NUMB:
980243
VERS:
SUBSTITUTE 3
REF:
XXBY:
ALD. D'AMATO AND HENNINGSEN
TITL:
A substitute ordinance relating to the procedures for reviewing variances and special uses.
SECS:
295-59-5 rc
295-59-5.5 cr
295-59-6-e cr
ANLS:
- Analysis -
This ordinance eliminates the requirement that, for most special uses, the board of zoning appeals may make a determination only after receiving a report from the city plan commission. In place of the plan commission report requirement, this ordinance provides that no special use shall be granted unless the board has received a report of any comments, concerns or recommendations relating to the proposed special use from the department of public works, the department of city development, the department of building inspection and the common council member in whose district the special use would be located. A similar requirement is also created for the board's variance review procedure. However, for both special uses and variances, the board may act on a request regardless of whether reports were received from the specified parties provided that 30 days have elapsed since the date the board notified these parties that a completed special use or variance application had been received.
This ordinance also increases the minimum required distance for identifying property owners to be notified of a board hearing on a variance or special use request from 100 feet to 150 feet.
This ordinance further changes the findings that the board is required to make when deciding a special use request to the following:
a. The use will be designed, located and operated in a manner so that the public health, safety and welfare is protected.
b. The use, value and enjoyment of other property in the neighborhood will not be substantially impaired or diminished by the establishment, maintenance or operation of the special use.
c. Adequate measures have been or will be taken to provide safe pedestrian and vehicular access.
d. The special use will be designed, located and operated in a manner consistent with the city's comprehensive plan.
Finally, this ordinance eliminates the requirement that the board's findings prior to granting a variance be "beyond a reasonable doubt."
BODY:
Whereas, Section 295-59-1 of the Milwaukee zoning code gives the board of zoning appeals authority to approve or deny special uses; and
Whereas, Section 295-59-5-d-2 of the code requires that most special use applications be reviewed by the city plan commission prior to a determination by the board of zoning appeals; and
Whereas, The Wisconsin statutes do not require that a special use be reviewed by the city plan commission before it is acted upon by the board of zoning appeals; and
Whereas, By eliminating the requirement that most special uses be reviewed by the city plan commission, the city could expedite the special use review process and give citizens, businesses and property owners more timely decisions on special use requests; now, therefore
The Mayor and Common Council of the City of Milwaukee do ordain as follows:
Part 1. Section 295-59-5 of the code is repealed and recreated to read:
295-59. Board of Appeals.
5. VARIANCES. a. Public Hearing. Prior to making a determination with respect to a variance request, the board shall hold a public hearing and provide, by mail, written notice of the hearing to the petitioner, at the address provided on the variance application, and to owners of property immediately surrounding and within at least 150 feet thereof, inclusive of streets and alleys, as listed in the office of the city assessor. Such notice shall state that the board will be considering and conducting a public hearing on a request for a variance, and shall otherwise be in accordance with s. 19.84, Wis. Stats.
b. Consideration of Input from Parties of Interest. No variance hearing shall be held and no variance shall be granted unless the board or its staff has received a report of any comments, concerns or recommendations relating to the proposed variance from the department of public works, the department of city development, the department of building inspection and the common council member in whose district the premises to which the variance would apply is located. The board may proceed with its hearing and decision on the variance request regardless of whether any of these parties have submitted a report to the board, provided that 30 days have elapsed since the date on which the board's office notified each of these parties that a completed variance application had been received.
c. Findings. No variance shall be granted unless the board, after due notice to the parties of interest, finds that the following facts and conditions exist, and so indicates in the minutes of its proceedings or its decision:
c-1. Preservation of Intent. A variance would not be inconsistent with the spirit, purpose and intent of the regulations for the district in which it is requested.
c-2. Exceptional Circumstances. Exceptional, extraordinary or unusual circumstances or conditions apply to the lot or intended use that do not apply generally to other properties or uses in the same district, and the variance is not of so general or recurrent nature to suggest amendment of the regulation.
c-3. Preservation of Property Rights. The variance is necessary for the preservation and enjoyment of the same substantial property rights which are possessed by other properties in the same district and same vicinity.
c-4. Absence of Detriment. The variance will not create substantial detriment to adjacent property, and will not materially impair or be contrary to the spirit, purpose and intent of this chapter, or the public interest.
c-5. Hardship. The alleged difficulty or hardship is not self-imposed nor is it based solely on economic grounds.
Part 2. Section 295-59-5.5 of the code is created to read:
5.5. SPECIAL USES. a. Public Hearing. Prior to making a determination with respect to a special use request, the board shall hold a public hearing and provide, by mail, written notice of the hearing to the petitioner, at the address provided on the special use application, and to owners of property under consideration and owners of property immediately surrounding and within at least 150 feet thereof, inclusive of streets and alleys, as listed in the office of the city assessor. Such notice shall state that the board will be considering and conducting a public hearing on a request for special use approval, and shall otherwise be in accordance with s. 19.84, Wis. Stats.
b. Consideration of Input from Parties of Interest. No special use hearing shall be held and no special use shall be granted unless the board or its staff has received a report of any comments, concerns or recommendations relating to the proposed special use from the department of public works, the department of city development, the department of building inspection and the common council member in whose district the special use would be located. The board may proceed with its hearing and decision on the special use request regardless of whether any of these parties have submitted a report to the board, provided that 30 days have elapsed since the date on which the board's office notified each of these parties that a completed special use application had been received.
c. Findings. No special use shall be granted unless the board, after due notice to the parties of interest, finds that the following facts and conditions exist, and so indicates in the minutes of its proceedings or its decision:
c-1. Protection of Public Health, Safety and Welfare. The use will be designed, located and operated in a manner so that the public health, safety and welfare is protected.
c-2. Protection of Property. The use, value and enjoyment of other property in the neighborhood will not be substantially impaired or diminished by the establishment, maintenance or operation of the special use.
c-3. Traffic and Pedestrian Safety. Adequate measures have been or will be taken to provide safe pedestrian and vehicular access.
c-4. Consistency With Comprehensive Plan. The special use will be designed, located and operated in a manner consistent with the city's comprehensive plan.
d. Additional Procedures for Certain Special Uses. Those uses listed in s. 295-523-12-g, 14-i to m and 15-f to h shall also require reports from the commissioner of health and the fire and police chiefs. Applicants shall present all applicable permits or approvals from the U.S. Environmental Protection Agency and the Wisconsin Department of Natural Resources. Presentation of all such approvals is a necessary, but not sufficient, condition for local approval to take effect. Such uses shall also be subject to the following:
d-1. The use shall not be closer than 200 feet to any property line nor less than 600 feet from the boundary of the industrial district in which it is located.
d-2. The site shall be entirely enclosed with a fence at least 8 feet in height.
d-3. Transportation of hazardous waste, as defined in ch. NR 600, Wis. Admin. Code, to and from the site shall be limited to routes designated in the special use application.
d-4. Trucks or vehicles used for intrastate or interstate transportation of wastes shall be marked, labeled or placarded according to U.S. Department of Transportation regulations as adopted by reference in 40 CFR, Parts 262 and 263.
d-5. The use shall not cause pollution of any public waterways, flood control channels, the storm drainage system, the sanitary sewer system or ground water.
d-6. The use shall not cause air pollution, malodorous emissions prohibited under ch. NR 429, Wis. Adm. Code, or noise prohibited under ch. 80 of this code.
d-7. The applicant shall submit a copy of the detailed facility-specific information required by the Wisconsin Department of Natural Resources or the U.S. Environmental Protection Agency.
d-8. Unless included under subd. 7, the applicant shall submit a map of the site and the area within 1/4 mile of the exterior property lines of the proposed site showing:
d-8-a. Water on the land surfaces such as a pond, creek, river, lake, stream or canal.
d-8-b. Any walls or reservoirs.
d-8-c. Wetlands, as defined in s. 23.32(1), Wis. Stats.
d-8-d. Floodplains.
d-8-e. Topography at 10-foot intervals.
d-8-f. Environmental corridors.
d-9. Unless included under subd. 7, the applicant shall submit an engineering certification for the proposed site indicating:
d-9-a. Depth to wet-weather seasonal high water table.
d-9-b. Soil drainage, composition, thickness and permeability.
d-9-c. Depth to bedrock and aquifers.
d-10. The applicant shall submit an assessment of the potential environmental impacts of a proposed project or activity following the format and provisions of ch. NR 150, Wis. Adm. Code, which shall include:
d-10-a. A description of the project, including proposed functions.
d-10-b. A description of the proposed site.
d-10-c. Environmental impacts of the proposed project.
d-10-d. Mitigating adverse impacts.
d-10-e. Adverse impacts which cannot be mitigated.
d-10-f. Alternatives to the project, including alternative sites, projects, sizes and designs.
d-10-g. A conclusion as to whether or not an environmental impact statement should be written for the project.
Part 3. Section 295-59-6-e of the code is created to read:
6. ADDITIONAL SPECIAL USE AND VARIANCE REGULATIONS.
e. Applicability to Flood Plain Districts. The provisions of this section apply to all flood plain districts. No flood plain variance or special use shall be granted that would permit any of the following:
e-1. Filling and development contrary to the purpose and intent of the flood plain district.
e-2. A change in the boundaries of either the floodway or the flood fringe overlay district.
e-3. A lower degree of flood protection than a point 2 feet above the regional flood profile elevation.
e-4. Development contrary to the provisions of ch. NR 116, Wis. Admin. Code.
e-5. A use in a district where it is not a permitted or special use.
LRB:
APPROVED AS TO FORM
____________________________
Legislative Reference Bureau
Date: _____________________
CATT:
IT IS OUR OPINION THAT THE ORDINANCE
IS LEGAL AND ENFORCEABLE
____________________________
Office of the City Attorney
Date: _____________________
ZDPT:
Department of City Development
DFTR:
LRB98177.4
JDO
7/8/98
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