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HomeMy WebLinkAbout19. 20-408SEPTEMBER 22, 2020 20-408 ORDINANCE FIRST READING (CARRIED LOST LAID OVER WITHDRAWN ) PURPOSE: AMEND ORDINANCES PERTAINING TO THE BOARD OF APPEALS INITIATED BY: CITY ADMINISTRATION A GENERAL ORDINANCE OF THE CITY OF OSHKOSH AMENDING SECTIONS 2- 59, 30-344, AND 30-410 THROUGH 30-412 AND REPEALING SECTION 30-706 OF THE CITY OF OSHKOSH MUNICIPAL CODE ALL PERTAINING TO THE BOARD OF APPEALS WHEREAS, there is need to update certain provisions to comply with current state statutes and to clarify language within the existing city ordinances. NOW, THEREFORE, the Common Council of the City of Oshkosh do ordain as follows: SECTION 1. That the title to Section 2-59 of the Oshkosh Municipal Code pertaining to the Board of Zoning Appeals is hereby amended to refer to the Board of Appeals and to read as show on Attachment "A" to this Ordinance. SECTION 2. That 30-344 of the Oshkosh Municipal Code pertaining to the Zoning Board of Appeals is hereby amended to refer to the Board of Appeals and to read as shown on Attachment "A" to this Ordinance. SECTION 3. That Sections 30-410 through 30-412 of the Oshkosh Municipal Code pertaining to interpretations of the ordinances, appeals and variances before the Board of Appeals are hereby amended to read as shown on Attachment "A" to this Ordinance. SECTION 4. That Section 30-706 Board of Appeals of the Oshkosh Municipal Code is hereby repealed. SECTION 5. That the appropriate city staff are hereby authorized to correct any references within the Municipal Code to sections renumbered or otherwise affected by these amendments to refer to the amended sections adopted by this ordinance. SEPTEMBER 22, 2020 20-408 ORDINANCE FIRST READING CONT'D SECTION 6. This ordinance shall be in full force and effect from and after its passage, and publication. SECTION 7. Publication Notice. Please take notice that the City of Oshkosh enacted ordinance #20-408 AMEND ORDINANCES PERTAINING TO THE BOARD OF APPEALS (A GENERAL ORDINANCE OF THE CITY OF OSHKOSH AMENDING SECTIONS 2-59, 30-344, AND 30-410 THROUGH 30-412 AND REPEALING SECTION 30-706 OF THE CITY OF OSHKOSH MUNICIPAL CODE ALL PERTAINING TO THE BOARD OF APPEALS) on October 13, 2020. The ordinance revises the City's current ordinances to comply with Wisconsin Statutes, to delete repetitive provisions and to clarify language pertaining to the operation and authority of the Board of Appeals. The full text of the ordinance may be obtained at the Office of the City Clerk, 215 Church Avenue and through the City's website at www.ci.oshkosh.wi.us. Clerk's phone: 920/236-5011. City ci %r Oshkosh TO: Mayor and Members of the Common Council FROM: Lynn A. Lorenson, City Attorney DATE: September 17, 2020 RE: Amend Ordinances Pertaining to the Board of Appeals BACKGROUND The City working with an outside consultant reviewed and updated Chapter 30, the City's zoning ordinances effective January 1, 2017. ANALYSIS As staff has worked with the ordinances and, in particular, prepared to do an updated training manual for the Board of Appeals, it came to staff's attention that there were several provisions related to the Board of Appeals within the Code and that in some cases the terminology was not consistent. For example, the Board was called the Board of Appeals, the Board of Zoning Appeals and the Zoning Board of Appeals variously in the code provisions. In some cases staff also felt that provisions placed burdens on applicants that would be difficult for applicants to address, such as whether their requests were in harmony with the City's Comprehensive Plan and which were more properly directed to professional staff. Finally staff also identified provisions which appeared to add criteria to variances which were not reflective of current law or which required staff or the board to articulate certain standards or determinations which may not be applicable in certain cases and could be a potential grounds for challenge to an otherwise valid determination of the board under state law. The proposed amendments coming before Council will consolidate the city's ordinances pertaining to Board of Appeals; clarify the ordinances and provide consistent terminology; and bring the ordinances into compliance with state statutes and caselaw. Attachments to the ordinance include a clean version of the new ordinance as well as an annotated copy of the current ordinance explaining the changes being proposed. City Hall, 215 Church Avenue P.O. Box 7130 Oshkosh, WI 54903-1130 920.236.5000 http://www.ci.oshkosh.wi.us FISCAL IMPACT There is no anticipated financial impact associated with this code revision. RECOMMENDATION Staff recommends approval of the amendments. Respectfully Submitted, � ti�- *LA. orenson City Attorney Approved: Mark A. Rohloff City Manager City Hall, 215 Church Avenue P.O. Box 1130 Oshkosh, WI 54903-1130 920.236.5000 http://w .ci.oshkosh.wi.us 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. (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. (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. (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. (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: (i) 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. (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 II). (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 II). (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 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 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. (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. (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. Chapter 2-Administration SECTION 2-59 BOARD OF ZONING APPEALS ,- Commented[LL1]:Title of Board will be changed to Board of Appeals to match (A) Membership and Terms Chapter 30, no other changes The Board of Appeals shall consist of five(5)members appointed for a term of three years. (B) Functions and Duties The Board of Zoning 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.] Commented[LL2]:BZA shows up in 2 separate locations in current Chapter 30 - here in Article XI under Administration and Article Xl:Administration and Procedures again in Article XXVI under Extraterritorial Zoning Administration Section 30-344:Zoning Board of Appeals while planning staff thought that the Article XXVI reference was intended to apply only to Extraterritorial Zoning Zoning BeaFd of Appeals is established to pr-evide an appeal pFeeedtir-e for-per-SORS decisions, this is clearly not ..1.,. deem- themselves ...7 by .7.. ens ,.F a.7..� +«a+;... ,.FF;,,..«­ +7.,,, consistent with the actual language of that provision 30-706 and does not make ..-fe nt of this Chapter. logical sense. "k&The Zoning Board of Appeals is established in Chapter 2,Article VI,of the City of The proposed revision consolidates all BZA provisions in Article XI Oshkosh Municipal Code. Refer to this Chapter for provisions related to Administration. membership,functions,and duties of the Board.I ,- Commented[LL3]:sentence deleted as it is (gkaPowers. The Board of Appeals shall have the powers established in Wis. Stat. unnecessary. 62.23(7).Examples of such powers include:(Revised 6/11/191 (1) Hear Appeals.To hear and decide appeals where it is alleged there is an error in n order, ruling, requirement, decision, or determination made by the ,- Commented[LL4]:Clarification in proposed --------- -- -------------------------------- ----- Director of Community Development,or designee. revision that not rant or every decision of the Director is appealable, (2) Authorize Variances.To authorize upon appeal in specific cases such variance but rather those determinations made under the zoning code or section 62.23 from the terms of this Chapter as will not be contrary to the public interest Wis. stats. For example, determinations related to TIF where,owning to special conditions,a literal enforcement of the provisions of applications are not appealable to the this Chapter will results in practical difficulty or unnecessary hardship,so that Board of Review, determinations whether to purchase property to the RDA, etc... the spirit of the Chapter shall be observed,public safety and welfare secured, and substantial justice 4one. ,- Commented[LLS]:This section mirrors §62.23(7) (e)7.b. (3) 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�hapterl -- Commented[LL6]:Minor clarification that this refers to zoning district (4) Interpret Ordinances.Interpret the provisions of this Chapter in such a way as to carry out the intent and purpose of this Chapter as shown on the Official Zoning Map where the actual street layout on the ground varies from the street layout on the aforesaid mapl. -- Commented[LL7]:This section is revised in the proposed draft to simply refer to (5) I ary Height and Area Regulations_To vary height and area regulations where the new interpretation section, the current section seems to limit the scope this is an exceptional or unusual physical condition of the lot,which condition � of the Board's ability to interpret is not generally prevalent in the neighborhood and which condition when ordinances and doesn't match the `related to the height and area regulations of this Chapter would present a ` interpretation sections 30-410 & 30-412 reasonable or sensible arrangement of structures on the lot. commented This section is revised to match statuttoroo y language 62.23(7) (e)7.a. & 7.d. '„„^^^ ^^r`'the par-king^„^^^^«^^...«e by this�'l. Pte ------ - Commented[LL9]:Per previous discussion - with Mark Lyons, I believe that this RtaSee Figure 30-360 for a summary of the role of the Zoning Board of Appeals in section was to be deleted as parking administering this Chapter. �� variations are generally handled through a PD process now. Commented[LM10R9]:we have typically advised people to seek a PD route as a � straight forward request for parking Section 30 410 interpretations reduction variance had difficulty meeting the strict BOA standards. (A) Purpose. The purpose of this Section is to assign responsibility for the official Commented[LL11]:Variances to parking regulations are now handled by PD interpretation of the provisions of this Chapter, and to describe the required process not taken to Board of Appeals procedure for securing such interpretation. and were removed Commented[LL72]:New 30-411 (B) Initiation of Request for an Interpretation.Proceedings for an interpretation may be initiated by any of the following 4 methods: (1) An application of the owner(s)of the subject property or authorized agent of the owner(s)of the subject property. (2) A recommendation of the Plan Commission to the Common Council. (3) By action of the Common Council. (4) By request of the Director of Community Development,or designee. (C) Application.A zoning interpretation application 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: (i) 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. (3) � the requested interpretation relates to the classification or treatment of a particular land use under the provisions of this Chapter, a series of written responses to 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? ,- Commented[LL13]:This is moved to in the proposed draft as it would seem more (D) Review by Director of Community Development,or designee. appropriately addressed to professional staff (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. (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.To this end,those called upon to interpret this Chapter shall proceed as follows: (1) Articulate certain public purpose(s) underlying the standard(s) for which an interpretation is required.(Rationale:Before any zoning interpretation is made, there must be an explicit discussion of certain purpose(s) for which the regulation was initially imposed.Each zoning regulation is intended to protect the interests of both present and future neighbors and the general public.Each standard is developed as a regulatory response to an identifiable potential negative impact. A sound interpretation of any standard cannot be ensured without careful analysis of the regulation and the end toward which it is directed.It is understood that there may be other public purposes underlying the interpretation which are not explicitly articulated.) (2) Articulate the actual impact of various proposed interpretations, permitting flexibility in design and prohibiting any interpretation that lowers the protection afforded to the public. There is a critical distinction between an interpretation which provides a greater degree of design freedom to achieve a permitted land use, and an interpretation which permits a new or not previously permitted use, or which allows a use to be enlarged, or have its intensity increased beyond the degree specified in the Chapter. Design freedom is to be encouraged while a lowering of the standards of this Chapter is to be prohibited. (3) Determine whether the proposed interpretation will ensure a just balance between the rights of the landowner and all others who will be affected by that persons land use proposal.If an interpretation would merely allow a design solution that is slightly different from the one expressly stated or permitted, and if it would result in a same or greater degree of protection to any affected party(i.e.the abutting landowners,the public at large,and/or a future property owner or renter), such an interpretation may be appropriately made. Any interpretation which would result in any identifiable loss of protection for one group to the benefit of others is contrary to the spirit of this Chapter.Similarly, any interpretation which would either increase the nuisance potential of any use or alter the purpose for which the regulation was adopted shall be considered counter to the legislative intent of this Chapter.Any interpretation which will result in any reduction of a normally required bufferyard or increase in intensity beyond that already permitted shall only be made if the party interpreting this Chapter has the power to impose additional restrictions or requirements. (4) This Chapter has been carefully designed by the Common Council to combine maximum achievement of public goals,and the protection of abutting property owners while providing flexibility for property owners to use their land for a variety of uses consistent with the goals and objectives of the Comprehensive Plan.Great care has been taken to balance the rights of competing groups while achieving maximum protection with flexibility and a range of use options. Persons interpreting this Chapter should not substitute their own judgments for the legislative acts of the Common Council. -- Commented[LL14]:These are removed in the draft. These sections were based on a (5) In addition to the applicant's response to the questions required by Subsections model draft from a consultant and while they may have some merit, staff is (E)(1)through(4),above,the following standards shall govern the decision on concerned about their practical application and that every the requested interpretation on land use interpretation matters: interpretation may not address each of these items open the City to potential (a) No interpretation shall allow the establishment of any land use which was challenges and litigation 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). (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 11). (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 Il). (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 30411: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 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)(�)_ --JC...e.ted[LL15J:matches statutory language (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, �ncluding evidence that the application is consistent with the Comprehensive Plan. ,- commented[LL16]:staff in the proposed draft modified this provision as we need (D) Review by the Director of Community Development,or designee. applicants to articulate items related to the actual standards for granting a variance, and while this may relate to (1) The Director of Community Development, or designee, shall determine public interest, it is not a per se whether the application is complete and fulfills the requirements of this standard fora variance and again may be more appropriately directed to Chapter. If the application is determined to be incomplete, the Director of professional staff 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 whether the request is in harmony with the Comprehensive Plan or other relevant plans. (b) Evaluate the request based upon the criteria used by the Zoning Board of Appeals in their review. (E) Public Hearing.Within 60 days of filing of a complete application,the Zoning Board of Appeals shall hold a public hearing in compliance with Section 30-361 to consider the request. (F) Review and Action by the Zoning Board of Appeals. (1) Within 60 days after the holding of the public hearing, the Zoning Board of Appeals shall make its findings per the following based on Wis. Stats. 62.23(7)(e)7: (a) The variance will not be contrary to the public interest. (b) Substantial justice will be done by granting the variance. (c) The variance is needed so that the spirit of the ordinance is observed. (d) Due to special conditions, a literal enforcement of the provisions of the Zoning Ordinance will result in unnecessary hardship. (e) The variance will not allow any alteration of an historic structure, including its use, which would preclude its continued designation as an historic structure. -- Commented[LL171:These standards were proposed in the model draft and are (2) The Zoning Board of Appeals may request further information and/or modified in the proposed draft as necessary to match statutory and caselaw additional reports from the Director of Community Development,or designee, 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. (3) If the Zoning 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 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 Director of Community Development, or designee,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 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. Section 30412:Appeals of Zoning�nterpretationsl -- Commented[LL18]:new section 30-410 (A) Purpose.The purpose of this Section is to provide regulations which enable the City to hear and decide requests for appeals from the interpretations of the Director of Community Development,or designee,per Section 30-410 as provided for by Wis. Stats.62.23(7)(e)(7). (B) Initiation of Request for Appeal. Proceedings for the review of an appeal may be initiated by any person aggrieved,or by any officer,department,board,or bureau of the City affected by any decision of the Director of Community Development,or designee. (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 by the Director of Community Development, or designee. 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 of an appeal of a zoning interpretation shall contain the following(digital files should be submitted whenever possible): (1) A copy of pertinent items in the file on the matter at hand as identified by the Director of Community Development,or designee,and/or the applicant. (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 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 evaluate and comment on the written justification for the requested appeal to the Zoning Board of Appeals as submitted by the applicant. The Director of Community Development, or designee, shall also evaluate the application to determine whether the requested is in harmony with the Comprehensive Plan or other relevant plans. (3) 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. (G) Public Hearing.Within 60 days of filing of a complete application,the Zoning Board of Appeals shall hold a public hearing in compliance with Section 30-361 to consider the request. (H) Review and Action by the Zoning Board of Appeals. (1) Within 60 days after the filing of the complete application,the Zoning Board of Appeals shall make its findings. The Zoning Board of Appeals may request further information and/or additional reports from the Director of Community Development,or designee,and/or the applicant.The Zoning Board of Appeals may take final action on the application for appeal at the time of its initial meeting, or may continue the proceedings at applicant's request. Said final action shall be followed by a written report or minutes which shall include a formal finding of facts developed and approved by the Zoning Board of Appeals concerning the request. (2) If the Zoning 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. (I) 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. (J) Limited Effect on a Favorable Ruling on an Appeal. (1) No ruling by the Zoning 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 and development commenced within that period. (2) A ruling by the Zoning 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. ARTICLE XXVI:EXTRATERRITORIAL ZONING ADMINISTRATION SECTION 30-706 BOARD OF IAPPEALS1 -- Commented[LL19]:proposed draft deletes this section and places all BZA provisions together within the (A) Organization. The Board of Appeals shall be organized and governed as provided administration section of chapter 30 in Chapter 2 of this Municipal Code. (B) Appeals: Procedure (1) Any person feeling aggrieved by any order or ruling of the Director of Community Development or designee may appeal from such order or ruling to the Board of Appeals within fifteen(15)calendar days after written notice of such order or ruling. The date of written notice or ruling shall be the date of mailing of the Official Notice or the date of personal service of the Official Notice. The Notice of Appeal shall be in writing and specify the reasons for the appeal. The Board of Appeals shall act upon the appeal within sixty (60) days of the filing of the Notice of Appeal. (2) Application for appeal may be made when it is claimed that:the true intent of the Codes or the rules legally adopted thereunder have been incorrectly interpreted; the provisions of the Codes do not apply;enforcement of any provision may cause unnecessary hardship,or specifically in the case of the building or housing code appeals an equally good or better form of construction or repair can be used. All appeals shall be accompanied by supporting data. (a) Unnecessary hardship means: (i) that no feasible use can be made of the property without the granting of the appeal;and (ii)that the hardship is something which is unique to this property and not the owner of the property;and (iii) that the hardship is not self-created;and (iv) that the hardship is not solely economic. (3) An appeal shall stay all enforcement activities and all legal proceedings in furtherance of the action appealed from,unless the officer from whom the appeal is taken certifies to the Board of Appeals that by reason of the facts stated in the certificate a stay would in the opinion of the officer,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 a court of record on application, on notice to the officer from whom the appeal is taken,and upon due cause shown. (C) 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. (1) An appeal for a variance to the Zoning Ordinance may be filed and held only three(3)times in any twelve(12)month period. (2) Should a change in circumstances occur within said twelve(12)month period which,in the appellant's opinion,changes the character of the appeal,then the appellant shall,in that event: (a) Submit a request for an additional hearing, outlining the changes in circumstances which have occurred. (b)The Board shall review the request of the appellant and if in the opinion of three (3) members of the Board, there is sufficient change in said circumstances to warrant a hearing, the Zoning Administrator shall schedule said hearing under the normal rules of procedure of the Board of Appeals. (3) No order of the Board of Appeals permitting the erection or alteration of a structure shall be valid for a period longer than six (6) months, unless a building permit for such erection or alteration is obtained within such period and such erection or alteration is started and proceeds to completion in accordance with the terms of such permit. (4) No order of the Board of Appeals permitting a use of a structure or premises shall be valid for a period longer than six (6) months, unless such use is established within such period; provided, however, that where such use is dependent upon the erection or alteration of a structure, such order shall continue in force and effect if a building permit for said erection or alteration is started and proceeds to completion in accordance with the terms of such permits. (5) The Board of Appeals may reverse or affirm wholly or in part or may modify any order, requirement, decision or determination appealed from and shall make such order, requirement, decision or determination as in its opinion ought to be made in the premises and to that end shall have all the powers of the Zoning Administrator, Building Inspector or Housing Inspector. The concurring vote of four(4)members of the Board of Appeals shall be necessary to reverse any order,requirement,decision or determination appealed from or to decide in favor of the applicant on any matter on which it is required to pass or to effect any variation in the requirements of this Ordinance. In exercising the foregoing powers,the Board of Appeals may in appropriate cases,establish suitable conditions and safeguards in harmony with the general purpose and intent of this Chapter. (D) Powers (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. (2) 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 owing to special conditions, a literal enforcement of the provisions of the Ordinance will result in practical difficulty or unnecessary hardship,so that the spirit of the Ordinance shall be observed,public safety and welfare secured, and substantial justice done. (3) Extend Districts. To permit the extension of a district where the boundary line of a district divides a lot held in single ownership at the time of passage of this Chapter. (4) Interpret Ordinance. To interpret the provisions of this Chapter in such a way as to carry out the intent and purpose of the plan, as shown upon the map fixing the several districts accompanying and made a part of this Chapter where the street layout on the ground varies from the street layout as shown on the map aforesaid. (5) Vary Height and Area Regulations. Vary height and area regulations where there is an exceptional or unusual physical condition of a lot,which condition is not generally prevalent in the neighborhood and which condition when related to the height and area regulations of this Ordinance would present a reasonable or sensible arrangement of structures on the lot. (6) Vary Parking Regulations. Vary the parking regulations where an applicant demonstrates conclusively that the specific use of a structure would make unnecessary the parking spaces required by this Chapter but providing that such a reduction not be more than twenty-five (25) percent of the usual requirement. (7) Powers of Board Limited. The Board of Appeals has no other powers than those specified above. (E) Records and Minutes. The Board of Appeals shall keep minutes of its proceedings, showing the action taken upon each question, and shall keep records of its examinations and other official actions, all of which shall be immediately filed in the office of the Board of Appeals and shall be a public record.