standards. As a result, the City attorney's office is recommending we repeal these
applicability provisions to clarify that the performance standards apply to all properties and uses
in the City of Oshkosh.
Section 30-173 regarding bicycle and pedestrian access standards
Remove Section (B) Applicability and renumber the Section.
The applicability provision is being repealed to clarify that these performance standards apply to
all properties and uses in the City of Oshkosh.
Section 30-174 regarding visibility standards
Remove Section (B) Applicability and renumber the Section.
The applicability provision is being repealed to clarify that these performance standards apply to
all properties and uses in the City of Oshkosh.
Section 30-175 regarding off-street parking and traffic circulation
Remove Section (B) Applicability and renumber the Section.
The applicability provision is being repealed to clarify that these performance standards apply to
all properties and uses in the City of Oshkosh.
Section 30-191 regarding exterior storage and screening standards
Remove Section (B) Applicability and renumber the Section.
The applicability provision is being repealed to clarify that these performance standards apply to
all properties and uses in the City of Oshkosh.
Section 30-221 regarding regulations for vacant buildings
Amend Section (A) to remove "as of the effective date of this Chapter".
This provision is being amended to clarify that these performance standards apply to all
properties and uses in the City of Oshkosh.
Section 30-344 regarding Board of Appeals organization and powers
Repeal and recreate Section.
Staff is proposing to repeal and replace zoning ordinance Sections (30-344, 30-410,30-441, 30-412)
regarding the Board of Appeals to provide consistent terminology and bring the ordinance into
compliance with current state statutes and case law.
Item IV-Text Amendments-Zoning Ordinance 2
Page 2
Section 30-410 regarding Board of Appeals interpretations as appeals of zoning interpretations
Repeal and recreate Section.
Section 30-441 regarding Board of Appeals variances as Board of Appeals interpretations
Repeal and recreate Section.
Section 30-412 regarding appeals of zoning interpretations as Board of Appeals Variances
Repeal and recreate Section.
Section 30-706 regarding Extraterritorial Board of Appeals
Hold Section in reserve.
Staff feels that the proposed amendments to the Zoning Ordinance will solve some problems that
have been identified and ultimately strengthen the Code.
RECOMMENDATION
Staff recommends that the Plan Commission recommend approval of the proposed amendments
to the Oshkosh Zoning Ordinance.
Item IV-Text Amendments-Zoning Ordinance 3
Page 3
30-22
(A)(5) Accessory structure, attached: An accessory structure which is physically
connected to the principal building or located less than 5 feet from the principal
building. Attached accessory structures shall be considered part of the principal
structure and are subject to the setback standards for principal structures.
(6) Accessory structure,detached:An accessory structure which is not physically
connected to the principal building and is located 5 feet or more from the principal
building. A minor attachment does not render an accessory structure attached.
Examples of minor attachments include,but are not limited to, decks 18 inches or less
above grade, arbors and fences, and similar open unclosed structures such as
breezeways over the pedestrian pathway between structures and no wider than 5 feet.
30-86
(A)(2)A combined total of 1,200 square feet of gross floor area of all accessory structures
on the property is permitted by right. For lots larger than one acre, the maximum
permitted combined total of gross floor area of all accessory structures on the
property shall be increased by one square foot for every 100 square feet of lot area
over one acre. In no instance shall the accessory structure area exceed the ground
floor area of the principal building used for residence. An individual detached
accessory structure shall not exceed 800 square feet of gross floor area. The
measurement of accessory structure size shall include the total of all detached or
and attached accessory buildings on the lot except as conditional uses.
30-172: Vehicular Access Standards
(B) Applicability. The requirements of this Section shall apply to each driveway and acce
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Cede.
(B) Review and Approval. Through the site plan review process (see Section 30-385), the
Director of Community Development,or designee,shall review and approve all proposed
driveways and other access points on the subject property.
(C) Access Limitation by Use. Single family and two family dwelling units shall not have
driveways or other access points onto a collector or arterial street that is not primarily
residential unless such street has the only available frontage. Nonresidential and multi-
family uses shall not have driveways or other access points onto a residential local street
unless such street has the only available frontage.
(D) Number of Access Points. Refer to Chapter 25 of the City of Oshkosh Municipal
Code.
(E) Access near Street Intersections. Refer to Chapter 25 of the City of Oshkosh
Municipal Code.
Item IV-Text Amendments-Zoning Ordinance 4
Page 4
(F) Distance between Driveways and Other Access Points. Refer to Chapter 25 of the
City of Oshkosh Municipal Code.
(G) Angle of Intersection with Public Right-of-Way.All driveways and other access points shall
intersect with any public right-of-way at an angle of not less than 75 degrees, and shall
intersect at an angle of 90 degrees wherever possible.
(H) Visibility Standards.All driveways and other access points shall comply with the visibility
standards of Section 30-174.
(1) Traffic Control.The traffic generated by any use shall be channelized and controlled in a
manner that avoids congestion on public streets and other safety hazards.
(J) Depiction on Required Site Plan.Any and all proposed driveways and other access points on
the subject property shall be depicted as to their location and configuration on the site plan
required for the development of the subject property.
(K) Surfacing.
(L) Nonconforming Driveways.
(M) Design of Single and Two Family Residential Driveways.
(N) Design of Multi-Family Residential, Institutional, Commercial, and Industrial Use
Driveways.
30-173: Bicycle and Pedestrian Access Standards
redevelopment. Storage land uses are exempt fr-efn the ---i—ements of this Section.
[Revised 4.28-.2W
(B) Quantity. One pedestrian and bicycle access is required to at least one street frontage.
(C) Off-Site Connections. Pedestrian and bicycle access shall include appropriate connections to
the existing and planned pedestrian and bicycle facilities in the community and in
surrounding neighborhoods.
(D) On-Site Connections. The entire development shall provide walkways for full and safe
pedestrian and bicycle access within the development.
30-174: Visibility Standards
(B) Applicability. The r-equir-ements of this Sectien shall apply to all new development or-
redevelopment and new and existing vegetation.[Revised 4.28.201
(B) Review and Approval. Through the site plan review process (see Section 30-385), the
Director of Community Development, or designee, shall review and approve all
development for conformance with this Section.
Item IV-Text Amendments-Zoning Ordinance 5
Page 5
(C) Vision Triangle at Public Streets. A vision triangle extending 20 feet from all public street
right-of-way intersections shall be maintained for local street intersections and 30 feet
when the intersection includes collector or arterial streets. If the street intersection is
curved, the vision triangle distance shall be maintained as if the right- of-way where
extended to create a 90 degree corner. No wall, fence, structure, utility structure or
appurtenance, or vegetation shall be permitted within such vision triangle which
materially impedes vision between the height of 2 1/2 feet and 8 feet with the exception of
fencing,which shall be no greater than 30%opaque. Development in the CMU district and
development located on streets with signalized intersections shall be exempt from this
requirement.
(D) Vision Triangle at Alleys and Driveways. A vision triangle extending 10 feet from alleys
and driveways shall be maintained. No wall, fence, structure, utility structure or
appurtenance,or vegetation shall be permitted within such vision triangle which materially
impedes vision between the height of 21/z feet and 8 feet.Development in the CMU district
shall be exempt from this requirement.
30-175: Off-Street Parking and Traffic Circulation
(B) Applicability. The requirements of this Section shall apply to all new development an
redevelopment.
(B) Review and Approval. Through the site plan review process (see Section 30-385), the
Director of Community Development, or designee, shall review and approve all
development for conformance with this Section.
(C) Depiction on Required Site Plan.
(D) Minimum Number of Required Off-Street Parking Spaces.
(E) Parking Requirement Exceptions in the Central Mixed Use District and Parking
Requirement Exemption Overlay District. [Revised 4.28.201
(F) Limit on the Number of Off-Street Parking Spaces Provided.No site plan may be
approved for a multi-family or nonresidential use which contains more than 125
percent of the development's minimum number of required parking spaces,except as
granted through a conditional use permit. (See Figure 30-175a for a summary of the
minimum and maximum parking requirements by land use.) Consideration of the
following factors shall be given in considering a conditional use permit request:
(G) Parking Studies. The Director of Community Development, or designee, has the ability to
require a parking study to determine parking requirements. Where a parking study is
required, the study shall contain information on the anticipated number of employees,
customers, visitors, clients, shifts, events, or deliveries to the use, and may refer to other
studies or similar situations elsewhere.
(H) Screening Requirements.The following requirements shall apply to all uncovered parking
areas except as otherwise provided for by this Section:
(I) Locational Prohibitions for Off-Street Parking Areas.
(J) Setbacks.
(K) Parking Space Design for Single and Two Family Uses.
(L) Parking Space Design for Single and Two Family Uses on Small Lots. Parking for
Item IV-Text Amendments-Zoning Ordinance 6
Page 6
single and two family parcels less than 60 feet wide or less than 100 feet deep are
regulated as follows:
(M) Off-Street Parking and Traffic Circulation Standards for Multi-Family and
Nonresidential Uses.
(N) Parking Space Design Standards. Other than handicapped parking, permitted parking in
residential driveways, and where otherwise regulated in this Section, each off-street
parking space shall comply with the minimum requirements of Figure 30-175f.All parking
spaces shall have a minimum vertical clearance of at least 7 feet.
(0) Partial or Phased Development of Required Parking Spaces.
(P) Joint Off-Site Parking Facilities.
(Q) Bicycle Parking Standards.
(R) Surfacing.
(S) Installation and Maintenance.
(T) Limitations on Uses of All Off-Street Parking Areas.
(U) Limitations on Uses of Residential Off-Street Parking Areas. In residential districts and on
lots associated with residential uses, accessory off-street parking facilities shall be solely
for the parking of passenger vehicles, which shall be regulated as follows:
30-191: Exterior Storage and Screening Standards
(B) Applicability.The requirements of this Sect; ply to all development.
(B) Review and Approval.
(C) Requirements for Exterior Storage.
(D) Exterior Storage of Refuse.
(E) Mechanical Equipment and On-Site Utilities.
30-221: Regulations for Vacant Buildings
(A) This Section shall apply to all buildings as of the effective date of this Chapter-.
---
Item IV-Text Amendments-Zoning Ordinance 7
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Chapter 2—Administration
Section 2-59 Board of Appeals
(A) Membership and Terms
The Board of Appeals shall consist of five (5) members appointed for a term of
three years.
(B) Functions and Duties
The Board of Appeals shall have the duties and powers prescribed in Section 62.23
of the Wisconsin Statutes and Chapter 30 of this Municipal Code. [Statutory
Reference §62.23(7)(e) Wis. Stats.]
Chapter 30 --Zoning Ordinance
Article XI: Administration and Procedures
Section 30-344: Board of Appeals
(A) Organization. The Board of Appeals shall be organized and governed as provided
in Chapter 2 of this Municipal Code.
(B) Powers. The Board of Appeals shall have the powers established in Wis. Stat.
62.23(7) and this Code, including the following:
(1) Hear Appeals. To hear and decide appeals where it is alleged there is an error
in any order, ruling, requirement, decision, or determination made by the
Director of Community Development or designee in the interpretation of
Section 62.23 Wis. Stats. or of this Chapter.
(2) Hear Appeals. To hear and decide appeals where it is alleged there is an error
in any order, ruling, requirement, decision or determination made under
other Chapters or Sections of this Municipal Code where appeal is authorized
or directed to the Board of Appeals.
(3) Interpret Ordinances. Interpret the provisions of this Chapter as provided in
Section 30-411.
(4) Authorize Variances. To authorize upon appeal in specific cases such
variance from the terms of this Chapter as will not be contrary to the public
interest where, owning to special conditions, a literal enforcement of the
provisions of this Chapter will results in practical difficulty or unnecessary
hardship, so that the spirit of the Chapter shall be observed, public safety and
welfare secured, and substantial justice done.
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(5) Extend Districts. To permit the extension of a zoning district where the
boundary line of a district divides a lot held in single ownership at the time
of passage of this Chapter.
(C) See Figure 30-360 for a summary of the role of the Board of Appeals in
administering this Chapter.
(D) Procedures. The Board of Appeals shall adopt rules for its government and
procedure. Meetings of the Board of Appeals shall be held at the call of the
Chairman and at such times as the Board of Appeals may determine. The
Chairman, or in his absence the Acting Chairman, may administer oaths and
compel the attendance of witnesses. All meetings shall be open to the public.
The Board of Appeals shall take no action except in a specific case and after a
public hearing conducted by such Board. Notices of the time and place of such
public hearing shall be posted in at least three (3) public places. Notices shall be
sent to interested parties as determined by the secretary of the Board of Appeals.
There shall be at least a three (3) day period between the time of posting and the
time of the meeting excluding the day of posting. Such notice shall contain the
particular address or location of the property for which the variance or other ruling
by the Board of Appeals is sought, as well as a brief description of the nature of
the appeal, and of what the proposed variance consists.
Powers of Board Limited. The Board of Appeals has no other powers than those specified
above.
Section 30-410: Appeals of Zoning Interpretations
(A) Purpose. The purpose of this Section is to provide regulations which enable the
City to hear and decide requests for appeals:
(1) where it is alleged there is an error in any order, ruling, requirement,
decision,or determination made by the Director of Community Development
or designee in the interpretation of Section 62.23 Wis. Stats. or of this Chapter
as provided for by Wis. Stats. 62.23(7)(e)(7); or
(2) where it is alleged there is an error in any order,ruling, requirement, decision
or determination made under other Chapters or Sections of this Municipal
Code where appeal is authorized or directed to the Board of Appeals.
(B) Initiation of Request for Appeal. An appeal may be initiated by any person
aggrieved, or by any officer, department, or board of the City affected by any
decision of the Director of Community Development, or designee or other official
as provided in Subsection (A) above.
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(C) Stay of Proceedings. An appeal shall stay all legal proceedings in furtherance of
the action appealed from, unless the Director of Community Development, or
designee, certifies to the Zoning Board of Appeals after the request for the appeal
has been filed, that, by reason of facts stated in the certificate, a stay would cause
immediate peril to life or property. In such case, the proceedings shall not be
stayed otherwise than by a restraining order which may be granted by the Board
of Appeals or by a court of record on application and on notice to the Director of
Community Development, or designee, and on due cause shown.
(D) Time Limit for Filing an Appeal. Any appeal under the provisions of this Section
shall be made per the requirements of Subsection (E), below, within a period not
exceeding 45 days from the date of issuance of the interpretation appealed from.
Failure to initiate this appeal procedure within this 45-day period shall constitute
a final and binding waiver of the right to appeal said interpretation.
(E) Application Requirements. An application for an appeal of a zoning interpretation
shall contain the following (digital files should be submitted whenever possible):
(1) A copy of the interpretation, order or other document or decision appealed
from.
(2) A written statement from the applicant indicating the reasons why an appeal
is justified. This statement shall be dated and signed by the applicant.
(F) Review of Sufficiency of Application by the Director of Community Development,
or designee.
(1) The Director of Community Development, or designee, shall determine
whether the application appropriately identifies a matter within the
jurisdiction of the Board of Appeals. If the application is determined to
address a matter not within the authority of the Board of Appeals, the
Director of Community Development, or designee, shall notify the applicant.
An applicant may make appeal from this determination to the Board.
(2) The Director of Community Development, or designee, shall determine
whether the application is complete and fulfills the requirements of this
Chapter. If the application is determined to be incomplete, the Director of
Community Development, or designee, shall notify the applicant.
(G) Response to Appeal.
(1) A copy of the application for appeal shall be provided to the official whose
determination or order is appealed from. The official shall review the
application and evaluate and provide comment on the written justification
for the requested appeal to the Board of Appeals as submitted by the
applicant to the Director of Community Development or designee. The
Director of Community Development, or designee, shall also evaluate the
application to determine whether the requested remedy is in harmony with
the Comprehensive Plan or other relevant plans when applicable.
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(2) The Director of Community Development,or designee, shall forward a report
to the Board of Appeals for review and action. If the Director of Community
Development, or designee, determines that the proposal may be in conflict
with the provisions this Chapter or the Comprehensive Plan or other relevant
plans, the Director of Community Development, or designee, shall note this
determination in the report.
(H) Public Hearin. Within 60 days of filing of a complete application, the Board of
Appeals shall hold a public hearing in compliance with Section 30-361 to consider
the request.
(I) Review and Action by the Board of Appeals.
(1) Within 60 days after the filing of the complete application, the Board of
Appeals shall make its findings. The Board of Appeals may request further
information and/or additional reports from the Director of Community
Development, or designee, and/or the applicant. The Board of Appeals may
take final action on the application for appeal at the time of its initial meeting,
or may continue the proceedings. When making a determination upon
Appeal the Board of Appeals may consider whether the provisions of the
codes apply to the particular situation at hand; whether the codes or rules
have been incorrectly interpreted; the intent of the codes or rules; or
specifically in the case of building or housing codes whether an equally good
or better form of construction or repair can be used.
(2) Final action shall be followed by a written report or minutes which shall
include formal finding of facts developed and approved by the Board of
Appeals concerning the request.
(3) If the Board of Appeals fails to make a determination within 60 days after the
filing of said complete application, then the request for the appeal shall be
considered denied.
(J) Effects of Denial. No application for an appeal which has been denied (either
wholly or in part) shall be resubmitted for a period of 365 days from the date of
said order of denial, except on grounds of new evidence or material change of
circumstances found valid by the Director of Community Development, or
designee.
(K) Limited Effect on a Favorable Ruling on an Appeal.
(1) No ruling by the Board of Appeals on an appeal finding a particular land use
to be permitted or conditionally permitted in a specified zoning district shall
be valid for a period of more than 365 days from the date of issuance of the
ruling on the appeal, unless a building permit is issued and development is
actually begun within that period, and is thereafter diligently pursued to
completion, or a certificate of occupancy is obtained.
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(2) A ruling by the Board of Appeals on an appeal finding a particular land use
to be permitted or conditionally permitted in a specified zoning district shall
be deemed to authorize only that particular use at that particular location for
which the ruling was issued. The ruling shall not be deemed to authorize any
allegedly similar use for which a separate ruling has not been issued. A
favorable ruling shall automatically expire and cease to be of any force or
effect if the particular use for which it was issued shall, for any reason, be
discontinued for a period of 365 consecutive days or more.
Section 30-411: Interpretations
(A) Purpose. The purpose of this Section is to provide the procedures and guidelines
for the official interpretation of the provisions of this Chapter.
(B) Initiation of Request for an Interpretation. Proceedings for an interpretation may
be initiated by any of the following methods:
(1) An application of the owner(s) of the subject property or authorized agent of
the owner(s) of the subject property.
(2) By request of the Plan Commission or Common Council.
(3) By request of the Director of Community Development, or designee.
(C) Application. A zoning interpretation application shall be submitted that contains
all of the following:
(1) Clear indication of the text of this Chapter for which the interpretation is
requested and the specific questions the applicant has regarding said text.
(2) If the requested interpretation relates to the application of this Chapter to a
specific property, the additional following information may be required
(digital files should be submitted whenever possible):
(a) A map of the subject property depicting:
(1) All lands for which the interpretation is requested and all other
lands within 100 feet of the boundaries of the subject property.
(ii) Current zoning of the subject property and its environs, and the
jurisdiction(s) which maintains that control.
(iii) All lot dimensions of the subject property.
(iv) A graphic scale and a north arrow.
(b) A written description of the reason for the requested interpretation and
how the proposed interpretation relates to type of activities, buildings, and
structures currently located on, and proposed for, the subject property.
(c) A site plan of the subject property as proposed for development. Said site
plan shall conform to the requirements of Section 30-385, if applicable.
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(D) Review by Director of Community Development, or designee.
(1) The Director of Community Development, or designee, shall determine
whether the application is complete and fulfills the requirements of this
Chapter. If the application is determined to be incomplete, the Director of
Community Development, or designee, shall notify the applicant.
(2) The Director of Community Development, or designee, shall review the
application and evaluate and comment on the written justification for the
proposed interpretation provided in the application to determine whether
the requested variance is in harmony with the City's Comprehensive Plan. If
the requested interpretation relates to the classification or treatment of a
particular land use under the provisions of this Chapter, the Director or
designee's response shall also address the following questions:
(a) How is the subject land use in general harmony with the purposes,
goals, objectives, policies and standards of the City's Comprehensive
Plan, this Chapter, and any other plan, program, or ordinance adopted,
or under consideration (pursuant to official notice) by the City?
(b) How is the subject land use in harmony with the purposes, goals,
objectives, policies and standards of the pertinent zoning district for
which the interpretation is being sought?
(3) The Director of Community Development,or designee, shall forward a report
to the applicant indicating the interpretation of the Director of Community
Development, or designee. If the Director of Community Development, or
designee, determines that the proposal may be in conflict with the provisions
of the Comprehensive Plan, the Director of Community Development, or
designee, shall note this determination in the report.
(E) Standards for Review. This Chapter shall be interpreted in a manner which is
consistent with the purposes intended by the Common Council as noted in this
Chapter and the Comprehensive Plan. The intent of the standards and supporting
definitions of this Chapter is to protect both individual property owners and the
general public from adverse impacts that may result from a proposed, modified,
or existing land use. The following standards shall govern the decision on the
requested interpretation on land use interpretation matters:
(a) No interpretation shall allow the establishment of any land use which was
previously considered and rejected by the Common Council on an
application for an amendment to the Zoning Ordinance, the Official Zoning
Map, or a previously applied for appeal from a requested interpretation.
(b) No interpretation shall permit a land use listed as a use permitted by right,
a special use, or a conditional use in another zoning district if the use is not
listed as permitted or conditional in the zoning district of the subject
property (see Article 11).
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(c) No interpretation shall permit a land use in a zoning district unless
evidence is presented which demonstrates that the land use will comply
with any and all regulations applicable to development in the subject
property's zoning district (see Article II).
(d) No interpretation shall permit a land use in a particular zoning district
unless such use is substantially similar to other uses permitted in that same
district and is more similar to such other uses than to uses either not
permitted in said district, or permitted in a more intensive district in the
same zoning district category (see Article 11).
(e) If the proposed land use is more similar to a land use permitted only as a
conditional use in the subject property's district than to a use permitted by
right, then an interpretation permitting such use shall be conditioned upon
the approval of a conditional use pursuant to Section 30-382.
(F) Effect of a Favorable Land Use Interpretation. No interpretation finding a
particular land use to be permitted or conditionally permitted in a specific zoning
district shall authorize either the establishment of such use or the development,
construction, reconstruction, alteration, or moving of any building or structure. A
favorable interpretation merely authorizes the preparation, filing, and processing
of applications for any permits and approvals which may be required by this
Chapter. These permits and approvals include,but are not limited to, required site
plans, special use permits, conditional uses, and certificates of occupancy.
(G) Limitations on Favorable Land Use Interpretation.
(1) No interpretation finding a particular land use to be permitted or
conditionally permitted in a specified zoning district shall be valid for a
period of more than 365 days from the date of issuance of the interpretation,
unless a building permit is issued and development has begun within that
period, and is thereafter diligently pursued to completion, or a certificate of
occupancy is obtained and a use commenced within that period.
(2) An interpretation finding a particular land use to be permitted or
conditionally permitted in a specified zoning district shall be deemed to
authorize only that particular use at that particular location for which the
interpretation was issued. The interpretation shall not be deemed to
authorize any allegedly similar use for which a separate interpretation has
not been issued. A favorable interpretation shall automatically expire and
cease to be of any force or effect if the particular use for which it was issued
shall, for any reason,be discontinued for a period of 365 consecutive days or
more.
Section 30-412: Variances
(A) Purpose. The purpose of this Section is to provide regulations which enable the
City to hear and decide requests for permitted variation from the terms of this
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Chapter as will not be contrary to the public interest; where owing 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 for Approval of a Variance. Proceedings for approval of a
requested variance shall be initiated by an application of the owner(s) of the
subject property or authorized agent of the owner(s) of the subject property.
(C) Application. Variance applications shall contain the following (digital files should
be submitted whenever possible, if applicable):
(1) A map of the subject property depicting:
(a) All lands for which the variance is proposed and all other lands within 100
feet of the boundaries of the subject property.
(b) Current zoning of the subject property and its environs, and the
jurisdiction(s) which maintains that control.
(c) All lot dimensions of the subject property.
(d) 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 the requirements of Section 30-385.
(3) Written description of the proposed variance, including the specific code
requirement, the variance requested, the identified hardship related to
compliance and the effect of the variance related to the public interest .
(D) Review by the Director of Community Development, or designee.
(1) The Director of Community Development, or designee, shall determine
whether the application is complete and fulfills the requirements of this
Chapter. If the application is determined to be incomplete, the Director of
Community Development, or designee, shall notify the applicant.
(2) The Director of Community Development, or designee, shall review the
application and prepare a written report including the following:
(a) Evaluate the request based upon the criteria used by the Board of Appeals
in their review including whether the requested variance is necessary;
whether unnecessary hardship is present; whether the variance requested
is the minimum necessary variance, and whether the requested variance
will harm the public's interest including whether the request is in harmony
with the Comprehensive Plan or other relevant plans.
(E) Public Hearing. Within 60 days of filing of a complete application, the Board of
Appeals shall hold a public hearing in compliance with Section 30-361 to consider
the request.
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(F) Review and Action by the Board of Appeals.
(1) Within 60 days after the holding of the public hearing, the Board of Appeals
shall make its findings per the following based on Wis. Stats. 62.23(7)(e)7:
(a) Due to special conditions, a literal enforcement of the provisions of the
Zoning Ordinance will result in unnecessary hardship.
i. for a use variance that no feasible use can be made of the property
without the granting of the appeal; or
ii. for an area variance that compliance with the strict letter of the
restrictions governing area, setbacks, frontage, height, bulk or
density would unreasonably prevent the owner from using the
property for a permitted purpose or would render conformity with
such restrictions unnecessarily burdensome,
and
iii. that the hardship is something which is unique to this property and
not the owner of the property; and
iv. that the hardship is not self-created; and
v. that the hardship is not solely economic.
(b) The variance will not be contrary to the public interest.
(c) The variance is needed so that the spirit of the ordinance is observed.
(d) Substantial justice will be done by granting the variance.
(2) The Board of Appeals may request further information and/or additional
reports from the Director of Community Development, or designee, and/or
the applicant. The 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.
(3) If the Board of Appeals fails to make a determination within 60 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 365 days from the date of
said order of denial, except on grounds of new evidence or material change of
circumstances found valid by the Director of Community Development, or
designee.
(H) Limited Effect of a Variance. Where the 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.
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(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 Director of Community Development, or
designee, certifies to the 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
Board of Appeals, or by a court of record on application, on notice to the Director
of Community Development, or designee, and on due cause shown. State Law
Reference: Section 62.23(7)(e)5., Wisconsin Statutes.
(J) Exceptions to the requirements of the "Wittman Regional Airport Height
Limitation Map — Winnebago County, Wisconsin' shall be administered by
Winnebago County.
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