§ 78-129. Appeal provisions.

(1)

Appeal rights. Any person aggrieved, or any officer, department, board or bureau of the village affected by a decision of the administrative officer or of the plan commission may appeal such decision to a board of appeals as hereinafter established, provided such appeal be taken within a reasonable time, as provided by the rules of said board of appeals, and provided such appeal falls within the classification as set forth under the powers of the appeal board.

(2)

Board of appeals.

(a)

Establishment. There shall be a board of appeals consisting of five members appointed by the village president, subject to confirmation by the village board, for terms of three years, except that of those first appointed, one shall serve for one year, two for two years and two for three years. Vacancies shall be filled for the unexpired terms of members whose terms become vacant. The village president may appoint, for a term of three years, an alternative member of such board, in addition to the five members above provided for, who shall act with full power only when a member of the board refuses to vote because of interest. The above provisions with regard to removal and the filling of vacancies shall apply to such alternate.

(b)

General rules.

1.

The members of the board of appeals shall serve at such compensation as is fixed by ordinance.

2.

Members shall be removable by the village president for cause upon written charges and after public hearing.

3.

The village president shall designate one of the members chairman and the board of appeals may designate such other officers and employ such employees as it feels necessary.

4.

The board of appeals shall adopt rules governing its procedure consistent with the terms of this chapter.

(c)

Meetings. Meetings of the board shall be held at the call of the chairman and at such other times as the board may determine. Such chairman, or in his absence the acting chairman, may administer oaths and compel the attendance of witnesses. All meetings of the board shall be open to the public. The board shall keep minutes of its proceedings, showing the vote of each member upon each question, or, if absent or failing to vote, indicating such fact, and shall keep records of its examinations and other official action, all of which shall be immediately filed in the office of the board and shall be a public record.

(d)

Powers. The board of appeals shall have the following powers as defined by statute:

1.

To hear and decide appeals where it is alleged there is error in any order, requirement, decision or determination made by an administrative official in the enforcement of this chapter.

2.

To hear and decide special exceptions to the terms of this chapter upon which such board is required to pass under this chapter.

3.

To authorize upon appeal in specific cases such variances 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 this chapter will result in practical difficulty or unnecessary hardship, so that the spirit of this ordinance shall be observed, public safety and welfare secured, and substantial justice done.

a.

The board of appeals may, upon appeal, grant a variance from the dimensional standards of this ordinance where an applicant convincingly demonstrates that:

1)

Literal enforcement of the provisions of the chapter will prohibit any reasonable use of the property. Unnecessary hardship is present only when the applicant has demonstrated that he or she will have no reasonable use of the property in absence of the variance;

2)

Such variance is not contrary to the public interest;

3)

Such variance is consistent with the purpose and intent of the zoning code and the zoning district.

b.

A variance shall not:

1)

Grant, extend or increase any use prohibited in the zoning district;

2)

Be granted for a hardship based solely on an economic gain or loss;

3)

Be granted for a hardship which is self-created;

4)

Damage the rights or property values of other persons in the area;

4.

To permit, in appropriate cases, and subject to appropriate conditions and safeguards in harmony with the general purpose and intent of the chapter, a building or premises to be erected or used for such public utility purposes in any location which is reasonably necessary for the public convenience and welfare.

(e)

Additional requirements. In making its determination the board shall consider whether the proposed exception, or variance would be hazardous, harmful, noxious, offensive or a nuisance to the surrounding neighborhood by reason of physical, social or economic effects; and may impose such requirements and conditions with respect to location, construction, maintenance and operation—in addition to any which may be stipulated in this chapter—as the board may deem necessary for the protection of adjacent properties and the public interest and welfare.

(f)

Performance standards. In order to reach a fair and objective decision the board may utilize and give recognition to appropriate performance standards which are available in model codes or ordinance or which have been developed by planning, manufacturing, health, architectural, and engineering research organizations.

(g)

Enforcement of decision. In exercising the above mentioned powers, such board may, in conformity with the provisions of this chapter, reverse or affirm, wholly or partly, or may modify the order, requirements, decision or determination appealed from, and may make such order, requirement, decision or determination as ought to be made, and to that end shall have all the powers of the officer from whom the appeal is taken, and may issue or direct the issue of a permit provided that no such action shall have the effect of permitting in any district a use prohibited in that district; of rezoning; of granting a conditional use or special exception where such grant is not specifically assigned to the board for determination under this chapter; or of permitting, without the approval of the plan commission any building within the base setback area as hereinafter established by the provisions of this chapter.

(h)

Required vote. The concurring vote of four members of the board shall constitute a quorom. If a quorom is present, a majority vote shall be necessary to reverse any order, requirements, decision or determination of any such administrative official, or to decide in favor of the applicant on any matter upon which it is required to pass under this section or to effect any variation therefrom. The grounds of every such determination shall be stated. If there are less than four members present, the matter must be tabled.

(i)

Further appeal. Any person or persons aggrieved by any decision of the board of appeals, or any taxpayer, or any officer, department, board or bureau of the municipality may appeal from a decision of the board of appeals within 30 days after the filing of the decision in the office of the board of appeals in the matter provided in Wis. Stats. § 62.23.7(e).

(3)

Procedure.

(a)

Filing. A notice of appeal shall be filed with the officer from whom the appeal is taken and with the board of appeals, specifying the grounds thereof and accompanied by a fee determined by the village board to defray the cost of giving notice, investigation, and other administrative processing. The officer from whom the appeal is taken shall forthwith transmit to the board all the papers constituting the record upon which the action appealed from was taken.

(b)

Stay. An appeal shall stay 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 after the notice of appeal shall have been filed with him, that by reason of facts stated in the certificate a stay would, in his opinion, cause imminent peril to life or property. In such cases, 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 officer from whom the appeal is taken and on due cause shown.

(c)

Hearing. Each appeal shall be heard within 40 days from the time of filing and public notice of such hearing shall be given as provided by section 78-128 of this chapter as well as to the parties in interest. Such notice however shall require only one publication which shall not be less than ten days prior to the date of the hearing, and one posting on a public bulletin board in the village hall. Any party may appear in person, or by agent or by attorney representing him.

(d)

Decision. The board of appeals shall render its decision in writing within 15 days after completion of the hearing thereon.

(e)

Special exceptions. Requests for special exceptions upon which the board of appeals is required to pass under the provisions of this chapter shall be presented by petition and a public hearing held thereon as provided for appeals.

(f)

Variances void after 12 months. If the applicant fails to act on a variance granted within 12 months of the date the variance was approved, the variance shall be null and void.

(Ord. of 8-14-06, § 1)