Page 1. Chapter 275: ZONING

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1 Chapter 275: ZONING ARTICLE I General Provisions Authority Title Applicability Purpose and intent Abrogation and greater restrictions Minimum standards and compliance Rules of construction and interpretation Severability Warning and disclaimer of liability Repeal Compliance Municipalities and state agencies regulated Effective date; transitional provisions Zoning districts ARTICLE II Review and Decisionmaking Bodies Common Council Plan Commission Board of Appeals Department of Community Development Inspection Services Division (Reserved) ARTICLE III Review and Approval Procedures Common review and approval procedures Development review procedure Changes and amendments Planned unit development (PUD) Zoning permits (use, site plan and architectural review) Building permits Occupancy permits Conditional uses Development agreements Sign permits Variances Appeals ARTICLE IV Zoning Districts Agricultural districts Residential districts Commercial districts Office and industrial districts Institutional and recreational/park districts Special districts (Reserved) Special overlay districts ARTICLE V Use Regulations General provisions Use-specific regulations Accessory uses and structures Temporary uses and structures ARTICLE VI Measurements Lot measurement and requirements Height measurement and requirements Yard/setback measurement and requirements ARTICLE VII Nonconformities General provisions Page 1

2 Nonconforming uses Nonconforming structures Nonconforming lots Nonconforming signs ARTICLE VIII General Development Regulations General Site plan review principles and standards Natural resource protection Woodland, tree and vegetation protection (existing lands) Grading and drainage Postconstruction stormwater management Construction site erosion control Illicit charges and connections Landscaping and buffering Off-street parking, loading and access Adequate public facilities Architectural design standards Performance standards Signs Newsracks ARTICLE IX Nonmetallic Mine Reclamation General provisions Definitions Standards Nonmetallic mining reclamation permit application Reclamation plan Financial assurance Public notice and right of hearing Issuance of nonmetallic mining reclamation permit Permit denial Alternative requirements Permit duration Permit transfer Previously permitted sites Review Permit modification Permit suspension and revocation Annual operator reporting Plan review fees Annual fees Regulatory reporting and documentation Completed reclamation: reporting, certification and effect Permit termination Right of entry and inspection Orders and citations Violations and penalties ARTICLE IXA Floodplain Zoning [Added by Ord. No. 2296] Statutory authorization, finding of fact, statement of purpose, title and general provisions Standards applicable to all floodplain districts Floodway District (FW) Floodfringe District (FF) Other floodplain districts Nonconforming uses Administration Amendments Enforcement and penalties Definitions Page 2

3 ARTICLE X Enforcement and Penalties Responsibility for inspection and enforcement Violations Remedies and enforcement powers Enforcement procedures ARTICLE XI Definitions Editor's Note: See also Ch. 235, Subdivision of Land, Art. VIII, Definitions Terms defined Page 3

4 Chapter 275: ZONING [HISTORY: Adopted by the Common Council of the City of New Berlin by Ord. No Editor's Note: This ordinance adopted a comprehensive revision of former Ch. 275, Zoning, adopted by Ord. No. 2134, as amended. Amendments noted where applicable.] GENERAL REFERENCES Building construction See Ch. 80. Electrical standards See Ch Erosion control See Ch Fair housing See Ch Fire prevention See Ch Historic preservation See Ch Noise See Ch Plumbing standards See Ch Storage of recreational equipment See Ch Stormwater runoff See Ch Subdivision of land See Ch Transient lodging facilities See Ch Water and sewers See Ch Page 4

5 ARTICLE I General Provisions Authority. This chapter is adopted under the authority granted by 62.23(7), , , 87.30, and , Wis. Stats., and amendments thereto Title. This chapter shall be known as, referred to, and cited as the "Zoning Ordinance, City of New Berlin, Wisconsin," and is hereinafter referred to as this "chapter." Applicability. The provisions of this chapter shall apply to all structures, lands, water, and air within the corporate limits of the City of New Berlin, including land owned by local, county, state, or federal agencies, to the extent allowed by law Purpose and intent. The purpose of this chapter is to guide development in accordance with the existing and future needs of the City and its Comprehensive Plan, and to promote the health, safety, morals, comfort, prosperity, and general welfare of the City of New Berlin, Wisconsin residents and other members of the public. In addition, this chapter is intended to regulate and restrict the use of all structures, lands, air, and waters, and to: A. Regulate lot coverage and the size and location of all structures so as to prevent overcrowding and to provide adequate sunlight, air, sanitation, and drainage. B. Regulate population density and distribution so as to facilitate the provision of adequate public service, schools, and utilities. C. Regulate parking, loading, and access and promote the safety and efficiency of streets and highways. D. Secure safety from fire, flooding, pollution, contamination, and other dangers. E. Stabilize and protect existing and potential property values. F. Preserve and protect the beauty of the City of New Berlin. G. Provide for proper and adequate drainage of all developed lands. H. Prevent and control erosion, sedimentation, and other pollution of the surface and subsurface waters. I. Further the maintenance of safe and healthful surface and groundwater conditions. J. Prevent flood damage to persons and property and minimize expenditures for flood relief and flood control projects. K. Provide for and protect a variety of suitable commercial and industrial sites. L. Protect the traffic-carrying capacity of existing and proposed arterial streets and highways. M. Implement those municipal, county, watershed, regional comprehensive plans and The New Berlin Comprehensive Plan or components of such plans adopted by the City of New Berlin. N. Provide for the administration and enforcement of this chapter and to provide penalties for the violation of this chapter. O. Encourage infill Development that is consistent with its context and compatible with surrounding uses. Page 5

6 P. Incorporate new urbanism concepts into new development projects where practicable and appropriate. Q. Encourage compact and sustainable growth and development where appropriate. R. Promote Green Buildings and Low Impact Development design techniques throughout the City. S. Facilitate the use of solar and wind energy devices as well as other innovative alterative energy and energy saving techniques Abrogation and greater restrictions. A. Conflicts and relationship with other regulations. (1) When the provisions of this chapter are inconsistent with one another, or when the provisions of this chapter conflict with provisions found in other ordinances, codes, or regulations adopted by the City of New Berlin, the more restrictive provision shall govern unless the terms of the provisions specify otherwise. (2) It shall be the developer's or applicant's responsibility to determine and comply with all other applicable convenants, declarations or restrictions of record, as well as, county, state, or federal codes or regulations governing development and land use activities. B. Relationship with private-party easements, covenants, or agreements. This chapter is not intended to interfere with or abrogate any easements, covenants, or agreements between parties, provided that wherever this chapter proposes a greater restriction upon the use of buildings or land, upon the location or height of buildings or structures, or upon requirements for open areas than those that are imposed or required by such easements, covenants, or agreements between parties the provision of this chapter shall govern. In no case shall the City be obligated to enforce the provisions of any easements, covenants, or agreements between parties Minimum standards and compliance. The provisions of this chapter shall be held to be minimum requirements necessary for the promotion of the public health, safety, and general welfare, and shall be liberally construed in favor of the City and shall not be construed to be a limitation or repeal of any other authority now possessed by the City of New Berlin Rules of construction and interpretation. A. Meaning and intent. All provisions, terms, phrases, and expressions contained in this chapter shall be construed according to this chapter's stated purpose and intent. B. Text controls. In case of any difference of meaning or implication between the text of this chapter and any heading, drawing, table, or figure, the text shall control. C. Computation of time. Unless the terms of a specific provision state otherwise (e.g., some provisions specify "business days"), periods of time defined by a number of days shall mean a number of consecutive calendar days, including all weekend days, holidays, and other nonbusiness/working days; however, if the last day is a Saturday, Sunday, or legal holiday, that day shall be excluded. D. Delegation of authority. Whenever a provision appears requiring the head of a department or another officer or employee of the City to perform an act or duty, that provision shall be construed as authorizing the department head or officer to delegate the responsibility to subordinates, unless the terms of the provision specify otherwise. E. Technical and nontechnical words. Words and phrases not otherwise defined in this chapter shall be construed according to the common and approved usage of the language, but technical words and phrases Page 6

7 not otherwise defined in this chapter that may have acquired a peculiar and appropriate meaning in law shall be construed and understood according to such meaning. F. Mandatory and discretionary terms. The word "shall" is always mandatory, and the words "may" or "should" are always permissive. G. Conjunctions. Unless the context clearly suggests the contrary, conjunctions shall be interpreted as follows: (1) "And" indicates that all connected items, conditions, provisions, or events shall apply; and (2) "Or" indicates that one or more of the connected items, conditions, provisions, or events shall apply. H. Tense and usage. Words used in one tense (past, present, or future) include all other tenses, unless the context clearly indicates the contrary. The singular shall include the plural, and the plural shall include the singular. I. Gender. The masculine shall include the feminine, and vice versa Severability. If a court of competent jurisdiction adjudges any section, clause, provision, or portion of this chapter invalid or unenforceable, the remainder of this chapter shall not be affected thereby. If any application of this chapter to a particular structure, land, or water is adjudged invalid or unenforceable by a court of competent jurisdiction, such judgment shall not be applicable to any other structure, land, or water not specifically included in said judgment Warning and disclaimer of liability. The purpose and intent of this chapter is to protect the City from undue hazards. It is recognized, however, that the chapter and the staff administering the chapter may encounter conditions that were not foreseen in the drafting of the chapter. Accordingly: A. The degree of flood protection provided by the chapter is considered reasonable for regulatory purposes and is based on engineering experience and scientific methods of study. On rare occasions, larger floods may occur or man-made or natural causes such as ice jams or bridge openings restricted by debris may increase the flood height. Therefore, this chapter does not imply those areas outside of the delineated floodplain or land uses permitted within the floodplain will be totally free from flooding and the associated flood damages, nor shall this chapter create a liability on the part of, or a cause of action against, the City of New Berlin or any office or employee thereof for any flood damages that may result from reliance on this chapter. B. The City does not imply that development will not result in increased traffic, which will require transportation improvements. This chapter shall not assume liability on the part of, or a cause of action against, the City of New Berlin or any office or employee thereof for any increase in traffic volumes, increased congestion, or personal or property damages caused by traffic accidents. C. The City does not imply that development will not have an impact on groundwater quality or the capacity of groundwater to serve private wells. This chapter shall not assume liability on the part of, or a cause of action against, the City of New Berlin or any office or employee thereof for any impact on groundwater quality or capacity Repeal. All other ordinances or parts of ordinances of the City inconsistent or conflicting with this chapter, to the extent of the inconsistency only, are hereby repealed Compliance. No structure, land, water, air, or part thereof shall hereafter be located, erected, moved, reconstructed, extended, enlarged, converted, structurally altered, used, or occupied without a zoning permit. No structure, land, water, air, or part thereof shall hereafter be located, erected, moved, reconstructed, extended, enlarged, converted, structurally altered, used, or occupied without full compliance with the provisions of this chapter and all other applicable local, county, and state regulations. Page 7

8 Municipalities and state agencies regulated. Unless specifically exempted by law, all cities, villages, towns, and counties are required to comply with this chapter and obtain all required permits. State agencies are required to comply if 13.48(13), Wis. Stats., applies. The construction, reconstruction, maintenance, and repair of state highways and bridges by the Wisconsin Department of Transportation are exempt from compliance when 30.12(4)(a), Wis. Stats., applies Effective date; transitional provisions. A. Effective date. This chapter shall take effect upon passage and adoption by the Common Council and the filing of proof of posting or publication in the office of the City Clerk. B. Violations continue. Any violation under previous ordinances repealed by this chapter shall continue to be a violation under this chapter and be subject to penalties and enforcement under Article X, unless the use, development, construction, or other activity complies with the provisions of this chapter. C. Legal nonconformities under previous ordinances. Any legal nonconformity under any previous ordinances repealed by this chapter is also a legal nonconformity under this chapter, as long as the situation that resulted in the nonconforming status under the previous ordinances continues to exist. If a nonconformity under the previous ordinances becomes conforming because of the adoption of this chapter, then the situation will no longer be a nonconformity. D. Approved projects. (1) Any building, structure, or development for which a permit was issued prior to the effective date of this chapter may, at the applicant's option, be completed in conformance with the issued permit and any other applicable permits and conditions, even if such building, structure, or development does not fully comply with provisions of this chapter. (2) If the building or structure is not completed within the time allowed under the original permit or any extension granted, then the building, structure, or development may be constructed, completed, or occupied only in compliance with this chapter. (3) If construction is not commenced or completed according to the applicable permit terms, the Director may, for good cause shown, grant an extension of up to one year for such construction under the terms of the previously applicable ordinance(s). (4) Any reapplication for an expired project approval shall meet the standards in effect at the time of reapplication. E. Complete applications. (1) When an application has been submitted and determined to be complete prior to the effective date of this chapter, the applicant may choose to have the application reviewed and acted upon wholly under the terms of the previous Zoning Ordinance. If the application is approved by the Plan Commission or Common Council, the projects may be developed in accordance with the standards in effect at the time of application. Any reapplication for an expired permit shall meet the standards in effect at the time of reapplication. (2) Projects for which no application has been submitted and accepted as complete prior to the effective date of this chapter shall be subject to all requirements and standards of this chapter. F. Engineering standards. When developments are phased, later phases shall be constructed in accordance with the engineering standards and practices in effect at the time of construction Zoning districts. A. Establishment. (1) Base zoning districts. For the purpose of this chapter, the City of New Berlin is hereby divided into the following 26 base zoning districts: A-1 Agricultural District A-2 Agricultural and Rural Holding District R-1/R-2 Rural Estate Single-Family Residential R-2E Residential Estate Single-Family Residential District Page 8

9 R-3 Suburban Single-Family Residential District R-4 Low-Density Single-Family Residential District R-4.5 Medium-Density Single-Family Residential District R-5 Medium-Density Single-Family Residential District Rd-1 Two-Family Residential District Rm-1 Multiple-Family Residential District B-1 Shopping Center District B-2 General Retail Sales and Service District B-3 General Bulk Sales District B-5 Rural Commercial District O-1 Office and Business Service District O-2 Business Park Development District O-3 Transitional Office District M-1 Light Manufacturing District M-2 General Industrial District I-1 Institutional District P-1 Park and Recreation District Q-1 Quarrying and Extractive District L-1 Landfill District C-1 Upland Resource Conservancy District C-2 Shoreland Wetland Holding District C-3 Permanent Open Space/Conservation Lands (2) Flood hazard overlay districts. There are hereby established within the City of New Berlin two flood hazard overlay districts, which shall be known as: FWO Floodway Overlay District FFO Floodplain Fringe Overlay District (3) Special overlay districts. There are hereby established within the City of New Berlin three special overlay districts, which shall be known as: PUD Planned Unit Development Overlay District SPO Special Plan Overlay District WHP Wellhead Protection Overlay District B. District boundaries established. Boundaries of these districts are hereby established as shown on the map entitled "Zoning Map -- City of New Berlin, Wisconsin," and Adopted Floodplain Zoning Map -- City of New Berlin, Wisconsin (DFIRM Maps Panel numbers 55133C0218F, 55133C0219F, 55133C0238F, 55133C0239F, 55133C0327F, 55133C0329F, 55133C0331F, 55133C 0332F, 55133C0334F, 55133C0342F, 55133C0351F, 55133C0352F, 55133C 0353F, 55133C0354F, 55133C0361F and 55133C0362F supplied by FEMA)," adopted by the Common Council on November 18, 2008 (Ordinance Number 2395) including all revisions to the Zoning Map, Floodplain Zoning Map and Wellhead Protection Overlay Zoning Map through the effective date of this chapter. Editor's Note: The Zoning Map, Adopted Floodplain Zoning Map and Wellhead Protection Overlay Zoning Map are on file in the office of the Department of Community Development. All notations and references shown on the map are as much a part of this chapter as though specifically described herein. This chapter hereby incorporates herein any future changes or any later zoning maps that may be adopted by ordinance of the Common Council. C. Source of C-1 and C-2 boundaries. (1) Boundaries of the C-1 Upland Resource Conservancy District were based on the delineation of primary environmental corridors, secondary environmental corridors, and isolated natural areas as shown in the Land Use and Urban Design Plan for the City of New Berlin: 2010 and information supplied to the City by SEWRPC. C-1 Conservancy Districts may also include buffers, significant natural areas, environmental easements shown on development plan approvals, poor soils as shown in the Soil Survey of Milwaukee and Waukesha Counties, Wisconsin, published by the U. S. Department of Agriculture in July 1971, and previous City of New Berlin C-1 District zoning boundaries. These zoning districts are updated by rezoning requests supported by field delineations. Page 9

10 (2) Boundaries of the C-2 Shoreland Wetland Holding District were initially based on the following data, which reflect the best data available to the City at the time and are updated by rezoning requests supported by field delineations: (a) Wisconsin Wetland Inventory Maps for the City of New Berlin dated April 10, 1986, and stamped "Final." The Wisconsin Wetland Inventory Maps were used to illustrate the wetlands utilizing the best statewide cartographic information available at that time. The City declares, however, that the Wisconsin Wetland Inventory Maps do not exhibit exact wetland boundaries but are used as supplemental information. (b) Wetland maps for the City of New Berlin marked "City of New Berlin Wetlands; Source City of New Berlin Planning Department; Completed December Revised." These maps show wetlands requiring protection by , Wis. Stats.; wetland protected by Army Corps of Engineers Section 404; and other wetlands inside New Berlin environmental corridors. (c) Wetlands field staked by a field biologist and surveyed by a Wisconsin registered land surveyor and approved by applicable regulating authorities, which might include the Southeastern Wisconsin Regional Planning Commission and/or DNR.. D. Interpretation of district boundaries. Where uncertainty exists as to boundaries of districts as shown on the Zoning Map, the following rules shall apply: (1) The district boundaries in all districts, except the C-1, C-2, C-3, FWO, FFO, PUD, and SPO Districts, shall be construed to follow: corporate limits; U.S. Public Land Survey lines; lot, subdivision, and property lines; center lines of streets, highways, alleys, easements, and railroad rights-of-way or such lines extended; unless otherwise noted on the Zoning Map. Boundaries not capable of being determined by these methods shall be measured from the Zoning Map shown at a scale of one inch equals 200 feet and rounded to the nearest ten-foot interval. (2) The C-3, PUD, and SPO District boundaries shall be construed to follow the metes-and-bounds description used to describe the area. (3) The C-1 Upland Resource Conservancy District boundaries shall be measured from the Zoning Map shown at a scale of one inch equals 200 feet and rounded to the nearest ten-foot interval. (a) For areas field staked by a field biologist and/or SEWRPC, surveyed by a Wisconsin registered land surveyor and approved by the Southeastern Wisconsin Regional Planning Commission; the most recent metes-and-bounds description prepared by a Wisconsin registered land surveyor shall be interpreted as the C-1 Upland Resource Conservancy District boundary. (b) For all other areas that are not field staked and surveyed, a metes-and-bounds description shall be prepared in accordance with B(3)(c). (4) C-2 Shoreland Wetland Holding District boundary interpretation. (a) For areas field staked by a field biologist and surveyed by a Wisconsin registered land surveyor and approved by applicable regulating authorities, which might include the Southeastern Wisconsin Regional Planning Commission, U.S. Army Corp of Engineers (ACOE) and/or the DNR; the most recent metes-and-bounds description prepared by a Wisconsin registered land surveyor shall be interpreted as the C-2 Shoreland Wetland Holding District boundary. (b) For all other areas that are not field staked and surveyed, a metes-and-bounds description shall be prepared in accordance with B(4)(b). (5) (Reserved) Editor s Note: Former Subsection D(5), Flood hazard overlay district boundaries interpretation, was repealed by Ord. No See now Art. IXA, Floodplain Zoning. (6) WHP Wellhead Protection Overlay District boundaries shall encompass all lands within the wellhead protection area as defined in an DNR-approved wellhead protection plan which, at a minimum, includes that portion of the recharge area equivalent to a five-year time of travel to the municipal well as determined by a hydrogeologic investigation. E. Vacation. Vacation of public streets and alleys shall cause the vacated land to be automatically placed in the same district as the abutting side to which the vacated land reverts. F. Annexation. Annexations to or consolidations within the City subsequent to the effective date of this chapter shall be placed in the A-2 Agricultural Holding District, unless the annexation ordinance temporarily places the land in another district. Within one year, the City Plan Commission shall evaluate and recommend a permanent classification to the Common Council. Page 10

11 G. Zoning Map. Certified copies of the Zoning Map shall be adopted and approved with the text as part of this chapter and shall be available to the public in the office of the Department of Community Development. [Amended by Ord. No. 2296] H. Transitional provisions. (1) All areas in the R-1 and R-2 Districts shall be placed in the R-1/R-2 District. (2) All areas in the B-4 District shall be governed by the regulations of the B-2 District. Any action requiring Plan Commission approval or review on areas zoned B-4 shall include a rezone petition to an existing zoning district. (3). All areas currently zoned C-2, Shoreland-Wetland Districts shall be placed into the C-2, Shoreland- Wetland Holding District and shall be subject to the wetland registration process as described in Section E. (a) All registered wetlands shall be subject to the setbacks and regulations of the C-2, Shoreland-Wetland Holding District as set forth in Section of this Chapter. (b) The C-2 boundary shall apply unless a Wetland Registration has been completed/approved. (c) For purposes of the setback and other land use provisions of this chapter, the registered wetland boundary shall apply. The C-2 boundary shall apply where there is no wetland registration showing on the property. Page 11

12 ARTICLE II Review and Decision-making Bodies Common Council. The powers and duties of the Common Council under this chapter shall be as follows: A. Changes and amendments. Review petitions to change zoning district boundaries or amend this chapter and take final action to approve or deny such petitions. (See ) B. Planned unit developments (PUD). Review PUD Overlay District petitions and take final action to approve or deny such petitions. (See ) C. Development agreements. Hold public meetings, review, and take final action on proposed development agreements after receipt of the Board of Public Works recommendations. (See ) Plan Commission. A. Establishment. There is hereby established a Plan Commission for the City of New Berlin under the authority granted by 62.23, Wis. Stats., and amendments thereto. B. Membership. The Plan Commission shall consist of seven members as follows: (1) One member shall be the Mayor, who shall be its presiding officer. (2) One Alderman member, who shall be elected by a two-thirds vote of the Council in April of each year. (3) One member shall be a citizen member of the Parks, Recreation and Forestry Commission elected by that Commission and confirmed by the Common Council. (4) Four citizen members as appointed in April by the Mayor and confirmed by the Council for staggered three-year terms. The Mayor shall choose citizen members with technical experience, education, background or knowledge of parks and recreation, architecture, engineering, planning, development, environment, real estate, economics, conservation, building, construction, land use law or other related fields. (5) The Secretary of the Plan Commission shall be the Director of Community Development or his designee, who shall not be a voting member of the Commission. (6) Official oaths shall be taken by all members in accordance with 19.01, Wis. Stats. (7) Vacancies shall be filled for the unexpired term in the same manner as appointments for a full term. C. Organization. The Plan Commission may adopt rules for the conduct of the business of the Commission in accordance with the provisions of this chapter. The Commission may adopt further rules as necessary. (1) Meetings. Meetings shall be held at least monthly, or at the call of the Mayor or a majority of the full Commission, and shall be open to the public. A quorum of the Plan Commission shall be four voting members. (2) Standing and special committees. Standing and special committees may be appointed by the Mayor from within the membership of the Plan Commission. (3) Concurring vote. The concurring vote of a majority of the members present and voting shall be required for Plan Commission action. (4) Minutes. Minutes of the proceedings and a record of all actions shall be kept showing all votes taken, resolutions, findings, determinations, transactions, and recommendations made. Copies of said minutes shall be filed with the City Clerk as a public record. D. Powers and duties. The Plan Commission shall have the following powers and duties: (1) Changes and amendments. Review petitions to change zoning district boundaries, sewer service area boundaries and urban service area boundaries, or amend this chapter and recommend that the Common Council approve or deny such petitions. (See ) (2) Planned unit developments (PUD). Review PUD Overlay District petitions and recommend that the Common Council approve or deny such petitions. (See ) (3) Zoning permit/use approval. Review applications for zoning permits, except in the single-family residential districts and agricultural districts and administrative permits exempted under B(9) from Plan Page 12

13 Commission review. The Plan Commission may also review any applications that have been referred by the Department of Community Development and take final action to approve or deny all applications coming before the Plan Commission. (See ) (4) Conditional use permits. Review applications for conditional use permits and take final action to approve, approve with conditions, or deny such applications. (See ) (5) Sign permits. The Plan Commission may also review any sign applications that have been referred by the Department of Community Development and take final action to approve or deny an application coming before the Plan Commission. (See ) (6) Implement Comprehensive Plan, Future Land Use Map, and its components. To prepare, adopt, amend, update and implement the City s Comprehensive Plan and its components thereof for the physical development of the municipality, including any areas outside of its boundaries which, in the Commission's judgment, bear relation to the development of the municipality in accordance with 62.23, and , Wis. Stats. The City shall update its Comprehensive Plan as deemed necessary, or at a minimum, every ten years. (7) Official Map and other regulations. To prepare, maintain, update and recommend approval of the following documents to the Common Council: (a) An Official Map in accordance with 62.23, Wis. Stats. (b) A zoning district plan and regulations in accordance with 62.23, Wis. Stats. (c) Land division and subdivision regulations in accordance with , Wis. Stats. (8) Reports and recommendations on planning matters. (a) Matters to be referred to the Plan Commission. The Common Council or other public body or officer of the City having final authority thereon shall refer to the Plan Commission for its consideration and report, before final action is taken, the following matters in accordance with 62.23, Wis. Stats. The report shall recommend approval or denial on the following matters: [1] Location and architectural design of any public building, including additions to and replacement of existing buildings and facilities. [2] Location of any statue, memorial or landmark. [3] Location, acceptance, extension, alteration, vacation, abandonment, change of use, sale, acquisition, or lease of land for any street, alley, or other public way, park, playground, airport, area for parking vehicles, or other memorial or public grounds. [4] Location, extension, abandonment, or authorization for any public utilities, including gas, water, sewer, telephone, cable, electrical or similar telecommunications-type uses, whether publicly or privately owned. [5] All division of lands within the City's platting jurisdiction, including its extraterritorial platting jurisdiction. [6] Location, character, and extent, or acquisition, leasing, or sale of lands for public or semipublic housing, slum clearance, relief of congestion, or vacation camps for children. [7] All annexations, incorporations, or consolidations affecting the City. [8] All proposed or requested changes and amendments to the Official Map; Chapter 124, Fire Prevention, of the Code of the City of New Berlin; and this chapter. (b) Timing of reports. Unless such report is made within 60 days, or such longer period as may be stipulated by the Common Council, the Council or other public body or officer may take final action without it. (9) Interpretations of Zoning Ordinance provisions. (a) The Plan Commission shall interpret the zoning regulations and the location of the boundaries of the zoning districts. (b) Editor s Note: Former Subsection D(9)(b), Floodland disputes, was repealed by Ord. No See now Art. IXA, Floodplain Zoning. Wetland disputes. Whenever the Plan Commission is asked to interpret a C-2 Shoreland Wetland Holding District boundary where an apparent discrepancy exists between the City's Zoning Map and actual field conditions, the City shall contact the Wisconsin Department of Natural Resources (DNR) or its agent to determine if the Wetland Inventory Map is in error. If the DNR staff concurs that the particular area was incorrectly mapped as a wetland, the Plan Commission shall initiate appropriate action to rezone the property within a reasonable amount of time. The actual field location, staked and surveyed, shall be deemed the boundary. In the case of a disagreement between the applicant and the City over an assured wetland delineation boundary, the Plan Commission authorizes the Department of Community Development the ability to order an Page 13

14 investigation, review, and/or obtain concurrence by SEWRPC in order to resolve the boundary disagreement. (10) Permit substitutions of nonconforming uses. The Plan Commission shall review applications and may grant requests for substitution of more restrictive nonconforming uses for existing nonconforming uses, provided no structural alterations are to be made. Whenever the Plan Commission permits such a substitution, the use may not thereafter be changed without further application. (See Article VII.) (11) Miscellaneous other powers and duties. The Plan Commission shall have such additional powers as may be necessary to enable it to perform its functions and duties and promote municipal planning, as well as all additional powers and duties granted or assigned by the Common Council or by City ordinances, and all powers and duties granted or assigned by Wisconsin Statutes. Such additional powers shall include, but not be limited to, the following: (a) To employ experts and a staff and to pay for their services, supplies, equipment, and such other expenses as may be necessary and proper, not to exceed the appropriations and regulations made by the Common Council or placed at its disposal through gift, and subject to any ordinance or resolution enacted by the Common Council. (b) To make reports and recommendations relating to the planning and development of the City to public officials and agencies, public utility companies, civic, educational, professional, and other organizations, and citizens. (c) To recommend public improvement programs and financing thereof to the Mayor or Common Council. (d) To request available information, records, and advice from any public official to be furnished within a reasonable time as it may require for its work. (e) To enter upon any land in the performance of its functions, make examinations and surveys, and place and maintain necessary monuments and marks thereon, in accordance with 62.23(4), Wis. Stats. (12)Appeals of the Director of Community Development. If requested, the Plan Commission shall hear and take action on appeals related to the denial and/or conditions of approval of an administrative permit decision of the Director of Community Development Board of Appeals. A. Establishment. There is hereby established a Board of Appeals for the City of New Berlin for the purpose of hearing appeals and applications and granting variances and exceptions to the provisions of this chapter in harmony with the purpose and intent of this chapter. B. Membership. The Board of Appeals shall consist of five members appointed by the Mayor and approved by the Common Council. The Mayor shall make nominations at least one month prior to their appointment. (1) Terms. Terms shall be for staggered three-year periods, except that, of those first appointed, one shall serve for one year, two for two years, and two for three years. (2) Alternate members. The Mayor shall appoint two alternative members in addition to the five regular members for staggered three-year terms. The Mayor shall annually designate one of the alternates as the first alternate member and the other as the second alternate member. The first alternate member shall act only when a regular member is absent or refuses to vote because of interest. The second alternate member may act only when the first alternate is unable to act or is already sitting or acting. (3) Director attendance at meetings. The Director, or designee, shall attend all meetings for the purpose of providing technical assistance when requested by the Board of Appeals. (4) Official oaths. Official oaths shall be taken by all members in accordance with 19.01, Wis. Stats., within 10 days of receiving notice of their appointment. (5) Vacancies. Vacancies shall be filled for the unexpired term in the same manner as appointments for a full term. C. Organization. The Board of Appeals shall organize and adopt rules of procedure for its own governance in accordance with the provisions of this chapter and applicable Wisconsin Statutes. (1) Meetings shall be held at the call of the Chairman and shall be open to the public. Page 14

15 (2) Minutes of the proceedings and a record of all actions shall be kept by the Board, showing the vote of each member upon each question, the reasons for the Board's determination, and its finding of facts. These records shall be immediately filed in the office of the Board and shall be a public record. (3) The concurring vote of four members of the Board shall be necessary to correct an error; grant a variance; make an interpretation; and permit a temporary, unclassified, or substituted use. D. Powers and duties. The Board of Appeals shall have the following powers and duties: (1) Variances. To hear and authorize appeals for variances to the dimensional requirements of this chapter where, owing to special conditions, a literal enforcement will result in practical difficulty or unnecessary hardship. Such variance shall not be contrary to the public interest and shall be so conditioned that the spirit and purposes of this chapter shall be observed and the public safety, welfare, and justice secured. (See B.) (2) Appeals. Hear and decide appeals of orders, requirements, decisions, and determinations made by the Building Inspector or Plan Commission. (See ) (3) Assistance. The Board may request assistance from other City officers, departments, commissions, and boards. (4) Oaths. The Chairman may administer oaths and compel the attendance of witnesses Department of Community Development. A. General responsibilities. The Department of Community Development is responsible for formulating, implementing, directing, and administering all community development programs and overseeing the City s planning, engineering, inspection/zoning, housing, GIS/LIS, economic development, and water resource management functions in accordance with the state statutes and local rules and regulations. The Director of the Department of Community Development or his or her designee shall serve the following boards and commissions: the Common Council; Committee of the Whole; Plan Commission; Board of Public Works; Community Development Authority; Board of Appeals; Development Review Sub-Committee; Architectural Review Sub-Committee; Code Review Sub-Committee; Sign Sub-Committee; Safety Committee; Housing Authority; Water Resource Management Utility Committee; Utility Committee; Alternative Transportation Sub- Committee; and the Comprehensive Plan Update Steering Subcommittee. B. The duties of the Department of Community Development shall include: (1) Subdivision and land development review. Review applications for subdivision and land division under Chapter 236, Wis. Stats.; this chapter; and Chapter 235, Subdivision of Land, of the Code of the City of New Berlin. Review, research, investigate files, maps, renderings, documents, reports, surveys, plats, photographs, plans, models, building material samples, tests, site studies, impact statements/analyses, sites, site investigation, and make recommendation to the applicable board and/or commission to approve, approve with conditions, or deny with rationale. (2) Use, site, and architecture. Review applications for the change of use, site, and architecture under this chapter. Review, research, investigate files, maps, renderings, documents, reports, surveys, plats, photographs, plans, models, building material samples, tests, site studies, impact statements/analyses, sites, site investigation, and make recommendation to the applicable board and/or commission to approve, approve with conditions, or deny with rationale. (3) Rezoning, planned unit developments, conditional uses. Review applications for rezoning, planned unit developments, and conditional use for compliance with this chapter and the Comprehensive Plan. Review, research, investigate files, maps, renderings, documents, reports, surveys, plats, photographs, plans, models, building material samples, tests, site studies, impact statements/analyses, sites, site investigation, and make recommendation to the applicable board and/or commission to approve, approve with conditions, or deny with rationale. (4) Code amendments. The Department shall recommend revisions and updates to this chapter and Chapter 235, Subdivision of Land, of the Code of the City of New Berlin, to the Plan Commission. (5) Comprehensive planning. The Department shall update the City's entire Comprehensive Plan at least once every 10 years. The Comprehensive Plan shall contain the following elements: Issues and Opportunities; Housing; Transportation; Utilities and Community Facilities; Agricultural, Natural and Cultural Resources; Economic Development; Intergovernmental Cooperation; Land Use; and Implementation. Page 15

16 (6) Map amendments. (a) Create and administer a geographic/land information system (G/LIS) for maintaining and updating housing, transportation, utilities, community facilities, agricultural, natural resources, cultural resources, economic development, governmental districts, zoning and land use maps. (b) Recommend to Plan Commission changes that are necessary to update zoning maps to reflect the most current and accurate information. (c) Update Zoning Map changes and amendments as approved by Council. (7) Zoning permit/use approval/building permits. Review applications and permits for zoning permit/use approval and take final action to approve or deny such applications, or refer them to the Plan Commission. (See ) (8) Administrative modifications. Review applications for administrative modifications and take final action to approve or deny such applications. (9) Other administrative permits. Set procedures, review applications and issue administrative permits through the permit application center (over-the-counter) and shall take final action to approve, approve with conditions, or deny such applications, and issue permits for the following types of permits: (a) (b) (c) (d) (e) (f) (g) (h) (i) (j) reoccupancy permits, home occupation permits, temporary use permits, sign permits, minor architectural modifications (as determined by the Director), building and parking area additions requiring zoning permits that are less than 20,000 square feet. properties with legal non-conforming setbacks as long as the encroachment is no greater than the current setbacks, in which case the item may be considered by the Board of Appeals; decks, patios, and fences for approved projects, fences for non-residential properties. Minor modifications to Landscape Plans. Minor modifications might include, change in a plant species, change in plant location, etc. (10) Other powers and duties. In addition to the specific powers and duties enumerated above, the Director or his designee shall have other powers and duties necessary to effectively administer and enforce this chapter. These additional powers and duties shall include, but shall not be limited to, the following: (a) Maintain records of all zoning and land division, use, conditional use, and sign permits issued, investigations and inspections made, work approved and other official actions taken. (b) Establish that all necessary permits that are required for floodland uses and wetland uses by state and federal law have been secured. (c) Inspect all structures, lands, and waters as often as necessary to assure compliance with this chapter. (d) Investigate all substantiated complaints made relating to the use of structures, lands, and waters, give notice of all violations of this chapter to the owner, resident, agent, or occupant of the premises, and report uncorrected violations to the City Attorney in a manner specified by that office. (e) Assist the City Attorney in the prosecution of Zoning Ordinance violations. (f) Be permitted access to premises and structures during reasonable hours to make those inspections as deemed necessary by him to ensure compliance with this chapter. If, however, the Director or his designee is refused entry after presentation of his identification, he may procure a special inspection warrant in accordance with , Wis. Stats. (g) Request assistance and cooperation from the Fire Department, City Police Department, City Attorney, and any other City Department or outside agency as deemed necessary by the Director or by county, regional or state agencies. (h) Refer complaints in other areas to the proper department, county agency, or state division responsible for enforcement. (i) Make available to the public, to the fullest extent possible, all reports and documents concerning the City's Comprehensive Plan, development ordinances and zoning ordinances. In addition, information in the form of reports, bulletins, maps, and other data shall be available. The Department may set fees and update them from time to time as necessary to recover the cost of providing information to the public. Page 16

17 (j) Assist the public in filling out necessary applications and forms. (k) Establish that all the necessary requirements, plans, fees, and information for a complete application are met and received prior to acceptance and processing of the application or permit. (l) Enforce policies and procedures as established by various City boards and commissions. (m) Issue cease-and-desist orders through the City Attorney's office where necessary to protect the health, safety, and welfare of the community. (n) Where useful, the Department of Community Development or its agent, may set marks on bridges or buildings or other markers which show the depth of the one-hundred-year recurrence interval flood, or may set marks delineating the boundaries of wetlands. (11) Neighborhood Plans or Studies. The Department shall prepare neighborhood plans and/or studies in accordance with the recommendations in the City s Comprehensive Plan and/or at the direction of a City board, commission, or Director. (12) Accommodations to address the needs of persons with disabilities. If a handicapped or disabled person is in need of relief from the terms of the zoning code in order to reasonably accommodate their handicap or disability, they may make application to the Director of Community Development for the issuance of an administrative zoning permit to meet that accommodation. The Director of Community Development may issue said administrative zoning permit if he or she determines that the following conditions have been met: (a) The requested accommodation (i.e. the requested waiver of zoning restrictions) or another less extensive accommodation is: [1] necessary to afford handicapped or disabled persons equal housing opportunity or equal access to public accommodations; and [2] the minimum accommodation that will give the handicapped or disabled person adequate relief. (b) The accommodation will not unreasonably undermine the basic purposes that the zoning ordinance seeks to achieve and will not impose a direct threat to public safety. (c) The zoning permit shall be recorded with the Waukesha County Register of Deeds Office and shall remain in effect for so long as the person seeking the accommodation is in need of the accommodation and continues to reside or occupy the premises for which the accommodation is sought. Persons having received such a zoning permit shall be required within six months of the end of the need for the accommodation or the cessation of their occupancy of the premises to notify the Director of Community Development of that fact, at which point a release and termination of the zoning permit shall be recorded with the Register of Deeds Inspection Services Division. A. Designation. The Director is hereby designated as the enforcement officer for the building and occupancy permit provisions of this chapter. The Director may designate or delegate as necessary to carry out these duties. B. Powers and duties. (1) Building and occupancy permits. Issue and make the necessary on-site inspections of all building and occupancy permits as required by this chapter. (See and ) (2) Director. Make the necessary on-site inspections for enforcement of all board and commission orders, zoning permit conditions, and requirements. (3) Permit application center (PAC). Direct and administer the PAC to ensure compliance with application submittal requirements, fee collection, and routing procedures as outlined in this chapter. (4) Other powers and duties. In addition to the specific powers and duties enumerated above, the Director shall have other powers necessary to effectively administer and enforce his or her duties under this chapter. These additional powers and duties shall include, but shall not be limited to, the following: (a) Maintain records of all permits issued, inspections made, work approved, and other official actions. Page 17

18 (b) Record the lowest floor elevations of all structures erected, moved, altered, or improved, including those in the floodland districts. Review recertification of the line and grade of footings prior to allowing any further construction. (c) Establish that all necessary permits that are required are secured and that all the necessary requirements, plans, fees, and information for a complete application are met prior to acceptance and processing of the permit. (d) Inspect all structures, lands, and waters as often as necessary to assure compliance with this chapter. (e) Investigate all substantiated complaints made relating to the location, construction or occupancy of structures and give notice of all violations of this chapter to the owner, resident, agent, or occupant of the premises, and report uncorrected violations to the City Attorney in a manner specified by that office. (f) Assist the City Attorney in the prosecution of Zoning Ordinance and Building Code violations. (g) Be permitted access to premises and structures during reasonable hours to make those inspections as deemed necessary by him to ensure compliance with this chapter. If, however, he is refused entry after presentation of his identification, he may procure a special inspection warrant in accordance with , Wis. Stats. (h) Prohibit the use, occupancy, or erection of any structure, land, or water until such use or erection has been inspected and approved. Issue stop-work orders when and where necessary. (i) Request assistance and cooperation from all appropriate agencies. (j) Make available to the public, to the fullest extent possible, all reports and documents concerning the City's Zoning Ordinance and Building Codes. Editor's Note: See Ch. 80, Building Construction. In addition, information in the form of reports, bulletins, maps, and other data shall be available. The City may set fees and update them from time to time as necessary to recover the cost of providing information to the public. (k) Condemn all uninhabitable or structurally unsound buildings and structures. (l) Enforce all conditions for the issuance of a permit as set forth by the various City boards and commissions other City department. (m) Assist the public in filling out necessary applications and forms Community Development Authority A. Establishment. There is hereby established a Community Development Authority for the City of New Berlin under the authority granted by and (2), Wis. Stats., and amendments thereto. B. Membership. The Community Development Authority shall consist of seven members as follows: (1) One member shall be the Mayor, who shall serve as its chairperson and appoint the members of the CDA with confirmation by the Common Council. (2) (Reserved) (3) The Mayor shall appoint no less than seven (7) city of New Berlin residents having sufficient ability and experience in the fields of urban renewal, community development and housing, as commissioners of the CDA. Two members of the CDA must be members of the governing body (Sec (2)(a). The commissioners shall receive no compensation for their services, but shall be entitled to reimbursement for their actual necessary expenses, including local travel expense included in the discharge of their duties. These persons shall be known as Commissioners of the Community Development Authority. (4) Officers of the Authority shall be a Chairperson, a Vice-Chairperson and Treasurer. The Executive Director and the City s Director of Finance and Administration serving as Co-Treasurer shall be considered ex-officio members of the Authority with the right to participate in all deliberations and actions of the Authority but they shall not have the power to vote on any matters that may come before the Authority. (5) Election or Appointment of Officers The Chairperson shall be the Mayor of the City of New Berlin. The Vice-Chairperson shall be elected from among the Commissioners of the Authority. A Commissioner duly elected by the Authority and the City s Director of Finance and Administration, each serving, as Co- Treasurer shall perform the duties of the Treasurer. The terms of appointment or election shall be made in the month of May of each year and shall run until the next succeeding first day of June or until a successor is appointed or elected. Page 18

19 (6) Vacancies Should the offices of Chairperson, Vice-Chairperson, or the office of Co-Treasurer occupied by a Commissioner become vacant, the Authority shall elect a successor from its membership at the next regular meeting, and such selection shall be for the unexpired term of said office. (7) Chairperson The Chairperson, when present, shall preside at all meetings of the Authority. The Chairperson and the Executive Director are authorized to execute on behalf of the Authority all contracts, deeds, notes and other forms of obligations or instruments when duly authorized by the Commissioners of the Authority to do so, except in cases where the execution thereof shall be expressly delegated by the Commissioners or by the CDA s by-laws to some other officer or agent of the Authority, or shall be required by law to be otherwise executed; and, in general, shall perform all duties incident to the office of the Chairperson and such other duties as may be prescribed by the Commissioners from time to time. (8) Vice-Chairperson In the case of the absence of disability of the Chairperson, the Vice-Chairperson shall perform the duties of the Chairperson and shall also perform such other duties as may be required by the Commissioners. (9) Co-Treasurers A Commissioner duly elected by the Authority, and the City s Director of Finance and Administration shall serve as Co-Treasurers. The Co-Treasurers shall have the care and custody of all funds of the Authority. Such funds shall be deposited in the manner provided by law in the name of the Authority in such banks as designated as official depositories for the City of New Berlin, as authorized by the City of New Berlin Common Council. Authority funds may be properly commingled and invested with funds of the City provided that a concise and accurate accounting record of the Authority s funds is maintained. (10) Executive Director The Director of Community Development shall act as the Executive Director and as the Secretary of the Authority. The Executive Director shall manage and supervise the administrative operation of the Authority in accordance with the direction of the Authority. The Executive Director shall also (a) execute those documents, in conjunction with the Chairperson; (b) keep the minutes of the meetings of the Authority; (c) see that all notices are duly given in accordance with the provisions of the CDA s by-laws or as otherwise required by law; (d) be custodian of the records of the Authority; and, (e) in general, perform all duties incidental to the duties of the Authority. (11) Legal Counsel The City Attorney shall act as legal counsel to the Authority consulting with outside legal authority as needed. (12) Official oaths shall be taken by all members in accordance with 19.01, Wis. Stats. C. Organization. The Community Development Authority may adopt rules for the conduct of the business of the Authority in accordance with the provisions of this chapter. The Authority may adopt further rules as necessary. (1) Meetings. All regular meetings of the Community Development Authority shall be held in compliance with the provisions of the Open Meeting Laws of the State of Wisconsin and shall be held at the New Berlin City Hall. Four (4) commissioners shall constitute a quorum for the purpose of conducting its business and exercising its powers and for all other purposes. Meetings are held as necessary, or at the call of the Mayor or majority of the full Commission, and shall be open to the public except at may be necessary and as permitted pursuant to the Wisconsin Open Meeting Law. (2) The Community Development Authority may hold public hearings as necessary (3) The Authority may establish subcommittees by motion to review certain matters or issues that come before it from time to time. Such committees shall have no authority to act except to report the matters and issues back to the entire Authority with recommendations for appropriate action to be taken by the Authority. The Director of Community Development and/or a staff designee shall act as advisor and voting member of any Community Development Authority subcommittee. (4) Special Meetings. Special meetings may be called by the Community Development Authority Chair whenever in his/her judgment such a meeting is necessary, or whenever requested by at least three members of the Community Development Authority. Such request may be made orally. Notice of such special meetings shall be given by announcement thereof at any regular meeting, or by written or telephone notice as hereinafter provided not less than 24 hours before the time fixed for such meeting. Any business, which could be conducted at a regular meeting, may be conducted at a special meeting. (4) Minutes. Minutes of the proceedings and a record of all actions shall be kept by the Secretary, showing the vote of each member upon each question, the reasons for the Community Development Authority s determination, and its finding. These records shall be filed in the office of the Director of Community Development and shall be a public record. Page 19

20 D. Powers and duties. Per State Statutes, the Community Development Authority shall have the following powers and duties to conduct projects related to blight elimination, urban renewal and community development projects and housing projects in the city. The Community Development Authority will serve as a housing and redevelopment authority. Specific action taken related to the following powers shall be subject to review and approval by the Common Council. (1) Prepare and implement projects and plans (2) Acquire property (assemble real estate for redevelopment opportunities or condemn property in furtherance of redevelopment) (3) Construct or repair improvements (4) Sell, lease, encumber or retain and manage property acquired (5) Enter into contracts (6) Employ personnel (7) Issue bonds and make loans (8) Borrow money (9) Invest funds (10) Expenditure of any funds in excess of $5,000 (11) Disseminate blight elimination information (12) Maintain records (13) Administer grant programs (14) Lead and coordinate economic development initiatives within the City. (15) Amendments, deletions, or additions to these by-laws (16) Performance of duties otherwise performed by the Plan Commission pursuant to Wisconsin Statutes. (17) The Community Development Authority shall act as the agent for the City of New Berlin in carrying out community development programs and all authorized development activities except the implementation of the City s Comprehensive Plan. The Community Development Authority will ensure that all community development activities it undertakes are consistent with the Comprehensive Plan. The Plan Commission will continue to review subdivisions, land divisions, rezonings, re-occupancies and general use approvals (not associated with larger, coordinated developments & not associated with redevelopment plans or projects) and determine their consistency with the City s Comprehensive Plan. (18) The Community Development Authority shall review projects and developments that are part of special plan overlay districts, corridor studies, and/or larger coordinated planned developments or revitalization efforts. Editors Note: Resolution Number created the Community Development Authority. Page 20

21 ARTICLE III Review and Approval Procedures Common review and approval procedures. The general provisions of this section apply to all development applications and procedures under this chapter unless otherwise stated. A. Authority to file applications. (1) Applications under this chapter may be initiated by: (a) All the owners of the property that is the subject of the application; (b) The owners' authorized agents; (c) City staff on behalf of the City; or (d) Any review or decision-making body. (2) When a review or decision-making body initiates action under this chapter, it does so without prejudice toward the outcome. B. Form of application. All applications shall be submitted complete to the permit application center. Applications required under this chapter must be submitted in a form and in such numbers as required by the Department of Community Development. Application forms for procedures that require pre-application meetings will be made available at the time of the pre-application meeting. Applicants shall refer to the currently accepted requirements as identified in the permit application center handouts. The Director is authorized and shall establish the requirements for application contents, forms, and fees. The Director may amend and update these requirements, as determined necessary, from time to time. C. Application filing fees. (1) Permit fees. All persons, firms, or corporations performing work under the municipal code which requires the issuance of a permit shall pay a fee for such permit to the Director of Finance to help defray the cost of general administration/clerical support, document management, display, storage, updating maps, public noticing, and processing of permits and variances. The permits for which a fee is required are the zoning/use/administrative approval permit, conditional use permit, accessory use/structure permit, occupancy permit, reoccupancy, home occupation, temporary permits, Permit re-approvals, and rezoning permits, sign permit, subdivision, land division, grading, retaining walls, utilities, and planned unit development review. A fee shall also be required for a zoning text or map amendment, Comprehensive Plan Amendments, Sewer Service Area Boundary Amendments, Urban Service Area Boundary Amendments, conceptual plan reviews, Conservation Easements, Right-of-Way Vacations, Architectural Reviews, Plan of Operation Amendments, Board or Commission Interpretations, Development Agreements, Zoning Letters, Landscaping Plan Reviews, impact fees for public sites, open spaces, & trails and a zoning appeal or variance, and public hearings required for administrative and legislative actions. All fees shall be established by the Director and from time to time updated as deemed appropriate. Permit fees do not include and are in addition to permit fees established by the City Building, Plumbing, and Electric Codes. Editor's Note: See Ch. 80, Building Construction; Ch. 106, Electrical Standards; and Ch. 193, Plumbing Standards. The Director may waive the permit fees for public agencies, nonprofit agencies or as deemed appropriate by the Director. (2) Developer Deposit Fees. All persons, firms, or corporations performing work under the municipal code which requires the issuance of a permit, shall submit a developer deposit fee to the Director of Finance. The Developer s Deposit fees are used by the City for costs associated for development review, conceptual planning, peer review, research/data, GIS/LIS services, and any other special requirements deemed necessary by the City in order to evaluate an application or proposal and will be used for actual staff time, and any other reviews the city deems necessary by outside consulting planners, engineers, architects and/or attorneys. These fees do not cover the cost of construction inspections by the City s Field Services Engineer(s). These fees shall be billed out separately directly to the applicant as inspections occur. These fees are in addition to the permit fees listed above in Section (C). (3) Double fee. A double fee shall be charged if work is started or a sign is installed before a permit is applied for and issued, or if a building is occupied prior to the issuance of an occupancy permit. Such double fee shall not release the applicant from full compliance with this chapter nor from prosecution for violation of Page 21

22 this chapter. The Director may waive the permit double fees for an applicant if the Director feels sufficient evidence has been provided to determine that a double fee is not warranted. If the Director denies the request, then the applicant may appeal to the Plan Commission. (4) Nonrefundable fees. Application fees are nonrefundable, except that partial refunds shall be made to applicants who provide written notification to the Department of Community Development of a withdrawal of an application prior to publication of legal notice and its initial consideration by any decision-making body. D. Notices. (1) Content. All notices required under this chapter shall comply with the notice requirements of Chapter 985, Wis. Stats. In addition, all notices required under this chapter must: (a) Indicate the time and place of the public hearing or action; (b) Describe the property involved by street address or by legal description and nearest cross street; (c) Describe the nature, scope and purpose of the application or proposal being advertised; and (d) Indicate where additional information can be obtained. (2) Written (mailed) notice. When the provisions of this chapter require that written or mailed notice be provided, the City shall be responsible for preparing and mailing the written notice. The City shall make reasonable efforts to mail notices to all property owners within 600 feet of the subject property boundary, unless otherwise specified in this chapter. For purposes of the Board of Appeals, the City shall make reasonable efforts to mail notices to all property owners within 300 feet of the subject property boundary. (3) Published notice. When the provisions of this chapter require that notice be published, the City shall be responsible for preparing the content of the notice and publishing the notice in the newspaper of general circulation that has been selected by the City. (4) Posted notice. (a) When the provisions of this chapter require that notice be posted on the subject property, the Director or designee shall: [1] Post the notice on weatherproof signs of a size specified by the Department of Community Development within two weeks of filing of an accepted application; [2] Place the signs on the property that is the subject of the application; and [3] Ensure that the signs remain in place during the period leading up to the public hearing. The Department shall make every effort to post a sign on the subject property. Should the sign become damaged, removed, stolen, or no longer visible this shall not invalidate the public hearing. (b) Signs shall be placed along each abutting street in a manner that makes them clearly visible to neighboring residents and passersby. At least one sign shall be posted on each right-of-way line of any legal frontage. (5) Timing of notices. Unless otherwise expressly provided in state statutes or this chapter, notice, when required, shall be mailed or published pursuant to state law. (6) Constructive notice. Minor defects in a notice shall not impair the notice or invalidate proceedings pursuant to the notice if a bona fide attempt has been made to comply with applicable notice requirements. Failure of a party to receive written notice shall not invalidate any subsequent action. In all cases, however, the requirements for the timing of the notice and for specifying the time, date and place of a hearing and the general location of the subject property shall be strictly construed. If questions arise at the hearing regarding the adequacy of notice, the decision-making body shall make a formal finding regarding whether there was substantial compliance with the notice requirements of this chapter before proceeding with the hearing. E. Continuation of public hearings. A public hearing for which proper notice was given may be continued to a later date without again complying with the notice requirements of this chapter, provided that the continuance is set for a date within 60 days and the date and time of the continued hearing is announced at the time of the continuance. F. Burden of proof or persuasion. The burden of demonstrating that an application complies with applicable review and approval criteria is on the applicant. The burden is not on the City or other parties to show that the criteria have not been met. Page 22

23 G. Conditions of approval. In approving any development or permit application, the decision-making body shall be authorized to impose such conditions upon the premises benefited by the approval as may be necessary to reduce or minimize any potential adverse impact upon other property in the area, or to carry out the general purpose and intent of the New Berlin Comprehensive Plan and this chapter. However, the condition must relate to a situation created or aggravated by the proposed use or development and be roughly proportional to its impact. H. Findings of fact. Final decisions of all review and decision-making bodies shall be accompanied by written findings of fact based upon the applicable standards and criteria. The findings shall be filed with the Department of Community Development. In the event of denial, the written findings shall specify the provisions of the City's adopted regulations that the proposal failed to satisfy. I. Simultaneous processing. Whenever two or more forms of review and approval are required under this chapter (e.g., a rezoning and a conditional use permit), the applications for those development approvals may, at the option of the applicant and with the concurrence of the Department of Community Development, be processed simultaneously, so long as all applicable state and local requirements are satisfied for both applications. The Department of Community Development shall set these timelines and processing cycles. J. Processing cycles. The Department of Community Development shall be responsible for establishing timetables for reviewing each type of development application under this chapter. Except as specifically outlined in state law, processing timetables will be advisory, and failure to meet processing goals will not result in deemed approvals. Timetables may be revised as deemed necessary and may include: (1) Dates of regular meetings of review bodies and decision-makers; (2) Deadlines for receipt of a complete application for consideration of such application at a particular meeting; and (3) Schedule and routing of staff and agency reviews Development review procedure. Development applications are subject to the following seven-step review procedure, unless variations or exceptions to the standard procedure are expressly provided in the particular development application requirements set forth in this Article III. A. Step 1: Pre-application meeting. (1) Purpose. The purposes of the pre-application meeting are to provide an opportunity for the applicant and the staff to discuss the review process schedule and submittal requirements, the scope of the project, and compliance with this chapter. Staff opinions presented during pre-application meetings are informational only and do not represent a commitment on behalf of the City regarding the acceptability of the development proposal. (2) Applicability. A pre-application meeting is optional but is highly recommended. (3) Scheduling. The applicant shall schedule the pre-application meeting with staff at least 14 days prior to the date of submission of any related application. Public notice of the meeting shall not be required. (4) Attendance. Participants in the pre-application meeting may include representatives from other City agencies or departments charged with implementation and enforcement of this chapter, and any other person or entity the City deems appropriate. B. Step 2: Application timing and determination of completeness. (1) All development applications shall be submitted to staff a minimum of 45 days prior to the next regularly scheduled board or commission meeting at which the application will be reviewed. (2) An application will be considered complete if it is submitted in the required number and form, includes all mandatory information, and is accompanied by the applicable fees and/or deposits. If an application is determined to be complete and/or the Department has determined it has sufficient information, the application shall be processed. If an application is determined to be incomplete, the Department shall notify the applicant of the application's deficiencies. No further processing of the application shall occur until the deficiencies are corrected. If the deficiencies are not corrected by the applicant within 45 days of receiving notice of the deficiencies, the application shall be considered withdrawn. Page 23

24 C. Step 3: Staff review and report. (1) Once a submitted application is certified as complete pursuant to Subsection B above, the Department shall refer the development application to the appropriate review agencies or City departments to review the development application, form a recommendation, and prepare & present a staff report (when applicable) which will contain findings of fact. (2) Any changes to the development application or any accompanying plans or information may be permitted after submittal. Changes or additional submittals may cause the application to be rescheduled for a later meeting and/or restart the routing and review procedure. If changes to the application are later found to result in an application that is not in compliance with this chapter, an amendment to the application will be required. D. Step 4: Public meeting before Plan Commission or the Community Development Authority. Subject to previously published Plan Commission or the Community Development Authority schedules, within 45 days from the date that a submitted application is determined to be complete, the Plan Commission shall review the application at a public meeting or hearing as required by this chapter or applicable law. E. Step 5: Plan Commission or the Community Development Authority action or recommendation. (1) The Plan Commission or the Community Development Authority shall meet in accordance with state open meeting requirements and shall discuss and take action on all duly noticed items. (2) The Plan Commission or the Community Development Authority may approve, approve with conditions, defer, table, deny with reason, refer to committee, or remove from the agenda any item on the agenda. (3) When the Plan Commission or the Community Development Authority is the decision-making body, approval of an application shall not become final until all conditions of approval have been complied with. Acceptance of all conditions of approval and compliance, and submittal of revised information to the Department, where feasible (e.g., required revisions to plans and drawings), shall be completed by the applicant within 12 months of the Plan Commission's or the Community Development Authority s action or the approval shall be deemed expired. Should an approval expire by failure of the applicant to meet the conditions of the approval prior to the issuance of a zoning permit, the applicant must request a reapproval of said project.. (4) Where applicable, the Plan Commission or the Community Development Authority may recommend to Council approval, approval with conditions, or deny with reason. F. Step 6: Public hearing before Plan Commission or the Community Development Authority. The Plan Commission or the Community Development Authority shall hold a public hearing at the direction of the Common Council on the application if required by state statutes. All costs for notice publication, notice mailings, public hearing transcription, publication of ordinance, and recording fees shall be borne by the applicant. G. Step 7: Common Council review and action. (1) Common Council action required. The Common Council shall review and consider the development application, the staff report, the Plan Commission's recommendation, and the evidence from any public meetings or hearings, if applicable. The Common Council shall take final action by approving, approving with conditions, or denying the referral from the Plan Commission based on its compliance with the appropriate review standards and Comprehensive Plan. (2) Compliance with Common Council's conditions. Common Council approval of an application shall not become final until the applicant complies or accepts all conditions of approval. The Common Council may establish time limits as deemed appropriate based on the nature of the application Comprehensive Plan and/or Future Land Use Map Amendment Procedures Procedures to change and/or amend the following boundaries, maps, or plans are as follows: A. Future Land Use Map and/or Comprehensive Plan. (1) Suggestions for amendments can be brought forward by City staff, officials, developers, and/or residents, and should be consistent with the overall vision of the plan. Proposed amendments could originate in any of the following ways: Page 24

25 (a) Amendments may include correction of clerical or administrative errors, mapping errors, and/or updated data, text, tables, and maps to reflect changing trends, demographics, economics, and other community development standards. Such amendments would be drafted by DCD staff. (b) Amendments proposed as a result of discussions between officials and citizens. (c) Amendments proposed as a result of recommendations discussed during a City planning process. (2) When a change is proposed, it should follow this general procedure: (a) Applicant submits application to the Common Council for initial review. DCD Staff prepares a Requested Action Statement to refer the request on to the Plan Commission. (b) Plan Commission and DCD Staff conducts a review process and holds a public hearing (if applicable). (c) Plan Commission takes action to either approve or deny the amendment via a resolution and forwards a report on to the Common Council. (d) Consideration and decision by the Common Council taking action to either approve or deny the amendment via ordinance. (3) Plan amendments and updates shall coincide with the on-going monitoring schedule as found in the City s adopted Comprehensive Plan. Furthermore, revisions to Comprehensive Plan shall be adopted by Ordinance and adhere to certain procedural requirements as identified in the City s adopted Participations Plan and stated in Wisconsin State Statute (4) Current Sewer Service Area Amendment Procedures Procedures to amend the City s Current Sewer Service Area is as follows and may be processed concurrently with amending the Urban Service Area as identified in Section (This process may be amended from time to time by other regulatory agencies.): A. Applicant shall file an application with DCD to initiate the process. B. The Common Council may refer the request to the Plan Commission or Community Development Authority and Utility Committee for their review and recommendation. C. Plan Commission or Community Development Authority reviews application for consistency with Comprehensive Plan, land use, zoning and neighborhood consistency and shall make a recommendation pursuant to Section D(8)(a)[4] with regards to the actual boundary amendment and send its report on to the Common Council and/or Utility Committee. D. Utility Committee reviews application for cost recovery and conveyance issues and sends a report to Common Council. E. Common Council takes action to initiate the amendment process or deny the initiation of the process. (1) If the decision is to go forth with the boundary amendment, Common Council takes action on the Plan Commission and Utility Committee recommendations and authorizes Staff forward a letter to SEWRPC and MMSD requesting that they amend the Current MMSD Sewer Service Area Boundary. (2) SEWRPC prepares a Technical Report on amending the Regional Water Quality Plan. (3) SEWRPC and New Berlin hold a joint Public Hearing before the Plan Commission or Community Development Authority on amending SEWRPC s Regional Water Quality Plan and MMSD Current Sewer Service Area. F. Plan Commission or Community Development Authority makes a recommendation to Common Council to adopt the amended MMSD Current Sewer Service Area. G. Common Council reviews and takes action on Plan Commission or Community Development Authority recommendation. H. Staff forwards a letter and Resolution approving the amendment to SEWRPC and MMSD. I. SEWRPC Commission takes action on the Resolution at their quarterly meeting. J. SEWRPC forwards New Berlin s letter and Resolution to WDNR for review and approval. K. WDNR approves the application, issues an NR108 Letter, and forwards its approval to MMSD for review. L. MMSD Commission approves the application and at their monthly meeting. M. Staff can then update the MMSD Sewer Service Area Boundary Map. Page 25

26 Urban Service Area Amendment Procedures The process for amending the Urban Service Area is as follows and may be processed concurrently with amending the Current Sewer Service Area as identified in Section : A. Applicant shall file an application with DCD to initiate the process. B. Applicant submits application to the Common Council for initial review and Council refers application on to the Plan Commission or Community Development Authority and Utility Committee. C. Plan Commission or Community Development Authority reviews for consistency with Comprehensive Plan, land use, zoning and neighborhood consistency and shall make a recommendation pursuant to Section D(8)(a)[4] with regards to the actual boundary amendment and send its report on to the Common Council and/or Utility Committee. D. Utility Committee reviews application for cost recovery and conveyance issues and sends a report to Common Council. E. The Common Council shall take action on the application. The approval of such an amendment shall require a three-fourths vote of the members elect of the Common Council. F. If approved staff shall be authorized to amend the Urban Service Area Boundary Map Changes and amendments. A. Authority. Whenever the public necessity, convenience, general welfare, or good zoning practice require, the Common Council may, by ordinance, change the district boundaries or amend, change or supplement the regulations established by this chapter or amendments thereto. Such change or amendment shall be subject to the review and recommendation of the City Plan Commission and based on the adopted Comprehensive Plan and the associated Future Land Use Map. B. Initiation. (1) A change or amendment to this section may be initiated by the Common Council or the City Plan Commission, or by a petition of one or more of the owners or lessees of property within the area proposed to be changed. (2) Any change to a C-1 Upland Resource Conservancy District boundary shall require that rezoning procedure described in this section to be followed. Such change in the boundary shall be described by a legal description prepared by a Wisconsin registered land surveyor. (3) Any change to a C-2 Shoreland Wetland Holding District boundary shall require that rezoning procedure described in this section to be followed. Such change in the boundary shall be described by a legal description prepared by a Wisconsin registered land surveyor. (a) All C-2 Shoreland-Wetland District shall be considered a holding district and C-2 boundaries shall no longer be amended via a rezoning process. Refer to Section and (b) A wetland holding district shall be used for all C-2 zoned lands and are subject to the Wetland Registration process. Refer to Section and C. Petitions. Petitions for any change to the district boundaries or amendments to the regulations shall be filed with the Department of Community Development, describe the premises to be rezoned or the regulations to be amended, list the reasons justifying the petition, specify the proposed use and have attached all materials specified by the Department of Community Development. D. Review procedure. Petitions for changes or amendments shall be filed with the Department of Community Development. The review procedure shall follow the development/review procedure set forth in E. Notice of public hearing. The Plan Commission shall hold a public hearing at the direction of the Common Council upon each proposed change or amendment providing published and written notice pursuant to the general notice procedures of D. Any Alderman may request the area in which notice is mailed to property owners be expanded beyond the six-hundred-foot distance, and the Clerk shall comply with such request. The Common Council shall also give at least 10 days' prior written notice to the Clerk of any municipality within 1,000 feet of any land to be affected by the proposed change or amendment. The applicant shall bear all costs of publication, notices, mailings and reporting. Page 26

27 F. Approval criteria. (1) Amendments to the Zoning Ordinance. Recommendations and decisions on amendments to the Zoning Ordinance should be based on consideration of the following criteria. (a) Whether the proposed amendment corrects an error or meets the challenge of some changing condition, trend, or fact; (b) Whether the proposed amendment is consistent with the Comprehensive Plan and the stated purposes of this chapter; (c) Whether the proposed amendment will protect the health, safety, or general welfare of the general public; (d) Whether the proposed amendment will protect the natural environment, including, but not limited to, air, water, stormwater management, wildlife, and vegetation. (2) Changes to the zoning district boundaries (rezonings). In acting on a rezoning petition, the Common Council shall consider the stated purpose of the proposed zoning district and shall approve the petition only if it finds that: (a) The proposed rezoning is consistent with the Comprehensive Plan and the stated purposes of this chapter; (b) Adequate public facilities and services (including sewage and waste disposal, water, gas, electricity, schools, police and fire protection, and roads and transportation, as applicable) will be available to serve the subject property while maintaining adequate levels of service to existing development; (c) Provision of public facilities to accommodate development will not place an unreasonable burden on the ability of the City to provide them; (d) The proposed development has taken into account impacts on surrounding properties or the natural environment, including air, water, noise, stormwater management, soils, wildlife, and vegetation; (e) The land proposed for rezoning is suitable for development and will not cause unreasonable soil erosion or have an unreasonable adverse effect on rare or irreplaceable natural areas; (f) The proposed rezoning will not be used to legitimize, or "spot zone," a nonconforming use or structure; and (g) The proposed rezoning is the minimum action necessary to accomplish the intent of the petition, and an administrative modification, variance, or conditional use permit could not be used to achieve the same result. G. Protest. In the event of a protest against such district change duly signed and acknowledged by the owners of 20% or more either of the areas of the land included in such proposed change or by the owners pursuant to 62.23(7), Wis. Stats. H. Resubmittal. In the event the owner or subsequent owner of property desires to re-petition the Common Council to rezone all or part of land involved in a previous petition, a twelve-month period must elapse from the time of the final decision of one petition to the filing of the subsequent petition, unless Common Council has denied the petition "without prejudice." I. (Reserved) Editor s Note: Former Subsection I, Floodland district boundary changes limited, was repealed by Ord. No See now Art. IXA, Floodplain Zoning. J. Shoreland-Wetland Holding District: (1) All C-2 Shoreland-Wetland District shall be considered a holding district and C-2 boundaries shall no longer be amended via a rezoning process. Refer to Section and (2) A wetland holding district shall be used for all C-2 zoned lands and are subject to the Wetland Registration process. Refer to Section and K. Upland Resource Conservancy District changes limited. The Plan Commission shall not permit changes to the Upland Resource Conservancy District that are inconsistent with the purpose and intent of the District as described in B(3)(a). In accordance with D(9), the Plan Commission shall determine whether a proposed rezoning to or from the C-1 Conservancy District is consistent with the purpose of the District. L. Permanent Open Space/Conservation Lands District change limited. The Plan Commission shall not rezone any area from the C-3 Permanent Open Space/Conservation Land District to any other zoning district. However, zoning overlay districts may also be used in conjunction with the C-3 Permanent Open Page 27

28 Space/Conservation District only if they are not used to circumvent the purpose and intent of the C-3 Permanent Open Space/Conservation District Planned unit development (PUD). A. General procedural requirement. (1) Creation of a PUD Overlay District shall follow the same procedure used for amending the Zoning Map (see ) and requires an ordinance for adoption. The PUD ordinance shall specify all elements of what is to be modified or added to the basic underlying district, and provisions of the underlying basic use district not specifically enumerated as changed, modified, or deleted shall remain in full effect. (2) Projects, buildings, subdivisions, land divisions, uses, or any developments may be specifically approved together at the same time as the PUD Overlay District. Combinations of regulations applicable in various City codes shall be identified as combined applications. The PUD Overlay District ordinance shall identify the specific project, building, subdivision, land division, or use approvals granted as part of a combined application. (3) Large mixed use PUDs may be subdivided into separate geographic areas or subdistricts with unique regulations applicable to each area subdistrict. The PUD ordinance shall provide an accurate legal description for each subdistrict and specify which regulations are to apply to each subdistrict. Any section or part of the underlying zoning district not specifically enumerated as changed, modified, or deleted shall remain in full effect for that specific area or subdistrict. (4) Petitions for a PUD Overlay District rezoning shall be filed by the owner, the owner's authorized agent, the Plan Commission, or the Common Council. (5) Prior to the official submission of the petition for the approval of a PUD Overlay District, the owner or his agent making such petition shall meet with the City Plan Commission or its staff to discuss the scope and proposed nature of the contemplated development. (6) Following the pre-petition conference, the owner or the owner's agent may file a petition with the Department of Community Development for approval of a PUD Planned Unit Development Overlay District. Such petition shall follow the procedure outlined in of this chapter for changes and amendments to the Zoning Map and regulations. The general procedure shall be as follows. B. Review procedure. Petitions for PUD Overlay Districts shall be filed with the Department of Community Development. The review procedure shall follow the development/improvement review process set forth in C. Public hearing. As set forth in E of this chapter, the Plan Commission at the direction of the Common Council shall hold a public hearing on the petition. In the case of a combined application, only one hearing shall be required. The Common Council may elect, especially for combined applications, to hold the public hearing jointly with the Plan Commission. D. PUD petition. The petition for approval of the PUD Overlay District shall conform with the requirements for a zoning change set forth in of this chapter and shall be supplemented with additional information and supporting materials as specified by the Department of Community Development. If a part of the combined application has a statutory time limit for action, the act of filing for a PUD waives any statutory time limits. E. Combined application. (1) In order to better expedite the review process for the landowner and to assist the City in reviewing the feasibility of a request for a PUD Overlay District, the owner or the owner's agent may submit, for approval, development plans together with the request for rezoning. This shall be considered a combined application. (2) The application requirements of all permits and approvals, such as zoning permits, conditional use permits, land division, subdivision, architectural approval, and rezoning, when combined with a petition for a PUD Overlay District, shall comply with all application and submission requirements. (3) If a public hearing is required for more than one of the individual applications of a combined application, only one public hearing shall be required for all parts of the combined application. (4) If part of the application has a preliminary and final approval process, the combined application approval shall constitute the preliminary approval of that application. Page 28

29 (5) The Plan Commission and Common Council may act to approve, deny, or modify any part of a combined application. (6) Any part of a combined application that is approved together with the approval of the PUD Overlay District petition may be incorporated into the PUD ordinance and made a part of the PUD. (7) Applications for approval and requests for approval of development after the establishment of the PUD Overlay District Ordinance, or made as a separate application (not part of a combined application), shall follow all the regular regulations in the respective zoning permit, conditional use, land division, subdivision, or architectural approval sections of this chapter. No special requirements or extra steps shall be required for approval in an area which has been zoned PUD Overlay District by ordinance. F. Time limits. (1) The PUD ordinance may set time limits for the development construction period. If the development, as evidenced by the securing of a zoning permit, within the specified time period, only the PUD Overlay District conditions shall expire and become null and void. The underlying zoning district shall remain in force regardless of whether the district was modified by the PUD or not. A PUD Overlay District without a time limit should be so specified in the PUD ordinance. (2) If the PUD ordinance contains no language specifying a time limit, the approval of the PUD ordinance shall expire one year from the date of final approval by the Common Council unless development has commenced as evidenced by the securing of zoning permits and the commencement of construction or preparation of land. (3) The Common Council may grant an extension to the time limit after first requesting a recommendation from the City Plan Commission and upon the showing of a good faith effort by the owner or developer. The request to extend the time period shall be submitted before the initial time period expires. The granting of a time extension by the Common Council shall be noted in the record as an amendment to the PUD ordinance. (4) To remove a PUD Overlay District designation once construction has commenced shall be considered a rezoning and shall follow the procedures for rezoning as set forth in of this chapter. If a PUD Overlay District designation is removed, the underlying zoning district shall be in force. G. Use and site plan review. Projects, subdivisions, and any development within the PUD District (which are not part of a combined PUD application) shall comply with all use approval or conditional use approval procedures set forth in City ordinances and shall be consistent with standards imposed on other development in the underlying zoning district as modified by the PUD ordinance. H. Architectural review. Unless specifically approved as part of a combined PUD ordinance, or in lieu of specific architectural principals and standards in the PUD ordinance, the architectural review requirements set forth in of this chapter shall be complied with. I. Approval criteria. The City Plan Commission in making its recommendation and the Common Council in making its determination shall determine whether the application complies with the PUD Overlay District standards and criteria set forth in B(1). J. Changes and additions. (1) Any subsequent change to the boundary of the PUD Overlay District shall be considered a new rezoning petition and shall require Common Council approval pursuant to the requirements of of this chapter. (2) Any amendment to the text of an approved PUD ordinance shall require Plan Commission review and Common Council approval. (3) Any subsequent change or addition to the project approval in a PUD Overlay District shall require Plan Commission review and approval. (4) The division of any land or lands within a PUD Overlay District for the purpose of change or conveyance of ownership shall be accomplished pursuant to the land division regulations of the City. (5) All applications for new construction within the New Berlin City Center PUD shall be required to submit an application for conceptual use, site, and architecture. Applicant shall submit conceptual site plans and architectural elevation sketches for review and comment by the City and its design consultants. [Added by Ord. No. 2330] Page 29

30 Zoning permits (use, site plan and architectural review). A. Compliance with review standards required for zoning permit. No principal or accessory use, development, structure, or sign shall hereafter be located, erected, moved, reconstructed, extended, enlarged, structurally altered, occupied, or reoccupied; no site or premise shall be altered, used, changed, modified, or occupied; and no grading undertaken, until after the owner has applied for and the Department of Community Development staff and/or the Plan Commission has reviewed and approved an application for a zoning permit, based on compliance with the use, site plan, and architectural review standards set forth below. The Zoning Code in effect on the date of application shall apply. B. Application. The owner or agent shall make application for a zoning permit (Use Approvals, Administrative Use Approvals, and Reoccupancy permits) through the permit application center on forms furnished by the Department and shall include all information and supporting materials as specified by this chapter and the Plan Commission. C. Use, site plan, and architectural review standards. (1) Purpose. These review standards are intended to: (a) Promote compatible development; (b) Promote stability of property values; (c) Foster the attractiveness and functional utility of the community as a place to live and work; (d) Preserve the character and quality of the built environment by maintaining the integrity of those areas which have a discernible character or are of a special historic significance; (e) Protect certain public investments in the area; and (f) Raise the level of community expectations for the quality of its environment. (2) Plan of operation (use approval). No use shall be approved until the Plan Commission and staff have reviewed the plan of operation, which shall indicate: (a) The proposed use of the land and/or structures; (b) Activities to occur both inside and outside all principal and accessory structures; (c) The frequency and duration of all activities; (d) The number of employees of any commercial or industrial enterprise; (e) The estimated number of occupants of a multifamily residential use; (f) The number, size, and type of all vehicles associated with the use, including number of vehicle trips; (g) Plans for compliance with the general development standards set forth in Article VIII of this chapter; (h) The season, days, and hours of operation; (i) The expected starting and completion dates of construction; (j) The proposed phasing of the project, if appropriate; and (k) Resolution or mitigation of any hazards or adverse impacts resulting from the project. (3) Site plan review principles and standards. To implement the purposes set forth in , the Plan Commission and staff shall review the site impacts, including but not limited to existing and proposed structures; neighboring uses; setbacks; utilization of landscaping, screening, buffering and open space; parking areas; driveway locations for ingress and egress; loading and unloading (in the case of commercial and industrial uses); lighting; pedestrian access; highway access; traffic generation and circulation; view corridors; stormwater and drainage; sewerage and water systems; grading; filling; utilities (telephone, electric, cable, etc.); natural resource preservation, and the proposed plan of operation. The Plan Commission shall only approve site plans that comply with the standards and criteria set forth in (a) Grading permits. No grading or filling of land shall take place, other than typical minor landscaping, until the owner has applied for and the Department of Community Development has reviewed and approved an application for a grading permit. [1] Application. Application for grading permits shall be filed with the permit application center. [2] Review procedure. The review procedure shall follow the development review process set forth in , except for the following modifications: Step 3: Staff review and report. Engineering staff may issue an administrative grading permit. The owner may, at his own risk, grade or fill land after issuance of a grading permit. Step 4: Plan Commission public meeting is not applicable for grading permits. Step 5: Plan Commission action. Plan Commission may modify or revoke any Page 30

31 administrative grading permit. Any grading or filling shall be remediated according to Plan Commission decision. Steps 6 and 7 are not applicable for grading permits. [3] Approval criteria. An administrative grading permit or grading permit shall be issued unless the application is not in compliance with [4] Inspection. Engineering staff may require certification of final grades. (b) Retaining wall permits. No retaining wall construction shall take place, other than typical minor landscaping, until the owner has applied for and the Department of Community Development has reviewed and approved an application for a retaining wall permit. [1] Application. Application for retaining wall permits shall be filed with the permit application center. [2] Review procedure. The review procedure shall follow the development review process set forth in , except for the following modifications: Step 3: Staff review and report. Engineering staff may issue an administrative retaining wall permit. The owner may, at his own risk, construct the approved retaining wall after issuance of a grading permit. Step 4: Plan Commission public meeting is not applicable for grading permits. Step 5: Plan Commission action. Plan Commission may modify or revoke any administrative retaining wall permit. Any retaining wall may be moved or removed according to Plan Commission decision. Steps 6 and 7 are not applicable for retaining wall permits. [3] Approval criteria. An administrative retaining wall permit shall be issued unless the application is not in compliance with (4) Architectural review principles and standards. To implement the purposes set forth in , the Plan Commission and staff shall review the building plans, renderings, material samples, floor plans, elevations, location, orientation, color, texture, shape, aesthetics, height, bulk, setback, massing, lighting, floor area ratio, compatibility for additions and modifications to existing and proposed structures for all plans, and shall only approve plans that comply with the architectural review principles, criteria, and review guidelines set forth in D. Issuance of the zoning permit or use approval. (1) The Plan Commission may delegate authority to the Department of Community Development staff to approve and issue zoning permits and use approvals that are found to comply with the provisions of this chapter. Permits issued by staff, under the authority of the Plan Commission, shall have the same weight and force and be subject to the same conditions and review procedures as those acted on by the Plan Commission. (2) Approvals granted by the Plan Commission shall expire after 12 months unless a zoning permit has been issued. The Plan Commission or Community Development Authority may grant a twelve-month extension if requested prior to the expiration of the 12 months, provided that the applicant demonstrates a valid cause acceptable to the Plan Commission or Community Development Authority. Additional extensions may be requested and may only be approved upon review by the Plan Commission or Community Development Authority, all applicable fees are paid and the applicant demonstrates a valid cause acceptable to the Plan Commission or Community Development Authority. The request for extension must be received prior to the expiration of the original extension. Requests for an extension submitted after permit expiration shall not be considered. E. Expiration. A zoning permit shall expire if, within 12 months of the date of the approval, the proposed construction, activity, or preparation of land has not substantially commenced. Substantial commencement is demonstrated by reasonable physical alteration of the site in conformance with approved plans. The Department of Community Development Director may grant a twelve-month extension if requested prior to the expiration of the 12 months, provided that the applicant demonstrates a valid cause acceptable to the Department of Community Development. Additional extensions may be requested and may only be approved upon review by the Plan Commission or Community Development Authority, all applicable fees are paid and the applicant demonstrates a valid cause acceptable to the Plan Commission or Community Development Authority. The request for extension must be received prior to the expiration of the original extension. Requests for an extension submitted after permit expiration shall not be considered. F. Transferability. Zoning permits are not transferable from one applicant to another without approval of the Plan Commission. Zoning permits are site specific and thus are not transferable from one site to another under any circumstances. The only exception to this area is for applicants that hold a re-occupancy zoning permit. If an applicant wishes to expand to an adjacent unit within the same building, the applicant is not required to file a Page 31

32 new application. The applicant shall submit a letter to the City of New Berlin notifying the City of such change prior to moving to the adjacent space within the building. If the business plans to add more employees, make physical changes to the outside of the building, or any other deviations to the approved plan of operation the applicant shall follow all applicable City processes Building permits. A. General requirement. No building or structure shall be erected, altered, relocated, moved, extended, or enlarged until a building permit has been issued by the Director, certifying that such building, as proposed, would be in compliance with the provisions of this chapter and with the adopted City Building Code. Editor's Note: See Ch. 80, Building Construction. B. Application. In addition to the requirements of Sections COMM and COMM 50.03, Wis. Adm. Code, applications for a building permit for new construction and for additions to existing construction shall include all information and supporting materials as specified by the permit application center. C. Permit issuance. No building permit shall be issued until the Department of Community Development has issued the zoning permit/use approval and all public improvements are installed and accepted by the City or a sanitary permit has been issued by the county. D. Recertification. Recertification of the line and grade of footings is required and shall be prepared by a registered land surveyor and submitted to the Department of Community Development prior to any further masonry construction or the pouring of footings. E. Recertification of the lot grades. Recertification of the lot grades is required and shall be prepared by a registered land surveyor and submitted to the Department of Community Development upon completion of project or prior to expiration of the building permit Occupancy permits. A. General requirement. No vacant land shall be occupied or used; and no building or premises shall be erected, altered, or moved, or create change in use; and no new construction, additions to, or remodeling of structures or internal modifications of areas shall be occupied or reoccupied; and no nonconforming use shall be maintained, renewed, changed, or extended until an occupancy permit has been issued by the Building Inspector. Such occupancy permit shall show that the building, site, or premises or part thereof is in compliance with the provisions of this chapter and any conditions as set forth by the City staff, Plan Commission or Common Council. Such permit shall be applied for at the time of occupancy of any land and/or building. For purposes of this section, an "internal modification" shall be a modification to an interior of a structure that requires a building permit under this chapter. B. Application and review/inspection procedure. (1) Application for an occupancy permit shall be made through the Department of Community Development on forms provided by the Director. (2) No occupancy permit shall be issued until the Department of Community Development staff has approved the zoning permit/use approval. (3) Any change in use of a building or structure, or substantial building modification, shall require a zoning permit/use approval and/or building permit prior to applying for the occupancy permit. "Substantial building modification" includes any change in the architectural character of the building. (4) The Director shall inspect the building, site, or premises for compliance with all current codes, plans, specifications, and conditions of approval prior to issuance of an occupancy permit. No occupancy shall be allowed if any other outstanding violations exist on the site. As-built plans may be required to substantiate or verify that certain conditions of the zoning permit, use approval, conditional use permit, developer's agreement, or building permit have been complied with. (5) Prior to occupying a site, existing building or part of a building located in a business, office, manufacturing, quarrying, landfill, or institutional district, or any site, existing building or part of a building used for business, office, manufacturing, quarrying, landfill, or institutional purposes by a new tenant or owner, a new occupancy permit must first be applied for and issued by the Director prior to any use by Page 32

33 the new tenant or owner. Such permit shall show that the building, site, premises, or part thereof is in compliance with all current provisions of the Zoning Ordinance, Uniform Dwelling Code, Electrical Code, Fire Prevention Code, Plumbing Code, and Plan Commission policies of the City of New Berlin and the State of Wisconsin. Editor's Note: See Ch. 106, Electrical Standards; Ch. 124, Fire Prevention; and Ch. 193, Plumbing Standards. (6) Occupancy may be allowed prior to completion of all site improvements due to hardship or weather, subject to approval by the Director of a phasing plan with a definite timetable for completion and adequate financial sureties. (7) Phasing of large projects or multitenant buildings is permitted with Plan Commission or Community Development Authority approval or pursuant to an approved developer's agreement. (8) It shall be a municipal violation to occupy a building, site, or premises or part of a building, site, or premises without first obtaining an occupancy permit. Each day of occupancy without said occupancy permit shall constitute a separate violation and shall be subject to the appropriate penalties. (9) The Director shall keep a record of all occupancy permits issued and shall notify the City Assessor, Director, and Fire Inspector of all occupancies. (10) No land within the floodland districts shall be developed, occupied or used and no structure hereafter erected, altered, or moved shall be occupied until the applicant submits to the Department of Community Development a certification by a registered professional engineer or land surveyor that the floodland regulations set forth in this chapter have been fully complied with. Such certification shall include the first floor and basement floor elevations of any structure erected on the site. C. Other permits. It is the responsibility of the permit applicant to secure all other necessary permits required by any federal, state, or local agency. This includes, but is not limited to, a water use permit pursuant to Chapter 30 or 31, Wis. Stats., or a wetland fill permit pursuant to Section 404 of the Federal Water Pollution Control Act Conditional uses. A. Application for conditional use permit. Application for conditional use permits shall be made through the permit application center on forms furnished by the Department of Community Development and shall include information and supporting materials as specified. B. Review procedure. The review procedure shall follow the Department of Community Development review process set forth in , except for the following modifications: (1) Step 1: Pre-application meeting. Step 1 is not required for conditional use permit applications, but applicants are strongly encouraged to schedule such meetings. (2) Step 3: Staff review and report. (a) General referrals. The Department of Community Development shall refer copies of the conditional use application to the appropriate City departments and other appropriate agencies for review of the plan of operation, site plans, architectural plans, existing and proposed structures, neighboring uses, parking areas, driveway locations, drainage, sewer and water systems, grading, landscaping, potential impacts or hazards, and open space utilization plans for all developments. The City staff shall report its findings and recommendations to the Plan Commission within 45 days following receipt of the application. (b) Referrals to DNR. The Department of Community Development shall transmit a copy of each application for a conditional floodland use to the Wisconsin Department of Natural Resources (DNR) for review and comment. Action on the application shall not be taken until the DNR has made its recommendation. A copy of all floodland conditional use permits shall be transmitted to the DNR within 10 days of the effective date of such permit. (3) Steps 4 and 5: Plan Commission public hearing and action. (a) (Reserved) (b) Notice of the public hearing regarding the conditional use shall be posted pursuant to D(4), and notice of such hearing shall be mailed to all owners of land within 600 feet of the conditional use application. (4) Steps 6 and 7: Common Council public hearing and action. Steps 6 and 7 are not applicable for conditional use applications. Page 33

34 C. Approval criteria. The Plan Commission of the City of New Berlin will grant approval of conditional use permits only if it finds that the proposed use complies with the Comprehensive Plan and with all relevant regulations set forth in this Chapter, including, but not limited to Use Specific Regulations and Article VIII General Development Regulations D. Transferability. Conditional use permits are site specific and thus are not transferable from one site to another under any circumstances. E. Expiration. A conditional use permit shall expire if within 12 months of the date of the approval if the proposed construction, activity or preparation of land has not commenced. The Plan Commission or Community Development Authority may grant an extension of up to 12 months to the time limit upon the showing of good faith effort to develop the use by the applicant Additional extensions may be requested and may only be approved upon review by the Plan Commission or Community Development Authority, all applicable fees are paid and the applicant demonstrates a valid cause acceptable to the Plan Commission or Community Development Authority. The request for extension must be received prior to the expiration of the original extension. Requests for an extension submitted after permit expiration shall not be considered. F. Existing uses. All uses existing at the effective date of this chapter, which would be classified as a conditional use in the particular district concerned if they were to be established after the effective date of this chapter, are hereby declared to be conforming conditional uses. Any proposed change in the existing operation shall be subject to the conditional use procedures as if such use were being established anew. G. Amendments. Changes subsequent to the initial issuance of a conditional use permit that would result in a need to change the initial conditions shall require an amendment to the conditional use permit. Enlargement of a conditional use shall be considered an amendment. The process for amending a permit shall follow the procedures for granting a permit. H. Revocation of conditional use permit. Should a permit holder fail to comply with the conditions of the permit issued by the Plan Commission, or should the use or characteristics of the use be changed without prior approval by the Plan Commission, the conditional use permit may be revoked, in whole or in part, by the Plan Commission upon notice and a hearing Development agreements. All regulations regarding development agreements are set forth in Chapter 235, Subdivision of Land, G and Section 2 of the document titled "Developer s Handbook," as approved by the Board of Public Works Sign permits. A. Applicability. No sign shall be erected, maintained, or used without a valid sign permit. Application for a sign permit shall be made on forms provided by the City and shall contain or have attached all information and supporting material as specified by the Department of Community Development. B. Review procedure. Applications for sign permits shall be filed with the permit application center. The review procedure shall follow the development review process set forth in , except for the following modifications: (1) Step 3: Staff review and report. The Director shall review sign permits application for completeness and accuracy and forward such applications to the Plan Commission, Architecture Review Committee, or Community Development Authority when necessary. (2) Step 4: Plan Commission public meeting, if applicable. (3) Step 5: Plan Commission action. Upon the recommendation of Department of Community Development staff shall approve or deny a completed application within 5 business days of receipt from the applicant. The Department of Community Development shall issue a sign permit upon approval by staff. The permit shall become null and void if work authorized under the permit has not been completed within twelve months of the date of issuance. (4) Steps 6 and 7 are not applicable for sign permit applications. C. Approval criteria. Staff shall approve a sign permit unless it finds that: (1) The requested permit is not in compliance with ; or Page 34

35 (2) If completed as proposed, the sign will not comply with one or more requirements of this chapter. D. Construction review. The Department of Community Development may refer a sign permit request to Building Inspection Services for review of construction details or specifications prior to approval. E. Inspection. The sign owner shall call the Department of Community Development for an electrical inspection (if applicable) upon completion of all permit requirements and installation. F. Architectural review. The Department of Community Development may forward sign permit applications to the Architectural Review Committee to review the materials for construction and design integrity of signage Variances. A. Application filing. Applications for variances shall be submitted to the Director. B. Public hearing notice. Notice of the public hearing shall be published and mailed pursuant to the general notice provisions of D and notice of such hearing shall be mailed to all owners of land within 300 feet of the variance application. C. Review and action. The Board of Appeals shall hold a public hearing on each variance application and, within 15 days following the public hearing, act to approve, approve with conditions, or deny the variance based on the approval criteria of Subsection D. The Board shall transmit a signed copy of the Board's decision to the appellant or applicant and the Director. D. Approval criteria. No variance to the provisions of this chapter shall be granted by the Board unless it finds beyond a reasonable doubt that all the following facts and conditions exist and so indicates in the minutes of its proceedings. (1) Use variances prohibited. No variance shall be allowed. (2) Preservation of district intent. No variance shall be granted that is not consistent with the purpose and intent of the regulations for the district in which the development is located. (3) Exceptional circumstances. There must be exceptional, extraordinary, or unusual circumstances or conditions applying to the lot or parcel, structure, use, or intended use that do not apply generally to other properties or uses in the same district and the granting of the variance would not be of so general or recurrent nature as to suggest that this chapter should be changed. (4) Economic hardship and self-imposed hardship not grounds for variance. No variance shall be granted solely on the basis of economic gain or loss. Self-imposed hardships shall not be considered as grounds for the granting of a variance. (5) Preservation of property rights. That such variance is necessary for the preservation and enjoyment of substantial property rights possessed by other properties in the same district and same vicinity. (6) Absence of detriment. That the variance will not create substantial detriment to adjacent property and will not materially impair or be contrary to the purpose and spirit of this chapter or the public interest. E. Conditions. Conditions may be placed upon any zoning or building permit ordered or authorized by the Board of Appeals. F. Expiration. Variances granted by the Board shall expire within one year unless substantial work has commenced pursuant to such grant. Editor s Note: Former Subsection G, Special variance provisions for floodland districts, which immediately followed this subsection, was repealed by Ord. No See now Art. IXA, Floodplain Zoning Administrative Adjustments. A. General. This section sets out the procedures and standard for Administrative Adjustments. Administrative Adjustments may be requested for the standards identified below. Page 35

36 B. Authority. The Director of Community Development is authorized to review and approve, approve with conditions, or deny an application for an Administrative Adjustment in accordance with this section. C. Procedure. (1) Initial Submission of Application and Staff Review. The procedures and requirements for submission and review of an application are established in Section Common Review and Approval Procedures. (2) Review and Action by the Director of Community Development. The Director shall review and take action on applications in accordance with the procedures and requirements of Section Review by the Director. D. Administrative Adjustments Allowed. Upon review and approval of an application for an administrative adjustment, the Director has the authority to grant a dimensional variance to the front, side and/or rear setbacks for additions to existing structures or accessory buildings in the amount of 10% of the required setback. E. The following factors will be considered when reviewing applications for administrative adjustments: (1) Overall size of the lot; (2) Impact on surrounding properties; (3) Character of the neighborhood; (4) Overall dimensions of the lot; (5) Any other applicable information regarding the impact of the request. F. Appeals can be made to the Board of Appeals if administrative adjustment is not granted Appeals. A. Standing to appeal; timing. (1) Appeals from the decision of any review and decision-making body may be made by any person aggrieved or his agent, or by an officer, department, board, or bureau of the City. Such appeals shall be filed with the Department of Community Development or the review and decision-making body from whom the appeal is taken within 30 days after the date of written notice of the decision or order of the review and decisionmaking body. (2) The owner or lessee of the structure, land, or water to be affected, or his agent, may make appeals following the decision of any review or decisionmaking body, but not later than 30 days after date of written notice of the decision or order of the review and decisionmaking body. B. Format of appeal. All appeals shall be in writing and on such forms as shall be prescribed by the decisionmaking body and accompanied by the appropriate filing fee. Every appeal shall state, at a minimum, what provision(s) of the chapter is/are involved, what relief from the provision(s) is being sought, and the grounds on which the relief should be granted to the appellant. C. Appeals from Department of Community Development or Plan Commission's decision. Appeals of decisions of the Department of Community Development or Plan Commission shall be made to the Board of Appeals, unless otherwise provided for in this chapter. The Board of Appeals shall hold a public hearing on each appeal and, following the public hearing, act to approve or deny the appeal. Written and published notice for public hearings on appeals shall be provided pursuant to the general notice requirements of D. The concurring vote of a majority of the Board, or four votes, shall be necessary to reverse any order, requirement, decision, or determination of the Department of Community Development or the Plan Commission, or to decide in favor of the appellant on any matter upon which it is required to pass under this chapter. Upon reaching a decision in an appeal, the Board of Appeals shall notify the appellant(s) in writing and the Plan Commission within 10 working days after taking final action on an appeal, and shall, in case of denial, state its reasons for denial in writing. D. Appeals from Board of Appeals' decisions. Any further appeal of decisions made by the Board of Appeals shall be made to the courts, as provided by law, unless otherwise provided for in this chapter. Page 36

37 E. Appeals of Common Council's decisions. Appeals of decisions of the Common Council shall be made to the courts, as provided by law. Page 37

38 ARTICLE IV Zoning Districts Agricultural districts. A. General purpose and intent. The districts contained in this section are created to: (1) Provide appropriately located areas consistent with the New Berlin Comprehensive Plan for a full range of agricultural uses needed by New Berlin's residents, businesses and workers; (2) Promote an area for land uses of an agricultural nature on lands best suited to agriculture; (3) Strengthen the City's economic base, and provide employment opportunities close to home for residents of the City and surrounding communities; and (4) Create suitable environments for various types of agricultural uses, and protect them from the adverse effects of incompatible uses. B. List of districts and specific purpose statements. The agricultural districts are created with the following specific purposes: (1) A-1 Agricultural District. The A-1 Agricultural District is intended to maintain, enhance, and preserve agricultural lands utilized for crop production and the raising of livestock. The District is further intent upon preventing the conversion of agricultural land to urban uses prior to their planned conversion as envisioned in the adopted City of New Berlin Comprehensive Plan. (2) A-2 Agricultural and Rural Holding District. The A-2 Agricultural and Rural Holding District is intended to provide for the interim continuation of general farming or related open space uses in those areas of the City that are not yet committed to urban development. The District is further intent upon preventing the conversion of agricultural land or other rural or open land to urban uses prior to their planned conversion as envisioned in the adopted City of New Berlin Comprehensive Plan. C. Use Summary Table. Table below sets forth the uses allowed within the relevant zoning districts. All uses are subject to all other applicable regulations in this chapter, including the Article VIII General Development Regulations. The abbreviations used in the table are described as follows: (1) Principal uses. A "P" in a cell indicates that a use category is a principal use in the respective zoning district. (2) Conditional uses. A "C" in a cell indicates that a use category is allowed only if reviewed and approved as a conditional use, in accordance with the conditional use review procedures of (3) Accessory uses. An "A" in a cell indicates that a use category is an accessory use and is only allowed if it is incidental to the principal use of the property, but not until the principal structure is present or under construction. Accessory uses are subject to other applicable regulations including standards for accessory uses and structures in (4) Temporary uses. A "T" in a cell indicated a use category is a temporary use. Temporary uses are subject to all other applicable regulations of this chapter, including the temporary use standards set forth in (5) Principal or conditional uses. A "P/C" in a cell indicates that, depending on the specific use of or measurements of the property, a use may be allowed as a principal use or may require review as a conditional use. This determination can be made after review of the use-specific regulations in (6) Prohibited uses. A cell that has an asterisk (*) indicates that the use type is prohibited in the zoning district. (7) Additional regulations. Regardless of whether a use category is allowed as a principal use, as a conditional use, or as an accessory use, there may be additional regulations that are applicable to a specific use. The existence of these regulations is noted through a section reference in the last column of the Use Summary Table entitled "Additional Regulations." These regulations apply to all districts unless otherwise specified. Table Uses Zoning Districts Additional Regulations Refer to Page 38

39 A-1 A-2 Agricultural Uses Agribusiness Opportunities P P ( and Definition) Artisan Farming P P Definition Farm buildings, general P P A(1) Paddocks P P A(2) Keeping and raising of animals P P A(2) Raising of crops P P Residential Uses P P Single-family detached dwellings P P Single-family detached dwellings with attached garage P P Worker housing C * Commercial Uses Bed-and-breakfast establishments C C C(4) Small Restaurant or Café C C Veterinary clinics C C Wireless communications facilities P/A P/A C(16) Wineries & Breweries C C Institutional/Public/Semipublic Uses Active parks and recreational facilities C C Churches (Neighborhood & Community) C C See Essential services P P Family day-care homes P P Foster family homes P P Passive parks and recreational facilities P P Recreational trails P P Utilities C C Miscellaneous Uses Hunting and fishing clubs C * Natural resource conservation and preservation uses P P Off-street parking and loading areas A A Silviculture P P and Any other use the Plan Commission finds will be similar in nature, operation and function to the uses allowed within the district C(1) LEGEND P Principal Use C Conditional Use Page 39

40 A Accessory Use T Temporary Use P/C Principal or Conditional Use * Prohibited Use (1) Similar uses. Where there is a new use that is not listed or identified in another zoning district that the Plan Commission finds similar in nature, operation and function to that of another use allowed in this chapter, the Plan Commission may permit the new use under similar districts and with all other applicable regulations as the existing similar use, provided that: (a) The use is harmonious with and does not conflict with the other uses in the district. (b) The use will not jeopardize the public health, safety and welfare. D. Site development standards. All development shall be subject to the intensity and dimensional standards set forth in this section. These intensity and dimensional standards may be further limited or modified by other applicable sections of this chapter, including Article V and the additional requirements set forth below in Table Table Lot District Area A-1 35 Acres A-2 10 Acres Additional requirements. Minimum Lot Dimensions Lot Width (Feet) Lot Depth (Feet) Minimum Setbacks (Feet) Front Maximum Height (feet) Side (Each Side) Rear OHWM 330 None * 330 None * Wetland Note 3 Dwelling - 35 Farm Structure - 60 Dwelling - 35 Farm Structure - 60 (1) Buildings housing animals shall not be closer than 50 feet to any abutting residential lot with a lot area of two acres or less. (2) No principal building located adjacent to a single-family residential district shall be closer than 50 feet to the district boundary. (3) One additional foot of required front, side and rear yard shall be provided for every foot a farm building exceeds 35 feet, with a maximum height of 60 feet. (4) Wetland setback. (a) All impervious surfaces shall be set back a minimum of 30 feet. However, where at least one of the following conditions is met, the minimum setback is 10 feet: [1] The lot is vacant and is part of a platted residential subdivision that was recorded before October 9, [2] The building permit for the principal structure located on the lot was issued before October 9, (b) Grading may be allowed within the wetland setback upon approval by the Director. Applicant shall demonstrate appropriate erosion control practices as approved by the City and/or the DNR. (c) Landscaping may be allowed within the wetland setback upon approval by the Director. Applicant shall demonstrate appropriate erosion control practices as approved by the City and/or the DNR. (5) Modification of Standards. The Plan Commission or Community Development Authority may modify the open space requirement, but only if supplemental design elements or improvements are incorporated into the project which compensate for the modifications of the particular standard. Such elements may include, but are not limited to, additional landscaping, Low Impact / Sustainable Design, alternative storm water best management practices / green infrastructure (which may include, but are not limited to, bio- Page 40

41 retention, infiltration, pervious surfaces, green roofs, rain gardens, underground storage, and / or rain harvesting / reuse). E. Building area. (1) Single-family dwellings in the A-1 and A-2 Districts shall meet the following building area requirements: Table Twobedroom dwelling Threebedroom dwelling Fourbedroom dwelling Minimum Total Living Area (square feet) Minimum First Floor Area (square feet) One-Story Multi-Story One-Story Multi-Story 1,300 1,700 1, ,500 1,700 1, ,700 1,700 1, (2) Add 200 square feet to the minimum total living area and the minimum first floor area required for each bedroom exceeding four. (3) Add 200 square feet to the total minimum building area required for any dwelling that does not have a basement or has a basement with an area of less than 600 square feet. (4) An attached garage is required for all new residential structures in agricultural districts. The attached garage shall have a minimum floor area of 400 square feet Residential districts. A. General purpose and intent. The districts contained in this section are created to: (1) Provide appropriately located areas for residential development that are consistent with the City's Comprehensive Plan and with standards of public health and safety established by this chapter and any other appropriate governmental body; (2) Ensure adequate light, air, privacy and open space for each dwelling; (3) Protect residents from the harmful effects of excessive noise, population density, traffic congestion, and other significant adverse environmental effects; (4) Protect residential areas from fires, explosions, toxic fumes and substances, and other public safety hazards; (5) Provide sites for public and semipublic land uses needed to complement residential development or requiring a residential environment; and (6) Ensure the provision of public services and facilities needed to accommodate planned population densities. B. List of districts and specific purpose statements. The residential districts are created with the following specific purposes: (1) R-1/R-2 Rural Conservation Single-Family Residential. The Rural Conservation Single-Family District is intended to conserve significant open space, both upland and lowland, consistent with the preservation goals and policies contained in the Comprehensive Plan, and in a manner that respects the equity of landowners and the ability of developers to subdivide land at a density not to exceed one dwelling unit per five acres as applied pursuant to G. Density bonuses may be granted pursuant to Section I. In conformance with the City s Comprehensive Plan and with state enabling legislation, the purposes of this section also include: Page 41

42 (a) To conserve open land, including those areas containing unique and sensitive natural features such as woodlands, steep slopes, streams, floodplains and wetlands, by setting them aside from development; (b) To provide design flexibility and efficiency in the siting of services and infrastructure, including the opportunity to reduce length of roads, utility runs, site grading, and the amount of paving required for residential development; (c) To reduce erosion and sedimentation by the retention of vegetation and the minimization of development on steep slopes; (d) To promote the infiltration of stormwater on site, thereby helping to recharge groundwater supplies; (e) To provide for a diversity of lot sizes and building densities to accommodate a variety of age and income groups and residential preferences, so that the community's population diversity may be enhanced; (f) To implement adopted City policies to conserve a variety of irreplaceable and environmentally sensitive resource areas, including provisions for reasonable incentives to create a conservation system for the benefit of present and future residents; (g) To minimize impacts on environmental resources (sensitive areas such as wetlands, floodplain, and steep slopes) and disturbance of natural or cultural features (such as mature woodlands, hedgerows and tree lines, critical wildlife habitats, historic buildings, and fieldstone walls), as well as to provide opportunities to enhance or restore existing resources that have been diminished or degraded through past land management practices; (h) To protect areas of the City with productive agricultural soils for continued or future agricultural use, horticultural use, or other conservation use; (i) To create neighborhoods with direct visual access to open land, with amenities in the form of neighborhood open space, and with a strong neighborhood identity; (j) To provide for the conservation and maintenance of open land within the City to achieve the abovementioned goals and for active or passive recreational use by residents; and (k) To conserve scenic views and elements of the City's rural character, by limiting views of new development from existing roads. (2) R-2E Conservation Estate Single-Family Residential District. The R-2E Conservation Estate Single- Family Residential District is created with the same purpose as the R-1/R-2 District, except that the density of development shall not exceed one dwelling unit per two acres as applied pursuant to G and the dwellings are served by adequate public sanitary sewer and water facilities. Density bonuses may be granted pursuant to Section I. (3) R-3 Suburban Single-Family Residential District. The R-3 Suburban Single-Family Residential District is intended to provide for single-family residential development, at densities not to exceed two dwelling units per net acre. This District is further intended to be used for residentially platted lots already existing at the time of the adoption of this chapter and so identified for this density range on the adopted City Comprehensive Plan or component thereof. Suburban residential lots are typically served by private onsite sewage disposal systems and private wells. (4) R-4 Low-Density Single-Family Residential District. The R-4 Low-Density Single-Family Residential District is intended to provide for existing single-family residential development, at a density not to exceed 2.2 dwelling units per net residential acre, and new large lot subdivisions served by public sanitary sewer and water facilities. (5) R-4.5 Medium-Density Single-Family Residential District. The R-4.5 Medium-Density Single-Family Residential District is intended to provide for single-family residential development, at a density not to exceed 2.9 dwelling units per net residential acre, served by public sanitary sewer and water facilities. (6) R-5 Medium-Density Single-Family Residential District. The R-5 Medium-Density Single-Family Residential District is intended to provide for single-family residential development in existing subdivisions, at densities not to exceed 4.3 dwelling units per net residential acre, served by public sanitary sewer and water facilities. No unplatted lands should be placed in the R-5 District. (7) Rd-1 Two-Family Residential District. The Rd-1 Two-Family Residential District is intended to provide for two-family residential development, at densities not to exceed 4.8 dwelling units per net residential acre, served by public sanitary sewer and water facilities. (8) Rm-1 Multiple-Family Residential District. The Rm-1 Multiple-Family Residential District is intended to provide for multiple-family residential development served by municipal sewer and water facilities. Net density shall not exceed seven dwelling units per Rm-1 zoned acre. New lands to be placed in the Rm-1 Page 42

43 District by rezoning petition shall be located not closer than 120 feet to an existing single-family residential subdivision. Net density calculations shall include the area of land upon which the dwelling units are proposed to be located and including common open space and associated facilities on the tract of land zoned Rm-1, excluding rights-of-way of publicly dedicated streets and private streets. C. Use Summary Table. Table below sets forth the uses allowed within the relevant zoning district. The abbreviations used in the table are described in C and are summarized in the legend table following Table Table Zoning Districts Additional Regulations Refer to Uses R- 1/ R-2 R- 2E R-3 R-4 R- 4.5 R-5 Rd- 1 Rm- 1 Residential Uses Conservation Subdivisions P P B(3), (4) and (5) Conventional Subdivisions C C P P P P P P B(3), (4) and (5) Agricultural Uses Farm buildings, general A * * * * * * * A(1) Keeping and raising of animals A A * * * * * * A(2) Raising of crops/retail sales of A A A A A A A A A locally grown crops Keeping and raising of chickens for A A A A A A * * A(2)(g) personal use Residential Uses Boarding or rooming houses * * C C * * * * Elderly housing * * * * * * * C B(1) Multifamily dwellings * * * * * * * P Single-family detached dwellings P P P P P P P C B(2) with attached garage Two-family dwellings with attached * * * * * * P P garage Commercial Uses Bed-and-breakfast establishments C * * * * * * * C(4) Wireless communications facilities * * * * * * * C C(16) Institutional/Public/Semipublic Uses Active parks and recreational C C C C C C C C facilities Assisted living facilities * * * * * * * C B(1) Churches (Neighborhood) C C C C C C C C See Churches (Community) * * * * * * * * See Community living arrangements P/C P/C P/C P/C P/C P/C P/C P/C G(1) Educational facilities C C C C C C C C G(2) Page 43

44 Essential services P P P P P P P P Family day-care homes P P P P P P P Foster family homes P P P P P P P P Passive parks and recreational P P P P P P P P facilities Recreational trails P P P P P P P P Utilities C C C C C C C C Miscellaneous Uses Natural resource conservation and P P P P P P P P preservation uses Off-street parking and loading areas A A A A A A A A Temporary Uses T T T T T T T T Silviculture P and Any other use the Plan Commission finds will be similar in nature, operation and function to the uses allowed within the district C(1) LEGEND P Principal Use C Conditional Use A Accessory Use T Temporary Use P/C Principal or Conditional Use * Prohibited Use (1) Similar uses. Where there is a new use that is not listed or identified in another zoning district that the Plan Commission finds similar in nature, operation and function to that of another use allowed in this chapter, the Plan Commission may permit the new use under similar districts and with all other applicable regulations as the existing similar use, provided that: (a) The use is harmonious with and does not conflict with the other uses in the district. (b) The use will not jeopardize the public health, safety and welfare. D. Site development standards. All development shall be subject to the intensity and dimensional standards set forth in this section. These intensity and dimensional standards may be further limited or modified by other applicable sections of this chapter, including Article V and the additional requirements set forth below in Table Page 44

45 District Lot Area Conservation Subdivision R-1/ R-2 R-2E Minimum Lot Dimensions 20,000 square feet or 32,670 square feet; see D(12). 20,000 square feet; see D(14) Lot Width (feet) 110 or 130. See D(13). 110 or 130;see D(15) Lot Depth (feet) Table Minimum Setbacks (Feet) Front Conventional Subdivision / Certified Survey Map (CSM) R-1/R- 2 Page 45 Side (each side) Rear Shore Wetland Maximum Height (feet) None Dwelling - 35 Farm structure - 60 None Dwelling - 35 Farm structure acres 200 None * R-2E 2 acres 200 None * R-3 20,000 square feet R-4 20,000 square feet R ,000 square feet R-5 10,000 square feet 15,000 square feet (see requirement 2) Rd-1 18,000 square feet 110 Corner lot: Corner lot: Corner lot: (see requirement 2) Corner lot: (see requirement 2) 120 Corner lot: * (see requirement 9) (see requirement 1) * (see requirement 9) * (see requirement 9) 110 See requirement 4 10 See requirement * (see requirement 9) * (see require- Dwelling - 35 Farm structure - 60 Dwelling - 35 Dwelling - 35 Dwelling - 35 Dwelling - 35 Dwelling - 35 Dwelling - 35

46 ment 9) Rm-1 The larger of 20,000 square feet or 6,500 square feet per dwelling unit 120 None * (see requirement 9) Dwelling - 35 Additional requirements. (1) In the R-4 District, the rear setback is 50 feet. However, where at least one of the following conditions is met, the minimum setback is 25 feet: (a) The lot is vacant and is part of a platted residential subdivision that was recorded before February 27, (b) The building permit for the principal structure located on the lot was issued before February 27, (2) In the R-5 District, the minimum lot area and lot width shall meet the minimum lot area and width requirements of the R-4.5 when the lot is created after January 1, (3) Buildings housing animals shall not be built or located closer than 50 feet to any abutting residential lot with a lot area of two acres or less. (4) In the R-5 District, the front and rear setbacks differ based on the drainage type at the roadway. (a) Where the lot fronts a street with a curb and gutter, the minimum front yard setback shall be 30 feet and the minimum rear yard setback shall be 35 feet. (b) Where the lot fronts a street with an open drainage ditch, the minimum front yard setback shall be 40 feet and the minimum rear yard setback shall be 25 feet. (5) One additional foot of required front, side and rear yard shall be provided for every foot a farm building exceeds 35 feet in height, with a maximum height of 60 feet. (6) No building within a multifamily residential project shall be located any closer than 30 feet to another building. (7) No building housing a principal use shall be located adjacent to a single-family residential district closer than 50 feet to the district boundary. (8) Zero lot line residential developments may be allowed as a conditional use in the Rd-1 and Rm-1 Districts subject to the regulations found in and E. (9) Wetland setback. (a) All impervious surfaces shall be set back a minimum of 30 feet. However, where at least one of the following conditions is met, the minimum setback is 10 feet: [1] The lot is vacant and is part of a platted residential subdivision that was recorded before October 9, [2] The building permit for the principal structure located on the lot was issued before October 9, (b) Grading may be allowed within the wetland setback upon approval by the Director. Applicant shall demonstrate appropriate erosion control practices as approved by the City and/or the DNR. (c) Landscaping may be allowed within the wetland setback upon approval by the Director. Applicant shall demonstrate appropriate erosion control practices as approved by the City and/or the DNR. (10) Lot coverage is set forth in Table Table Lot Coverage (percent) Maximum Coverage Maximum Coverage by Minimum Coverage by Open Space District by Buildings Impervious Surfaces and Landscaping Rm-1 45% 60% 40% Page 46

47 (11) Applicants for conventional subdivisions in the R-1/R-2 and R-2E Districts shall be required to clearly demonstrate, at a public hearing before the Plan Commission, that a conventional layout would better implement the policies, goals and objectives of the Comprehensive Plan, as compared with a conservation design alternative, which shall be allowed as a by-right permitted use. Notice of the public hearing shall be posted pursuant to D(4), and notice of such hearing shall be mailed to all owners of land not less than 600 feet from the boundary of the proposed conventional subdivision, and notice of the public hearing shall also be published as a Class II legal notice under Chapter 985 of the Wisconsin Statutes. (12) For conservation subdivisions in the R-1/R-2 District, the minimum lot size is 20,000 square feet if the POWTS is located off lot, or 32,670 square feet if the POWTS is on lot. In addition, there is a minimum amount of required conservation area in the R-1/R-2 District as follows: (a) The subdivision must include at least 75% of the adjusted tract acreage as conservation area. Conservation area shall not be used for residential lots, except as provided below. (b) Large "conservancy lots" of at least 10 acres may, in the aggregate, occupy up to 80% of the conservation area, with the remainder of the conservation area restricted from development by way of conveyance to a homeowners association, land trust, or to the City by way of a conservation easement. However, the conservation area within each conservancy lot remains subject to the standards for conservation area in herein. (13) For conservation subdivisions in the R-1/R-2 District, the minimum lot width at the base setback line is 110 feet. The minimum street frontage is 60 feet. For side car entry garages, the minimum lot width shall be 130 feet. (14) For conservation subdivisions in the R-2E District, the minimum lot size is 20,000 square feet within the subdivision. In addition, there is a minimum amount of required conservation area in the R-2E District: (a) The subdivision must include at least 65% of the adjusted tract acreage as conservation area. Conservation area shall not be used for residential lots, except as provided below. (b) Large "conservancy lots" of at least 10 acres may, in the aggregate, occupy up to 80% of the conservation area, with the remainder of the conservation area restricted from development by way of conservancy to a homeowners association, land trust, or to the City by way of a conservation easement. However, the conservation area within each conservancy lot remains subject to the standards for conservation areas in herein. (15) For conservation subdivisions in the R-2E District, the minimum lot width at the base setback line is 110 feet. The minimum street frontage is 60 feet. For side car entry garages, the minimum lot width shall be 130 feet. (16) Modification of Standards. The Plan Commission or Community Development Authority may modify the open space requirement, but only if supplemental design elements or improvements are incorporated into the project which compensate for the modifications of the particular standard. Such elements may include, but are not limited to, additional landscaping, Low Impact / Sustainable Design, alternative storm water best management practices / green infrastructure (which may include, but are not limited to, bioretention, infiltration, pervious surfaces, green roofs, rain gardens, underground storage, and / or rain harvesting / reuse). E. Building area. (1) R-1/R-2, R-2E, R-3, R-4, R-4.5, and R-5 Districts. Single-family dwellings in the R-1/R-2, R-2E, R-3, R-4, R-4.5, and R-5 Districts shall meet the following building area requirements. Table Minimum Total Living Area (square feet) Minimum First Floor Area (square feet) District One- Story Multi- Story One- Story Multi- Story R-1/R-2 and R- Two-bedroom dwelling 1,300 1,700 1, E Three-bedroom dwelling 1,500 1,700 1, Page 47

48 Four-bedroom dwelling 1,700 1,700 1, R-3/R-4 and R- Two-bedroom dwelling 1,200 1,600 1, Three-bedroom dwelling 1,350 1,600 1, Four-bedroom dwelling 1,450 1,600 1, R-5 Two-bedroom dwelling 1,100 1,500 1, Three-bedroom dwelling 1,250 1,500 1, Four-bedroom dwelling 1,400 1,500 1, (a) Add 200 square feet to the minimum total living area and the minimum first floor area required for each bedroom exceeding four in the R-1/R-2 and R-2E Zoning Districts. (b) Add 150 square feet to the minimum total living area and the minimum first floor area required for each bedroom exceeding four in the R-3, R-4, R-4.5, and R-5 Zoning Districts. (c) Add 200 square feet to the total minimum building area required for any dwelling that does not have a basement or has a basement with an area of less than 600 square feet. (d) An attached garage is required in the residential districts. The attached garage shall have a minimum floor area of 400 square feet. (2) Rd-1 District. Each dwelling unit in the Rd-1 District shall meet the following building area requirements. Table Two-bedroom dwelling Threebedroom dwelling Four-bedroom dwelling Minimum Total Building Area per Dwelling Unit (square feet) 1,100 1,150 1,300 (a) Add 150 square feet to the minimum total building area per dwelling unit for each bedroom exceeding four. (b) Add 200 square feet to the total minimum building area required for any dwelling that does not have a basement or has a basement with an area of less than 600 square feet. (c) An attached garage is required in the residential districts. The attached garage shall have a minimum floor area of 400 square feet. (3) Rm-1 District. Each dwelling unit in the Rm-1 District shall meet the following building area requirements. Table Minimum Total Building Area per Dwelling Unit (square feet) Efficiency 500 One-bedroom 650 dwelling Two-bedroom 800 dwelling Three- 1,000 Page 48

49 bedroom dwelling (a) Add 150 square feet to the minimum total building area per dwelling unit for each bedroom exceeding three. (b) The minimum floor area of a principal building in the Rm-1 District shall not be less than 2,000 square feet. (c) The minimum floor area of an Rm-1 dwelling that does not have a basement or has a basement with an area of less than 600 square feet shall have a minimum floor area of 2,200 square feet. (d) Multifamily dwellings are required to have a certain portion of the required parking spaces located in an enclosed attached or underground parking garage. Refer to for off-street parking requirements. F. The design of all new conservation subdivisions in the R-1/R-2 and R-2E Districts shall be governed by the following minimum standards: (1) Ownership. The tract of land may be held in single and separate ownership or in multiple ownership. However, when a tract is held in multiple ownership, it shall be planned as a single entity with common authority and common responsibility. (2) Site suitability. As evidenced by the existing resources/site analysis plan, the conceptual preliminary plat, and the detailed final plat, the tract incorporating this design option shall be suitable for supporting development in terms of environmental conditions, its size, and configuration. (3) Intersections and access. New intersections with existing public roads shall be minimized. Although two separate accessways into and out of subdivisions containing more than 25 dwellings are generally required for safety, proposals for more than two entrances onto public roads shall be discouraged if they would unnecessarily disrupt traffic flow. Any individual cul-de-sac (public or private) within the residential development shall have no more than 15 units that have exclusive frontage along said cul-de-sac. A public cul-de-sac shall serve at least a minimum of five units that have exclusive frontage along the culde-sac. (4) Sensitive area disturbance. The proposed design shall minimize disturbance of environmentally sensitive areas, as shown on the existing resources and site analysis plan. Areas within the one-hundred-year floodplain, or having slopes in excess of 20%, and rock outcroppings constitute such environmentally sensitive areas where disturbance shall be strictly minimized. Demonstration by the applicant that these features will be protected by the proposed application shall be prerequisite to approval of both the conceptual preliminary plat and the detailed final plat. (5) The applicant shall further endeavor to harmonize the development of the site with these natural features and to synergize those natural features with each other so as to preserve, where possible, their contiguity. (6) The developer shall, where applicable, apply the design standards as set forth in the Developer s Handbook. G. Density determination in the R-1/R-2 and R-2E Zoning Districts. When a property is subdivided under , applicants shall have the choice of two methods of determining the maximum permitted residential building density on their properties. They are as follows: (1) Adjusted tract acreage approach: Determination of the maximum number of permitted dwelling units on any given property shall be based upon the adjusted tract acreage of the site. The adjusted tract acreage shall be determined by multiplying the acreage classified as being in the categories of constrained land (described below) by the numerical "density factor" for that category of constrained land. (a) The following shall constitute "constrained land" and shall be deducted from the total (gross) tract area: [1] All land within the rights-of-way of existing, reserved or dedicated streets prior to the date of submission of the application for public streets or highways, or within the rights-of-way for existing or proposed aboveground rights-of-way of utility lines. Page 49

50 [2] All land under existing private streets. [3] Wetlands: multiply the acreage of delineated wetlands by 95%. [4] Floodway: multiply the acreage within the floodway by 100%. [5] Flood-fringe: multiply the nonwetland portion of the one-hundred-year floodplain by 50%. [6] Steep slopes: multiply the acreage of land with natural ground slopes exceeding 20% by 80%. [7] Extensive rock outcroppings: multiply the total area of rock outcrops and boulder fields more than 1,000 square feet by 90%. [8] Moderately steep slopes: multiply the acreage of land with natural ground slopes of between 15% and 20% by 60%. (b) Only one constrained feature deduction shall apply to any one portion of the tract. The greatest applicable density factor shall apply. (2) Yield plan approach: Determination of density, or maximum number of permitted dwelling units, shall be based an actual yield plan. Yield plans shall meet the following requirements: (a) Yield plans must be prepared as conceptual layout plans in accordance with the standards of the Chapter 235, Subdivision of Land, containing proposed lots, streets, rights-of-way, and other pertinent features. Drawn to scale, they must be a realistic layout reflecting a development pattern that could reasonably be expected to be implemented, taking into account the presence of wetlands, floodplains, steep slopes, existing easements or encumbrances and, if unsewered, the suitability of soils for subsurface sewage disposal. (b) The yield plan shall reflect the dimensional standards in the underlying zoning district. It must identify the site's primary and secondary resources, as identified in the existing resources/site analysis plan, and demonstrate that the primary resources will be successfully absorbed in the development process without disturbance by allocating this area to the proposed house lots. (c) On sites not served by central sewage disposal, density shall be further determined by evaluating the number of homes that could be supported by individual septic systems on conventional lots. Based on the primary and secondary resources, identified as part of the inventory and analysis, and observations made during a site visit of the property, staff (with the assistance of consultants, when needed) shall select a ten-percent sample of the lots considered to be marginal for on-lot sewage disposal. The applicant is required to provide evidence that these lots meet the standards for individual septic systems. When all lots in the sample pass, the applicant shall be granted the full density determined by the yield plan. Should any of the lots in a sample fail to meet the standard for individual septic system, those lots shall be deducted from the yield plan and a second ten-percent sample shall be selected by the staff and tested for compliance. This process is repeated until all lots in a given sample meet the standard for an individual septic system. (d) Yield plan dimensional standards: The dimensional standards to be used in the development of yield plans shall be the same as those pertaining in the underlying zoning district. H. Design standards for conservation subdivisions. (1) House lots shall not encroach upon a primary environmental corridor, and their layout shall avoid, to the extent practicable, a secondary environmental corridor and isolated natural resource area. (2) All new dwellings shall meet the following additional setback requirements: (a) From all road rights-of-way bordering the perimeter of the plat: 100 feet. (b) From all other tract boundaries: 50 feet. (c) From cropland or pasture land: 100 feet. (d) From buildings or barnyards housing livestock: 300 feet. (e) From active recreation areas such as courts or play fields (not including tot-lots): 150 feet. (3) Views of house lots from exterior roads and abutting properties shall be minimized by the use of changes in topography, existing vegetation, or additional landscaping which meets the landscaping requirements of Chapter 235, Subdivision of Land. (4) House lots shall generally be accessed from interior streets rather than from roads bordering the tract. (5) To the maximum extent practicable, lots shall directly abut or be located directly across the street from conservation areas. (6) Standards pertaining to the quantity, quality, configuration, ownership, and maintenance of the conservation area created under this article are contained in E through H of this chapter. (7) Subdivisions shall be divided in accordance with the City s Developer s Handbook and applicable City ordinances. Page 50

51 I. Additional density may be allowed by the Plan Commission when one of the following public benefits is proposed: (1) Greater open space percentages. A density increase may be granted by the Common Council for conservation subdivision applications at the following rates: in the R-1/R-2 District, up to one dwelling unit for every five additional acres of permanent conservation land, and in the R-2E District, up to one additional dwelling unit for every two acres of unconstrained land (set aside as permanent conservation land). Area for off-site POWTS and buffer shall not be included in the open space calculations for additional lots. (2) Larger tracts. A density bonus may be granted by the Common Council for conservation subdivision applications involving tracts greater than 50 acres in area at the following rate: one additional dwelling unit for every 10 acres of total tract acreage above 50 acres in the R-1/R-2 Districts and one additional dwelling unit for every 20 acres of total tract acreage above 50 acres in the R-2E District. (3) Transfer of density. The landowner may increase the number of lots in a conservation subdivision by transferring density from parcels not included in the conservation subdivision plat under the provisions of this article. Density may be increased on the receiving parcel while density is decreased on the sending parcel in order to achieve the desired objectives. All sending and receiving areas must be located within the corporate boundaries of the City of New Berlin but outside the boundaries of the existing sewer service areas. The following requirements shall be met: (a) Sending area and receiving area ratios. The additional lots allowed under a transfer-of-density rule may not encroach on the required open space. Land deed restricted on a transfer of density can only be counted once and cannot be considered open space for any other project. [1] Sending areas which do not share a common lot line(s) with the conservation subdivision plat shall get a fifty-percent density credit of their buildable area under the following schedule: [a] For every 10 acres of A-1, A-2, R-1/R-2 residentially zoned land deed restricted to open space, dedicated to permanent open space, and/or protected through a conservation easement, one additional lot will be allowed in the conservation subdivision plat. [b] (Reserved) [c] There is no transfer of density from C-1 or C-2 land that is not abutting the proposed conservation subdivision. [2] Sending areas which do share a common lot line(s) with the conservation subdivision plat shall get a one-hundred-percent density credit under the following schedule: [a] For every five acres of A-1, A-2, R-1/R-2 residentially zoned land deed restricted to open space, dedicated to permanent open space, and/or protected through a conservation easement, one additional lot will be allowed in the conservation subdivision plat. [b] (Reserved) [c] Twenty-five percent of C-1 and/or C-2 land abutting the conservation subdivision plat can be counted towards the required open space consistent with zoning regulations. [3] The City of New Berlin shall have the authority to determine the buildable area of the sending area and the maximum potential density transferred based on compliance with standards contained within this chapter and Chapter 235, Subdivision of Land. (b) Procedures for use of transfer of density. The transfer of density shall take place as a private exchange between property owners, subject to approval of the sending and receiving parcels by the City in accordance with the procedures set forth below. [1] An application for use of the density exchange option on a receiving parcel shall be made to the City of New Berlin Plan Commission and shall include the following: [a] A sketch plan of the proposed subdivision. [b] A calculation of the number of lots to be acquired from the sending parcel and the resulting density on the receiving parcel. [c] Documentation of ownership interests acceptable to the City Attorney. [2] The Plan Commission shall tentatively approve the use of the transfer-of-density option on the receiving parcel and allow the applicant to proceed with the subdivision process, if: [a] The receiving parcel meets the criteria set forth in this section. [b] The sketch plan for the receiving parcel represents a subdivision which can be accommodated on the property while protecting at least 50% of the gross site area in common open space and sensitive environmental features such as steep slopes, wetlands, floodplains, critical species habitat and stream corridors. Page 51

52 [3] An application for approval of the sending parcel may be no later than the submission of the preliminary plat for the receiving parcel subdivision and shall include the following: [a] A boundary survey of the sending parcel(s). [b] A sketch of the sending parcel, including documentation of the area of the parcel from which the development densities will be transferred. [c] Documentation of the sending parcel owner's intent to transfer density. [d] Documentation that the parcel meets the requirements of this section. [e] A calculation of the maximum number of lots which are to be transferred from the sending parcel and the number of lots which are not to be transferred. [f] If any residual lots remain on the sending parcel, a sketch plan of the proposed clustered subdivision, meeting all requirements for cluster development at a density stipulated in this chapter and Chapter 235, Subdivision of Land. [4] Subdivisions on a receiving parcel may be recorded in sections. A final subdivision plan shall not be approved for the receiving parcel until one or more sending parcels are approved and the maximum allowable density to be transferred is certified by the City, which provides the necessary number of additional lots for the lots shown on the final subdivision plan. [5] Following approval of final subdivision plat for the receiving parcel(s), the following documents shall be recorded at one time in the office of the Waukesha County Register of Deeds: [a] A final plat for each sending parcel, designating the property as a sending parcel, indicating the number of lots which have been transferred from the parcel. [b] If ownership of a sending parcel is not transferred or dedicated to the City or an entity acceptable to the City, a conservation easement for each sending parcel restricting it from further development in perpetuity, held by the City or an entity acceptable to the City, and deed restriction held by the owner, his successors and assigns. [c] A final plat for each receiving parcel. The final plat for a portion of a receiving parcel may consist of large holding lots that are recorded as "unbuildable" until further subdivision occurs. Final plats for cluster subdivisions on the holding lots shall follow all the requirements of this chapter. [6] Plats on sending and receiving parcels shall follow all the requirements of this chapter and Chapter 235, Subdivision of Land. (c) Achievable density. The provisions of this section shall not be interpreted as guaranties of achievable density. Developments using a transfer of density shall be subject to all other applications and regulations of this chapter and Chapter 235, Subdivision of Land. These other regulations or sitespecific conditions may prevent maximum transfer-of-density levels from being achieved due to the character of the land, location of natural features, access requirements, or surrounding uses Commercial districts. A. General purpose and intent. The districts contained in this section are created to: (1) Provide appropriately located areas consistent with the New Berlin Comprehensive Plan for a full range of retail and service commercial uses; (2) Strengthen the City's economic base and provide employment opportunities close to home for residents of the City and surrounding communities; (3) Create suitable environments for various types of commercial uses and protect them from the adverse effects of incompatible uses; (4) Minimize the impact of commercial development on abutting residential districts; (5) Ensure that the appearance and effects of commercial buildings and uses are harmonious with the character of the area in which they are located; and (6) Ensure the provision of adequate off-street parking and loading facilities. B. List of districts and specific purpose statements. The commercial districts are created with the following specific purposes: (1) B-1 Shopping Center District. The B-1 Shopping Center District is intended to provide for neighborhood and community shopping centers with groupings of retail and customer service establishments to serve both the citizens of New Berlin, the surrounding region, and businesses. Hotels and regional uses are also appropriate in this District when planned appropriately in relation to traffic and landscaping. This District is intended to accommodate the requirement of on-site parking and loading facilities; landscape Page 52

53 planting screens in areas adjacent to nonbusiness development or other incompatible uses; and a partially pedestrian-oriented shopping environment. Uses in this District are intended to be compatible with the character of the adjacent residential areas served. (2) B-2 General Retail Sales and Service District. The B-2 General Retail Sales and Service District is intended to accommodate a broad range of retail sales and service uses. The District is also intended to provide for the orderly and attractive development and grouping in appropriate and convenient locations for small-lot business activities of a general nature. The District is further intended to promote the provision of ample off-street parking and loading areas; landscape planting screens in areas adjacent to nonbusiness development or other incompatible uses; and development in character with the adjacent land uses. (3) B-3 General Bulk Sales District. The B-3 General Bulk Sales District is intended to provide for such uses as building supplies, equipment sales, contracting services, septic system service, LP gas sales, and outdoor storage establishments. This District is intended to accommodate the needs of the agricultural community for the western portion of the community without detracting from the character of the area. The B-3 District is also intended to provide for, where properly screened, on-site parking for customers' automobiles, on-site outdoor areas for merchandise storage and sales, customer off-street loading facilities, open outdoor areas for sale of large items of merchandise transported by truck. The District also requires the minimization of adverse impacts upon any adjacent incompatible land uses. The District is further intended to promote the provision of ample off-street parking and loading areas; landscape planting screens in areas adjacent to nonbusiness development or other incompatible uses; and development in character with the adjacent land uses. (4) B-5 Rural Commercial District. The B-5 Rural Commercial District is intended to accommodate the needs of the agricultural community with a range of retail sales and service uses. The uses of these areas are intended to provide convenience for farms and the growing residential uses in the western portion of the community without detracting from the character of the surrounding area. The District is further intended to promote the provision of ample off-street parking and loading areas; landscape planting screens in areas adjacent to nonbusiness development or other incompatible uses; and development in character with the adjacent land uses. C. Uses Summary Table. Table below sets forth the uses allowed within the relevant zoning district. The abbreviations used in the table are described in C and are summarized in the legend table following Table Table Zoning Districts Uses B-1 B-2 B-3 B-5 Additional Regulations Refer to Commercial Uses P * * * Amusement centers or arcades Automotive body repair * * P * Automotive fuel sales C C P C C(2) Automotive rental * * P * Automotive sales * * P * Automotive service P P P * C(3) Banquet halls P P P * Bars and taverns P P P P Brewpubs [Added by Ord. No. 2408] C C C C C(12)(c) Contractor bulk sales * * P Page 53

54 Cosmetic Tattoo Establishments / Permanent Cosmetics. P P P P C (17) Department stores P C * * C(5) Contracting and construction sales services C C P P Farm equipment sales and service * * P P Funeral services P P * * C(7) Greenhouses P P P P Hotels and motels C * * * C(8) Outdoor displays and sales A A A A C(9) Outdoor storage * * A A C(10) Personal services P P P P C(11) Restaurants P P P P C(12) Retail commercial uses P P P P Self-storage facilities * * C C C(14) Service commercial uses P P P P C(15) Shopping centers P C C C Theaters P P * * Veterinary clinics P P P P C(17) Pet Day Care/Boarding Facilities C C P P Wholesale commercial uses * * P P Wireless communications facilities A/P/C A/P/C A/P/C A/P/C C(16) Office Uses Business offices P P P P Contracting and construction offices (only) P P P P Financial institutions P P P P D(1) Medical and dental offices P P C C Manufacturing/Industrial Uses Freight services * * * * Industrial sales * * C * Warehouses * * C * Above ground/underground storage tanks P P P P I Institutional/Public/Semipublic Uses Active parks and recreational facilities C C C * Bus stations C * * * Churches (Neighborhood) P P P P See Churches (Community) C C C C See Day-care centers P P P P Essential services A A A A Page 54

55 Indoor recreational uses C C * * Passive parks and recreational facilities P P P P Recreational trails P P P P Truck rental services * * P * Utilities P P P P Miscellaneous Uses Drive-through facilities A A A A H(1) Natural resource conservation and P P P P preservation uses Park-and-ride lots P P P P Off-street parking and loading areas A A A A Residential quarters A A A A G(1)(a) Silviculture P P P P and Any other use the Plan Commission finds will be similar in nature, operation and function to the uses allowed within the district C(1) LEGEND P Principal Use C Conditional Use A Accessory Use T Temporary Use * Prohibited Use (1) Similar uses. Where there is a new use that is not listed or identified in another zoning district that the Plan Commission finds similar in nature, operation and function to that of another use allowed in this chapter, the Plan Commission may permit the new use under similar districts and with all other applicable regulations as the existing similar use, provided that: (a) The use is harmonious with and does not conflict with the other uses in the district. (b) The use will not jeopardize the public health, safety and welfare. D. Site development standards. All development shall be subject to the intensity and dimensional standards set forth in this section. These intensity and dimensional standards may be further limited or modified by other applicable sections of this chapter, including Article V and the additional requirements set forth below in Table Table Page 55

56 District Minimum Lot Dimensions Lot Area Lot Width (feet) Front Minimum Setbacks Side (feet) (each side) Rear OHWM Wet- land Maximum Height (feet) B-1 Neighbor- Internal Lots: 40,000 square feet hood Shop- ping Center: 3 acres Com- munity Shop- ping Center: 10 acres B-2 40,000 square feet * * 35 Except hotels and motels: B-3 3 acres * B-5 40,000 square Page 56

57 Table District Minimum Lot Dimensions Lot Area Lot Width (feet) Front Minimum Setbacks Side (feet) (each side) Rear OHWM Wet- land Maximum Height (feet) Additional requirements. feet 30* (1) The Plan Commission may waive side and rear yard setback requirements if adjacent developments are designed as a unified project. (2) The side yard setback in the B-2 and B-3 Districts applies to structures on lots of 100 feet or more in width. The side yard setback can be reduced to 10 feet for structures on existing lots with a width less than 100 feet and for legal buildings with a ten-foot side yard setback. (3) Hotels and motels may exceed the maximum height requirement of 55 feet if the eligibility for height credit is satisfied as set forth herein. A credit of one hotel floor may be granted for each level of underground parking and/or for the dedication of permanent open space in an amount not less than two times the square footage of the floor space added. In no event shall a credit be granted in excess of two floors and not to exceed 22 feet. Lands which are designated as environmental corridors, isolated natural resource areas or conservancy lands shall not be eligible for purposes of calculating the credit set forth herein. [Amended by Ord. No. 2396] (4) Site floor to area ratio. Maximum coverage of buildings shall not exceed 50%. Maximum coverage by impervious surfaces (building and required parking) shall not exceed 75%. Minimum coverage by open space and landscaping shall not be less than 25%. Maximum coverage for buildings in the B-5 District is 40%. Maximum coverage by impervious surfaces in the B-5 District is 65%. Minimum open space and landscaping is 35%. Modification of Standards. The Plan Commission or Community Development Authority may modify the open space requirement, but only if supplemental design elements or improvements are incorporated into the project which compensate for the modifications of the particular standard. Such elements may include, but are not limited to, additional landscaping, Low Impact / Sustainable Design, alternative storm water best management practices / green infrastructure (which may include, but are not limited to, bio-retention, infiltration, pervious surfaces, green roofs, rain gardens, underground storage, and / or rain harvesting / reuse). (5) Wetland setback. (a) All impervious surfaces shall be set back a minimum of 30 feet. However, where at least one of the following conditions is met, the minimum setback is 10 feet: [1] The lot is vacant and is part of a platted residential subdivision that was recorded before October 9, [2] The building permit for the principal structure located on the lot was issued before October 9, (b) Grading may be allowed within the wetland setback upon approval by the Director. Applicant shall demonstrate appropriate erosion control practices as approved by the City and/or the DNR. Page 57

58 (c) Landscaping may be allowed within the wetland setback upon approval by the Director. Applicant shall demonstrate appropriate erosion control practices as approved by the City and/or the DNR Office and industrial districts. A. General purpose and intent. The districts contained in this section are created to: (1) Provide appropriately located areas consistent with the New Berlin Comprehensive Plan for a variety of office and industrial uses; (2) Strengthen the City's economic base and provide employment opportunities close to home for residents of the City and surrounding communities; (3) Create suitable environments for various types of office and industrial uses, and protect them from the adverse effects of incompatible uses; (4) Minimize the impact of office and industrial development on abutting all districts; (5) Ensure that the appearance and effects of office and industrial buildings and uses are harmonious with the character of the area in which they are located; and (6) Ensure the provision of adequate off-street parking and loading facilities. B. List of districts and specific purpose statements. The office and industrial districts are created with the following specific purposes: (1) O-1 Office and Business Service District. The O-1 Office and Business Service District is intended to provide for individual or attractive groupings of office and financial service uses in aesthetically pleasing structures on lots with ample open space. (2) O-2 Business Park Development District. The O-2 Business Park Development District is intended to provide for the development of an attractive grouping of buildings limited to light industrial uses, offices, corporate headquarters, and support facilities in a parklike setting. The District is further intended to promote the provision of ample off-street parking and loading areas, open space, and landscape planting screens or buffer yards in areas adjacent to residential areas. (3) O-3 Transitional Office District. The O-3 Transitional Office District is intended to provide for low-intensity uses that serve as a transitional use between residential uses and districts and higher intensity uses including office, commercial and industrial uses. The District is also intended to accommodate areas where many residential homes are being converted to nonresidential uses such as business, medical, and professional offices. The O-3 District provides regulations that limit parking in side and rear yards, landscaping, architectural preservation of the existing residential character, and small-scale structures that blend in with the surrounding community while providing necessary services to the citizens of New Berlin. (4) M-1 Light Manufacturing District. The M-1 Light Manufacturing District is intended to provide for a range of light manufacturing and industrial uses. The M-1 Light Manufacturing District is also intended to provide for manufacturing and industrial development of a more restrictive nature. The District is further intended to be used where the relative proximity to other uses requires more restrictive regulation. (5) M-2 General Industrial District. The M-2 General Industrial District is intended to provide for manufacturing and industrial development of a less restrictive nature than in the M-1 Light Manufacturing District in areas where the relationship to surrounding land use would create fewer problems of compatibility. This District is further intended to allow, where properly screened, outside storage of vehicles, equipment, machinery, and inventory. C. Uses Summary Table. Table below sets forth the uses allowed within the relevant zoning district. The abbreviations used in the table are described in C and are summarized in the legend table following Table Table Additional Regulations Zoning Districts Refer to Uses O-1 O-2 O-3 M-1 M-2 Commercial Uses Adult-oriented establishments * * * C C C(1) Page 58

59 Automotive Body Repair P P Automotive Fuel Sales P P Brewpubs [Added by Ord. No. 2408] C C C C C(12)(c) B-2 commercial uses C C C P P Pet day care/boarding facilities * * * P P Hotels and motels P P * P P C(8) Outdoor storage * * * A A C(10) Personal services P C P C C C(11) Restaurants P P * P P C(12) Retail commercial uses C C * C C Sale of recreational vehicles and motorcylces * * * P P Self-storage facilities * * * P P C(14) Service commercial uses C C * C C Tattoo and body-piercing establishments * * * C C Wireless communications facilities A/P/C A/P/C A/P/C A/P/C A/P/C C(16) Office Uses Business offices P P P P P D(2) Financial institutions P P * C C D(2) Government offices P P * C C D(2) Medical and dental offices P P P C C D(2) Post offices P P * C C D(2) Manufacturing/Industrial Uses Distribution centers * C * P P Freight services * * * P P Heavy industrial uses * * * * P Industrial sales * * * C C Laboratories * * * C C Light industrial uses * A/C * P P E(1) Manufacturing of animal feed * * * C C Truck terminals * * * * P Underground/Above ground tanks * * * P P I Warehouses * A/C * P P E(2) Institutional/Public/Semipublic Uses Active parks and recreational facilities C C C C C Day-care facilities P P * P P Churches (Neighborhood) P P P P P See Churches (Community) C C C P P See Central composting facilities * * * C C Page 59

60 Essential services P P P P P Passive parks and recreational facilities P P P P P Recreational trails P P P P P Recycling centers * * * C C Utilities C C C C C Miscellaneous Uses Drive-through facilities A A * A A H(1) Natural resource conservation and preservation P P P P P uses Park-and-ride lots P P * P P Transportation depots * * * C C Off-street parking and loading areas A A A A A Silviculture P P P P P and Any other use the Plan Commission finds will be similar in nature, operation and function to the uses allowed within the district C(1) LEGEND P Principal Use C Conditional Use A Accessory Use T Temporary Use P/C Principal or Conditional Use * Prohibited Use (1) Similar uses. Where there is a new use that is not listed or identified in another zoning district that the Plan Commission finds similar in nature, operation and function to that of another use allowed in this chapter, the Plan Commission may permit the new use under similar districts and with all other applicable regulations as the existing similar use, provided that: (a) The use is harmonious with and does not conflict with the other uses in the district. (b) The use will not jeopardize the public health, safety and welfare. D. Site development standards. All development shall be subject to the intensity and dimensional standards set forth in this section. These intensity and dimensional standards may be further limited or modified by other applicable sections of this chapter, including Article V and the additional requirements set forth below in Table Table District Minimum Lot Dimensions Lot Area Minimum Setbacks (feet) Lot Side Width (each (feet) Front side) Rear OHWM Wetland Maximum Height (feet) Note 3 Page 60

61 O-1 40,000 square feet O-2 40,000 square feet * * O-3 Uses in the O-3 District shall meet the minimum site development standards of the most restrictive zoning district adjacent to the subject property. M-1 40,000 square feet M-2 40,000 square feet Additional requirements * * (1) No principal building in an O-1 District shall be located closer than 50 feet to another principal building. (2) No principal building shall be located closer than 50 feet to a residential district. (4) Parking lots in the M-1 and M-2 Districts shall be set back a minimum of 50 feet from the base setback line. The fifty-foot front yard area shall be used only as lawn and landscaped area with the exception of necessary driveways or sidewalks. For corner lots, the parking in the front yard abutting the road that carries the least amount of traffic shall be set back a minimum of 10 feet from the base setback line. (5) Hotels and motels may exceed the maximum height requirement of 55 feet if the eligibility for height credit is satisfied as set forth herein. A credit of one hotel floor may be granted for each level of underground parking and/or for the dedication of permanent open space in an amount not less than two times the square footage of the floor space added. In no event shall a credit be granted in excess of two floors and not to exceed 22 feet. Lands which are designated as environmental corridors, isolated natural resource areas or conservancy lands shall not be eligible for purposes of calculating the credit set forth herein. [Amended by Ord. No. 2396] (6) Wetland setback. (a) All impervious surfaces shall be set back a minimum of 30 feet. However, where at least one of the following conditions is met, the minimum setback is 10 feet: [1] The lot is vacant and is part of a platted residential subdivision that was recorded before October 9, [2] The building permit for the principal structure located on the lot was issued before October 9, (b) Grading may be allowed within the wetland setback upon approval by the Director. Applicant shall demonstrate appropriate erosion control practices as approved by the City and/or the DNR. (c) Landscaping may be allowed within the wetland setback upon approval by the Director. Applicant shall demonstrate appropriate erosion control practices as approved by the City and/or the DNR. (7) Additional site development standards for the O-3 District shall include: (a) All structures shall maintain the residential character of the existing structure and/or of the surrounding residential neighborhood, including gabled roofs, window/door ratios, and the size and lot coverage of surrounding structures. (b) Parking shall be allowed in the front yard only if it is unobtrusive to surrounding uses. (c) Parking may be allowed in the rear yard if it is sufficiently landscaped and buffered from surrounding uses. (d) Deliveries shall be limited to the front or side of the building. (8) Modification of Standards. The Plan Commission or Community Development Authority may modify the open space requirement, but only if supplemental design elements or improvements are incorporated into the project which compensate for the modifications of the particular standard. Such elements may include, but are not limited to, additional landscaping, Low Impact / Sustainable Design, alternative storm water best management practices / green infrastructure (which may include, but are not limited to, bioretention, infiltration, pervious surfaces, green roofs, rain gardens, underground storage, and / or rain harvesting / reuse). Page 61

62 Table Lot Coverage (percent) District Maximum Coverage by Buildings Maximum Coverage by Impervious Surfaces Minimum Coverage by Open Space and Landscaping O O O-3 Uses in the O-3 District shall meet the minimum site development standards of the most restrictive zoning district adjacent to the subject property, including any lot coverage and/or minimum building area requirements. M M Institutional and recreational/park districts. A. General purpose and intent. The districts contained in this section are created to: (1) Provide appropriately located areas consistent with the New Berlin Comprehensive Plan for a full range of institutional and recreational areas to benefit residents, businesses, and workers in New Berlin; (2) Protect valuable institutional, parks and recreational areas that currently exist within New Berlin; (3) Create useful buffer areas between residential and nonresidential uses to minimize land use conflicts; (4) Promote a sense of community by creating areas wherein citizens can congregate for various programs and activities. B. List of districts and specific purpose statements. The institutional districts are created with the following specific purposes: (1) I-1 Institutional District. The I-1 Institutional District is intended to provide areas for public or private institutions or organizations housing social, educational, religious, or governmental activities. (2) P-1 Park and Recreation District. The P-1 Park and Recreation District is intended to provide areas where open space and outdoor recreational needs of the citizens can be met without the undue disturbance of natural resources and adjacent uses. When applied to privately owned recreational lands, this District is intended to avoid the conversion of such lands to other urban uses without adequate public review and approval. The District should be used for areas designated as parks in the adopted New Berlin Comprehensive Plan. C. Uses Summary Table. Table below sets forth the uses allowed within the relevant zoning district. The abbreviations used in the table are described in C and are summarized in the legend table following Table Table Zoning Districts Uses I-1 P-1 Additional Regulations Refer to Residential Uses Community living arrangements P * G(1) Dormitories A * Commercial Uses Amphitheaters * C Page 62

63 Aquariums * C Auditoriums P C Banquet halls * C Bowling alley * C Exhibition halls * C Fairgrounds * C Outdoor storage A A Stadiums * C Wireless communications facilities A/P/C A/P/C C(16) Office Uses Government offices P C Medical and dental offices A * Post offices P P Institutional/Public/Semipublic Uses Active parks and recreational facilities C P Assisted living facilities P * Cemeteries C * Day-care facilities P * Golf driving range * A/C G(3) Educational facilities, interpretive centers, learning P C centers Central composting C C Churches (Neighborhood) P * See Churches (Community) C * See Crematory services C * Essential services P A/C Hospitals P * Indoor recreational uses * P Libraries P C Museums and galleries P C Organizational clubs P * Passive parks and recreational facilities P P Public service uses P * Recreational trails P P Recycling centers C C Utilities C C Miscellaneous Uses Hunting and fishing clubs * C Forest and game management P Page 63

64 Natural resource conservation and preservation uses P P Park and ride lots P P Silviculture P P and Accessory Uses Accessory dwellings A A G Off-street parking and loading areas A A Temporary Uses T T Any other use the Plan Commission finds will be similar in nature, operation and function to the uses allowed within the district C(1) LEGEND P C A T Principal Use Conditional Use Accessory Use Temporary Use P/C Principal or Conditional Use * Prohibited Use (1) Similar uses. Where there is a new use that is not listed or identified in another zoning district that the Plan Commission finds similar in nature, operation and function to that of another use allowed in this chapter, the Plan Commission may permit the new use under similar districts and with all other applicable regulations as the existing similar use, provided that: (a) The use is harmonious with and does not conflict with the other uses in the district. (b) The use will not jeopardize the public health, safety and welfare. D. Site development standards. All development shall be subject to the intensity and dimensional standards set forth in this section. These intensity and dimensional standards may be further limited or modified by other applicable sections of this chapter, including Article V and the additional requirements set forth below in Table Table District Minimum Lot Dimensions Lot Area Lot Width (feet) Minimum Setbacks (feet) Front Side (each side) Rear OHWM Wetland Maximum Height (feet) I-1 40,000 square feet * P-1 None None * Additional requirements. (1) Lots in the P-1 Park District shall provide sufficient area for the principal structure and its accessory structures, off-street parking and loading areas, and all required yards. Page 64

65 (2) The Plan Commission may modify the yard requirements in the P-1 District where it deems the requirement to serve no public purpose. (3) Wetland setback. (a) All impervious surfaces shall be set back a minimum of 30 feet. However, where at least one of the following conditions is met, the minimum setback is 10 feet: [1] The lot is vacant and is part of a platted residential subdivision that was recorded before October 9, [2] The building permit for the principal structure located on the lot was issued before October 9, (b) Grading may be allowed within the wetland setback upon approval by the. Director. Applicant shall demonstrate appropriate erosion control practices as approved by the City and/or the DNR. (c) Landscaping may be allowed within the wetland setback upon approval by the Director. Applicant shall demonstrate appropriate erosion control practices as approved by the City and/or the DNR. (4) Modification of Standards. The Plan Commission or Community Development Authority may modify the open space requirement, but only if supplemental design elements or improvements are incorporated into the project which compensate for the modifications of the particular standard. Such elements may include, but are not limited to, additional landscaping, Low Impact / Sustainable Design, alternative storm water best management practices / green infrastructure (which may include, but are not limited to, bioretention, infiltration, pervious surfaces, green roofs, rain gardens, underground storage, and / or rain harvesting / reuse). Table Page 65 Lot Coverage (percent) District Maximum Coverage by Buildings Maximum Coverage by Impervious Surfaces Minimum Coverage by Open Space and Landscaping I P-1 None None None Special districts. A. General purpose and intent. The districts contained in this section are created to: (1) Recognize that there are unique features and needs within New Berlin that require specific zoning to protect these features and minimize any potential land use conflicts; (2) Provide appropriately located areas consistent with the New Berlin Comprehensive Plan for quarrying and landfill operations; (3) Protect natural drainage patterns to minimize flooding and flood damage; (4) Protect the natural resources that are found within New Berlin; and (5) Provide additional agricultural and recreational uses where such uses will preserve the specific purpose of the zoning district. B. List of districts and specific purpose statements. The special districts are created with the following specific purposes: (1) Q-1 Quarrying and Extractive District. The Q-1 Quarrying and Extractive District is intended to provide for the conduct of quarries and extractive use areas limited to extraction of on-site materials, to provide for related operations, and for the proper restoration of the quarried areas in a manner that will not deteriorate the natural environment. (2) L-1 Landfill District. The L-1 Landfill District is intended to regulate land use at existing and former landfill sites in the City. The L-1 Landfill District is further intended to protect the natural resource base of the City as well as the general public health and safety of City residents. (3) C-1 Upland Resource Conservancy District. (a) Purpose. The C-1 Conservancy District is intended to prevent the destruction of valuable natural and man-made resources and, in particular, woodlands, wetlands, wildlife habitat areas, perennial and intermittent streams, major lakes, floodlands and shorelands, significant water recharge and

66 discharge areas, prairies, recreational and scenic areas, natural scientific areas, areas with poor soils or high groundwater, and areas of steep slopes, including primary environmental corridor, secondary environmental corridor and isolated natural resource areas. Regulation of these areas, including environmental corridors, should serve to control erosion and sedimentation and to protect the natural resource base and promote and maintain the natural beauty of the area as well as the health, safety, and welfare of City residents. (b) Applicability. The District is intended to be used in those areas of the City identified as having significant combinations of natural features or features not conducive to development. New lands should not be zoned to C-1 if a conservation easement has been placed on such lands. Conservation easements shall be used instead to protect significant natural features or features not conducive to development, such as those features identified in the prioritized list of resources to be conserved as described in A. [1] Petitions to remove the C-1 Zoning District. The original boundaries of the C-1 Zoning District were identified using aerial photography and were not field verified. Petitions to remove any C-1 zoned lands shall identify that there are no significant resources, as described above, being protected. Applicant shall submit, at a minimum, the following information: [a] Applicant shall supply soil boring tests to the City along with a report identifying the findings. Findings shall include: [i] Soil suitability for the construction of buildings. Soil report indicating whether the soils are capable of supporting buildings. [iii] Presence of high groundwater. [iv] Any other unique or limiting soil characteristics (i.e. peat, bedrock, etc). [b] Applicant shall verify with City staff the most recent copy of the SEWRPC Environmental Corridor Maps along with any historical data, including but not limited to historical aerial photos, drain tile data, etc. [d] Any Primary Environmental Corridor, Secondary Environmental Corridor and Isolated Natural Resources Areas shall be field verified in accordance with Section D(6). Applicant shall provide a concurrence letter from the Southeast Wisconsin Regional Planning Commission. [e] Complete an Endangered Species Review with the Wisconsin Department of Natural Resources. [f] Map of existing floodplain areas. [2] If there are remaining C-1 lands after the modification, those lands shall be placed within a Conservation Easement. (4) C-2 Shoreland Wetland Holding District. (a) Purpose. The C-2 Shoreland Wetland Holding District is intended to preserve, protect, and enhance the ponds, streams, and wetland areas of the City of New Berlin. The preservation, protection, and enhancement of these areas will serve to maintain safe and healthful conditions; maintain and improve water quality, both ground and surface; prevent flood damage; control stormwater runoff; protect stream banks from erosion; protect groundwater recharge and discharge areas; protect wildlife habitat; protect native plant communities; avoid the location of structures on soils which are generally not suitable for use; and protect the water-based recreation resources of the City. Wetlands are unique and valuable natural resources that are becoming rare in Wisconsin and have many benefits including: [1] Filtering nutrients and sediments out of water, keeping our lakes and streams clean; [2] Reducing flood damage by storing runoff from heavy rains or snow melt; [3] Spawning and nursery areas for fish; [4] Homelands to water fowl, songbirds, pheasants, furbearing animals, and a number of rare and endangered animals and plant species; [5] Buffer adjacent uplands against erosion; [6] Provide scenic beauty to our community. (b) All areas currently zoned C-2, Shoreland-Wetland Districts shall be placed into the C-2, Shoreland- Wetland Holding District and shall be subject to the wetland registration process as described in Section E. [1] All registered wetlands shall be subject to the setbacks and regulations of the C-2, Shoreland- Wetland District as set forth in Section of this Chapter. [2] The C-2 boundary shall apply unless a Wetland Registration has been completed/approved. Page 66

67 [3] For purposes of the setback and other land use provisions of this chapter, the registered wetland boundary shall apply. The C-2 boundary shall apply where there is no wetland registration showing on the property. (5) C-3 Permanent Open Space/Conservation Lands. The C-3 Permanent Open Space/Conservation Lands District is intended to serve as a preservation district to maintain lands that have been permanently designated as open space or conservation lands. This District serves as a more definitive designation of open space and conservation lands as an alternative to deed restrictions and easements. This District should be utilized for developments where potential development densities have been transferred to another area of the property or to another site within New Berlin; developments that will have open space permanently preserved; and other similar conservation and preservation practices that will contribute to the unique character of New Berlin. The City shall use a Conservation Easement in place and/or in addition to the C-3 Zoning District. C. Uses Summary Table. Table below sets forth the uses allowed within the relevant zoning district. The abbreviations used in the table are described in C and are summarized in the legend table following Table Table Zoning Districts Uses Q- 1 L- 1 C- 1 C- 2 Agricultural Uses Maintenance of agricultural drainage systems * * P C P and fences C-3 Additional Regulations Refers to Raising of crops * * P C P Raising of wild crops * * P P P Silviculture P P P P P and Residential Uses Single-family detached dwelling with attached garage * * P * * D(3)(c) Commercial Uses Outdoor storage A * * * * C(10) Wireless communications facilities C C(16) Office Uses Business offices A A * * * Manufacturing/Industrial Uses Asphalt and ready mix plants as an accessory to active quarrying operations C * * * * F Excavation C * * * * Mineral extraction C * * * * F Mineral processing as an accessory to active C * * * * F quarrying operations Mineral storage as an accessory to active C * * * * F quarrying operations Peat and soil removal C * * * * F Quarrying C * * * * F Weigh scales A * * * * Institutional/Public/Semipublic Uses Active parks and recreational facilities * * C C * Repair or maintenance of local, state, or federal * * P P * roads or bridges Essential services A A A A A Landfill * C * * * G(4) Municipal water and sewer services C * C C * Page 67

68 Passive parks and recreational facilities P * P P P reclaimed quarry Permanent open space P P P P P Piers and docks * * C C * Railroads * * C C * Recreational trails P P P P P Roadways A * C C * Utilities P P P P P Natural stormwater management A A A A A Miscellaneous Uses Hunting and fishing clubs * * C C P Natural resource conservation and preservation * * P P P uses Planting of native plants P P P P P Removal or mowing of non-native wetland or * * P P C prairie plants Stormwater management * * C * C Structures and lands used as designated in a * C * * C reuse plan Wetland maintenance * * P P C Wildlife management structures * * P P C Forest and game management * * P * C Off-street parking and loading areas A A * * * Any other use the Plan Commission finds will be C(3) similar in nature, operation and function to the uses allowed within the district. LEGEND P Principal Use C Conditional Use A Accessory Use T Temporary Use P/C Principal or Conditional Use * Prohibited Use (1) Uses within the C-1 District. (a) All uses that are permitted on conservation areas shall be permitted within the C-1 District as described in B(3)(a). (b) Single-family residential uses must be issued an Administrative Permit through DCD, provided the lot is developed as described in D(3)(c). The remainder of the C-1 zoned lands shall be placed into a Conservation Easement. (c) Clear-cutting of woodland is prohibited. [1] Clear-cutting of woodland is defined as the removal of any healthy trees greater than four inches DBH on lands that do not have a Plan Commission approved forest management plan that meets established standards for selective harvesting and sustained-yield forestry. [2] Clear-cutting on lands zoned C-1 and which do not have a Plan Commission approved forest management plan may be permitted upon approval of a special cutting plan in accordance with B(4), provided there is no other restriction prohibiting it. (2) Uses within the C-2 District. The following uses within the C-2 District are permitted, subject to other applicable ordinances, provided all requirements of Wisconsin Statutes Chapters 30 and 31 and Wis. Admin. Code NR 117 are met; all other uses are prohibited. (a) Hiking, fishing, trapping, hunting, swimming, snowmobiling and boating. Page 68

69 (b) The harvesting of wild crops, such as marsh hay, ferns, moss, wild rice, berries, tree fruits and tree seeds, in a manner that is not injurious to the natural reproduction of such crops and that does not involve filling, flooding, draining, dredging, ditching, tiling or excavating. (c) Subject to a Plan Commission approved forest management plan, the practice of silviculture, including the planting, thinning and harvesting of timber, provided that no filling, flooding, draining, dredging, ditching, tiling or excavating is done. (d) The pasturing of livestock and the construction and maintenance of fences, provided that no filling, flooding, draining, dredging, ditching, tiling or excavating is done, except limited filling and excavating necessary for the construction and maintenance of fences. (e) The cultivation of agricultural crops if cultivation can be accomplished without filling, flooding, or artificial drainage of the wetland through ditching, tiling, dredging or excavating except for: [1] The maintenance and repair of existing farm drainage ditches, where permissible under 30.20, Wis. Stats., or of other existing agricultural drainage systems (such as tiling) to restore the functional drainage of existing agricultural lands, including the minimum amount of filling necessary to dispose of dredged spoil, provided that the filling is permissible under Chapter 30, Wisconsin Statutes, and that dredged spoil is placed on existing spoil banks where possible; or [2] The construction and maintenance of roads necessary for agricultural cultivation, as permitted under Subsection C(1)(k). (f) The construction and maintenance of duck blinds, provided that no filling, flooding, draining, dredging, ditching, tiling or excavating is done. (g) The construction and maintenance of nonresidential buildings, provided that: [1] The building is used solely in conjunction with the raising of waterfowl, minnows or other wetland or aquatic animals, or used solely for some other purpose which is compatible with wetland preservation; [2] The building cannot, as a practical matter, be located outside the wetland; [3] The building does not exceed 500 square feet in size; and [4] No filling, flooding, draining, dredging, ditching, tiling or excavating is done, except limited filling and excavating necessary to provide structural support for the building. (h) The construction and maintenance of piers, docks, walkways, observation decks and trail bridges, provided that no filling, flooding, dredging, draining, ditching, tiling or excavating is done, except limited filling and excavating necessary for the installation of pilings. (i) The establishment and development of public and private parks and recreation areas, outdoor education areas, historic, natural and scientific areas, game refuges and closed areas, fish and wildlife habitat improvement projects, game farms and wildlife preserves, and public boat-launching ramps, provided that: [1] No filling or excavating is done except for limited filling and excavating necessary for the development of boat-launching ramps, swimming beaches or the construction of park shelters or similar structures. [2] Any private development allowed under this subsection shall be used exclusively for the permitted purpose. [3] The construction and maintenance of roads necessary for the uses permitted under this subsection may be permitted if the requirements of Subsection C(1)(k) are met. [4] Ditching, excavating, dredging, dike and dam construction may be allowed in game refuges and closed areas, fish and wildlife habitat improvement projects, game farms, and wildlife areas, provided that they are done for the purpose of improving wildlife habitat or to otherwise enhance wetland values. (j) The construction and maintenance of electric and telephone transmission lines and water, gas and sewer distribution lines, and related facilities, provided that: [1] Such lines cannot, as a practical matter, be located outside the wetland; and [2] Any filling, excavating, ditching or draining necessary for such construction or maintenance is done in a matter designed to minimize the adverse impact upon the natural functions of the wetland listed under Subsection B(4)(a). (k) The construction and maintenance of roads which are necessary for the continuity of the City street system, necessary for the provision of essential utility and emergency services, or necessary to provide access to uses permitted under this subsection, provided that: [1] The road cannot, as a practical matter, be located outside of the wetland; Page 69

70 [2] The road is designed and constructed to minimize the adverse impact upon the natural functions of the wetland listed under Subsection B(4)(a); [3] The road is designed and constructed with the minimum cross-sectional area practical to serve the intended use; [4] Road construction activities are carried out in the immediate area of the roadbed only; and [5] Any filling, flooding, draining, dredging, ditching, tiling or excavating that is done must be necessary for the construction or maintenance of the road. (l) The installation and maintenance of sealed tiles for the purpose of draining lands outside the Shoreland-Wetland Zoning District, provided that such installation or maintenance is done in a manner designed to minimize the adverse impact upon the natural functions of the shoreland-wetland listed under Subsection B(4)(a). (m) The maintenance, repair, replacement, and reconstruction of existing county, City and village highways and bridges. (n) The maintenance and repair of existing nonagricultural drainage ditches, where permissible under 30.20, Wis. Stats., or of other existing nonagricultural drainage systems (such as tiling) to restore preexisting levels of drainage, including the minimum amount of filling necessary to dispose of dredged spoil, provided that the filling is permissible under Chapter 30, Wisconsin Statutes, and that dredged spoil is placed on existing spoil banks where possible. (3) Similar uses. Where there is a new use that is not listed or identified in another zoning district that the Plan Commission finds similar in nature, operation and function to that of another use allowed in this chapter, the Plan Commission may permit the new use under similar districts and with all other applicable regulations as the existing similar use, provided that: (a) The use is harmonious with and does not conflict with the other uses in the district. (b) The use will not jeopardize the public health, safety and welfare. D. Site development standards. All development shall be subject to the intensity and dimensional standards set forth in this section. These intensity and dimensional standards may be further limited or modified by other applicable sections of this chapter including Article V and the additional requirements set forth below in Table Table Minimum Lot Dimensions Minimum Setbacks (feet) Page 70 Maximum Height (feet) Note 3 Side (each side) District Lot Area Lot Width (feet) Front Rear OHWM Wetland Q-1 3 acres 250 See additional requirements below 70 L-1 20 acres 660 See additional requirements below 45 C-1 See additional requirements below * Additional requirements (1) Setbacks in the Q-1 District shall be as follows: (a) No quarrying activities, crushing or washing operation or material stockpile shall be located closer than 200 feet to the base setback line or a property line, unless the Plan Commission has approved a lesser setback as part of an approved restoration plan. (b) No building or parking area shall be located closer than 50 feet to the base setback line or a property line unless the Plan Commission has approved a lesser setback as part of an approved restoration plan. (c) No quarrying activity, crushing or washing operation, material stockpile, building, or parking area shall be located closer than 50 feet to the ordinary high-water mark of any navigable body of water. 35

71 (d) The Plan Commission may waive the setback requirements from side and rear lot lines when a quarry abuts another quarry and when: [1] A signed agreement has been presented to the Plan Commission requesting said waiver, bearing the signature of all property owners involved. [2] The restoration plan of the quarry has been revised to provide for the additional areas to be quarried and the Plan Commission has approved said revision. (2) Setbacks in the L-1 District shall be as follows: (a) No landfill operation shall be located closer than 150 feet to the base setback line or a property line. (b) No building or parking area shall be located closer than 50 feet to the base setback line or a property line. (c) No landfill operation, building, or parking area shall be located closer than 300 feet from the ordinary high-water mark of any navigable river or stream or 1,000 feet from the ordinary high-water mark of a lake, pond, or flowage. (d) Landfill operations shall comply with the setback requirements set forth in Chapter NR 504, Wisconsin Administrative Code. (3) Conservation standards. (a) Where a property is proposed to be further subdivided, and a lot is located partially within a C-1 or C- 2 District and partially within an adjoining zoning district, that area of the lot or parcel in the C-1 or C-2 District used to meet the lot area requirements of the adjoining zoning district shall be determined in accordance with G. (b) (Reserved) (c) When a lot is entirely zoned C-1, a single-family dwelling may be allowed, subject to the issuance of a administrative use approval permit, provided that: [1] The parcel is a minimum of five acres. [2] For lots five acres or greater, served with either public sewer service or with an approved off-lot private owner waste treatment system (POWTS), no more than 20,000 square feet of canopy cover can be removed. This shall include the area for the house, driveway, walkways, POWTS, well and accessory uses. POWTS conveyance piping may not cross any public rights-of-way and the POWTS treatment itself should be located directly behind the lot or as close to that as practicable. [3] For lots five acres or greater with approved on-site POWTS, no more than 25,000 square feet of canopy cover can be removed from a five-acre parcel within the C-1 District. This shall include the area for the house, driveway, walkways, septic field, well and accessory uses. [4] The dwelling shall comply with the requirements for the R-1/R-2 District under the conventional subdivision requirements. [5] The owner shall ensure that any disturbances of the natural features on the site are kept to a minimum. In identifying the natural resource features, the applicant shall consider the City s Map of Potential Conservation Areas. [6] The remainder of the C-1 zoned lands shall be placed into a Conservation Easement. (4) Wetland setback. (a) All impervious surfaces shall be set back a minimum of 30 feet. However, where at least one of the following conditions is met, the minimum setback is 10 feet: [1] The lot is vacant and is part of a platted residential subdivision that was recorded before October 9, [2] The building permit for the principal structure located on the lot was issued before October 9, (b) Grading may be allowed within the wetland setback upon approval by the Director. Applicant shall demonstrate appropriate erosion control practices as approved by the City and/or the DNR. (c) Landscaping may be allowed within the wetland setback upon approval by the Director. Applicant shall demonstrate appropriate erosion control practices as approved by the City and/or the DNR. (5) Due to the nature of the C-2 and C-3 Districts, there are no applicable site development standards. (6) Primary Environmental Corridor, Secondary Environmental Corridor and Isolated Natural Resource Areas. (a) Field verification of boundaries in the following manner: [1] The property owner or his/her agent shall either contract with a private field biologist or submit a completed staking request and application form to the Department of Community Development. Page 71

72 [2] If a field staking request is submitted, the owner/agent shall submit a financial assurance, based on size of the property, as guarantee to the City to ensure that a plat of survey is completed within the required 30 days from the date of the staking. If the plat of survey is not completed and received by the Department of Community Development within the required 30 days from the date of the wetland field staking, the City will complete the plat of survey and the cash bond will be used to defer any of the costs for the City to contract to complete the required plat of survey. The plat of survey requirements are set forth below. The cash bond shall only be refunded upon receipt of the required plat of survey. The owner of the property shall be held responsible for any additional costs which may be associated with the plat of survey which may exceed the cash bond. The plat of survey cash bond amounts are to be established by separate action from time to time as deemed appropriate. [a] The property owner or his/her agent shall have the property boundaries clearly delineated and staked on the site by a Wisconsin registered land surveyor, so that the field biologist can clearly identify the site boundaries. [b] Upon receipt of the completed application, the Department of Community Development staff shall forward a written request letter to either the Southeastern Wisconsin Regional Planning Commission (SEWRPC) to schedule the services of their field biologist. [c] A representative from SEWRPC will contact the City staff and/or the applicant with the date and time of the field staking appointment so that the owner/agent can notify the Wisconsin registered land surveyor. [d] The property owner/agent shall contact his/her Wisconsin registered land surveyor to prepare a plat of survey of the PEC, SEC and/or INRA. The survey shall be done within five days from the date of the biologist's field staking. The owner/agent shall submit four Wisconsin registered land surveyor signed and certified copies of the plat of survey to the Department of Community Development within 30 days from the date of the biologist's staking. [e] If the plat of survey is not completed and received by the Department of Community Development within the required 30 days from the date of the field staking, the City will have the plat of survey completed and the cash bond shall be used to defer any of the costs for the City to complete the required survey. The owner of the property shall be held responsible for any additional costs associated with the plat of survey that may exceed the cash bond. [f] Upon final review and approval of the plat of survey by the field biologist, the owner/agent shall receive the cash bond, except if the City had to contract to complete the plat of survey as stated above. [3] The field biologist will field stake the PEC, SEC and/or INRA by flagging the limits on the subject property. [4] The property owner/agent shall contact his/her Wisconsin registered land surveyor to prepare a plat of survey of the PEC, SEC and/or INRA. The survey shall be done within five days from the date of the biologist's field staking. [5] The plat of survey, as certified by a Wisconsin registered land surveyor, shall include, at a minimum, the following information: [a] The property boundaries and all structures on the property; [b] The location of the PEC, SEC, and/or INRA as staked in the field by the biologist, including a legal description of the area(s); [c] A notation of the date when the PEC, SEC, and/or INRA were field staked and which agency, i.e.: "Wetland boundary as marked by (agency) SEWRPC on (date) August 5, 1996"; [d] The location of any navigable waterway or other natural features on the site (wetlands, floodplain); and [e] Clear notations as to which area(s) are PEC, SEC and/or INRA and the square footage or acreage of each. [6] Upon receipt of the survey and report, the City will forward a copy to the SEWRPC for final review and approval. E. Wetland Registration. All areas currently zoned C-2, Shoreland-Wetland Holding Districts and areas identified as wetland on the DNR/SEWRPC Wetland Inventory maps shall be subject to the wetland registration process. Page 72

73 (1) All registered wetlands shall be subject to the setbacks and regulations of the C-2, Shoreland-Wetland District as set forth in Section of this Chapter. (2) The C-2 boundary shall apply unless a Wetland Registration has been completed/approved. (3) For purposes of the setback and other land use provisions of this chapter, the registered wetland boundary shall apply. The C-2 boundary shall apply where there is no wetland registration showing on the property. (4) Wetland registration. All permit applicants or petitioners shall field-verify C-2 Shoreland Wetland boundaries and/or wetlands identified on DNR/SEWRPC Wetland Inventory Maps in the following manner, unless the area has been field staked by a field biologist and surveyed by a Wisconsin registered land surveyor. Note that the wetland registration is valid for 5 years from the date of the delineation unless changes in site conditions warrant a revision of the delineation before the expiration date. (a) The property owner or his/her agent shall either contract with a private wetland biologist or submit a completed wetland staking request and application form to the Department of Community Development. (b) If a wetland staking request is submitted, the owner/agent shall submit a financial assurance, based on size of the property, as guarantee to the City to ensure that a plat of survey is completed within the required 30 days from the date of the staking. If the plat of survey is not completed and received by the Department of Community Development within the required 30 days from the date of the wetland field staking, the City will complete the plat of survey and the cash bond will be used to defer any of the costs for the City to contract to complete the required plat of survey. The plat of survey requirements are set forth below. The cash bond shall only be refunded upon receipt of the required plat of survey. The owner of the property shall be held responsible for any additional costs which may be associated with the plat of survey which may exceed the cash bond. The plat of survey cash bond amounts are to be established by separate action from time to time as deemed appropriate. [1] The property owner or his/her agent shall have the property boundaries clearly delineated and staked on the site by a Wisconsin registered land surveyor, so that the field biologist can clearly identify the site boundaries. [2] Upon receipt of the completed application, the Department of Community Development staff shall forward a written request letter to either the Southeastern Wisconsin Regional Planning Commission (SEWRPC), the Wisconsin Department of Natural Resources (DNR) or the U.S. Army Corp of Engineers (ACOE) to schedule the services of their field biologist. [3] A representative from SEWRPC, the DNR or ACOE will contact the City staff and/or the applicant with the date and time of the field staking appointment so that the owner/agent can notify the Wisconsin registered land surveyor. [4] The property owner/agent shall contact his/her Wisconsin registered land surveyor to prepare a plat of survey of the wetlands. The survey shall be done within five days from the date of the biologist's field staking. The owner/agent shall submit four Wisconsin registered land surveyor signed and certified copies of the plat of survey to the Department of Community Development within 30 days from the date of the biologist's staking. [5] If the plat of survey is not completed and received by the Department of Community Development within the required 30 days from the date of the field staking, the City will have the plat of survey completed and the cash bond shall be used to defer any of the costs for the City to complete the required survey. The owner of the property shall be held responsible for any additional costs associated with the plat of survey that may exceed the cash bond. [6] Upon final review and approval of the plat of survey by the field biologist, the owner/agent shall receive the cash bond, except if the City had to contract to complete the plat of survey as stated above. (c) The field biologist will field stake the wetland by flagging the limits of the wetlands on the subject property. Page 73

74 (d) The property owner/agent shall contact his/her Wisconsin registered land surveyor to prepare a plat of survey of the wetlands. The survey shall be done within five days from the date of the biologist's field staking. (e) The plat of survey, as certified by a Wisconsin registered land surveyor, shall include, at a minimum, the following information: [1] The property boundaries and all structures on the property; [2] The location of the wetlands as staked in the field by the biologist, including a legal description of the wetland area(s); [3] A notation of the date when the wetlands were field staked and which agency, i.e.: "Wetland boundary as marked by (agency) SEWRPC on (date) August 5, 1996"; [4] The location of any navigable waterway or other natural features on the site (primary or secondary environmental corridor); and [5] Clear notations as to which area(s) are wetlands and which areas are uplands and the square footage or acreage of each. (f) The applicant shall file a wetland registration application with the City and the City shall institute the appropriate action to revise City maps (Reserved) Editor s Note: Former , Flood hazard overlay districts, was repealed by Ord. No See now Art. IXA, Floodplain Zoning Special overlay districts. A. General purpose and intent. Overlay districts provide for the possibility of superimposing certain additional requirements upon a basic underlying zoning district without disturbing the requirements of the basic district. In the instance of conflicting requirements, the stricter of the conflicting requirements shall apply. B. List of districts and specific purpose and applicability statements. (1) PUD Planned Unit Development Overlay District. (a) Purpose. [1] The purpose of this section is to provide for a greater variety and choice of design and layout for suburban living; to gain greater efficiencies; to coordinate design development efforts; to conserve and make available open space; to utilize new technologies to urban development; and to gain flexibility over conventional land development control regulations. [2] This section should not be used as a device for circumventing the City's land control regulations. Further, this section shall not be used to put undue or unfair constraints on a landowner or developer. The PUD Planned Unit Development Overlay District under this chapter will allow for flexibility of overall development design and layout with benefits to be derived by both the developer and the community. [3] A PUD Overlay District may be used where the underlying zoning district is too narrow in scope for a particular property or project. Elements, standards, or whole sections from other zoning districts may be used to supplement the basic underlying use district to create a mixed-use zoning district. [4] A PUD Overlay District may also be used where the underlying basic use district may be too broad in scope and may need to be focused to be compatible with surrounding development or with surrounding environmental conditions. [5] Development approved under the PUD Overlay District regulations are intended to provide a safe and efficient system for pedestrian and vehicular traffic; to provide attractive recreation and open spaces as integral parts of development; to enable economic design in the location of public or private utilities and community facilities; to utilize new development technologies; and to ensure adequate standards of construction and planning. There shall be equal application of all regulations to land within the same PUD Overlay District or subdistrict. [6] Developments that include design features described as "traditional neighborhood development" in (1)(c), Wis. Stats., may be considered for approval at locations determined appropriate by the Plan Commission under this section, including appropriate conditions. Page 74

75 [a] A document identified as "A Model Ordinance For Traditional Neighborhood Development," dated December, 2000, published by the University of Wisconsin Extension pursuant to (2), Wis. Stats., shall serve as a nonexclusive guidebook to assist in further defining the various aspects of this form of urban design, along with such other sources of guidance the Plan Commission and local governing body may choose to consult. [7] Not to be used solely for a single-family residential development. (b) Scope. [1] In order to permit sufficient range for creative design; potential for mixed use developments; and to prevent the PUD Overlay District from being used for illegal spot zoning purposes, areas placed in the PUD Overlay District shall contain a minimum development area of five acres, except in the following cases; [a]where the City defines an area as infill development the minimum development area may be reduced to three acres with Plan Commission or Community Development Authority and Common Council approval; or [b] if the parcel abuts the major arterials of National Avenue, Greenfield Avenue or Moorland Road, the minimum development area may be reduced to one acre. [2] Subdistricts within a single PUD Overlay District specifically outlined in the PUD rezoning petition shall not be limited as to size. (c) Procedure. The procedure for implementing a PUD is detailed in (2) SPO Special Plan Overlay. (a) Purpose. The SPO Special Plan Overlay District may be applied in areas where specific regulations, design guidelines, and other recommendations have been created through the development of a planning document specific to various areas throughout New Berlin. (b) Applicability. The SPO Special Plan Overlay District may be applied to any area in the City of New Berlin where plans, including but not limited to commercial center plans, corridor plans, neighborhood plans, focus area plans, etc., have been developed and include specific guidelines and regulations that should be addressed in addition to any regulations imposed by the underlying zoning district. (3) WHP Wellhead Protection Overlay District. (a) Purpose. The WHP Wellhead Protection Overlay District is intended to institute land use regulations and restrictions to protect the City of New Berlin's municipal water supply and well fields and to promote the public health, safety and general welfare of the residents of the City of New Berlin. (b) Applicability. The WHP Wellhead Protection Overlay District shall apply to all wellhead protection areas established for any City municipal well that has been delineated and adopted by the City of New Berlin in conformance with NR (5) and shall be in addition to any regulations imposed by the underlying basic use district. C. Uses allowed in the special districts. Table below sets forth the uses allowed within the relevant zoning district. The abbreviations used in the table are described in C and are summarized in the legend table following Table Table Uses Miscellaneous Uses Any conditional use allowed in the underlying zoning district, provided it is not prohibited in the PUD District or relevant plans Any conditional use specifically allowed in the PUD District or relevant plans Any conditional use that the Plan Commission finds similar to uses allowed in the PUD District or relevant plans Zoning Districts PUD SPO WHP C C C C C C C C C Additional Regulations Refer to Page 75

76 Any principal use allowed in the underlying zoning district, P P P provided it is not prohibited in the PUD District or relevant plans Any principal use specifically allowed in the PUD District or P P P relevant plans Any principal use that the Plan Commission finds similar to uses P P P allowed in the PUD District or relevant plans Any prohibited use in the underlying zoning district, provided it is * * not prohibited in the PUD District or relevant plans Any prohibited use in the PUD District or relevant plans * * Any prohibited use that the Plan Commission finds similar to uses * * allowed in the PUD District or relevant plans Accessory Uses Any accessory use allowed in the underlying zoning district, A A A provided it is not prohibited in the PUD District or relevant plans Any accessory use specifically allowed in the PUD District or relevant plans A A A Any accessory use that the Plan Commission finds similar to uses allowed in the PUD District or relevant plans LEGEND P C A T P/C * Principal Use Conditional Use Accessory Use Temporary Use Principal or Conditional Use Prohibited Use A A A D. Site development standards. (1) PUD site development standards. (a) Minimum area requirements. [1] Land divisions and subdivisions shall meet the minimum lot area and width requirements of the underlying basic use district unless the PUD ordinance specifies other lot area and width requirements. [2] If a project or development is approved as a joint application with the PUD rezoning, and that specific project is specifically named in the PUD ordinance, the approved PUD project plan shall be used to determine appropriate lot area and width requirements. (b) Setback and yards. [1] The district yard requirements of the underlying basic use district shall be complied with unless the PUD ordinance specifies other yard requirements. [2] If a project or development is approved as a joint application with the PUD rezoning, and that specific project is specifically named in the PUD ordinance, the approved building locations and setbacks shown on the PUD project plan shall be used to determine building locations and setbacks. (c) Building height and area. [1] The building height and area requirements of the underlying basic use district shall be complied with unless the PUD ordinance specifies other building height and area requirements. [2] If a project or development is approved as a joint application with the PUD rezoning, and that specific project is specifically named in the PUD ordinance, the approved building height and area requirements shown on the PUD project plan shall be used to determine building height and area requirements. (2) SPO site development standards. Page 76

77 (a) Due to the nature of the SPO District, the site development standards of the underlying zoning district and relevant plans shall apply. (b) In cases where there are multiple standards in this chapter and any relevant plans, the most restrictive standards shall apply. (3) WHP site development standards. (a) Any use may require environmental and safety monitoring consistent with local, state and federal requirements and/or the posting of bonds and/or sureties. (b) Facilities shall provide copies of all federal, state and county facility operation approvals or certificates. (c) Facilities have the responsibility of devising and filing with the City for the immediate notification of City officials in the event of an emergency. (d) In the event the individual or facility causes the release of any contaminates which endanger the City, the activity causing said release shall immediately cease and a cleanup satisfactory to the City shall occur. (e) The individual or facility shall be responsible for all costs of cleanup, including City consultant fees at the invoice amount, plus administrative costs for oversight, review and documentation. (f) Certain incompatible uses prohibited. In addition to those uses listed in C, the following uses are prohibited: storage of ammunition, animal waste, bus terminals, ready mix plants and any other use that the Plan Commission finds will be similar in nature, operation and function to incompatible uses within the district and may pose a threat to groundwater quality. (g) Additional setback and yards. In addition to the setbacks in the underlying zoning district, structures in the WHP shall have additional setback and yard requirements. A municipal well shall not be closer than: [1] Fifty feet from a stormwater main. [2] Two hundred feet from any sanitary sewer main, lift station or single-family residential fuel oil tank. A lesser separation distance may be allowed for sanitary sewer mains where the sanitary sewer main is constructed of water main materials and joints and pressure tested in place to meet current AWWA 600 specifications. In no case may the separation distance between a municipal well and a sanitary sewer main be less than 50 feet. [3] Four hundred feet from a septic tank receiving less than 8,000 gallons per day, a cemetery or a stormwater detention or retention pond. [4] Six hundred feet from any gasoline or fuel oil storage tank installation that has received written approval from the Wisconsin Department of Industry, Labor and Human Relations or its designated agent under DCOM , Wisconsin Administrative Code. [5] One thousand feet from the outer limits of land used for the application of municipal, commercial or industrial waste; industrial, commercial or municipal wastewater lagoons, manure stacks, or storage structures; and septic tanks or soil absorption units receiving 8,000 gallons of wastewater per day or more. [6] One thousand two hundred feet from any solid waste storage, transportation, transfer, incineration, air curtain destructor, processing, one-time disposal or small demolition facility; sanitary landfill; coal storage areas; salt or deicing material storage area; gasoline or fuel oil storage tanks that have not received written approval from the Wisconsin Department of Industry, Labor and Human Relations or its designated agent under DCOM 10.10; bulk fuel storage facilities; and pesticide or fertilizer handling or storage facilities. (h) Enforcement and penalties. Violations of these standards may be subject to enforcement and penalties imposed as provided by Article X of this chapter and 1-18 of the New Berlin Code. E. Planned Unit Development Districts and Special Plan Overlay Districts and Requirements The actual text descriptions along with the full Ordinance will be available on file in the Clerk s office. Each section below provides a summary of the Ordinance in order to provide information to potential applicants. F. SPO #1: The New Berlin Industrial Park Redevelopment Plan Ordinance #2294. (1) Architectural Building Standards (a) Building Criteria [1] All new buildings constructed in the Industrial Park shall follow the design guidelines outlined below. Page 77

78 [2] Any building addition that faces the public right-of-way, or can be seen from the public right-ofway must follow the design guidelines. [3] If an addition faces the public right-of-way, or can be seen from the public right-of-way, the facade of the existing structure, facing the right-of-way must be improved to the design guidelines. [4] The CDA will be responsible to review all new construction projects in the NBIP, not the City Plan Commission. If an addition or parking lot expansion has a footprint of less than 15,000 SF, the City of New Berlin staff will review the proposed project (not the CDA) and issue the zoning and building permit. [5] Any additions, regardless of size or location will require the site and landscaping to be improved to the new standards. "A" PUBLIC RIGHT-OF-WAY PUBLIC RIGHT-OF-WAY PUBLIC RIGHT-OF-WAY PUBLIC RIGHT-OF-WAY ADDITION (SHOWN SHADED) FACES RIGHT OF WAY REQUIRING THE EXISTING FACADE FACING THE RIGHT OF WAY TO BE INTEGRATED WITH THE ADDITION. ADDITION (SHOWN SHADED) IS NOT VISIBLE FROM RIGHT OF WAY ADDITION MAY BE CONSTRUCTED WITH MATCHING MATERIALS ADDITION (SHOWN SHADED) IS ON A CORNER LOT. THE EXISTING FACADES OF BOTH FRONTAGES NEED TO BE INTEGRATED WITH THE ADDITION. ADDITION (SHOWN SHADED) IS ON A CORNER LOT. THE EXISTING FACADE WHERE THE ADDITION IS ATTACHED NEEDS TO BE INTEGRATED WITH THE ADDITION.. (b) Design Requirements [1] The exterior design of the building shall not be such an unorthodox or abnormal character, in relation to its surrounding environment, as to be unsightly or offensive to the generally accepted taste of the community. [2] The exterior design of the building may not be identical with adjacent buildings. [3] All buildings shall incorporate the design principles of composition, detail, proportion, rhythm and scale. The visual continuity of the building facade and their contributing elements (piers, banding, parapets, coping, cornices, etc ) shall be maintained along the entire exterior envelope in both new development and remodeled or altered facilities. [4] No building façade may extend longer than 40 feet without the use of piers, or building setbacks, to breakup the monotonous length of wall. [5] Overhead docks and doors of additions and new facilities may face the public street or right-ofway, if the truck and cab when parked, do not encroach into the right-of-way. [6] All dumpsters must be screened from the public view using building elements and materials that complement the building or approved landscaping. Wooden fenced screening is permissible as well as chain link fencing with a non-clear vinyl coated slating. [7] All pad-mounted equipment, including HVAC and electrical transformers must be screened with either landscaping, or building elements that complement the building. Wooden fenced screening is permissible as well as chain link fencing with a non-clear vinyl coated slating. [8] All new roof-top equipment requiring a zoning permit must be screened from view if the equipment can be seen from the centerline of the public right-of-way in the front of the property, or placed in an area of the building as not to be seen. Rooftop screening must be compatible and complementary to the buildings architecture. (c) GIS Map Chapter 275 of the City of New Berlin Zoning Ordinance determines the allowable lot coverage for all parcels throughout the City. The NBIP s zoning district is both M-1 and M-2. The current code requires a side setback of 15 feet on each side. The recommendation of this report is to revert back to the original declaration of restrictions for the industrial park, written in This allows for a building to be Page 78

79 constructed 10 feet from the side property line, but the total of the two side setbacks shall not be less than 30 feet. The following chart outlines the minimum requirements and maximum coverage for each site. All other zoning districts in the Park shall follow the established standards set forth in Chapter 275 of City s Municipal Code. Table District Minimum Setbacks (Feet) Maximum Front Side Total Rear Shore Wetland Height (One Side Side) M / 30* 45 M / 30* 60 Table District M-1 M-2 Maximum Coverage by Buildings Lot Coverage (Percent) Maximum Coverage by Impervious Surfaces Table Minimum Coverage by Open Space & Landscaping (d) Materials. The following is a list of approved exterior materials and finishes that are recommended to be incorporated into each project. [1] Masonry The use of plain exposed concrete block (including painted block) may only be used as an accent material or band, and may not be used on more than 20% of each exterior façade. Accepted materials are: Architectural Concrete Masonry Units (split faced, scored, etc.) Face Brick Stone Cast Stone Tile [2] Concrete The use of concrete as an exterior finish will require detailing to include textures, patterns and reveals to prevent large expanses of monotonous, monolithic walls. Accepted materials are: Cast-in-Place concrete with architectural finish Recast concrete with architectural finish. Architectural finishes may be one of the following: Exposed aggregate Brick, stone or architectural CMU set in the panel Scored and reveal accent bands Sandblasted surfaces Painted or stained surfaces. [3] Windows / Glass The use of glazing systems, including spandrel panels should be considered as a means to introduce color, texture, pattern and detail. Any façade facing the public right-ofway must include windows as a design element. Accepted window systems are: Wood framed doors, windows and skylights. Wood-Clad framed doors, windows and skylights. Aluminum framed doors, windows and skylights. Aluminum framed glass storefronts and curtain walls. Page 79

80 Glass may be any of the following, but must be integrated throughout the entire building: Clear Tinted Reflective [4] Metal The use of an architectural metal may be used as a primary building material. Corrugated wall panels may not be used. The gauge of the metal, color and the profile must be submitted to the CDA for approval. All metal is to be installed with a corrosion resistant finish and a gauge heavy enough to prevent buckling or oil-canning. In addition to the use of an architectural metal panel as a primary material, it is also an acceptable use as: Copings, fascias and soffits. Column covers and spandrel panels. Exposed structural elements. Rooftop equipment screening. Canopies. [5] Exterior Insulation Finishing Systems (EIFS) The use of exterior insulation finishing systems may only be used as accent material, and may not be used as the predominant or primary building material, or along the base of the building. Accepted use of EIFS are: Copings, fascias and soffits. Column covers and spandrel panels. Accent Banding. [6] Architectural Lighting The use of architectural lighting of building elevations is encouraged to create nighttime identity and character. All exterior lighting shall utilize indirect or hidden lighting sources. Acceptable lighting features include: Wall Washing Overhead Down Lighting Ground mounted up lighting directed at the building. (2) Landscape Standards. Landscaping within the Industrial Park is to be upgraded and maintained to create a uniform park/campus environment. While individual project identity is important, and should be maintained through creative design, the goal is to relate each project to its immediately adjacent neighbors. (a) Design Guidelines. The following are minimum landscape requirements that will serve as a quantifiable minimum design standard. Plant quantities listed here are minimum standards and additional plantings are encouraged. [1] Landscaping along common property lines or common driveways must be coordinated with adjacent property owners. [2] The landscape plan should provide for seasonal color and the use of flowers and shrubs at the entrance and signage locations. [3] All open areas not occupied by buildings, parking or storage shall be seeded and protected from soil erosion and maintained with grass. [4] All parking and loading areas are to be shielded from the public view by the use of trees, shrubs and low berms, while preserving views to the entrance. [5] All planting beds shall include organic mulch ground cover. Planting materials must comprise no less than 50% of the bed. [6] Slopes and berms steeper than one vertical foot for every three feet horizontal shall not be permitted. [7] On-site grades must meet existing streetscape grades. [8] The landscape design should enhance and complement the architecture, and buffer mechanical, electrical and building equipment located along the premises. [9] Applicant is required to post a fiscal security either by bond, certificate of deposit or letter of credit in the amount of value of the landscape improvements. Should the City need to Page 80

81 provide services or materials for full compliance of the approved plans, the applicant will forfeit the entire fiscal security. [10] A Landscape Designer (provided by applicant) shall inspect and provide the City a signed letter of compliance after the installation of all landscape improvements. Upon City agreement with the letter, the fiscal security will be returned. [11] Landscape irrigation systems are not required to be installed. [12] A re-occupancy permit, internal facility remodeling, or parking lot repair and maintenance do not require the implementation of these requirements. Only a building or parking lot expansion will prompt the requirements to be enforced. (b) Landscape Requirements. [1] There shall be at least one tree and three shrubs for every 3,600 square feet of lot area covered by open space. The landscaping required for the perimeter of the lot (not the parking lot) may be credited toward these requirements. [2] There shall be one tree for every 40 feet of distance along the front of the lot. One third of these trees shall be evergreens with a minimum height of 8 feet. This does not include parking lot requirements. [3] The front yard shall include one shrub for every 10 feet of road frontage. [4] 50% of all evergreen trees planted are to be a minimum of 8 feet tall, the remainder shall not be less than 6 feet tall. [5] 60% of all landscaping shall be located in the front yard. [6] If bio-retention swales are utilized, the landscaping planted as part of the swale will account for, or be credited toward, 90% of the required landscaping of the front and side yards. (c) Parking Lot Landscape Requirements. All parking lots with 20 or more parking spaces shall comply with these minimum requirements. It is the intent to screen the parking along public right-of-ways to enhance the visual quality of the park. [1] The perimeter of the parking lot shall include one shade tree or evergreen tree per 20 linear feet of parking surface along and parallel to a public street. [2] Perimeter parking along the side lot line shall include one shade tree or evergreen tree per 30 linear feet. [3] If landscape islands are utilized, they shall be at least 200 square feet in size with the narrowest dimension being 10 feet. Landscape islands are not required. Page 81

82 (d) Landscape Material Plant List. The following is a list of approved plantings materials that are recommended to be incorporated into each project. This is not an all-inclusive listing, but should be viewed as starting point for planning. All plantings must have a minimum of a moderate tolerance to salt spray and soil salt absorption. Botanical Name Common Name Size Fraxinus Americana White Ash 3 DBH Gleditsia triacanthos Honeylocust 3 DBH Acer platanoides Norway Maple 3 DBH Cercis Canadensis Eastern Redbud 3 DBH Pinus sylvestris Scotch Pine 6 8 Pinus nigra Austrian Pine 6 8 Picea pungens Colorado Green Spruce 6-8 Rhus aromatica Fragrant Sumac Rhus typhina Cutleaf Sumac 3 Viburnum trilobum American cranberry 5 Syringa vulgaris Lilac 5 Berberis koreana Korean Barberry Hemerocallis Day lilly 4 (3) Exterior Lighting. The design objectives of exterior lighting are to provide security, identity, and reinforce the architectural character of the building. Light pollution to the neighboring properties shall be minimized through these standards. (a) The maximum illumination level shall be 0.5 foot-candles measured at the property line, at a height of 4 feet. (b) Flashing, traveling, intermittent and animated lighting will not be allowed. (a) All fixtures shall be fully shielded luminaries with cut-off type optics, with flat clear lenses and no refractorizing elements. The light shall be totally concealed when viewed at an angle of 75 degrees from the horizontal plane. (b) All fixtures and poles are to be finished with a non-corrosive material, black in color. Bases may be of the same material or natural concrete. (c) The height of any exterior pole mounted fixture, including the base, may not exceed 35 feet. (d) Walkways to the building should be illuminated to clearly identify entry points and pedestrian walkways. (e) Pedestrian lighting shall utilize warm-white halogen or metal halide lamps. (f) See section (f) for architectural lighting guidelines. G. City Center Planned Unit Development Overly District Ord. No Copy is available on file with the City of New Berlin. H. All other PUD Ordinances on file with the City of New Berlin. Page 82

83 ARTICLE V Use Regulations General provisions. A. Maximum number of principal uses allowed per lot. Only one principal use shall be allowed per lot in the agricultural and residential zoning districts. One or more principal uses may be allowed in all nonresidential and nonagricultural zoning districts upon the approval of the Plan Commission. B. Similar uses. Where there is a new use that the Plan Commission finds similar in nature, operation and function to that of another use allowed in this chapter, the Plan Commission may permit the new use under similar districts and with all other applicable regulations as the existing similar use. C. Incompatible uses. There are several specific uses that are considered incompatible with the characteristics of the City of New Berlin and are herewith prohibited in all zoning districts. These prohibited uses include: (1) Manufacturing of acid, ammonia, ammunition, asbestos, asphalt, cement, chlorine, coal tar, creosote, explosives, fertilizer, gelatin, glue, gypsum, insecticide, lampblack, poison, pulp, pyroxyline, and radium; (2) Processing acid, ammonia, asbestos, asphalt, cabbage, cement, chlorine, coal tar, creosote, explosives, fertilizer, fish, gelatin, glue, grease, gypsum, insecticides, lampblack, offal, poison, pulp, pyroxyline, and radioactive materials; (3) Paper mill and planing mills. (4) Storage of bulk fertilizer, explosives, gasoline in excess of 50,000 gallons in a single tank, grease and radioactive materials; and (5) Auto-wrecking yards, bone distillation, brick works, stone works, clay refractories, fat rendering, forges, foundries, smelters, junkyards, garbage incinerators, rubbish storage, slaughterhouses, animals reduction, stockyards and tanneries. This provision shall not apply to any municipal recycling center. D. Rummage sales may be conducted in any district, provided that the rummage sale does not exceed four consecutive days in length and is not conducted more often than three times per year. Rummage sales do not require the issuance of a building or zoning permit. Rummage sale signs shall be limited as provided in G(2) of this chapter. E. Yard and setback areas shall be landscaped and kept clean and free from the accumulation of debris or refuse, and shall not be used for the storage or display of equipment, products, vehicles [except as provided in B(1) and B(2) of this chapter], and other materials. F. Undesirable storage. On no property where storage of equipment or materials is permitted shall such storage which is out of doors be so located and so arranged as to adversely affect the property values and general desirable appearance of the neighborhood. Storage of building materials on a property where a permit has been issued for a specific building project and storage of demolition materials associated with the project are permitted during said project, provided that all building materials and demolition materials are removed from the site within 10 days following the completion of the project or the expiration of the permit. Outside storage of junk is prohibited in all districts, except as may be permitted in licensed landfills. The Director or any affected property owner may present written evidence to the Plan Commission for a determination of appropriate storage. The Plan Commission shall notify the alleged violator of the meeting at which the determination will be made at least 10 days prior to the meeting. The alleged violator may present evidence in support of the storage arrangement. The Plan Commission may issue written orders stating the manner and time in which storage shall be enclosed, rearranged, relocated or removed. Failure to comply with a Plan Commission order shall be grounds for an enforcement action pursuant to this chapter. G. Display of vehicles for sale. Not more than one automobile, boat, recreational vehicle or other personal vehicle may be displayed in a driveway or parking lot for sale, unless a sales lot has been approved by the Plan Commission in an appropriate business district. The vehicle must be owned and registered to the occupant of the premises, and such sales do not occur more than three (3) times in any given year. Vehicles shall not be displayed on lawn areas or within a public right-of-way. Page 83

84 H. Historic preservation. No zoning permit, conditional use permit, occupancy permit or sign permit shall be issued for the erection, alteration, repair, moving or demolition of any development designated as a landmark or landmark site. No property within an historic district shall be developed or rezoned without full compliance with the City of New Berlin Landmarks Commission Ordinance Editor's Note: See Ch. 141, Historic Preservation. and/or review and comment by the Landmarks Commission. I. Safe water and sanitary sewer. No lot shall be created and no building shall be erected, altered, repaired or moved unless it conforms to all City and county ordinances applicable to water and sewage disposal systems. J. No building intended for human occupancy shall be erected, altered, repaired or moved unless it is connected to a public sanitary sewerage system or is connected to an approved on-site sewage disposal system (septic tank). K. No outhouse or privy shall hereafter be erected. L. No building intended for human occupancy shall be erected, altered, repaired or moved unless it is connected to a public water supply system or is connected to an approved private well providing a safe and adequate supply of water. M. No lot other than for agricultural, park or recreational purposes shall be divided or created unless proof of adequate municipal sewer and water service or septic/mound system and safe well is shown to be available. N. Hazardous uses. No use, in any district, which is hazardous, harmful, noxious, offensive or is a nuisance shall be permitted. Any use which becomes hazardous, harmful, noxious, offensive or is a nuisance to the neighborhood shall be corrected and improved, or removed, in accordance with measures specified by the Plan Commission consistent with reasonable technological and economic practicality Use-specific regulations. The following are use-specific regulations for uses allowed in Article IV. These regulations apply to all districts except where specified. A. Agricultural uses. (1) General farm buildings. (a) General farm buildings shall not be used for the storage of nonagricultural equipment, including but not limited to snowmobiles, ATVs, automobiles, boats, campers, recreational equipment, construction equipment, and nonagricultural or industrial inventory. (b) The Plan Commission shall consider demonstrated agricultural needs in reviewing agricultural buildings. (2) Keeping and raising of animals. [Amended by Ord. No. 2417] (a) The keeping and raising of animals in the A-1, A-2, R-1/R-2, C-1 and C-2 Zoning Districts shall be limited to the quantities in Table A and subject to provisions in Subsection A(2)(b) through (f) below and applicable zoning district regulations. The keeping and raising of animals in larger quantities than allowed by right shall be considered a conditional use ( ). [1] When applying for a conditional use permit to keep additional animals, the burden of proof shall be placed on the applicant to demonstrate to the reasonable satisfaction of the City that additional carrying capacity exists to support the keeping and raising of the animals as applied for by the applicant. In reviewing the conditional use, the City will consider whether; [a] Adequate facilities exist for housing and feeding the animals; Page 84

85 [b] Adequate measures exist to manage and dispose of waste products; [c] The number of animals applied for will adversely impact neighboring properties, particularly residential ones, and/or whether the number of animals being applied for will adversely impact the environment (e.g., stormwater runoff, contamination). Table A Category Minimum Lot Size No. per acre Type of Animal Large livestock 3 acres 1 Large livestock > 2 years 2 Large livestock < 2 years Small livestock 2 acres 8 Goats 8 Sheep 12 Pigmy goats 8 Llamas, alpacas 8 Miniature horses 4 Potbellied pigs, other small breed pigs under 300 pounds 2 Pony (under 40 inches) Double allowable density All small livestock offspring under 12 months Small fowl 1 acre 20 Over 4 months of age Large fowl 2 acres 4 Over 4 months of age Rabbits 1 acre 20 Over 4 months of age Residential chickens Captive wild animal farm A(2)(g) 3 acres A(2)(g) Note: See Section A(2)(f) for calculating animal combinations. (b) The following specific uses shall be considered conditional uses in the A-1 District only and shall meet the requirements of : [1] Commercial egg production; [2] Commercial feedlots and livestock sale facilities; and Page 85

86 [3] Commercial fur farms. (c) Prohibited uses: [1] Concentrated commercial animal feeding operations are prohibited in all districts. [2] The keeping of hogs over 300 pounds is prohibited in all districts with the exception of the A-1 District. (d) The raising of animals shall be considered an accessory use in the R-1/R-2 Zoning District and shall meet the following requirements: [1] The raising of animals shall be for personal use only, with the exception of selling offspring and/or animal products. [2] No pasture constructed after January 12, 2010, shall be located within 50 feet of an existing residence on an adjacent residential parcel. [3] Shall be limited to the quantities in Table A. The keeping and raising of animals in larger quantities than allowed by right shall be considered a conditional use subject to A(2)(a)[1]. (e) Stables, boarding and riding academies are allowed in A-1, A-2, R-1/R-2, and C-1 Zoning Districts. Any new structure proposed within a C-1 shall be a conditional use and regulated subject to [1] Shall be limited to the quantities in Table A. The keeping and raising of animals in larger quantities than allowed by right shall be considered a conditional use subject to A(2)(a)[1]. (f) Determining the maximum number of livestock and fowl. The calculation of the maximum number of livestock and fowl allowed applies to all subsections in A(2). Different animal types may be combined, but the total calculated number of animals may not exceed the maximum per acre density identified in Table A. For example, a five-acre lot will allow for five head of large livestock or 100 small fowl; or a three acre lot can have one horse, eight sheep and 20 head of small fowl or equivalent numbers not to exceed the maximum allowed. [1] Contiguous land under the same ownership. The total acreage of parcels of land that are contiguous to each other, under that same ownership and have the appropriate zoning category may be used when calculating the maximum number of animals allowed. The minimum lot size for the keeping and raising of animals shall be met prior to additional animals being allowed for additional contiguous lands. [2] Contiguous land that is leased. If contiguous land is being leased for agricultural purposes, the leased land area can be used when calculating the maximum number of animals allowed. Once the land is no longer being leased, the maximum number of animals allowed shall be adjusted. A written lease agreement, signed by all property owners, shall be required. The minimum lot size for the keeping and raising of animals shall be met prior to additional animals being allowed for additional contiguous lands. The leased land shall be used exclusively by the lessee. [3] When determining the maximum number of animals allowed on contiguous lands, the land area can only be used once or by one property owner. Double counting is not allowed. (g) The raising of chickens or ducks for personal use shall be considered an accessory use in all Single- Family Residential Zoning Districts, not included in A(2)(a) through (f) above, and shall meet the following requirements: Page 86

87 [1] Up to a total of four chickens and/or ducks allowed per single-family dwelling. [2] No roosters. [3] No slaughtering. [4] Chickens and/or ducks shall be kept within a secure enclosure. [5] Enclosures shall be located no closer than 25 feet to neighboring dwellings and a minimum of five feet from the property line. B. Residential uses. (1) Elderly housing and assisted-living facilities. (a) The density of an elderly housing development shall not exceed 14 dwelling units per acre. (b) All buildings shall be 50 feet from any exterior lot line. The Plan Commission may, however, permit buildings to have covered walks or be attached to other related structures, such as senior centers, hospitals, clinics or shopping centers. (c) Buildings shall be specifically designed for the elderly and handicapped. Projects shall include such features as central locked lobby entrances; common rooms and areas on every floor and wing within a building; elevators; wider hallways with hand railings; walking paths and outdoor sitting areas; and programs and activities designed for the elderly. (d) Visitor and staff parking shall be provided. Underground or attached parking for residents shall be provided at a ratio consistent with expected automobile usage rates. (e) All units in a project shall be rented or sold to the elderly or handicapped to qualify as an elderly project. Mixed projects shall be designed and built under the regular multifamily residential regulations. (f) Nursing homes, true assisted care elderly facilities, and community-based residential facilities (CBRF) may be constructed as conditional uses in an Rm-1 Zoning District; however, such uses are provided for as principal uses in the I-1 Institutional District. (g) Minimum dwelling unit size for an individual living unit designed for a single-person-occupancy onebedroom unit shall be 600 square feet. An additional 100 square feet shall be required for each additional bedroom, with a maximum of five bedrooms per dwelling unit in cases of congregate living. Efficiency units shall be a minimum of 500 square feet. This requirement may be waived by the Plan Commission in the case of a building designed for congregate living, provided that the combination of the individual and common areas together meet the overall living space requirements for the number of people intending to occupy the building. (h) Building exteriors shall incorporate maintenance-free materials, such as brick, stone, vinyl, etc., to the maximum extent practical. (i) In addition, the Plan Commission shall establish separate building area, dwelling unit size, amenity, enclosed parking, screening, setback and yard and other requirements for the health, safety, and welfare for each housing for the elderly project. (j) Buildings or developments not determined to be true elderly or handicapped projects by the Plan Commission shall be subject to all requirements of the regular multifamily zoning district. Qualification as "elderly" under state or federal law does not automatically meet criteria under this zoning provision. (2) Single-family dwellings with attached garage. A single-family dwelling may be allowed as a conditional use in the Rm-1 District if the site meets the minimum lot area, width and yard requirements of the R-4.5 District. (3) Conservation area use and design standards. (a) Uses permitted on conservation areas. The following uses are permitted in conservation areas: [1] Conservation of open land in its natural state (for example, woodland, fallow field, or managed meadow); [2] Agricultural and horticultural uses, including raising crops or livestock, associated buildings, excluding residences that are specifically needed to support an active, viable agricultural or horticultural operation. Specifically excluded are commercial livestock operations involving swine, poultry, mink, and other animals likely to produce highly offensive odors. Page 87

88 [3] Pastureland for horses used solely for recreational purposes. Equestrian facilities shall be permitted but may not consume more than half of the minimum required conservation area. [4] Silviculture, in keeping with established standards for selective harvesting and sustained-yield forestry. [5] Neighborhood open space uses such as village greens, commons, picnic areas, community gardens, trails, and similar low-impact passive recreational uses, specifically excluding motorized off-road vehicles, rifle ranges, and other uses similar in character and potential impact as determined by the Plan Commission. [6] Active noncommercial recreation areas, such as play fields, playgrounds, courts, and bikeways, provided such areas do not consume more than half of the minimum required conservation area or five acres, whichever is less. Play fields, playgrounds, and courts shall not be located within 200 feet of abutting properties. Parking facilities for the same shall also be permitted, and they shall generally be gravel-surfaced, unlighted, properly drained, provide safe ingress and egress, and contain no more than 10 parking spaces. [7] Golf courses may comprise up to half of the minimum required conservation area but shall not include driving ranges or miniature golf courses. Their parking areas and any associated structures shall not be included within the minimum conservation area requirement; their parking and accessways may be paved and lighted. [8] Private owner water supply and sewage disposal systems, and stormwater detention areas designed, landscaped, and available for use as an integral part of the conservation area. The integrity of all conservation areas shall be maintained and not adversely impacted. [9] Easements for drainage, access, sewer or water lines, or other public purposes. Off-lot POWTS areas shall be identified through survey markers/monuments. In addition, as-built drawings shall be submitted to the City and/or the grantee of the conservation easement for the area. [10] Underground utility rights-of-way. Aboveground utility and street rights-of-way may traverse conservation areas but shall not count toward the minimum required conservation area. (b) Conservation design standards. [1] Conservation areas shall be laid out to ensure that an interconnected network of open space will be provided, to the greatest extent practicable, considering both areas within the proposed subdivision and areas adjacent to it. The required conservation area consists of a mixture of primary environmental corridors (PECs), all of which must be included, and secondary environmental corridors (SECs) and isolated natural resource areas (INRAs). PECs comprise those areas listed in G(2) as being subtracted from the total parcel acreage to produce the "adjusted tract acreage." SCAs should include special features of the property that would ordinarily be overlooked or ignored during the design process. Examples of such features are listed and described in (Conservation design review standards) in Chapter 235, Subdivision of Land. [2] Conservation areas shall generally remain undivided and may be owned and maintained by a homeowners association, land trust, another conservation organization recognized by the City, or by a private individual (typically as part of the original farmstead). However, in no case shall less than 30% of the land comprising the adjusted tract acreage be available for the common use and enjoyment of the subdivision residents. These ownership options may be combined so that different parts of the conservation area may be owned by different entities. [3] Buffers for adjacent public parkland. Where the proposed development adjoins public parkland, a natural conservation buffer at least 150 feet deep shall be provided within the development along its common boundary with the parkland, within which no new structures shall be constructed, nor shall any clearing of trees or understory growth be permitted (except as may be necessary for street or trail construction). Where this buffer is unwooded, the City may require vegetative screening to be planted or that it be managed to encourage natural forest succession through "no-mow" policies and the periodic removal of invasive alien plant and tree species. (c) Other requirements. [1] No portion of any building lot may be used for meeting the minimum required conservation area, except within conservancy lots of at least 10 acres. However, active agricultural land with farm buildings, excluding areas used for residences, may be used to meet the minimum required conservation area. [2] Pedestrian and maintenance access, excluding those areas used for agricultural or horticultural purposes, shall be provided to a conservation area in accordance with the following requirements: Page 88

89 [a] Access to conservation areas used for agriculture may be appropriately restricted for public safety and to prevent interference with agricultural operations. [3] All conservation areas that are not wooded or farmed shall be landscaped in accordance with the landscaping requirements of this chapter and Chapter 235, Subdivision of Land [ and B(3)(b)]. [4] Submission of a plan for the maintenance and operation of the conservation areas as required by B(3)(b). (4) Permanent conservation protection through conservation easements. (a) The conservation area that is required to be reserved and created through the subdivision process shall be subject to permanent conservation easements prohibiting future development and defining the range of permitted activities. (For example, the clearing of woodland habitat shall generally be prohibited, except as necessary to create trails, active recreation facilities, and to install subsurface septic disposal systems or spray irrigation facilities.) The determination of necessity shall lie with the Common Council. (b) In "limited development" subdivisions where applicants voluntarily opt to develop their properties at densities substantially below that which is permitted under this chapter, with lots at 10 ten acres in area, and when they offer to place a restrictive conservation easement preventing future subdivision of the newly created parcels, the City shall review the proposed easements and may accept them, provided their wording accomplishes the purposes of this chapter and is consistent with the City s Comprehensive Plan and the Wisconsin Uniform Conservation Easement Act. (c) The holder of the conservation easement shall be as permitted pursuant to (1)(b), Wis. Stats., as amended. (5) Conservation area ownership and maintenance standards. (a) Permanent protection. All conservation areas shall be permanently restricted from future subdivision and development. Under no circumstances shall any development be permitted in the open space at any time, except for those uses listed in B. (b) Ownership options. The following methods may be used, either individually or in combination, to own common facilities. The City may request designation of areas for municipal ownership, of any areas identified in the City s Park and Open Space Plan as future parkland or potential trails, and any areas identified for protection under the SEWRPC s Natural Areas and Critical Species Habitat Protection and Management Plan for Southeastern Wisconsin. Common facilities shall not be transferred to another entity except for transfer to another method of ownership permitted under this section, and then only when there is no change in the common facilities or in the open space ratio of the overall development. Ownership methods shall conform to the following: [1] Fee simple dedication to the City. The City may, but shall not be required to, accept any portion of the common facilities, provided that: [a] There is no cost of acquisition to the City; [b] The City agrees to and has access to maintain such facilities; [c] There is no environmental contamination on the site. [2] Condominium association. Common facilities may be controlled through the use of condominium agreements. Such agreements shall be in accordance with relevant state law. All open land and common facilities shall be held as "common element." [3] Homeowners' association. Common facilities may be held in common ownership by a homeowners' association, subject to all of the provisions for homeowners' associations set forth in state regulations and statutes. In addition, the following regulations shall be met: [a] The applicant shall provide the City a description of the organization of the proposed association, including its bylaws and all documents governing ownership, maintenance, and use restrictions for common facilities. [b] The proposed association shall be established by the owner or applicant and shall be operating (with financial subsidization by the owner or applicant, if necessary) before the sale of any dwelling units in the development. [c] Membership in the association shall be automatic (mandatory) for all purchasers of dwelling units therein and their successors in title. [d] The association shall be responsible for maintenance and insurance of common facilities. [e] The bylaws shall confer legal authority on the association to place a lien on the real property of any member who falls delinquent is his or her dues. Such dues shall be paid with the accrued interest before the lien may be lifted. Page 89

90 [f] Written notice of any proposed transfer of common facilities by the association or the assumption of maintenance for common facilities must be given to all members of the association and to the City no less than 30 days prior to such event. [g] The association or its designee shall have adequate staff to administer, maintain, and operate such common facilities. [h] The bylaws must prohibit amendments without the approval of the City as to conservation areas. [4] Private conservation organization. With permission of the City, an owner may transfer either fee simple title of the open space or easements on the open space to a private nonprofit conservation organization, provided that: [a] The conservation organization is acceptable to the City and is a bona fide conservation organization intended to exist indefinitely; [b] The conveyance contains appropriate provisions for proper reverter or retransfer in the event that the organization becomes unwilling or unable to continue carrying out its functions; [c] The conservation areas are permanently restricted from future development through a conservation easement; and [d] A maintenance agreement acceptable to the City is established between the owner and the organization. [5] Dedication of easements to the City. The City may, but shall not be required to, accept easements for public use of any portion of the common land or facilities. In such cases, the facility remains in the ownership of the condominium association, homeowners association, or private conservation organization while the City holds the easements. In addition, the following regulations shall apply: [a] There shall be no cost of acquisition to the City. [b] Any such easements for public use shall be accessible to residents of the City. C. Commercial uses. (1) Adult-oriented establishments. (a) Such uses shall not be operated within 1,000 feet of: [1] A church, synagogue, or regular place of worship; [2] A public or private elementary or secondary school; [3] A single-family, two-family, or multifamily zoning district boundary; [4] A public park adjacent to a residential zoning district boundary; or [5] Another adult-oriented establishment. (b) Such use may not be operated in the same building, structure or any portion thereof containing another adult-oriented establishment. (c) For purposes of this section, the distance between any two adult-oriented establishments shall be measured in a straight line, without regard to intervening structures or objects, from the closest exterior wall of the structure in which each business is located. (d) Such use shall comply with the licensing and layout requirements set forth in Chapter 152, Licenses and Permits, of the Code of the City of New Berlin. (2) Automotive fuel sales. (a) All fuel pumps and service islands shall comply with the yard requirements of the zoning district in which the use is allowed. (b) The outermost edge of any protective canopy shall not be closer than 25 feet to the base setback line and shall meet the side yard and rear yard setbacks. (3) Automotive service. Such uses shall not include the service of semitractors or semitrailers. (4) Bed-and-breakfast establishments. All bed-and-breakfast establishments shall meet the provisions set forth in (1), Wis. Stats, and Chapter HSS 197, Wisconsin Administrative Code. (5) Department stores. Department stores are only allowed in shopping centers located on a site that is 10 or more gross acres in size. (6) Drive-in theaters. (a) A twenty-five-foot-wide planting screen shall be provided between the drive-in theater and any residential district. (b) There shall be a minimum of 1,000 feet between the access drive to the theater and any street intersection. Page 90

91 (7) Funeral services. Crematory services shall only be allowed as an accessory use in the I-1, B-1, B-2, B-3, M-1, and M-2 Zoning Districts. (8) Hotels and motels. Hotels and motels may exceed the district height regulations, yet no hotel or motel may exceed 55 feet in height except as defined in D(5). (9) Outdoor displays and sales. The outside display of merchandise may be allowed as an accessory use in all commercial, manufacturing and industrial districts if all of the following provisions are met: (a) The display shall not exceed 500 square feet in commercial districts or 1,000 square feet in the manufacturing and industrial districts; excluding seasonal displays, temporary events or displays approved as part of the plan of operation (b) The display does not obstruct traffic, sidewalks, or fire lanes; and (c) The display area is not being used for the storage of merchandise only. (d) Display of vehicles for sale. Not more than one automobile, boat, recreational vehicle, or other personal vehicle may be displayed in a driveway or parking lot for sale, unless a sales lot has been approved by the Plan Commission in an appropriate business district. The vehicle must be owned and registered to the occupant of the premises, and such sales do not occur more than three times in any given year. Vehicles shall not be displayed on lawn areas or within a public right-of-way. (e) Outdoor displays placed under permanent canopies shall be permitted. (10) Outdoor storage. Outdoor storage may be allowed as an accessory use in all zoning districts, subject to Department of Community Development staff review and approval, and provided that such storage is screened from view of any public right-of-way or residential area. (11) Personal services. A personal service use may be approved as a conditional use in the O-2, M-1 and M-2 zoning districts, provided that it meets the requirements of and that it is in such a location to provide services to the employees of nearby uses in these districts. (12) Restaurants. (a) A drive-through facility shall not be approved as part of a restaurant unless drive-through facilities are allowed in the subject zoning district and it meets all of the additional use regulations specified in H(1) of this chapter. (b) A restaurant may be approved as a principal use in any office or industrial district, provided that it meets the requirements of (c) Brewpubs. [Added by Ord. No. 2408] [1] Brewpubs in the City shall follow the definition set forth within [2] Brewpubs shall be required to meet all applicable local codes and licensing requirements, as well as applicable state statutes, federal laws and licensing governing this type of use. [3] One of the conditions of the conditional use permit for brewpubs shall be that the applicant has applied for and received all necessary liquor licenses and permits to operate this type of business. [4] A brewpub (restaurant) in the City may only brew beer as part of its business for consumption on the premises. No wholesaling of the beer shall be permitted. [5] Applicants shall adhere to the performance requirements outlined in of this Code. (13) Retail commercial uses. A retail commercial use may be approved as a conditional use in any office or industrial district, provided that it meets the requirements of (14) Self-storage facilities. (a) No perishable products may be stored unless the Plan Commission determines that adequate health provisions have been made; Page 91

92 (b) No flammable or explosive materials may be stored unless the Plan Commission determines that adequate safety provisions have been made; and (c) No sales of merchandise may be conducted from a self-storage facility. (d) No offices may be set up in storage units. (15) Service commercial uses. (a) Service commercial uses in the B-5 District should be limited to uses that will serve the needs of the rural residential community. (b) A service commercial use may be approved as a conditional use in any office or industrial district, provided it meets the requirements of and that it is in such a location to provide services to the employees and businesses in the office and industrial districts. (c) Traffic, loading, parking and access. The parking and storage of semitractors and semitrailers, except for pickup and deliveries, is prohibited. Parking or storage of construction vehicles and equipment, except during periods of permitted construction activity, is prohibited. All storage and parking of vehicles and equipment, other than required customer and employee off-street parking, shall be inside except the outside parking of two vehicles in accordance with the type and size limitation of this Zoning Ordinance. (16) Wireless communications facilities. (a) Wireless communications facilities shall be regulated as set forth in this section. These standards shall be interpreted and enforced in a manner consistent with the Telecommunications Act of (b) Exemptions. [1] Emergency communication facilities used for emergency communication by public officials. [2] City communication facilities. [3] Antennas, amateur radio antennas (e.g., ham radio), and satellite dishes as regulated by G(2). (c) Definitions. For the purposes of this section, the following definitions shall be used in addition to the definitions in ANTENNA or ANTENNA ARRAY Any system of poles, panels, whips, or similar apparatus designed for telephonic, radio, or television communications through sending and/or receiving of electromagnetic waves. COLLOCATION The location of wireless communications facilities of more than one provider on a single site. COMMUNICATION TOWER A guyed or unguyed, monopole, lattice or other self-supporting tower, constructed as a freestanding structure or in association with a permanent structure or equipment, containing one or more antennas intended for transmitting and/or receiving television, AM/FM radio, digital, microwave, cellular, telephone, paging, wireless internet, data, or similar forms of electronic communication. DIRECTIONAL ANTENNA An antenna or array of antennas designed to concentrate a radio signal in a particular area. DISH ANTENNA A dish-like antenna used to link communication sites together by wireless transmission of voice or data. Also called "microwave antenna." FALL ZONE An area of land surrounding a tower structure, as certified by the manufacturer or an independent structural engineer, in which the structure would fall in the event of collapse or other structural failure. GUYED TOWER A communication tower that is supported, in whole or in part, by guy wires and ground anchors. LATTICE TOWER A guyed or self-supporting three- or four-sided, open, steel-frame structure used to support communications equipment. Page 92

93 MICROWAVE ANTENNA A dish-like antenna manufactured in many sizes and shapes used to link communication sites together by wireless transmission of voice or data. MONOPOLE TOWER A communications tower consisting of a single pole, constructed without guy wires and ground anchors. OMNIDIRECTIONAL ANTENNA An antenna that is equally effective in all directions and whose size varies with the frequency and gain for which it was designed. PARABOLIC ANTENNA Also commonly known as a "satellite dish antenna." A bowl-shaped antenna designed for the reception or transmission of radio frequency communications signals in a specific directional pattern. ROOF, EXISTING STRUCTURE, AND/OR BUILDING MOUNT FACILITY A communications facility in which antennas are mounted to an existing structure, such as a building, silo, utility pole, water tower, existing telecommunications tower, and which may be on the roof (including rooftop appurtenances), building face, side or elsewhere on the existing structure. SELF-SUPPORTED TOWER A communications tower that is constructed without guy wires and ground anchors. STEALTH FACILITY Any communications facility which is designed to blend into the surrounding environment; man-made structures including but not limited to those resembling trees, clock towers, bell steeples, light poles, and similar alternative-design mounting structures that camouflage or conceal the presence of antennas or towers. TOWER Any structure that is designed and constructed primarily for the purpose of supporting one or more antennas, including self-supporting lattice towers, guy towers, or monopole towers. The term includes radio and television transmission towers, microwave towers, common-carrier towers, cellular telephone towers, alternative tower structures, and the like. VIEW CORRIDORS Corridors established by measuring parallel to the right-of-way and measuring a distance of 400 feet from the edge of the ultimate right-of-way of the following streets: Street Distance Calhoun Road railroad Entire length, except on the east side from tracks to Coffee Cleveland Avenue Entire length, except from Calhoun to Moorland Coffee Road Entire length College Avenue Entire length Greenfield Avenue Entire length Lawnsdale Road Entire length Moorland Road Entire length, except on the west side from railroad tracks to Ryerson National Avenue Entire length 124th Street Entire length Racine Avenue Entire length Sunny Slope Entire length WHIP ANTENNA An antenna that transmits signals in 360. Whip antennas are typically cylindrical in shape and are less than six inches in diameter and measure up to 18 inches in height. Also called omnidirectional, stick or pipe antennas. WIRELESS COMMUNICATIONS FACILITY An all-encompassing definition; any towers, poles, antennas, equipment buildings, or other structures intended for use in connection with transmission or receipt of radio or television signals, or any other spectrum-based transmissions/receptions. (d) Waivers/modifications. The Plan Commission may waive or modify any requirements of this section. Any site for which a waiver from the requirements of this section is granted shall comply with all other Page 93

94 requirements of this chapter. Such waiver or modification shall only be granted if the Plan Commission determines that: [1] There will be no appreciable off-site impact caused by the waiver/modification. [2] Compliance with the requirement(s) is impractical or impossible due to site conditions or other circumstances beyond the control of the applicant. [3] The specific requirement is not necessary for a particular site to ensure compliance with the requirements of this section. (e) Approval criteria. The Plan Commission shall not approve any application for a wireless communications facility unless the following criteria are met, in addition to the criteria listed within in [1] The location of the facility is compatible with the Comprehensive Plan. [2] The location of the facility is compatible with the Zoning Ordinance. [3] The application complies with this section, unless waived under C(16)(d). [4] The proposed site presents fewer or less severe impacts on the community than any feasible alternative site. [5] All reasonable efforts to locate on an existing tower have not been legally or physically possible. [6] There is no other existing facility that can reasonably serve the needs of the owner of the proposed new facility. [7] The owner of the wireless communications facility has agreed to permit other persons/cellular providers to attach cellular antenna or other communications apparatus which do not interfere with the primary purpose of the facility. [8] The proposed facility/tower will not unreasonably interfere with the view from any public park, natural scenic vista, historic building or district, or major view corridor. [9] The proposed facility/tower is not constructed in such a manner as to result in needless height, mass, guy-wire supports and does not exceed that which is essential for its intended use and public safety. [10] The facility is appropriately landscaped. [11] The color of the proposed facility/tower will be of a light tone or color (except where required otherwise by the FAA) as to minimize the visual impact. [12] The facility/tower is in compliance with any other applicable local, state, or federal regulations. (f) Application information. The applicant shall submit, at a minimum, the following information: [1] Site plan. The site plan shall show the property boundaries and dimensions; the limits-ofdisturbance boundary; existing and proposed buildings and structures with the heights labeled; neighboring buildings and structures with the heights labeled; the neighboring owners shall be shown; setbacks; parking areas for service vehicles; and the fall zone. [2] Architectural plan. The architectural plan shall show the elevation, showing all facades, including material and color samples, equipment, and fencing. [3] Landscaping plan. The landscaping plan shall show the size, location, type and height of all new and existing landscaping; limits-of-disturbance boundary; screening materials; buffer yard landscaping; building and equipment locations and associated screening; and fencing. [4] Provide documentation of the applicant's right, title or interest in the property where the facility is to be located. If the applicant is not the property owner, the applicant shall submit a letter from the property owner(s) stating that they are consenting to have a tower placed on their property. When the property owner is the City, the applicant shall obtain approval from the Parks, Recreation and Forestry Commission, Public Safety Commission, Utility Commission or other applicable board or commission that oversees the facility or land where the tower is proposed to be placed. [5] Visualization. Color photo-like simulations of the proposed facility shall be created from perspectives as required by staff. [6] Location report. A location report shall be submitted that shows and describes: [a] All structures, as defined by , within one mile of the proposed location, including areas outside the City limits, that are at least 75% of the height of the proposed structure or 55 feet, whichever is greater. Height is to be measured from the ground elevation to the top of the tower, excluding any antennas. [b] The highest elevation of all structures within one mile of the proposed location, including areas outside the City limits, that exceed the elevation of the proposed structure at 75% of Page 94

95 the height of the proposed structure. Elevation shall be measured according to the National Geodetic Vertical Datum. [c] All towers within one mile of the proposed location, including areas outside the City limits. [d] A detailed alternative analysis of why existing wireless communications towers cannot be used in accordance with C(16)(g)[1]. The analysis shall identify all reasonable, technically feasible, alternative locations and/or facilities which would provide the proposed wireless communications facility. The intention of the alternatives analysis is to present different strategies which minimize the number, size, and adverse impact of facilities which are necessary to provide the service to the City. The analysis shall address the potential for collocation and the potential to locate facilities as close as possible to the intended service area. It shall also explain the rationale for selection of the proposed site in view of the relative merits of any of the feasible alternatives. [7] Structure report. A structure report prepared by a qualified and licensed professional engineer which: [a] Describes the tower or structure height and design including a cross section and elevation, [b] Documents the height above grade for all potential mounting positions for collocated antennas and the minimum separation distances between antennas; [c] Describes the tower or structure capacity, including the number and type of antennas that it can accommodate; [d] Documents what steps the applicant will take to avoid interference with established public safety telecommunications; [e] Includes an engineer's stamp and registration number; [f] Includes safety considerations; and [g] Includes other information necessary to evaluate the request. (g) Location standards. [1] Table below sets forth the types of wireless communications facility structures that may be located within the relevant zoning districts. All structures are subject to all other applicable regulations in this section. The abbreviations used in the table are described as follows: [a] Principal use. An "P" in a cell indicates that the wireless communications facility structure is a principal use within the respective zoning district. Wireless communications facilities are a permitted use in the respective zoning district only if reviewed and approved in accordance with [b] Conditional use. A "C" in a cell indicates that the wireless communications facility structure is a conditional use in the respective zoning district only if reviewed and approved as a conditional use in accordance with Zoning District Guyed Tower Page 95 Table Wireless Communications Facility Structures Lattice Tower Monopole Tower Roof, Existing Structure, and/or Building Mount Facility Stealth Facility A-1 C C C P P A-2 C C C P P R-1\R- C C C C C 2 R-2E * * * * * R-3 * * * * * R-4 * * * * * R-4.5 * * * * * R-5 * * * * *

96 Rd-1 * * * * * Rm-1 * * * * C B-1 C P P B-2 C P P B-3 C P P B-5 C P P O-1 C P P O-2 C P P O-3 P M-1 C C P P M-2 C C P P I-1 C C P P P-1 C P P P Q-1 C C C L-1 C-1 C-2 C-3 [2] A majority of the coverage area served by the telecommunications structures and apparatus shall be located within the City. [3] Wireless communications facilities within the view corridors shall be located on an existing telecommunications structure, or shall be a roof, existing structure, and/or building mount facility, or a stealth facility. (h) Antenna array approvals. Table below sets forth the permit required for additional antenna arrays on an existing wireless communications facility within the relevant zoning districts. All antenna arrays are subject to all other applicable regulations in this section. Additional antenna arrays to be located on existing wireless communications facilities constructed prior to adoption of this section shall meet all requirements of this section. The abbreviations used in the table are described as follows: [1] Building permit. A "BP" in a cell indicates that an application for an antenna array on an existing wireless communications facility shall follow the building permit process outlined in [2] Zoning permit - staff approval. An "SA" in a cell indicates that an application for an antenna array on an existing wireless communications facility shall follow the zoning permit process outlined in , except that a zoning permit may be issued before Plan Commission final action in accordance with B(9). [3] Zoning permit - use approval. A "U" in a cell indicates that an application for an antenna array on an existing wireless communications facility shall follow the zoning permit process outlined in [4] Conditional use. A "C" in a cell indicates that the wireless communications facility structure is a conditional use in the respective zoning district only if reviewed and approved as a conditional use in accordance with Table Zoning District Wireless Communications Facility Structures Whip Antenna Parabolic Antenna Page 96 Directional Antenna Omnidirectional Antenna Microwave/ Dish Antenna

97 A-1 BP U SA SA C A-2 BP U SA SA C Rm-1 C C C C B-1 SA U SA SA C B-2 SA U SA SA C B-3 SA U SA SA C B-5 SA U SA SA C O-1 SA U SA SA C O-2 SA U SA SA C O-3 SA U SA SA C M-1 SA U SA SA C M-2 BP U SA SA C I-1 SA C SA SA C P-1 SA U SA SA C Q-1 BP U SA SA C (i) Collocation required. Additional wireless communications facilities within one mile of existing wireless communications facilities of similar height shall not be approved unless the applicant demonstrates the proposed antenna array cannot be located on an existing wireless communications facility, except under the following conditions: [1] The antenna array would exceed the structural capacity of the structure, as documented by a qualified and licensed professional engineer, and the structure cannot be reinforced, modified, or replaced to accommodate a planned or equivalent antenna array at a reasonable cost. [2] The planned antenna array would cause interference materially impacting the usability of other existing or planned antenna arrays at the structure as documented by a qualified and licensed professional engineer, and the interference cannot be prevented at a reasonable cost. [3] Existing wireless communications facilities and other structures within the one-mile radius cannot accommodate the planned antenna array at a height necessary to function reasonably, as documented by a qualified and licensed professional engineer. (j) Design. [1] Towers shall be designed structurally, electrically, and in all other respects to accommodate both the applicant's antennas and comparable antennas. Towers shall be designed to allow for future rearrangement of antennas upon the tower and to accept antennas mounted at varying heights. Stealth facilities are not required to be designed to accommodate additional uses when the applicant has demonstrated doing so will degrade the aesthetics of the stealth facility. [a] Towers over 150 feet in height shall accommodate at least three additional users. [b] Towers from 100 feet to 150 feet in height shall accommodate at least two additional users. [c] Towers from 60 to 99 feet in height shall accommodate at least one additional user. [d] Towers less than 60 feet in height are not required to accommodate additional users. [2] Telecommunications structures and apparatus shall be designed to blend into the surrounding environment through the use of color and other camouflaging architectural treatments, except in instances where the color is dictated by federal or state law. [3] Ground equipment and utility structures. [a] One building that houses all the necessary ground equipment shall be located on the site. All collocated equipment shall be located within the common building. The building shall either be sized to house all equipment for all future collocation or constructed in a manner that allows expansion. All expansions shall be architecturally consistent and compatible. [b] The building shall be architecturally designed to be compatible with the architecture characteristics and Page 97

98 [c] The building shall meet the minimum setbacks of the zoning district. [d] Ground-mounted equipment, including but not limited to equipment cabinets and generators, shall be enclosed in a building except when screened with appropriate landscaping. [4] Landscaping. The parking areas, buildings, and equipment shall be landscaped in accordance with The Plan Commission may allow an alternative landscaping or screening plan or waive the landscaping requirements if it is determined that the landscaping will not serve a functional value based on existing topography or surrounding land uses. (k) Height standards. Height is to be measured from the ground elevation to the top of the tower, excluding any antennas. [1] The height of antenna array shall not be utilized in determining the setbacks required by this section. [2] Towers of 180 feet or less shall not exceed a total height of 200 feet, including attached antenna arrays. [3] Stealth towers may not exceed 125% of the maximum height requirement of the zoning district they are located within. [4] All towers less than 60 feet in height shall be designed as stealth facilities. [5] Modifying an existing tower to increase the height of the tower, other than approved antenna arrays, shall require the same approval process required of construction of a new tower in accordance with C(16)(e). (l) Setback standards. [1] Towers greater than 180 feet in height shall be located a minimum distance of 1,500 feet from any platted residential subdivisions. [2] Guy mast towers: [a] The tower shall be situated on the site to self-contain all debris within the fall zone. [b] The tower shall be located no closer to the lot line than 66% of the tower height plus 25 feet. [c] The guy wire anchors shall be located a minimum of 25 feet from the lot line or the prevailing yard requirement, whichever is greater. [d] The tower shall be located a minimum of 1.25 feet for every foot of height from any public road right-of-way, house, occupied building, recreational field or playground to protect from falling ice or parts. [3] Lattice or monopole towers greater than 180 feet: [a] The tower shall be situated on the site to self-contain all debris within the fall zone. [b] The tower shall be located no closer to the lot line than 66% of the tower height plus 25 feet. [c] The tower shall be located a minimum of 1.25 feet for every foot of height from any public road right-of-way, house, occupied building, recreational field or playground to protect from falling ice or parts. [4] Lattice or monopole towers less than 180 feet: [a] The tower shall be situated on the site to self-contain all debris within the fall zone. [b] The tower shall be located no closer to the lot line than 25% of the tower height or the yard setback requirement of the zoning district, whichever is greater. [c] Towers that are contiguous to a residentially zoned parcel shall be set back from the lot line a distance equal to the height of the tower. [5] Stealth towers. The stealth tower may be located anywhere within the site, with Plan Commission approval, upon satisfaction of the following approval criteria: [a] The tower shall be situated on the site to maximize the containment of all debris within the fall zone. [b] The tower shall meet all setbacks of the zoning district applicable to the structure it is designed to appear as. For example only, a stealth tower designed as a flag pole shall meet all setback requirements applicable to a flag pole, and a stealth tower designed as a streetlight shall meet all setback requirements applicable to a streetlight. [6] Roof, existing structure, and/or building mount facilities. Antenna arrays shall not project into the setback of the structure they are located on or within. (m) General standards. [1] All towers and sites shall be properly maintained and shall be kept in a condition as not to become a public nuisance or eyesore in accordance with Chapter 201, Property Maintenance. Proper maintenance shall include but not be limited to regular lawn and landscaping care and Page 98

99 painting of an accessory building, fences, and tower. Additionally, the site shall be kept free of junk and trash. [2] All antenna arrays shall be securely fastened to minimize noise emissions or damages from falling. [3] Every three years, beginning with the adoption of this chapter or following completion or construction of a tower, whichever is later, the owner of the tower shall submit to the Director an operations report. The operations report shall contain. [a] A listing of all the owners and operators of attached antenna arrays. [b] A letter certifying that all attached antenna arrays are in use. [4] Any tower or attached antenna array that is unused for more than one year shall be considered abandoned. Any abandoned tower or antenna array shall be removed at the cost of the tower owner immediately. Failure to remove any abandoned tower or antenna array shall be considered a violation and enforced in accordance with Article X. [5] Prior to final approval of new towers or within one year of the date of adoption of this section for existing towers, the tower owner shall furnish a financial guaranty to the City in an amount determined by the Director to be sufficient to remove the tower and restore the site upon which the tower is located should operation of the tower cease. [6] Prior to final approval of new towers or within one year of the date of adoption of this section for existing towers, the owners shall furnish a certificate of insurance in a form satisfactory to the City Attorney. [7] Any tower declared to be a public nuisance due to poor maintenance, noise emissions, or other situation shall be subject to B(6) of this chapter. [8] The owner and operator must indemnify the City as against any claims or liability arising from the location, construction, operation or use of the tower. (17) Cosmetic Tattoo Establishments / Permanent Cosmetics. (a) Applicant shall provide a copy of all state licenses relating to any application for permanent cosmetics prior to the issuance of a Zoning Permit. (18) Outside seating area, patio, smoking area or other outside activity area (i.e. volleyball courts, horseshoe pits, etc) for Commercial uses. (a) Plan of Operation may be amended to allow for the use to extend to an approved outside patio, seating area, and/or other outside activity area. Applicant shall provide the following information: [1] Submit a Use, Site and Architecture Application to the Department of Community Development. Refer to Section submittal criteria. [2] Submit and Extension of Premise Application to the City of New Berlin Clerk s Office, if required. (b) If the proposed use is adjacent to a residential zoning district the applicant shall be referred to the Plan Commission or CDA for consideration. Other applications may be administratively approved unless in the sole discretion of the Director they pose significant potential implications for surrounding uses. (c) An outdoor extension of the premise shall not increase the authorized capacity of the establishment. D. Office uses. (1) Financial institutions. A drive-through facility shall not be approved as a part of a financial institution unless the drive-through facility is allowed in the subject zoning district, and the drive-through facility meets all of the additional use regulations specified in H(1) of this chapter. (2) Offices. Where any of the following office uses are not related to another use allowed in the M-1 or M-2 District, it may be approved as a principal use if it meets the requirements set forth in (a) Business offices; (b) Financial institutions; (c) Government offices; and Page 99

100 (d) Medical and dental offices. E. Manufacturing/industrial uses. (1) Light industrial uses. Light industrial uses may be allowed as an accessory use in the O-2 District when it is in the same building or on the same lot as the corporate headquarters or manufacturing office of a business. (2) Warehouses. Warehouses may be allowed as an accessory use in the O-2 District when it is in the same building or on the same lot as the corporate headquarters or manufacturing office of a business. F. Quarry uses. All uses are conditional, and no use in a Q-1 District shall be allowed until the following provisions have been met: (1) Operational plan required. Each applicant for a conditional use in the Q-1 District shall submit an operational plan for the use. The operational plan shall specify: (a) A timetable for operation of the quarry, including the date on which the quarrying, extractive, or other operation will begin and the planned date of the completion of the operation; (b) A phasing plan showing the location and timing on all proposed phases; (c) Hours of operation and days of operation for the quarrying, extractive, or other operation; (d) The means by which noise, dust, and other potential nuisances will be controlled; (e) The means by which the applicant will control stormwater runoff and erosion to protect watersheds and groundwater aquifers; (f) The location, height, and type of all proposed fences; (g) All machinery and equipment to be used and/or stored during the quarrying, extractive, or other operation, and the location thereof; (h) A transportation plan identifying the mode of transportation to be used, the size and types of vehicles to be used, the number and frequency of trips to and from the site, and the routes to be used by trucks or locomotives; (i) The location and type of landscaping to be used to screen the quarrying, extractive, or other operation from adjacent land uses and public rights-of-way; and (j) Other information required by the Plan Commission. (2) Restoration requirements. In order to ensure that the area of quarrying, extractive, or related operation shall be restored to a condition of practical usefulness and reasonable physical attractiveness, the owner or operator shall submit to the City Plan Commission a plan for such restoration in the form of the following. Existing quarry operations shall submit a restoration plan within two years following the adoption of this chapter: (a) An agreement with the City whereby the applicant contracts to restore the premises to a condition and within a time satisfactory to the City. (b) A physical restoration plan showing existing topography (at a contour interval specified by the Plan Commission) and the proposed contours after restoration, plantings and other special features of restoration, and the method by which such restoration is to be accomplished. Every two years following the initial conditional use permit issuance or adoption of this chapter, whichever is applicable, the applicant or his successor shall submit an update to the restoration plan showing restoration progress and existing topography of the quarry site. (c) A bond, written by a licensed surety company, a certified check, or other financial guaranty satisfactory to the City in an amount sufficient, in the opinion of the Director of Community Development, to secure the performance of the restoration agreement. (d) Such agreement and financial guaranty shall be in a form approved by the City Attorney. [1] If applicant fails to fulfill the agreement, such bond, check or other financial guaranty shall be deemed forfeited for the purpose of enabling the City to perform the restoration. [2] Restoration shall proceed as soon as practicable and at the order and direction of the Director of Community Development. However, the owner or operator may, at his option, submit a plan for progressive restoration as the quarrying operation is being carried on. The required bond in such case may cover progressive stages of the restoration for periods of not less than two years. [3] At any stage during the restoration, the plan may be modified by mutual agreement between the City and the owner or operator. [4] The restoration plan shall specify what fill material will be used, the method and extent of compaction, and the depth of topsoil upon completion of the quarry, extractive, or related operation. In all cases, fill shall consist of clean earth, and no more than 25% by volume per Page 100

101 truckload of building stone or concrete, and no more than 5% by volume per truckload of incidental asphalt. Where there is backfilling, the method of backfilling shall not be such as to create a health hazard nor which would be objectionable because of odor, combustibility, or unsightliness. In any case, the finished condition of the restored area, except for rock faces, outcroppings, water bodies, or areas of proposed building or paving construction, shall be of sufficient depth of earth to support plant growth. [5] Within one year after the cessation of the operation or any phase of the operation, all temporary structures (except fences), equipment, stockpiles, rubble heaps or other debris shall be removed or backfilled into excavation so as to leave the premises in a neat and orderly condition. [6] In any restoration procedure which takes place in sand or gravel pits or on other sites where the material is of a loose or friable nature, no slope shall be left which is steeper than a ratio of 1 1/2 horizontal to one vertical. In no case shall any slope exceed the normal angle of slippage of the material involved. [7] Upon completion of quarry operations, the quarry operator shall be required to submit a restoration report prepared by a registered professional engineer certifying that the restoration plan has been fully complied with. (e) Restoration shall proceed as soon as practical and at the order and direction of the Director. However, the owner or operator may, at his option, submit a plan for progressive restoration as the quarrying operation is being carried on. The required bond in such case may cover progressive stages of the restoration for periods of not less than two years. Aerial photographs of the quarry site shall also be provided at least every other year, and topographical data, to a detail required by the Plan Commission, shall be required at least every two years. The quarry operator shall be required to submit restoration progress reports and a final restoration report prepared by a registered professional engineer certifying that the restoration plan discussed in F(2) has been fully complied with. (3) Nonconforming quarrying uses. Any nonconforming quarrying use shall, on or before one year from the adoption and publication of this chapter, apply to the Plan Commission for a use and occupancy permit. The Plan Commission shall require a plan of operation, final restoration plan, intermediate restoration plans, as deemed necessary, and may impose such restrictions upon the use of such site, the height and bulk of any structure, as may be reasonable and not unduly burdensome or onerous under the particular circumstances, provided that such restrictions shall not be more restrictive than the requirements established for the district in which such structure or use is located. In addition, a nonconforming use shall be subject to the requirements of B(1), Table , this Subsection F(3) and Subsection F(2): (a) Setback requirements from adjacent properties, which are subdivided (as a subdivision is defined in Chapter 236, Wisconsin Statutes), shall be a minimum of 50 feet. (b) The minimum setback from all other adjacent parcels shall be at least 20 feet. G. Institutional/public/semipublic uses. (1) Community living arrangements. (a) Community living arrangements as provided for in 62.23(7)(i), Wis. Stats., shall be a principal use in all residential districts and in the institutional district. (b) Community living arrangements that exceed the limit of those defined in 62.23(7)(i), Wis. Stats., may be approved as a conditional use per (c) Community living arrangements shall meet all applicable state statutes regarding such uses. (2) Educational facilities. (a) An educational facility may be allowed as a conditional use in any residential district if the design, intensity and layout of the development are compatible with surrounding land uses. (b) Colleges, universities, technical schools and other similar graduate schools are prohibited in all residential districts. (3) Golf driving ranges. (a) A golf driving range may be approved as an accessory use in the P-1 District when it is accessory to an approved golf course. (b) A golf driving range may be approved as a conditional use per when it is not associated with a golf course. Page 101

102 (4) Landfills. No conditional use in an L-1 District shall be allowed until the following provisions have been met: (a) Operational plan required. Each applicant for a conditional use in the L-1 Landfill District shall submit an operation plan for the use. The operational plan shall specify: [1] A timetable for operation of the landfill including the date on which the landfill operation will begin and the planned date of the completion of the operation; [2] A phasing plan showing the location and timing on all proposed phases; [3] Hours of operation and days of operation for the landfill operation; [4] The types of material or refuse to be disposed of; [5] The means by which noise, dust, debris, and other potential nuisances will be controlled; [6] The means by which the applicant will collect and dispose of leachate to protect watersheds and groundwater aquifers; [7] The means by which the applicant will control stormwater runoff and erosion to protect watersheds and groundwater aquifers; [8] The location, height, and type of all proposed fences; [9] All machinery and equipment to be used and/or stored during the landfill operation; [10] A transportation plan identifying the mode of transportation to be used, the size and types of vehicles to be used, the number and frequency of trips to and from the site, and the routes to be used by trucks or locomotives; [11] The location and type of landscaping to be used to screen the landfill operation from adjacent land uses and public rights-of-way; and [12] Other information required by the Plan Commission. (b) Restoration and reuse plan required. A restoration and reuse plan, provided by the applicant, shall contain existing topography (at a contour interval specified by the Plan Commission) and proposed contours after filling or restoration; depth of the restored topsoil; and planting or restoration and restoration commencement and completion dates. Updates of the restoration plan shall be filed annually to show restoration progress. The applicant and/or owner of the sanitary landfill site shall furnish the necessary sureties, which will enable the City to perform the planned restoration of the site in the event of default by the applicant. The amount of such sureties shall be based upon cost estimates prepared by the City, and the form and type of such sureties shall be approved by the Common Council. H. Miscellaneous uses. (1) Drive-through facilities. (a) Drive-through facilities may be allowed as an accessory use to drive-through restaurants, pharmacies, financial institutions, and other uses as allowed by the Plan Commission. (b) All drive-through facilities shall comply with the yard requirements of the zoning district where the use is allowed. (c) Protective canopies shall not be closer than 25 feet to the base setback line. (d) Drive-through facilities shall meet any additional requirements as set forth in D. I. Aboveground/below ground storage tanks: (1) Are considered permitted uses in all nonresidential districts. (2) Aboveground installation requires an administrative permit. (3) Shall follow the accessory use requirements of the district in which the tank is located for the appropriate setback requirements. (4) Applicant shall meet all fire department requirements Accessory uses and structures. A. General provisions. (1) Properties over five acres in size that have a demonstrated agricultural use as determined by the Director shall be exempt from this chapter. (2) Accessory uses that are for a demonstrated agricultural use shall only be used for storage and demonstrated agricultural purposes, and not for home occupations, commercial storage, or business operations. Page 102

103 (3) The Plan Commission shall regulate the architecture of agricultural accessory uses under D(1) of this chapter. (4) Accessory uses are allowed in any district as may be specified in the appropriate district regulations or in this section. (5) All accessory buildings shall require the issuance of a building permit. (6) Accessory uses are allowed only after the principal structure is present or under construction. Construction of an accessory use on a property without a principal structure is subject to Plan Commission review. (7) The use and/or location requirements stipulated elsewhere in this chapter may be modified subject to Plan Commission approval. (8) Detached accessory buildings and structures that are part of a planned development are subject to Plan Commission review. (9) Skateboard ramps are prohibited in the City of New Berlin within residentially zoned districts. B. Maximum number and size of accessory structures. The maximum allowable square footage of accessory structures and the maximum number of accessory buildings shall be regulated as outlined in Table Square footage shall be based on the first floor footprint excluding overhangs up to 24 inches. Lot Area (acres) Table Maximum Combined Allowable Square Footage Page 103 Maximum Number of Accessory Buildings Less than , , , , , , and greater 2,500* 3* *Unless demonstrated agricultural use as determined by the Director. C. Pad/foundation requirements. Accessory buildings and toolsheds 144 square feet or less in area shall be placed on a pad of concrete, asphalt, patio block, polycarbonate or pressure-treated lumber. Accessory buildings greater than 144 square feet in area shall be constructed on a foundation or concrete slab. D. Building materials. Accessory buildings may be made from either masonry or wood frame materials, subject to the following: (1) All accessory buildings shall be at least 10 feet from a principal residence or in the case of proper fire separation, the building inspector may allow accessory buildings to be placed 5 feet from a principal residence. The Building Inspector shall consider the health, safety, general welfare, and aesthetics of the proposed construction before granting such a waiver. E. Dimensional requirements. (1) Size and height. (a) General farm buildings. [1] General farm buildings, including barns, silos, sheds, and storage bins intended for allowed agricultural uses, shall be sized to meet demonstrated agricultural needs. [2] No farm buildings or parts of farm buildings shall exceed 60 feet in height. [3] Accessory buildings exceeding 35 feet in height shall provide one additional foot of required front, side, and rear yard for each one foot over 35 feet in height.

104 (b) Single-family residential accessory uses: An accessory building height may only exceed 15 feet when determined by DCD staff that a higher pitch is required to match the exterior of the principal residence. See Section for height measurement requirements. (c) Non-single family residential accessory uses. DCD Staff shall regulate the use, size and architecture of all accessory buildings in districts other than single family residential or agricultural. (2) Setbacks. (a) All accessory uses, except where otherwise specified, shall be set back a minimum of five feet from all property lines. (b) The five-foot accessory yard setback shall be regulated as follows: [1] The accessory use setback shall be kept free from accumulation of debris or refuse. [2] The accessory yard setback shall not be used for the storage of any material or for parking. [3] Only fences, drainage swales, utilities, and landscaping may be allowed within the accessory yard setback area. (c) The Plan Commission shall regulate setbacks for all accessory buildings in any non-single-family residential district. (d) All accessory buildings and structures shall be located a minimum of 10 feet from the principal building or in the case of proper fire separation, the building inspector may allow accessory buildings to be placed 5 feet from a principal residence. The Building Inspector shall consider the health, safety, general welfare, and aesthetics of the proposed construction before granting such a waiver. (3) Lot coverage. (a) Accessory uses shall not occupy more than 20% of the rear yard in any residential district. (b) Accessory uses shall not occupy more than 50% of the rear yard area in any office or industrial district. (c) Where accessory uses are allowed in the side or front yards, the accessory structures or uses shall not occupy more than 15% of the yard area. F. Allowed accessory uses. (1) Accessory uses not requiring a building permit. (a) The following uses may be allowed in all yards where the use is demonstrated to be incidental to the primary use of the property: [1] Basketball hoops; [2] Bird baths; [3] Flagpoles; [4] Fountains; [5] Lawn sculptures; [6] Religious statues; [7] Gardens; [8] Temporary or seasonal swimming pools; [9] Temporary greenhouse; [10] Wishing wells; and [11] Similar items determined to be appropriate by the Plan Commission. (b) The following uses may be allowed in the rear yard only: [1] Compost piles not exceeding six feet in height; [2] Fire woodpile, provided that the woodpile is neatly stacked and does not exceed six feet in height; this height restriction may be waived if the firewood is stacked against an allowed structure; [3] Sport Courts [4] Patio, not including a covered patio; [5] Permanent volleyball court; [6] Swing sets and gym sets; [7] Tennis courts. (2) Accessory uses requiring a building permit. [Amended by Ord. No. 2332] (a) The following uses shall meet all front, side and rear yard setbacks of the district in which the use is located: [1] Accessory buildings with a minimum area of 144 square feet; [2] Balconies; [3] Central air-conditioning units and generators; Page 104

105 [4] Covered patios or decks; [5] Garages, provided that they do not extend into the front yard without prior approval by DCD Staff and issuance of an administrative permit; and [6] Carports, provided that the following provisions are met: [a] The carport is a supplement to a required attached or detached garage; and [b] The carport does not extend into the front yard. (b) The following uses may be allowed in the rear yard only or within the side yard setback for the principal use: [1] Accessory buildings with a maximum area of 144 square feet; [2] Cabanas or changing rooms, provided that there are no living quarters located in such use; [3] Gazebos or chickees; [4] Jacuzzis or hot tubs which may be located as close to a principal or accessory building as necessary; [5] Playhouse exceeding 144 square feet and greater than 7 feet in height; [6] Swimming pools, which may be separated a minimum of four feet from the principle building if the Department finds that there is no adverse effect upon the health, safety, general welfare, and aesthetics of the proposed development; [7] Toolsheds. [8] Wood or solid surface deck, not including a covered deck. [a] If a deck has an elevation greater than four feet above the elevation, it shall be considered a balcony and must meet the minimum setback requirements of the zoning district in which it is located; [b] A deck may extend into a side yard, provided that it meets the minimum side yard setback requirements of the zoning district in which it is located. (3) Temporary Outdoor storage. Temporary outdoor storage may be allowed as an accessory use in all zoning districts, subject to the following provisions; (a) Temporary outdoor storage units (example: shipping containers/crates) shall abide by the restrictions below: [1] An administrative permit application shall be submitted and a zoning permit issued prior to the temporary outdoor storage unit being placed on the property if the temporary outdoor storage unit will be on the property over 30 days. [2] Only one temporary outdoor storage unit will be allowed per tax key. Any request for more than one temporary outdoor storage unit must first be applied for and reviewed by Department of Community Development staff. [3] Temporary outdoor storage units shall not exceed eight feet in height, 10 feet in width and 20 feet in length. [4] No flammable or explosive materials may be stored in the temporary outdoor storage units. [5] No temporary outdoor storage unit will be used to store materials related to an off-premises business or a home occupation. (b) Location: [1] Temporary storage units shall be placed on a hard, all-weather surface, driveway or turnaround area. (This does not include areas of dirt or grass.) [2] Temporary outdoor storage areas shall be set back a minimum of 10 feet from the base setback line and a minimum of five feet from the side and rear lot lines. [3] Temporary outdoor storage units will not be allowed to be stored on public access areas, easements or within the City of New Berlin right-of-way. (c) Duration: [1] Temporary outdoor storage units shall not be stored on a property longer than 30 days unless the property owner submits an administrative permit application requesting a longer duration of time. The total storage of the temporary outdoor storage unit with an application and permit shall not exceed 60 days unless as specified in the next condition. Page 105

106 [2] Property owners that have applied for and received a valid building permit shall be allowed to store temporary outdoor storage units on the property no longer than 180 days or until final occupancy is issued, whichever comes first. [3] If the project has a valid building permit, the property owner shall not be required to apply for an administrative permit. [4] If the temporary outdoor storage unit is scheduled to remain on the property over 180 days, then the property owner shall apply for an administrative permit. [5] Once the project or property owner receives final occupancy and/or the building permits have been closed out and final inspected, the property owner must remove the temporary outdoor storage unit within 30 days. G. Regulations for specific types of accessory uses and structures. (1) Accessory dwellings. (a) Residential quarters may be provided for the owner or proprietor of a business located in the B-1, B- 2, B-3 and B-5 Districts, provided that the following regulations are met: [1] The accessory dwelling is located in the same building as the business. [2] The accessory dwelling shall meet all minimum floor area requirements of the Rm-1 Zoning District. [3] Adequate off-street parking for the occupant and visitors is provided as well as access to and from a public roadway; and [4] A sufficient amount of yard space is provided for ordinary outdoor activities. (b) Residential quarters for the caretaker or clergy may be provided in the I-1 District. (c) Family dwelling unit. An accessory family dwelling unit, commonly called an in-law suite, may be permitted in the agricultural and single-family residential zoning districts, provided: [1] The family dwelling unit is attached and architecturally integrated with the principal dwelling unit. Detached accessory dwelling units are prohibited. [2] The family dwelling unit shall require a zoning permit in compliance with [3] The family dwelling unit may be built simultaneously with a new residence or after an existing residence has been constructed. [4] The owner is required to reside on the property. The owner may live in either the principal unit or the family dwelling unit. [5] The occupants of the principal unit and family dwelling unit shall be related by blood, adoption, marriage or other legally recognized relationship which creates a common household. A deed restriction on the family dwelling unit and property shall be recorded to limit the occupants as defined hereunder. [6] No more than two people shall live in the family dwelling unit. [7] The maximum size of the family dwelling unit shall be no greater than 50% of the living space of the principal unit. [8] The family dwelling unit may have a separate entrance, provided the entrance is not in the front of the principal unit. [9] The family dwelling unit shall have a minimum of one interior connection to the principal unit. (2) Antennas, Amateur Radio Antennas (e.g., ham radio), and satellite dishes. Terrestrial antennas amateur radio antennas (e.g., ham radio), and satellite dishes are allowed as accessory uses in any district, provided that the standards set forth below are met. These standards shall be interpreted and enforced in a manner consistent with the Telecommunications Act of 1996 and applicable FCC regulations. (a) Location. [1] Terrestrial antennas amateur radio antennas (e.g., ham radio), and digital satellite receiving dishes 36 inches or less in diameter may be located in the rear yard or on the roof of the principal structure in all residential districts; [2] Earth station dish antennas may be located in the rear yard in any residential district; and [3] Terrestrial antennas and earth station dish antennas may be located in the side and rear yard or on the roof of the principal structure in nonresidential districts including agricultural districts. [4] Amateur radio antennas (e.g., ham radio) may be located in the rear or (b) Measurements. [1] All freestanding antennas shall be located not less than five feet from a lot line. Adjustable antennas shall not be closer than five feet to the lot line in any position. Page 106

107 [2] All freestanding terrestrial antennas, roof antennas, and amateur radio antennas (e.g., ham radio), shall meet the height requirements for the district in which they are located, except as provided in B of this chapter. An [3] Ground-mounted earth station dish antennas shall not exceed 15 feet in height. [4] All antennas, including earth station dish antennas, shall be constructed and anchored in such a manner to withstand winds of not less than 80 miles per hour, and such installations shall be constructed of noncombustible and corrosive-resistant materials. (c) Additional regulations. [1] All antennas, including earth station dish antennas, shall be filtered and/or shielded so as to prevent the emission or reflection of electromagnetic radiation that would cause any harmful interference with the radio and/or television broadcasting or reception on adjacent properties. In the event that harmful interference is caused subsequent to its installation, the owner of the dish antenna shall promptly take steps to eliminate the harmful interference in accordance with Federal Communications Commission regulations. [2] Not more than one terrestrial and one earth station dish antenna per dwelling unit shall be allowed on a lot or parcel in a residential zoning district. [3] Earth station dish antennas shall be located and designed to reduce their visual impact on surrounding properties. [4] No form of display or identification may be displayed on the dish or framework other than the customary manufacturer's identification plates. [5] All antennas, and the construction supports and installation thereof, shall conform to applicable City Building Code and Electrical Code regulations and requirements. Editor's Note: See Ch. 80, Building Construction, and Ch. 106, Electrical Standards. Appropriate permits shall be issued by the Building Inspector. Prior to the issuance of a permit for a building-mounted earth station dish antenna, the applicant shall submit a plan or document prepared by a registered professional engineer which certifies that the proposed dish antenna installation is structurally sound to accommodate wind load, snow load, and dead load. [6] Portable or trailer-mounted antennas are not allowed with the exception of temporary installation for on-site testing and demonstration purposes for a period not to exceed two days at any one location. [7] In the event the property owner of a parcel of land located in a residential district determines and documents that the placement of an antenna in a rear yard would prevent its use for its intended purpose, the property owner may apply to the Plan Commission for a variance to allow the installation of the antenna in a side yard location. The procedure for issuing the Plan Commission variance shall follow the procedure set forth in B of this chapter. If the owner determines and documents that a side yard location is not functional, then the Plan Commission may allow a roof-mounted earth station dish antenna. (3) Fences. Fences are allowed as accessory uses in all districts and are further regulated as follows: (a) Location and height. [1] No fence in the front yard shall be located closer to the street than the base setback line. No fence in the vision clearance triangle shall exceed three feet in height above mean street grade. [2] Fences 50 inches or less in height shall not require a zoning permit. [3] Fences exceeding 50 inches but not more than 74 inches in height shall not require a zoning permit but shall be constructed at least two feet from the property line \{see Subsection G(3)(a)[4]\} and shall not be located in the front yard or closer to a public street than the principal structure. On corner lots, the lot facing the side street (or second street) shall also be considered a front yard. Refer to Section F for additional criteria. The DCD may permit the construction of a fence in the front yard, provided that all other requirements for fences are met. DCD Staff may allow a fence to be constructed at the property line if the intent is for neighbors to share a common fence line and connect it with a rear fence. [4] Maintenance-free materials which are at not less than 50 inches and not more than 74 inches in height may be constructed on the lot line, provided that all other requirements for fences are met. [a] Metal fences (chain link, wrought iron, aluminum). [b] PVC/recycled materials (subject to approval by Plan Commission). [c] Removable fencing. [d] Common lot line fencing, finished side facing both properties and maintained by both owners by prior agreement; survey required. Page 107

108 [5] Fences exceeding 74 inches in height shall be constructed only after Plan Commission review and approval in accordance with the procedure set forth in of this chapter. Before granting approval, the Plan Commission shall notify abutting neighbors and shall determine that the height of the fence is necessary and will not adversely affect the appearance of the neighborhood or adjacent property values. [6] Fences shall be located outside of easement areas unless Plan Commission approval is granted to place a fence in or on the easement. (b) Construction. [1] All structural and support components of a fence shall face away from adjacent properties. [2] All fences shall be constructed in such a manner and of such materials and colors as to not adversely affect the appearance of the neighborhood or adjacent property values. [3] All fences shall be constructed straight and plumb. Any fence that is to be constructed or maintained in other than a straight and plumb condition, including but not limited to certain types of split-rail fences, shall require Plan Commission review and approval. Before granting approval, the Plan Commission shall notify abutting neighbors and shall determine that the fence will not adversely affect the appearance of the neighborhood or adjacent property values. (c) Maintenance. All fences shall be maintained in good repair at all times. No signs or display shall be allowed on a fence. No materials shall be stored between the fence and the lot line. (d) Exception. A snow fence temporarily constructed for the purpose of catching wind blown snow shall not be subject to these fence requirements, provided that it shall be installed no earlier than November 1 of each year and shall be removed no later than April 1 each year. (4) Home occupations. Home occupations may be allowed as accessory uses in any agricultural or residential district, provided that they comply with the following standards: (a) General regulations. Page 108

109 [1] Home occupations shall be allowed only after Staff review and administrative approval in accordance with the procedures set forth in Article III of this chapter. [2] The total area devoted to a home occupation shall not exceed 20% of the building area of the principal dwelling unit. [3] A home occupation shall produce no offensive noise, vibration, dust, odors, smoke, heat, pollution, glare, or radio, electrical, or television interference or otherwise produce a nuisance as determined by the Plan Commission. [4] No materials that decompose by detonation shall be allowed in conjunction with a home occupation. [5] No home occupation shall be allowed which changes the outside appearance of the dwelling or is visible from the street. [6] Materials used in or produced by a home occupation may not be stored or displayed outside the dwelling without Plan Commission approval. [7] No more than one nonresident employee shall be employed by a home occupation. [8] Retail and wholesale sales shall be prohibited except for the retail or wholesale sales of products or goods produced or fabricated on the premises as a result of the home occupation. [9] The applicant shall demonstrate that there is sufficient off-street parking available to the home occupation. All vehicular parking for both the residence and the home occupation shall be located on the premises. [10] A home occupation shall be carried on wholly within the principal dwelling. No home occupation nor any storage of goods, materials, or products connected with a home occupation shall be allowed in any accessory building or detached garage. [11] Home occupation uses shall meet all applicable Fire and Building Code safety requirements. Editor's Note: See Ch. 124, Fire Prevention, and Ch. 80, Building Construction. [12] No home occupation involving visits to the site of the home occupation by customers or the loading or unloading of business-oriented material shall be operated between the hours of 8:00 p.m. and 8:00 a.m. (b) Prohibited home occupations. The following uses are prohibited as home occupations: [1] Animal hospitals or pet boarding; [2] Antique shop; [3] Automobile or other motor vehicle repair or paint shops; [4] Dance studios for more than six students; [5] Furniture stripping and/or refinishing; [6] Gift shops; [7] Gun or ammunition sales; [8] Manufacturing or assembling items for sale from components not made on the same premises; [9] Mortuaries; [10] Music studios for more than three students; [11] Photographic studios; [12] Private clubs; [13] Restaurants; [14] Small engine repair shops; [15] Stables or kennels; [16] Tourist homes or boardinghouses; and [17] Any other home occupations not meeting the criteria established by this chapter. (5) Small Wind Energy Systems (a) Authority This Ordinance is adopted pursuant to authority granted pursuant to Wisconsin Statute Sections 62.23(7), (b) Purpose The purpose and intent of this Ordinance is to oversee the permitting of small wind energy systems and the preserve and protect public health, safety and welfare without significantly increasing the cost or decreasing the efficiency of a small wind energy system. (c) Definitions SMALL WIND ENERGY SYSTEM A small wind energy system means equipment that converts and then stores or transfers energy from the wind into usable forms of energy (as defined by Wisconsin Statute Section (1)(m). This equipment includes any base, blade, foundation, Page 109

110 generator, nacelle, rotor, tower, transformer, vane, wire, inverter, batteries or cabling or other components used in the system, which system does not generate an excess of 100 kilowatts of electricity. Total height means the vertical distance from the ground level to the tip of a wind generator blade when the tip is at its highest point. (d) General Regulations. A small wind energy system shall comply with the use regulations of the applicable zoning district and with the following requirements: [1] A wind tower for a small wind energy system shall be set back a distance equal its total height from: [a] Any public right-of-way unless written permission is granted by the governmental entity with jurisdiction over said road right-of-way. [b] Any overhead utility line unless written permission is granted by the affected utility. [c] Any property line abutting the property that is not residentially zoned unless written permission is granted by the owner of the abutting property. [2] Access All ground mounted electrical and control equipment shall be labeled or secured to prevent unauthorized access. The tower shall be designated and installed so as to not provide step bolts or a ladder readily accessible to the public for a minimum height of 12 feet above the ground. [3] The tower shall be designed and installed so that the distance between the bottom of the blade at its lowest point of rotation shall not be less than 20 feet above the ground. [4] Electrical Wires All electrical wires associated with the small wind energy system, other than wires necessary to connect the wind generator to the tower wiring, the tower wiring to the disconnect junction box and the grounding wires shall be located underground. [5] Lighting the wind tower and generator shall not be artificially lighted unless such lighting is required by the Federal Aviation Administration. The wind generator and tower shall remain painted or finished the color or finish that was originally applied by the manufacturer and was approved by the Director of Community Development. [6] Signs All signs other than the manufacturer s or installer s identification, appropriate warning signs or owner identification on a wind generator tower building, or other structure associated with the small wind energy system visible from any public road shall be prohibited. [7] The small wind energy systems, including the tower and associated structure, shall comply with all applicable State building codes, construction and electrical codes and the national electrical codes. [8] Utility notification and interconnection Small wind energy systems that connect to the electrical utility shall comply with the Public Service Commission of Wisconsin Rules for Interconnecting Distributed Generations Facilities. [9] Noise Audible noise due to wind energy system operations shall not exceed 50 dba for any period of time when measured at the exterior of any residence, school, hospital, church or public library and the property line of the adjacent neighbors existing on the date of the approved clean energy system permit. In the event audible noise due to wind energy systems operations contains a steady pure tone such as a whine, screech or hum not produced under normal operating conditions is prohibited. In the event the ambient noise level exceeds the applicable standards given above, the applicable standard shall be adjusted so as to equal the ambient noise level. (e) Small Wind Energy System Permit. An applicant for a small wind energy system permit shall provide the following: [1] A survey map showing property lines and physical dimensions, including the location dimensions and types of existing structures on the property, location of the proposes small wind energy system tower, right-of-way of any public road that is contiguous with the property and the overhead utility lines. [2] Wind energy systems specifications include the manufacturer and model, rotor diameter, tower height, tower type and kilowatt specifications. [3] Information regarding noise anticipated to be attributed to the wind energy system. [4] The small wind energy system permit shall expire if the small wind energy system is not installed and functioning within 12 months from the date the permit is issued. (f) Abandonment. The small wind energy system is deemed to be abandoned if it is out of service for a continuous 12 month period. If the City provides a notice of abandonment, the small wind energy Page 110

111 system must be removed at the owner s expense within 90 days of the notice of abandonment. If the owner fails to remove the wind energy system, the City may pursue a legal action to have the wind energy system removed at the owner s expense, including the applicable legal fees. The owner shall have the right to respond to the notice of abandonment within 30 days of receipt of the notice. The City shall withdraw the notice of abandonment if the owner provides information that demonstrates the small wind energy system has not been abandoned. (g) The Director of Community Development shall issue the small wind energy system permit, provided that it complies with the limitations and conditions as set forth herein, as well as applicable provisions of the Wisconsin Administrative Code and Wisconsin Statutes. In the event that the application is rejected, the Director of Community Development shall notify the applicant in writing and provide a written statement of the reasons why the application was rejected. The applicant may appeal the decision of the Director of Community Development to the Plan Commission. (6) Solar energy conversion systems. (a) Solar energy conversion systems (including solar collectors attached to the principal structure and solar collectors erected as an accessory structure) may be allowed as an accessory use in all Zoning Districts. (b) Solar energy conversion systems shall be subject to the following provisions: [1] Application. Applications for the erection of a solar energy conversion system shall conform to the application and approval procedure for a building permit set forth in of this chapter and the electrical code. In addition, the application shall include a copy of any solar easements obtained from adjacent property owners. [a] A building permit application submittal for a solar energy conversation system shall require a complete set of plans including a site plan and any structure details drawn to scale. This plan set will be reviewed to ensure that a solar panel does not negatively impact the public health, safety and welfare. [2] Construction. Solar energy conversion systems shall be constructed and installed in conformance with all applicable state and local building and zoning codes. [3] Location and height. Solar energy conversion systems shall meet all setback and yard requirements for the district in which they are located. Solar energy conversion systems shall conform to all height requirements of this chapter. (7) Geothermal systems. Geothermal systems may be allowed as an accessory use in all zoning districts, subject to applicable building codes. (8) District heating/cooling. District heating and/or cooling is allowed as an accessory use in all zoning districts, subject to applicable building codes Temporary uses and structures. A. Permit required. All temporary uses and structures shall obtain a temporary use permit from the Department of Community Development. B. Permits. A temporary use permit authorizing certain temporary uses classifications shall be reviewed in accordance with the provisions of this section and other applicable sections of this chapter. C. Application. Applications for a temporary use shall be made in the office of the Department of Community Development. D. Time limits. (1) Temporary use permits shall be valid for a specified period of time (2) Temporary use permits for uses such as festivals, circuses and similar uses shall be valid for no more than two weeks. E. Lapse of approval. A temporary use permit shall lapse if not used within the dates approved. F. Required findings. The application shall be approved as submitted or in a modified form if the Director of the Department of Community Development finds: Page 111

112 (1) That the proposed temporary use will be located, operated, and maintained in a manner consistent with the policies of the New Berlin Comprehensive Plan and the provisions of this chapter; (2) That the approval of the application will not be detrimental to property or improvements in the surrounding area or detrimental to public health, safety or general welfare; and (3) That the proposed temporary use complies with all applicable standards of this section unless otherwise expressly stated. G. Conditions of approval. In approving a temporary use permit, the Director of the Department of Community Development may impose reasonable conditions, including but not limited to limitations on hours, illumination, storage, and parking necessary to: (1) Achieve the general purposes of this section and the specific purposes of the zoning district in which the temporary use will be located or be consistent with the New Berlin Comprehensive Plan; (2) Protect the public health, safety, and general welfare; and (3) Ensure the operation and maintenance of the temporary use in a manner compatible with existing uses on adjoining properties and in the surrounding area. H. Temporary construction, security, real estate sales offices. (1) General. The owner of a construction project may place on the construction site a temporary office for use by construction, security, or real estate sales personnel. (2) Location. The temporary office shall be located on the lot on which construction or development is occurring and shall not be located within 25 feet of any abutting residential use. (3) Sanitation. Sanitation and plumbing requirements may be waived by the Director, provided that adequate facilities are available elsewhere on site. (4) Time limits. The office shall be removed within 15 days after final inspection of the permanent structure or expiration of the corresponding building permit, whichever event occurs first. In the case of residential development projects, the office must be removed within 15 days of the sale or lease of all dwelling units. Page 112

113 ARTICLE VI Measurements Lot measurement and requirements. A. Measurement of lot area. The lot area is the total area within the lot lines of a lot, excluding any street right-ofway or ultimate right-of-way in all districts. B. Percentages and fractions. When a measurement results in a fractional number or percentage, any fraction of 1/2 or less shall be rounded down to the next lower whole number and any fraction of more than 1/2 shall be rounded up to the next higher whole number. Any percentage of 0.5% or greater shall be rounded up to the next higher whole number and any percentage less than 0.5% shall be rounded down to the next lower whole number. C. Corner lots. Structures on corner lots shall provide a front yard setback as required by this chapter on the street that the structure faces. A second front yard shall be provided on the side of the structure abutting a second public or private street. See Figure VI-1. The second front yard is referred to as the "side on corner." The setbacks on each street shall be the same distance. The remaining yards shall be a side yard and a rear yard. The functional rear of the house shall face the rear yard which shall be opposite of the front yard. The Plan Commission may reduce the side on corner setback up to 25% on lots less than 100 feet in width. D. Double frontage lots. Structures on lots abutting two (2) opposite streets shall be provided with a front setback and a rear setback. The Director or a designee shall select where the front setback shall be applied and where the rear setback shall be applied in a manner that prohibits access to a double frontage lot from two arterial streets. The selected front setback area shall be required to comply with the front setback requirements for the district in which the lot is located. The selected rear setback area shall be required to comply with the rear setback requirements for the district in which the lot is located and the rear setback area shall be screened from arterial streets with fencing or landscaping, as may be appropriate. Accessory structures may be placed in the designated rear setback area, but shall be located no closer to the street right-of- way than the required setback for accessory structures. For purposes of selecting the front yard, the architectural front of the structure shall be designated as the front yard. See Figure VI-1. Figure VI-1 Location of Yards on Typical Interior, Corner, and Double Frontage Lots REAR YARD Page 113

114 E. Zero lot line residential development. Zero lot line residential developments (see Figure VI-2) may be permitted in the Rd-1 and Rm-1 Districts where the following provisions are met: (1) Lot area and width. Lots shall have a minimum area of 6,200 square feet and shall not be less than 50 feet in width with one dwelling unit per lot. (2) Setback and yards. (a) There shall be a minimum setback of 50 feet from the right-of-way of all public streets or from private drives. There shall be a side yard requirement on one side of a building of not less than 15 feet. The dwelling unit shall be placed on one side property line with a zero foot side yard. The minimum distance between buildings shall be 30 feet. There shall be a rear yard of not less than 15 feet for all lots unless the Plan Commission permits the rear lot line to be a second zero lot line. (b) All buildings shall be a minimum of 50 feet from an adjacent single-family lot line in a single-family residential district. (3) Other requirements. (a) Buildings constructed shall be of the row (party wall) dwelling type and shall consist of a row of attached dwelling units. (b) Each dwelling unit shall have separate utility connections. Attached dwellings may have one sanitary and stormwater lateral run and two separate water meters. Figure VI-2 Examples of Zero Lot Line Residential Development F. Lots of record. An existing legal lot that contains less area than the lot requirements of this chapter may be used as a building site, provided that the proposed use is allowed in the zoning district. Page 114

115 (1) Minimum lot size requirements shown in the zoning districts apply to the creation of new lots and do not affect existing legally created lots or parcels, provided that the lot is a lot of record in the Waukesha County Register of Deeds Office prior to the effective date of this chapter. (2) Vacant buildable lots of record can be used as a building site, provided that the use is allowed in the zoning district and the lot has frontage on and access to a public street. If an existing structure on a lot of record were to be damaged or destroyed, it would be allowed to be rebuilt in accordance with the Building Code and these zoning regulations. (3) New building permits issued under this section shall be required to meet the setback and other yard requirements of this chapter. A building proposed with lesser dimensions and requisites than those stated in the code shall be issued a building permit only after a variance by the Board of Appeals. (4) If two or more lots with continuous frontage, one or more of which contains less land area or width than required by this chapter and have the same ownership as of the effective date of this chapter, the lots involved may be considered to be an individual parcel for the purpose of this chapter. (5) If two or more adjoining lots with the same ownership are used or built on as one parcel, then the individual lots may not be considered separate until all buildings, utilities, and appurtenant structures are removed, vacated, or set back in accordance with the standards of this chapter. G. Where a lot is located partially within a C-1 or C-2 District and/or subject to a conservation easement and partially within another district, that portion of the lot within the C-1 or C-2 District may be used to meet the minimum area requirements of the adjoining use district, provided that the area within the C-1 or C-2 District is reduced by an amount computed using the adjusted tract acreage approach as described under G(2). The adjusted tract acreage shall not apply to land divisions (CSMs). A conservation easement shall be used to protect the C-1, C-2 or conservation area Height measurement and requirements. A. Measurement of height. The height of a structure shall mean the vertical distance from the average grade adjoining the walls of the structure to the average of the highest points of the roof surface of a flat roof, or to the deckline of a mansard roof, or the mean height level between eaves and ridge for a gable, hip or gambrel roof. B. Exemptions and exceptions to height regulations. The district height limitations set forth elsewhere in this chapter may be exceeded, but such modification shall be in accord with the following standards, subject to Plan Commission approval: (1) Exemptions. The following uses and structures are exempt from the height limitations of this chapter: (a) Architectural projections. Architectural projections which are integral to a principal structure, such as spires, steeples, belfries, parapet walls, cupolas, domes, flues, and chimneys. (b) Special structures. Special structures, such as elevator penthouses, gas tanks, grain elevators, observation towers, scenery lofts, heating and air-conditioning equipment and necessary mechanical appurtenances, cooling towers, fire towers, ornamental towers, substations, and smoke stacks. (c) Essential services. Essential services, such as utilities, water towers, electric power and communication transmission lines. (d) Solar collectors. Solar collectors and wind energy conversion systems (windmills), provided that they shall not exceed a height equal to their distance to the nearest lot line. (2) Communication structures. The height of telecommunications structures is regulated in C(16). (3) Agricultural structures. Agricultural structures, such as barns, silos, and windmills, may exceed a height of 35 feet, provided that all required yards are increased not less than one foot for each additional foot the structure exceeds 35 feet Yard/setback measurement and requirements. A. Measurement of a setback. A setback shall mean a line drawn parallel to a lot line at a distance equal to the depth of the required yard setback. The distance shall be measured along a straight line drawn perpendicular to the lot line and the setback line. See Figure VI-3. Page 115

116 Figure VI-3 Location of Setbacks in a Typical Interior Lot B. Measuring setbacks on culs-de-sac. The required setback on culs-de-sac and curved streets shall be determined by measuring the required setback from the arc of the street right-of-way resulting in a setback line that is parallel to the arc of the street right-of-way. See Figure VI-4. Figure VI-4 Setback Location on a Cul-de-Sac Page 116

117 C. Average street yards. The required street yards may, with Plan Commission approval, be decreased in any residential or business districts to the average of the existing street yards of the abutting structures on each side but in no case less than 15 feet in any residential district and five feet in any business district. D. Exceptions to yard and setback requirements. The yard and setback requirements set forth elsewhere in this chapter may be modified as follows, subject to Plan Commission approval: (1) Uncovered stairs. Uncovered stairs, decks sized for entry purposes only, stoops, landings, fire escapes, gutters, decks and awnings may project into any yard but not to exceed six feet and not closer than five feet to any lot line. (2) Architectural projections. Architectural projections, limited to eaves and wing walls, if the building is constructed to the full permitted building width or depth may project into any yard, but such projection shall not exceed three feet. (3) Off-street parking. (a) Off-street parking is allowed in all yards of all districts except where restricted or prohibited in (b) Off-street parking shall not be closer than 10 feet to a street right-of-way or closer than five feet to an internal lot line. Parking lots in manufacturing, quarrying, or landfill districts shall be set back a minimum of 50 feet from a street right-of-way. (4) Essential services. Essential services, utilities, electric power and communication transmission lines are exempt from the yard and distance requirements of this chapter. (5) Landscaping and vegetation. Landscaping and vegetation are exempt from the yard requirements of this chapter, but shall comply with the vision triangle requirements set forth in C(15) of this chapter. (6) Additions. Additions in the street yard of existing structures shall not project beyond the average of the existing street yards on the abutting lots or parcels without approval of the Plan Commission. E. Side-entry garage setback. When a garage is proposed with an entry facing an interior lot line, the garage shall be set back a minimum of 30 feet from the lot line opposite the garage door to provide for adequate maneuvering space. The setback shall be measured perpendicular from the edge closest to the street of each garage door opening. There shall be a twenty-four-foot access radius in and out of the garage door. The side- Page 117

118 entry driveway shall be located not less than five feet from the side lot line. See Figure VI-5. For a pie-shaped lot, see Figure VI-6. FIGURE VI-5 Side-Entry Garage Setback Figure VI-6 Pie-Shaped Lot Side Entry Garage Setback Page 118

119 F. Double Frontage Lots. Structures on lots abutting two (2) opposite streets shall be provided with a front setback and a rear setback. The Director or a designee shall select where the front setback shall be applied and where the rear setback shall be applied in a manner that prohibits access to a double frontage lot from two arterial streets. The selected front setback area shall be required to comply with the front setback requirements for the district in which the lot is located. The selected rear setback area shall be required to comply with the rear setback requirements for the district in which the lot is located and the rear setback area shall be screened from arterial streets with fencing or landscaping, as may be appropriate. Accessory structures may be placed in the designated rear setback area, but shall be located no closer to the street right-of- way than the required setback for accessory structures. For purposes of selecting the front yard, the architectural front of the structure shall be designated as the front yard. See definition. Page 119

120 ARTICLE VII Nonconformities General provisions. A. Introduction. The regulations of this article govern uses, structures, lots, signs, and other situations that came into existence legally but that do not comply with one or more requirements of this chapter. B. Purpose and intent. It is the general policy of the City to allow uses, structures, and lots that came into existence legally, in conformance with then-applicable requirements, to continue to exist and be put to productive use, but to bring as many aspects of such situations into compliance with existing regulations as is reasonably possible. The regulations of this article are intended to: (1) Recognize the interests of property owners in continuing to use their property; (2) Promote reuse and rehabilitation of existing buildings; and (3) Place reasonable limits on the expansion and alteration of nonconformities that have the potential to adversely affect surrounding properties or the community as a whole. C. Applicability. This article applies to nonconformities created by initial adoption or amendments to this chapter. It also applies to nonconformities that were legal nonconformities under previously applicable ordinances, even if the type or extent of nonconformity is different. D. Continuation permitted. Any nonconformity that legally exists on the effective date of this chapter or that becomes nonconforming upon the adoption of any amendment to this chapter may be continued in accordance with the provisions of this article. E. Determination of nonconforming status. The burden of establishing that any nonconformity is a legal nonconformity shall, in all cases, be solely upon the owner of such nonconformity. F. Repairs and maintenance. Incidental repairs and normal maintenance of nonconformities shall be permitted unless such repairs increase the extent of nonconformity or are otherwise expressly prohibited by this chapter. Nothing in this chapter shall be construed to prevent structures from being structurally strengthened or restored to a safe condition, in accordance with an official order of a public official Nonconforming uses. A. Existing nonconforming uses. The lawful nonconforming use of a structure, land, or water existing at the time of the adoption or amendment of this chapter may be continued although the use does not conform with the provisions of this chapter. However, only the portion of the land or water in actual use may be so continued, and the structure or area within which the use is contained may not be extended, enlarged, reconstructed, substituted, moved, or structurally altered except when required to do so by law and/or order so as to comply with the provisions of this chapter. B. Total lifetime structural repairs. Total lifetime structural repairs or structural alterations to a structure with a nonconforming use shall not exceed 50% of New Berlin's equalized assessed value of the structure unless it is permanently changed to conform to the use provisions of this chapter. C. Change of use. (1) Change to conforming use. A nonconforming use may be changed to any use that is allowed in the zoning district in which it is located, subject to all standards and requirements applicable to the new use. Once a nonconforming use is converted to a conforming use it may not be changed back to a nonconforming use. (2) Change to other nonconforming use. The Plan Commission may approve a change of use to a use not otherwise allowed in the underlying zoning districts if the Plan Commission finds that the new proposed use will be no more injurious than the previous use or will decrease the extent of the nonconformity. If the Plan Commission approves such a change of use, it shall be authorized to impose conditions it deems necessary to reduce or minimize any potentially adverse effect upon other property in the neighborhood, Page 120

121 and to carry out the general purpose and intent of this chapter. Any condition imposed must relate to a situation created or aggravated by the proposed use and must be roughly proportional to its impact. (3) Substitution of new equipment. The Plan Commission may permit the substitution of new equipment (e.g., fencing, mechanical equipment) if such equipment will reduce the incompatibility of the nonconforming use with neighboring uses. D. Loss of legal nonconformity status. (1) Discontinuance. If such nonconforming use is discontinued or terminated for a period of 12 months, any future use of the structure, land, or water shall conform to the provisions of this chapter. (2) Abolishment or destruction. When a structure containing a nonconforming use is damaged by fire, explosion, flood, accident, act of vandalism, or other calamity to the extent that the cost of repairs exceeds 50% of its current equalized assessed value, it shall not be restored except so as to comply with the use provisions of this chapter. E. Nonconforming quarry uses. Continued use of a quarry or those uses meeting the definition of a quarry or extractive use shall be subject to the conditions and plan of operation requirements set forth in F of this chapter. Editor s Note: Former Subsection F, Nonconforming uses in a flood hazard overlay district, which immediately followed this subsection, was repealed by Ord. No See now Art. IXA, Floodplain Zoning Nonconforming structures. A. Use. The conforming use of a nonconforming structure existing at the time of the adoption or amendment of this chapter may be continued. B. Expansion. Additions and enlargements to nonconforming structures with a conforming use are permitted and shall conform to the established building setback lines along streets and the yard, height, parking, loading, and access provisions of this chapter. DCD Staff may, upon the presentation of evidence showing a practical difficulty, permit modification to the yard, height, parking, loading and access requirements or allow additions to and replacements of existing structures or buildings within the established building setbacks, provided that the encroachment upon such requirements is no greater than the existing legal encroachment. C. Damage or destruction. Existing nonconforming structures with a conforming use, that are damaged or destroyed by fire, explosion, flood, or other calamity, may only be reconstructed or restored as provided for herein.. Notwithstanding the forgoing the aforestated restrictions as to damaged or destroyed nonconforming structures shall not prohibit the restoration of a nonconforming structure which was damaged or destroyed by violent wind, vandalism, fire, flood, ice, snow, mold or infestation, if the structure will be restored to the size, location and use it had prior to the destruction. The rebuilt nonconforming structure may only be increased in size if doing so is necessary to conform to applicable state or federal requirements. D. Nothing provided for hereunder shall limit the repair, maintenance, renovation or remodeling of a nonconforming structure subject to the terms of applicable building and fire codes. E. Highway encroachment. In the case of additions or repairs to structures which became nonconforming structures after June 5, 1962, where the encroachment is into the rights-of-way of streets or highways, a written agreement between the City and the owner shall be executed that specifies that the owner shall remove all new construction, additions, and replacements, at his own expense, when such removal becomes necessary for street and highway improvements. Any land divisions that abut a state or federal highway shall comply with Chapter TRANS 233, Wisconsin Administrative Code. F. Nonconforming structures in the Shoreland Wetland Holding District. This article does not prohibit the repair, reconstruction, renovation, remodeling, or expansion of a nonconforming structure that is located in the C-2 Shoreland Wetland Holding District and is in existence on the effective date of this chapter or amendment, or of any environmental control facility in existence on May 7, 1982, related to that structure. Page 121

122 Nonconforming lots. A. The conforming use of a conforming structure existing at the time of the adoption or amendment of this chapter may be continued although the lot area or lot width does not conform to the requirements this chapter. Additions and enlargements to structures on such lots are permitted and shall conform to the established building setback lines along streets and the yard, height, parking, loading, and access provisions of this chapter. B. For additional standards applicable to nonconforming lots, see F, Lots of record Nonconforming signs. A. Loss of nonconforming status. Any legal nonconforming sign relocated, moved, damaged and reconstructed, extended, enlarged, changed (including changing the sign face), altered, or modified shall comply with the provisions of of this chapter. B. Signs maintained in the right-of-way. By maintaining a sign in the established right-of-way of an adjoining street or highway, the owner does so at his own risk, and no damages will be awarded if the removal is required for public use or safety or right-of-way acquisition. Page 122

123 ARTICLE VIII General Development Regulations General. A. Applicability. The regulations of this article apply to all development in New Berlin subject to this chapter. No person shall develop any land located within the jurisdictional limits of this chapter without compliance with the purpose and intent and all requirements of this article. B. Purpose and intent. The purpose of this article is to regulate and control the development of land in New Berlin in order to promote the public health, safety, prosperity, aesthetics, and general welfare of the City. It is the specific intent of this chapter to regulate the development of land so as to: (1) Implement the New Berlin Comprehensive Plan; (2) Encourage the wise use, conservation, protection, and proper development of the City's natural resources and provide for the proper land use and development to the supporting and sustaining natural resource base; (3) Lessen congestion in the streets and highways; (4) Provide adequate and orderly parking facilities where required by the public; (5) Secure safety from fire, panic, and other dangers; (6) Provide adequate protection from detrimental operational conditions; (7) Provide for the development of adequate densities in appropriate areas of the City. (8) Provide direction for approved development relative to protection of natural resources, parking and loading facilities, landscaping and buffering, exterior lighting, and signs; (9) Preserve natural vegetation and cover and promote the natural beauty of the City. C. Waivers/modifications. (1) The Plan Commission may waive or modify any or all of the other requirements of this article if it determines that: (a) The site or activity in question will have no appreciable off-site impact; (b) Compliance with the requirement(s) is impractical or impossible due to site conditions or other circumstances beyond the control of the applicant; or (c) The specific requirement is not necessary for a particular site to ensure compliance with the requirements of this chapter. (2) Any property for which a waiver from the requirements of this chapter is granted shall comply with all other requirements of this chapter Site plan review principles and standards. A. Applicability. This section sets forth review principles and standards to guide the Plan Commission and staff in the review of all development requiring a site plan pursuant to , Zoning permits, except where permits are considered to be redevelopment.. For redevelopment as defined in the definition section of this zoning code, the application shall follow the criteria listed in C below. Uses requiring a site plan shall conform to the principles and standards of this section in addition to complying with all development standards set forth in this Article VIII. B. Review principles and standards. The Plan Commission shall approve site plans only after determining that: (1) The site plan is consistent with the purposes and requirements of this chapter, including these general development regulations. (2) The site plan is consistent with the goals, objectives, principles, standards, policies, and urban design criteria set forth in the New Berlin Comprehensive Plan. (3) No land shall be used or structure erected where the land is unsuitable for such use or structure by reason of flooding, concentrated runoff, inadequate drainage, adverse soil or rock formation, unfavorable topography, or low bearing strength of underlying soil, erosion susceptibility of underlying soil, or any other feature likely to be harmful to the health, safety, prosperity, aesthetics, and general welfare of this community. Page 123

124 (4) No zoning permit or building permit shall be issued for a lot that does not abut a fully dedicated and improved public street. (5) There is a proper relationship between the existing and proposed streets and highways within the vicinity of the project in order to assure the safety and convenience of pedestrian and vehicular traffic. (6) The proposed on-site buildings, structures, and entryways are situated and designed to minimize adverse effects upon owners and occupants of adjacent and surrounding properties by providing for adequate design of ingress/egress, interior/exterior traffic flow, stormwater drainage, erosion, grading, lighting, and parking, as specified by this chapter or any other codes or laws. (7) Natural features of the landscape are retained where they can enhance the development on the site, or where they furnish a barrier or buffer between the project and adjoining properties used for dissimilar purposes, or where they assist in preserving the general safety, health, welfare, and appearance of the neighborhood. (8) Adverse effects of the proposed development and activities upon adjoining residents or owners are minimized by appropriate screening, fencing, or landscaping as provided or required in this chapter. (9) Land, buildings, and structures are readily accessible to emergency vehicles and the handicapped. (10) When a site plan modification or addition is reviewed, all existing nonconformities and outstanding code violations shall be identified, resolved, and remedied. (11) All hazards identified in the site plan review process shall be resolved or mitigated. C. Redevelopment Standards. (1) Open space is not required to meet the Zoning District requirements for new development, but shall not go below the amount of open space existing on the lot at the time of the proposed redevelopment and/or site modifications. For sites that do not meet the minimum open space requirements, the applicant shall incorporate Low Impact Development techniques. (2) Existing parking lots and drive aisles that do not meet the required setbacks shall not encroach any further into the setback. (3) Site shall provide adequate parking spaces to meet the requirements in Table unless a waiver is requested and granted by the Plan Commission. (4) The applicant shall meet all applicable stormwater and drainage requirements. (5) Existing parking lot lighting shall be evaluated on a case-by-case basis when a project includes parking lot modification or expansion. At a minimum, a lighting plan shall be provided for the parking lot modification area(s). (6) A Re-Occupancy, internal facility remodel, parking lot repair and maintenance or façade improvement do not require the implementation of these requirements or the requirements in this Article. Only a building expansion or parking lot expansion will prompt the requirements to be enforced Natural resource protection. A. Limits of disturbance. (1) Establishment of limits of disturbance. As part of the zoning permit application process, the applicant shall propose, and the Department of Community Development shall establish, limits of disturbance (LOD) lines according to the criteria set forth below. The LOD shall indicate the specific area(s) of a site within which the developed project may be constructed and within which development activity shall be contained. (2) Criteria for establishing LOD. In establishing the LOD, which may be multiple and noncontiguous on a site, the following shall be taken into account: (a) Erosion prevention and control, including but not limited to protection of natural drainage channels and steep slopes over 20%. (b) Preservation of woodlands, significant native trees, and other significant native site vegetation. (c) Visual impacts, including but not limited to steep slopes and scenic views. (d) Riparian habitat, stream corridors, and wetland protection and buffering. (e) Floodplains and floodways. (f) Significant wildlife habitat areas. (g) The practical needs of approved construction activity in terms of ingress and egress to the developed project and necessary staging and operational areas. Page 124

125 (3) Maximum limits of disturbance. (a) The maximum limits of disturbance shall be determined by the Plan Commission based on the criteria listed in A(2). (4) Development standards and guidelines. (a) To the maximum extent feasible, no development, grading, or vegetation removal or alteration shall occur as a part of the development project or associated construction activity outside the LOD. (b) Disturbance or construction activity may occur outside the LOD with approval of the Department of Community Development for the following limited purposes: [1] Mitigation of development activities; [2] Restoration of previously disturbed or degraded areas; [3] Personal gardens not operated on a for-profit basis and maintained by individual homeowners; [4] Utility installations and emergency public safety activities when such activities and installations cannot reasonably be contained within the LOD; [5] Construction of a trail or pedestrian walkway that will provide public access when such trails or walkways cannot reasonably be contained within the LOD; [6] The enhancement of the habitat values and/or other natural resource values of an identified natural area; and [7] Landscaping according to an approved landscaping plan. (5) Standards for protection during construction and grading. (a) Designation. Approved LODs shall be shown on the plan for development and shall be designated in the field prior to commencement of excavation, grading, or construction with fencing or other methods approved by the Director. (b) Barrier fencing. Construction barrier fencing shall be provided at the LOD during construction through the utilization of protection techniques defined by the International Society of Arboriculture or other techniques as approved by staff. For the protection of trees and stands of trees to be preserved within an LOD that is to be disturbed, tree protection specifications as described in Subsection B(7) below shall be followed. See Figure VIII-1. Figure VIII-1 Barrier and Protective Fencing Page 125

126 B. Woodland, tree, and vegetation protection (new development). (1) Purposes. Protection of existing woodlands, trees, and vegetation cover is intended to preserve the visual and aesthetic qualities of New Berlin; to encourage site design techniques that preserve the natural environment and enhance the developed environment; to control erosion, slippage, and sediment runoff into streams and waterways; to increase slope stability; and to protect wildlife habitat and migration corridors. Preservation or provision of trees near structures also serves to conserve energy by reducing heating and cooling costs. (2) Application and exemptions. The provisions of this section shall apply to all new development, except that the following developments and activities shall be exempt from this section: (a) The removal of dead or naturally fallen trees or vegetation, or trees or vegetation that are found by the City to be a threat to the public health, safety, or welfare; (b) The selective and limited removal of trees or vegetation necessary to obtain clear visibility at driveways or intersections, or for the purpose of performing authorized field survey work; (c) The removal of trees or vegetation on land zoned or lawfully used for: [1] Commercial garden centers, greenhouses, or nurseries. (d) Wildlife habitat enhancement and restoration activities undertaken pursuant to a wildlife conservation plan approved by the City and the Wisconsin Bureau of Wildlife Management. (3) Tree/vegetation removal. (a) Outside approved LOD. No trees or vegetation shall be removed outside the approved LOD except as specifically exempted in this section. (b) Inside approved LOD: [1] Except as exempted in Subsection A(4)(b) above, to the maximum extent feasible, significant trees and vegetation inside the limits of disturbance shall be preserved. Significant trees removed from within the LOD shall be replaced as set forth in Subsection B(4) below. Page 126

127 [2] Any existing trees greater than four inches DBH, or vegetation that is in appropriate locations, in sufficient quantities, and of acceptable quality to be utilized to fulfill landscaping or buffering requirements of this chapter, shall be preserved. (c) Shoreland areas. Within a strip paralleling any navigable body of water and extending 50 feet inland from all points along the ordinary high-water mark of the shoreline, tree cutting and vegetation removal shall be limited in accordance with the following provisions: [1] No more than 30% of the length of a strip (measured along the ordinary high-water mark) shall be clear-cut to the depth of the strip. [2] Cutting of this 30% shall not create a clear-cut opening in the strip greater than 30 feet wide (measured along the ordinary high-water mark). [3] Any paths, roads, or passages within the strip shall be so constructed and surfaced so as to control erosion. [4] The Plan Commission may allow exceptions for essential services. (4) Special cutting plans. In the alternative to Subsection B(3) above, pertaining to tree/vegetation removal, a special cutting plan allowing greater cutting may be permitted by the Plan Commission. (a) Plan requirements. An application for a zoning permit shall include a sketch of the lot, including the following information: [1] Location of all structures. [2] Location of parking and driveway. [3] Gradient of the land [4] Existing vegetation. [5] Proposed cutting. [6] Proposed replanting. (b) Approval criteria. The Plan Commission may grant a zoning permit only if it finds that such special cutting plans will not cause undue erosion or destruction of scenic beauty and will provide substantial shielding from the water of structures and parking areas. The Plan Commission may condition such a permit upon guarantee of tree planting by the lot owner per an approved planting plan. (5) Tree/vegetation removal for views prohibited. No trees or vegetation shall be removed for the sole purpose of providing open views to or from structures on a site, except as provided in Subsection (B)(2) above. (6) Replacement of significant trees. When a significant tree or trees are removed from a site, the applicant or developer shall replace such tree(s) on the lot, according to the following schedule and requirements: Table Size of Tree Removed Size of Replacement Tree(s) Tree Type (DBH) (DBH) Deciduous 5- to 7-inch 1 tree at 5- to 7-inch or 3 trees at 2 1/2- to 4-inch 8- to 11-inch 3 trees at 5- to 7-inch or 9 trees at 2 1/2- to 4-inch 12-inch or larger 6 trees at 5- to 7-inch or 12 trees at 2 1/2- to 4-inch Conifers 10-foot or taller 1 tree that is 10-foot or taller or 3 trees that are 8- to 10-foot or 6 trees that are 6- to 8-foot (a) If an applicant is unable to plant the required number of replacement trees on their development site, the applicant must plant to the fullest extent possible, as many replacement trees as allowed by the site and must pay a fee in lieu of planting the balance of the required number of replacement trees. Credits may be given by the Plan Commission or the Community Development Authority if the applicant uses a Low Impact / Sustainable Design, alternative storm water best management practices / green infrastructure (which may include, but are not limited to, bio-retention, infiltration, pervious surfaces, green roofs, rain gardens, underground storage, and / or rain harvesting / reuse). (b) The landscaping fee shall be calculated by taking the total number of replacement trees, as required per Table , less the number of trees that the applicant is able to plant on their site times the average industry cost to purchase and install a balled and burlapped 2 ½ inch dbh deciduous tree or, Page 127

128 in the case of a replacement evergreen tree a 6 to 8 foot tree comparable will be used. The Department of Parks, Recreation & Forestry shall confer with the Department of Community Development, from time to time, to determine what the average industry cost. The Department of Community Development shall use the landscaping fees collected to plant landscaping elsewhere in the city. (7) Tree/vegetation protection during construction/grading activities. (a) Within the LOD, fencing, at a minimum, should be placed around each significant tree and around stands of 12 or more smaller trees a distance equal to the size of the individual or outermost tree's drip zone. [1] For purposes of this subsection, the drip zone is calculated by measuring the diameter of the tree at breast height; every inch of diameter is equal to one foot of drip zone. [2] No construction, grading, equipment or material storage, or any other activity shall be allowed within this fenced area, and the fencing shall remain in place until all land alteration, construction, and development activities are completed. (b) If it is necessary to fill over the root zone, compacted soils shall be avoided by sandwiching fabric, rocks, and more fabric under the area to be filled. (c) Fill placed directly on the roots shall not exceed a maximum of six inches in depth. (d) If fill creates a tree well or depression around a tree or shrubs, drainage for such area shall be provided. (e) If a tree's roots must be cut, the branches shall be trimmed by an amount equal to the percent of roots that were lost. Roots shall be pruned cleanly prior to digging and not ripped off by heavy equipment. Cutting more than 30% of the roots of a tree should be avoided. See Figure (f) Utility trenches near trees should be avoided. If a line must be near a tree, tunneling, auguring, or other mitigation measures shall be used. See Figure VIII-2. Figure VIII-2 Utility Tunnels and Trenches Page 128

129 C. Wildlife habitat protection. (1) Purpose. These regulations are intended to maintain and enhance the diversity of wildlife species and habitat that occur in New Berlin, and to plan and design land uses to be harmonious with wildlife habitat and the species that depend on this habitat for the economic, recreational, and environmental benefit of the residents of and visitors to New Berlin. (2) Applicability. The provisions of this section shall apply to all development, except that the following developments and activities shall be exempt from this section: (a) Agricultural activities such as soil preparation, irrigation, planting, harvesting, grazing, and farm ponds; (b) Maintenance and repair of existing public roads, utilities, and other public facilities within an existing right-of-way or easement; (c) Maintenance and repair of flood control structures and activities in response to a flood emergency; (d) Wildlife habitat enhancement and restoration activities undertaken pursuant to a wildlife conservation plan approved under this section; (e) Existing individual residential platted lots of record. (3) Other regulations. This section of the chapter does not repeal or supersede any existing federal, state, or local laws, easements, covenants, or deed restrictions pertaining to wildlife. When this section imposes a higher or more restrictive standard, this section shall apply. (4) Wildlife habitat data base. (a) The following sources shall be used to identify important wildlife habitat areas for purposes of review under this section: [1] Wisconsin Department of Natural Resources (DNR) habitat maps for the New Berlin area. [2] Other information and maps as staff or the Plan Commission may from time to time identify in cooperation with the DNR and/or the Southeastern Wisconsin Regional Planning Commission (SEWRPC). Page 129

130 (b) Wildlife habitat information required by this section is intended for general planning purposes. The Director of the Department of Community Development may correct obvious errors or omissions after consultation with the DNR and/or SEWRPC. (5) Review procedures. The following procedures shall apply to all applications for development subject to this section: (a) Application. As part of the site plan submission, the applicant shall submit a plan depicting the general location of the property, location of all structures on the site, prominent natural areas, such as streams and wetlands, and other features that the Department of Community Development may require. (b) Preliminary review. Based upon the project's location and potential for adversely affecting key wildlife habitat areas listed in the wildlife habitat data base, the Department of Community Development shall determine whether the requirements of this section have been met or whether the application shall be referred to the DNR and/or SEWRPC for review. Applicants whose applications are referred are advised to meet with DNR and/or SEWRPC, and other agencies as determined appropriate by the Department of Community Development, to ensure compliance with the requirements of this section. (c) DNR and/or SEWRPC review. For applications referred to it, DNR and/or SEWRPC will determine whether the proposal will result in significant adverse impact on wildlife or wildlife habitat based on the review criteria set forth below in Subsection C(6)(d), and will make a recommendation to the Department of Community Development whether a wildlife conservation plan shall be prepared. (d) Wildlife conservation plan required. [1] Based on recommendations from the DNR and/or SEWRPC, the Department of Community Development shall determine whether the applicant must submit a wildlife conservation plan prior to the approval of any development application that requires a rezoning or platting. The Department of Community Development shall require a wildlife conservation plan be prepared pursuant to this section for all major subdivisions, all commercial and industrial development located west of Calhoun, and any other location where the Department of Community Development determines that sensitive wildlife habitat may be located. [2] Such a conservation plan, if required, shall be prepared pursuant to the requirements of Subsection C(6)(c) below and shall be submitted to DNR and/or SEWRPC for review and recommendation as to whether the plan adequately addresses the adverse impacts identified by the agency pursuant to its initial review described in Subsection C(5)(c) above. (e) Final review. The Director of Community Development shall determine whether the site plan application and, if applicable, the wildlife conservation plan, meet the review criteria set forth in Subsection C(6)(d) below and shall approve, approve with conditions, or disapprove the application. (f) Waivers or minor modifications. The Plan Commission may waive or approve minor modifications of any development standard or review criteria in this section upon a finding that such waiver or modification: [1] Is consistent with the stated purposes of this section; [2] Will have no significant adverse impacts on wildlife species or habitat; [3] Any potential adverse impacts will be mitigated or offset to the maximum degree practicable; and [4] Application of the standard or criteria is not warranted based on the location of the development, the absence of a particular species on the site, or other relevant factors. (6) Wildlife and wildlife habitat disturbance and mitigation. (a) Outside approved LOD. No wildlife or wildlife habitat shall be adversely affected outside the approved LOD except as specifically exempted in this section. If there is an adverse impact due to an exempted activity, the applicant shall attempt to mitigate the effects of the impact to the maximum extent practicable using the techniques set forth in Subsection C(6)(b) below. (b) Inside approved LOD. Inside the approved LOD, the following general mitigation measures shall apply to all development as specified. It is intended that these measures be applied in a flexible fashion to protect wildlife habitat and wildlife species in a cost-effective fashion. [1] Buffers. All development shall be set back a minimum of 75 feet from any identified important wildlife habitat area or such additional distance as is specified depending on the presence of specified wildlife species. [2] Non-native vegetation. There shall be no introduction of plant species that are not native or that are not on an approved City landscaping list on any site containing any important wildlife habitat area. To the maximum extent feasible, existing herbaceous and woody cover on the site shall be Page 130

131 maintained, and removal of native vegetation shall be minimized. (See also B, Woodland, tree, and vegetation protection.) [3] Fencing. No fencing on a site containing important wildlife habitat shall exceed four feet in height except to the extent that such fencing is approved by the Plan Commission to confine permitted domestic animals or to protect permitted ornamental landscaping or gardens. The type of fencing (materials, opacity, etc.) shall be determined by the Plan Commission as appropriate for the wildlife species on the site. [4] Exterior lighting. Use of exterior lighting shall be minimized in areas of important wildlife habitat, and lighting shall be designed so that it does not spill over or onto such critical habitat. (See also I, Lighting.) [5] Domestic animals. Development applications for property that includes important wildlife habitat shall include a plan with specified enforcement measures for the control of domestic animals and household pets. The plan shall include provisions to prevent the harassment, disturbance, and killing of wildlife and to prevent the destruction of important wildlife habitat. (c) Wildlife conservation plans. [1] Plan preparation. A wildlife conservation plan required by this section shall be prepared for the applicant, at the applicant's expense, under the responsible direction of a qualified person who has demonstrated expertise in the field and is acceptable to the Director. [2] Plan content. Any wildlife conservation plan required to be prepared pursuant to this section shall include the following information at a minimum: [a] A description of the ownership, location, type, size, and other attributes of the wildlife habitat on the site. [b] A description of the populations of wildlife species that inhabit or use the site, including a qualitative description of their spatial distribution and abundance. [c] An analysis of the potential adverse impacts of the proposed development on wildlife and wildlife habitat on or off site. [d] A list of proposed mitigation measures and an analysis of the probability of success of such measures. [e] A plan for implementation, maintenance, and monitoring of mitigation measures. [f] A plan for any relevant enhancement or restoration measures. [g] A demonstration of fiscal, administrative, and technical competence of the applicant or other relevant entity to successfully execute the plan. (d) Review criteria. The Plan Commission shall not approve any site plan application unless it determines that the proposed development, to the maximum extent practicable, avoids significant adverse impacts on wildlife habitat and species on or off the site. In determining whether the proposed development has significant adverse impacts, the Development Review Committee shall consider the following categories of effects and steps taken to avoid or substantially mitigate such impacts: [1] Impacts on wildlife species, including but not limited to human-related activities, and impacts from domestic pets that disrupt necessary life cycle functions of wildlife or cause stress on wildlife to the extent that the health and viability of a species is threatened in New Berlin. [2] Impact on wildlife habitat, including but not limited to elimination, reduction, or fragmentation of wildlife habitat to the extent that the viability of an individual species is threatened in New Berlin and the diversity of wildlife species occurring in New Berlin is reduced. [3] Impact on wildlife movement patterns/displacement and adaption of wildlife populations, including but not limited to disruption of necessary migration or movement patterns that keep wildlife from using their entire habitat, displacement of wildlife species into areas that cannot support or sustain the species over the long term, and the inability of wildlife species living within or in close proximity to development to adapt and thrive to the extent that the health and viability of the species is threatened in New Berlin. [4] Uniqueness of habitat and species to New Berlin, including but not limited to elimination, reduction, or fragmentation of important wildlife habitat that is identified as unique to New Berlin in that it supports wildlife species that do not commonly occur outside the City. [5] Cumulative impacts, including but not limited to cumulative impacts beyond the boundaries of the proposed site such that the wildlife habitat in New Berlin is eliminated, reduced, or fragmented to the point that the viability of individual species is threatened and the diversity of species occurring in New Berlin is reduced. Page 131

132 Woodland, tree and vegetation protection (existing lands). A. All existing lands greater than 10 acres in size that contain more than five acres of contiguous forest lands under a single ownership within the City and wish to actively engage in silvicultural activities where no new development is proposed shall be required to submit a forestry management plan and special cutting plan for approval by the Plan Commission outlining the appropriate silvicultural treatments to be used, intended purpose of work to be completed and the goals and objectives of any harvesting or removal of trees, restoration and future activities. The Plan Commission may issue a zoning permit after review and comment by the Wisconsin Department of Natural Resources. B. The following developments, activities and lands shall be exempt from this section: (1) The removal of dead or naturally fallen trees or vegetation or trees or vegetation that are found by the City to be a threat to the public health, safety, or welfare; (2) The selective and limited removal of trees or vegetation necessary to obtain clear visibility at driveways or intersections, or for the purpose of performing authorized field survey work; (3) The removal of trees or vegetation on land zoned or lawfully used for commercial garden centers, greenhouses, or tree nurseries; (4) Wildlife habitat enhancement and restoration activities undertaken pursuant to a wildlife conservation plan approved by the City and the Wisconsin Bureau of Wildlife Management. C. The Plan Commission shall accept no development applications for a period of 36 months from the date that a forestry management plan and special cutting plan are approved. D. All work shall minimize disturbance to the integrity of the natural resource features as identified in the City s Map of Potential Conservation Areas or any other natural resource features not identified Grading and drainage. A. Grading plan. (1) In order to preserve the natural beauty and character of the existing topography as much as possible, and in order to protect against the dangers and damages caused by man-made changes of existing topography, and to avoid unsightly and hazardous exposed earth, no lot or portion of a lot or parcel shall be excavated, graded or filled without approval as required by this chapter and Section 3 ParagraphVIII of the Developer Handbook. (2) Every person who erects, alters, or moves a building or proposes to alter existing topography shall submit a grading plan to the Director for review and approval. The grading plan shall be prepared at a recognized engineering or architectural scale and shall show: (a) Topographic maps: the existing and proposed topography of the site, and all areas within 40 feet of the site, at a contour interval of two feet, prepared by a registered professional engineer or registered land surveyor. The Director may require a different contour interval where appropriate. All topographic information shall be to City datum which is National Geodetic Vertical Datum (NGVD). Topographic maps shall not be required in the agricultural districts and residential zoning districts. (b) The existing and proposed grades of the lot at each corner of the lot, at each corner of any existing or proposed buildings, at the center of the street pavement at the lot lines extended and at the center of the street opposite the center of the lot. Grades shall also be provided on the front, side and rear lot lines at the building setbacks extended. Grades shall also be provided along all breaks in grade within the lot. (c) The existing and proposed grades of all driveways and parking lots. (d) Spot elevations at the top and bottom of all drainage swales, if applicable. (e) Spot elevation of significant cut and fill areas. (f) The grade and setback of all buildings on adjacent lots or the first building within 200 feet of the lot line if the adjacent lot is undeveloped. (g) The type of monument at each lot corner. (h) The location and size of all permanent structures on the site. (i) The location of any recorded easements on the site and of all above- or below-ground utilities. (j) Cross sections of any proposed retaining walls or berms. (k) The date of the plat of the grading plan. Page 132

133 (l) A North arrow and graphic scale. (m) The registered land surveyor's or professional engineer's seal. (3) Review of grading and filling plans. Every building hereafter erected, structurally altered, added onto or moved shall be sited on the lot in a manner that the building's appearance is not incompatible with buildings on adjacent lots, that no hazard to the occupant or to the public is created and that minimum soil erosion will result from the building location or change in topography. The Director shall consider the following guidelines in the review of grading plans: (a) Buildings shall be designed to match the existing grade. In the case of uneven topography, the design and architecture of proposed buildings shall incorporate techniques to accommodate the difference in grade through the structure. Examples of this practice include exposed portions of the foundation or courses of block with suitable architectural covering; extra steps from the garage or parking area; split-level floor plans (side to side and/or front to back); wing walls or foundation walls; exposed lower level or basement; and rotating or reversing building plan, when appropriate. (b) Building grades shall be compatible with the average grade of adjacent buildings and sites. (c) Building grades shall be compatible with the existing street grade. (d) Overall average driveway grades shall not exceed 10%. (e) Parking lot grades shall not exceed 6% in longitudinal drainage or 3% in transverse drainage. (f) Lots shall be graded in a manner to foster safety and negotiability during bad weather. (g) Lots shall be graded in such a manner to permit emergency vehicles to gain access to and have a level area to perform fire, rescue and relief operations. (h) Proposed lot grades shall not exceed a gradient of four feet horizontal to one foot vertical. Maximum slope of three feet horizontal to one foot vertical shall be allowed along the side of proposed buildings. (i) Lots shall be sodded, seeded and mulched or protected from erosion. In no case shall the slope exceed the normal angle of slippage of the material used. (j) All grades shall be compatible with proposed landscaping and drainage requirements. (k) Altered topography shall be integrated with existing and surrounding topography. (l) Grading shall not result in excessive depths for underground utilities or hamper access to such utilities. (m) Every effort shall be made to preserve significant trees and woodlots in accordance with (n) Lot grades shall not be designed and altered in a manner that would obstruct horizontal vision clearance. (o) The use of resulting yard areas and ease of maintenance of yards shall be considered. (p) The appearance of buildings and their relationship to the height of buildings on adjacent lots shall be considered. (q) Plans shall be prepared in accordance with standard design practices. (r) There shall be uniformity and consistency throughout the plan. (4) Fill. In order to protect the public from the hazard of unsuitable fill material, obstruction of view, nuisance of airborne dirt and dust and from the threat to general safety caused by the existence of open trenches, holes or pits, no person, occupant, owner of land or corporation shall remove or cause to be accumulated topsoil or subsoil in any district except quarry or landfill districts with an approved plan of operation, without review and approval by the Director of plans for earth disturbances. Such removal or accumulation includes, but is not limited to, piles of earth, dirt, topsoil or subsoil which has been formed, accumulated or pushed into mounds or piles. The Director may forward any application to the Plan Commission for further review and/or approval. (a) In all cases, fill shall consist of clean earth containing no more than 25%, by volume, of building stone and concrete, and no more than 5%, by volume, of incidental asphalt. Fill operations which exceed these limits or operations that require more than one year for completion are considered a landfill and will be regulated as such. (b) Fill shall consist of satisfactory soil or a mixture of satisfactory soil, stone, gravel or other acceptable materials which is of a character and quality satisfactory for the purpose intended. The material shall be free from sod, stumps, logs or other organic matter, all types of refuse including construction refuse, fragments of concrete larger than two feet in any dimension and such other material that in the judgment of the Director is unsuitable. (c) Fill in areas where there is floodplain shall follow Article IXA Floodplain Zoning. (5) Retaining walls. The use of slopes and natural grading is encouraged. However, retaining walls exceeding 16 inches in height may be constructed only upon issuance of an Administrative Permit. Page 133

134 Retaining walls 16 inches or less in height are considered curbs and are not regulated by this section. Stepped retaining walls that do not exceed an overall gradient of three feet horizontal to one foot vertical are exempt. The following shall be required as part of the retaining wall application: (a) A retaining wall plan detailing location, size, type and proposed grades on both sides of the retaining wall, together with a detailed cross section of the retaining wall, description of the material to be used and a description of the method of construction to be utilized shall be required. The plan shall also show the proposed use of land on both sides of the retaining wall. (b) In reviewing the plan, the Director and staff shall consider the following: [1] Retaining walls should be considered only where the difference in grade is greater than two feet or in areas where the slope is greater than one foot vertical to three feet horizontal. [2] Retaining walls shall be considered for the preservation of significant natural features or trees. [3] Retaining walls should not exceed 48 inches in height unless designed by a professional engineer or installed according to manufacturer's specifications. Walls that are not tiered and exceed 7 feet in height shall require a professional structural engineer on site overseeing the construction of the retaining wall. [4] Retaining walls shall not be located closer than five feet to side or rear lot line unless the Director finds that there is no other practical location, and only after written approval by the affected neighbor is received. [5] The appearance of the retaining wall and wall materials shall be considered with respect to the view from the low side of the wall. [6] The long-term durability and maintenance requirements of the retaining wall shall be considered. [7] Adequate safety features and precautions shall be incorporated into the retaining wall design to mitigate the hazard of the abrupt drop-off created by the wall. [8] Retaining walls shall be designed in a manner that frost and hydrostatic pressure will not compromise the integrity of the wall. [9] Retaining walls shall not interfere with the surface water drainage pattern or create a disruption of the approved drainage or grading plan. [10] Retaining walls shall be engineered and built in such a manner so as not to collapse. [11] Retaining walls shall be designed and located in a manner that will not have a negative impact on abutting properties. (c) All retaining wall structures, including tiebacks, are to be located outside the base setback line. B. Drainage. (1) General requirement. No land shall be developed, and no building shall be erected, structurally altered, or moved, and no use shall be permitted on land which is not adequately drained or which would result in stormwater or surface water runoff that causes property damage, a nuisance and/or erosion to adjacent properties. All drainage plans shall conform with the City of New Berlin Stormwater Management Plan, Chapter , and Chapter (a) All premises shall be graded and maintained so as to prevent the accumulation of stagnant water thereon, or within a building or structure located thereon, or against any structure so as to potentially cause damage to such structures. (b) The disbursal of concentrated drainage onto adjacent properties is prohibited. [1] No person shall permit the discharge of concentrated drainage from a downspout and/or sump pump to be directed upon the land of an adjacent property owner. [2] Any drainage systems which have the effect of redirecting drainage through piping or other means shall comply with the following requirements: [a] The discharge of any such piping shall be not less than 10 feet from the lot line or where the structure from which the discharge is occurring is less than 10 feet to the lot line, then, in that event, one-half the distance between said structure and the lot line. [b] The discharge must be adequately diffused before reaching the lot line. [c] The flow of discharge from the downspout and/or sump pump must be consistent with the approved grading plan for the property. (2) Exemptions may be granted, with approval of the DCD Director, for properties that incorporate alternative storm water practices (i.e. rain gardens, rain barrels, cistern, and others) as designed per the WDNR Technical Standards. Page 134

135 (3) Drainage plan required for site plan approval. Every person who erects, alters or moves a building or structure or who alters or changes topography shall submit a drainage plan to the Director for review and approval as part of the site plan submission. Approval of the drainage plan shall be a prerequisite for issuance of a building permit Postconstruction stormwater management. [Added by Ord. No. 2267] A. Authority. (1) This section is adopted by the City of New Berlin under the authority granted by , Wis. Stats. This section supersedes all provisions of an ordinance previously enacted under 62.23, Wis. Stats., that related to stormwater management regulations. Except as otherwise specified in , Wis. Stats., 62.23, Wis. Stats., applies to this section and to any amendments to this section. (2) The provisions of this section are deemed not to limit any other lawful regulatory powers of the same governing body. (3) The City Common Council hereby designates the City of New Berlin to administer and enforce the provisions of this section. (4) The requirements of this section do not preempt more stringent stormwater management requirements that may be imposed by any of the following: (a) Wisconsin Department of Natural Resources administrative rules, permits or approvals including those authorized under and , Wis. Stats. (b) Targeted nonagricultural performance standards promulgated in rules by the Wisconsin Department of Natural Resources under NR , Wis. Adm. Code. (c) City of New Berlin approved or adopted stormwater management plans for specific areas or watersheds. B. Findings of fact. The City Common Council finds that uncontrolled postconstruction runoff has a significant impact upon water resources and the health, safety and general welfare of the community and diminishes the public enjoyment and use of natural resources. Specifically, uncontrolled postconstruction runoff can: (1) Degrade physical stream habitat by increasing stream bank erosion, increasing streambed scour, diminishing groundwater recharge, diminishing stream base flows and increasing stream temperature. (2) Diminish the capacity of lakes and streams to support fish, aquatic life, recreational and water supply uses by increasing pollutant loading of sediment, suspended solids, nutrients, heavy metals, bacteria, pathogens and other urban pollutants. (3) Alter wetland communities by changing wetland hydrology and by increasing pollutant loads. (4) Reduce the quality of groundwater by increasing pollutant loading. (5) Threaten public health, safety, property and general welfare by overtaxing storm sewers, drainageways, and other minor drainage facilities. (6) Threaten public health, safety, property and general welfare by increasing major flood peaks and volumes. (7) Undermine floodplain management efforts by increasing the incidence and levels of flooding. C. Purpose and intent. (1) Purpose. The general purpose of this section is to establish long-term, postconstruction runoff management requirements that will diminish the threats to public health, safety, welfare and the aquatic environment. Specific purposes are to: (a) Further the maintenance of safe and healthful conditions. (b) Prevent and control the adverse effects of stormwater; prevent and control soil erosion; prevent and control water pollution; protect spawning grounds, fish and aquatic life; control building sites, placement of structures and land uses; preserve ground cover and scenic beauty; and promote sound economic growth. (c) Control exceedance of the safe capacity of existing drainage facilities and receiving water bodies; prevent undue channel erosion; control increases in the scouring and transportation of particulate matter; and prevent conditions that endanger downstream property. Page 135

136 (2) Intent. It is the intent of the City Common Council that this section regulates postconstruction stormwater discharges to waters of the state. This section may be applied on a site-by-site basis. The City Common Council recognizes, however, that the preferred method of achieving the stormwater performance standards set forth in this section is through the preparation and implementation of comprehensive, systems-level stormwater management plans that cover hydrologic units, such as watersheds, on a municipal and regional scale. Such plans may prescribe regional stormwater devices, practices or systems, any of which may be designed to treat runoff from more than one site prior to discharge to waters of the state. Where such plans are in conformance with the performance standards developed under , Wis. Stats., for regional stormwater management measures and have been approved by the City Common Council, it is the intent of this section that the approved plan be used to identify postconstruction management measures acceptable for the community. D. Applicability and jurisdiction. (1) Applicability. (a) Where not otherwise limited by law, this section applies after final stabilization to a site of landdisturbing construction activity meeting any of the criteria in this paragraph, unless the site is otherwise exempt under Subsection D(1)(b). [1] A postdevelopment construction site that has one or more acres of land-disturbing construction activity. (b) A site that meets any of the criteria in this paragraph is exempt from the requirements of this section. [1] A postconstruction site with less than 10% connected imperviousness based on complete development of the postconstruction site, provided the cumulative area of all parking lots and rooftops is less than one acre. [2] Nonpoint discharges from agricultural facilities and practices. [3] Nonpoint discharges from silviculture activities. [4] Routine maintenance for project sites under five acres of land disturbance, if performed to maintain the original line and grade, hydraulic capacity or original purpose of the facility. [5] Underground utility construction such as water, sewer and fiberoptic lines. This exemption does not apply to the construction of any aboveground structures associated with utility construction. (c) Notwithstanding the applicability requirements in Subsection D(1)(a), this section applies to postconstruction sites of any size that, in the opinion of the City of New Berlin, is likely to result in runoff that exceeds the safe capacity of the existing drainage facilities or receiving body of water, that causes undue channel erosion, that increases water pollution by scouring or the transportation of particulate matter or that endangers property or public safety. (2) Jurisdiction. This section applies to postconstruction sites within the boundaries and jurisdiction of the City of New Berlin. (3) Exclusions. This section is not applicable to activities conducted by a state agency, as defined under (1), Wis. Stats., but also including the Office of District Attorney, which is subject to the state plan promulgated or a memorandum of understanding entered into under (2), Wis. Stats. E. Definitions. ADMINISTERING AUTHORITY A governmental employee, or a regional planning commission empowered under , Wis. Stats., that is designated by the City Common Council to administer this section. AGRICULTURAL FACILITIES AND PRACTICES Has the meaning given in , Wis. Stats. AVERAGE ANNUAL RAINFALL A calendar year of precipitation, excluding snow, which is considered "typical." BEST MANAGEMENT PRACTICE or BMP Structural or nonstructural measures, practices, techniques or devices employed to avoid or minimize sediment or pollutants carried in runoff to waters of the state. BUSINESS DAY A day the offices of the City Hall are routinely and customarily open for business. CEASE-AND-DESIST ORDER A court-issued order to halt land-disturbing construction activity that is being conducted without the required permit. COMBINED SEWER SYSTEM A system for conveying both sanitary sewage and stormwater runoff. Page 136

137 CONNECTED IMPERVIOUSNESS An impervious surface that is directly connected to a separate storm sewer or water of the state via an impervious flow path. DESIGN STORM A hypothetical discrete rainstorm characterized by a specific duration, temporal distribution, rainfall intensity, return frequency, and total depth of rainfall. DEVELOPMENT Residential, commercial, industrial or institutional land uses and associated roads. EFFECTIVE INFILTRATION AREA The area of the infiltration system that is used to infiltrate runoff and does not include the area used for site access, berms or pretreatment. EROSION The process by which the land's surface is worn away by the action of the wind, water, ice or gravity. EXCEPTIONAL RESOURCE WATERS Waters listed in NR , Wis. Adm. Code. FINAL STABILIZATION That all land-disturbing construction activities at the construction site have been completed and that a uniform, perennial, vegetative cover has been established, with a density of at least 70% of the cover, for the unpaved areas and areas not covered by permanent structures, or employment of equivalent permanent stabilization measures. FINANCIAL GUARANTEE A performance bond, maintenance bond, surety bond, irrevocable letter of credit, or similar guarantees submitted to the City of New Berlin by the responsible party to assure that requirements of the ordinance are carried out in compliance with the stormwater management plan. GOVERNING BODY County board of supervisors, town board of supervisors, village board of trustees, village council, or city council. IMPERVIOUS SURFACE An area that releases as runoff all or a large portion of the precipitation that falls on it, except for frozen soil. Rooftops, sidewalks, driveways, gravel or paved parking lots and streets are examples of areas that typically are impervious. INFILL AREA An undeveloped area of land located within existing development. INFILTRATION The entry of precipitation or runoff into or through the soil. INFILTRATION SYSTEM A device or practice such as a basin, trench, rain garden or swale designed specifically to encourage infiltration but does not include natural infiltration in pervious surfaces such as lawns, redirecting of rooftop downspouts onto lawns or minimal infiltration from practices, such as swales or road side channels designed for conveyance and pollutant removal only. KARST FEATURE An area or surficial geologic feature subject to bedrock dissolution so that it is likely to provide a conduit to groundwater, and may include caves, enlarged fractures, mine features, exposed bedrock surfaces, sinkholes, springs, seeps or swales. LAND-DISTURBING CONSTRUCTION ACTIVITY Any man-made alteration of the land surface resulting in a change in the topography or existing vegetative or nonvegetative soil cover, that may result in runoff and lead to an increase in soil erosion and movement of sediment into waters of the state. Land-disturbing construction activity includes clearing and grubbing, demolition, excavating, pit trench dewatering, filling and grading activities. MAINTENANCE AGREEMENT A legal document that is filed with the County Register of Deeds as a property deed restriction, and which provides for long-term maintenance of stormwater management practices. MEP or MAXIMUM EXTENT PRACTICABLE A level of implementing best management practices in order to achieve a performance standard specified in this section, which takes into account the best available technology, cost effectiveness and other competing issues such as human safety and welfare, endangered and threatened Page 137

138 resources, historic properties and geographic features. MEP allows flexibility in the way to meet the performance standards and may vary based on the performance standard and site conditions. NEW DEVELOPMENT Development resulting from the conversion of previously undeveloped land or agricultural land uses. OFF SITE Located outside the property boundary described in the permit application. ON SITE Located within the property boundary described in the permit application. ORDINARY HIGH-WATER MARK The meaning given in NR (6), Wis. Adm. Code. OUTSTANDING RESOURCE WATERS Waters listed in NR , Wis. Adm. Code. PERFORMANCE STANDARD A narrative or measurable number specifying the minimum acceptable outcome for a facility or practice. PERMIT A written authorization made by the City of New Berlin to the applicant to conduct land-disturbing construction activity or to discharge postconstruction runoff to waters of the state. PERMIT ADMINISTRATION FEE A sum of money paid to the City of New Berlin by the permit applicant for the purpose of recouping the expenses incurred by the authority in administering the permit. PERVIOUS SURFACE An area that releases as runoff a small portion of the precipitation that falls on it. Lawns, gardens, parks, forests or other similar vegetated areas are examples of surfaces that typically are pervious. POLLUTANT Has the meaning given in (13), Wis. Stats. POLLUTION Has the meaning given in (10), Wis. Stats. POSTCONSTRUCTION SITE A construction site following the completion of land-disturbing construction activity and final site stabilization. PREDEVELOPMENT CONDITION The extent and distribution of land cover types present before the initiation of land-disturbing construction activity, assuming that all land uses prior to development activity are managed in an environmentally sound manner. PREVENTATIVE ACTION LIMIT Has the meaning given in NR (17), Wis. Adm. Code. REDEVELOPMENT Areas where development is replacing older development. RESPONSIBLE PARTY Any entity holding fee title to the property or other person contracted or obligated by other agreement to implement and maintain postconstruction stormwater BMPs. RUNOFF Stormwater or precipitation, including rain, snow or ice melt or similar water, that moves on the land surface via sheet or channelized flow. SEPARATE STORM SEWER A conveyance or system of conveyances, including roads with drainage systems, streets, catch basins, curbs, gutter, ditches, constructed channels or storm drains, which meets all of the following criteria: (1) Is designed or used for collecting water or conveying runoff. (2) Is not part of a combined sewer system. (3) Is not draining to a stormwater treatment device or system. (4) Discharges directly or indirectly to waters of the state. Page 138

139 SITE The entire area included in the legal description of the land on which the land-disturbing construction activity occurred. STOP-WORK ORDER An order issued by the City of New Berlin which requires that all construction activity on the site be stopped. STORMWATER MANAGEMENT PLAN A comprehensive plan designed to reduce the flow rate, runoff volume, and discharge of pollutants from stormwater after the site has undergone final stabilization following completion of the construction activity. STORMWATER MANAGEMENT SYSTEM PLAN A comprehensive plan designed to reduce the discharge of runoff and pollutants from hydrologic units on a regional or municipal scale. TECHNICAL STANDARD A document that specifies design, predicted performance and operation and maintenance specifications for a material, device or method. TOP OF THE CHANNEL An edge, or point on the landscape, landward from the ordinary high-water mark of a surface water of the state, where the slope of the land begins to be less than 12% continually for at least 50 feet. If the slope of the land is 12% or less continually for the initial 50 feet, landward from the ordinary high-water mark, the top of the channel is the ordinary high-water mark. TR-55 The United States Department of Agriculture, Natural Resources Conservation Service (previously Soil Conservation Service), Urban Hydrology for Small Watersheds, Second Edition, Technical Release 55, June TYPE II DISTRIBUTION A rainfall type curve as established in the "United States Department of Agriculture, Soil Conservation Service, Technical Paper 149, published 1973." Rainfall depths shall be consistent with Technical Report 40, "Rainfall Frequency in the Southeastern Wisconsin Region," SEWRPC, April, WATERS OF THE STATE Has the meaning given in (20), Wis. Stats. F. Technical standards. The following methods shall be used in designing and meeting the performance standards for the stormwater management plan: (1) Technical standards identified, developed or disseminated by the Wisconsin Department of Natural Resources under subchapter V of chapter NR 151, Wis. Adm. Code. (2) Where technical standards have not been identified or developed by the Wisconsin Department of Natural Resources, other technical standards may be used, provided that the methods have been approved by the City of New Berlin. (3) Technical engineering standards administered and/or approved by the City of New Berlin. (4) Technical standards described in "The Wisconsin Stormwater Manual," WDNR for wet detention basins. (5) In this section, the following year and location has been selected as average annual rainfall: Milwaukee 1969 (Mar. 28-Dec. 6). G. Performance standards. (1) Responsible party. The responsible party shall implement a postconstruction stormwater management plan that incorporates the requirements of this section. (2) Plan. A written stormwater management plan in accordance with Subsection I shall be developed and implemented for each postconstruction site. (3) Requirements. The plan required under Subsection G(2) shall include the following: (a) Total Suspended Solids [1] BMPs shall be designed, installed and maintained to control total suspended solids carried in runoff from the postconstruction site. BMPs shall be designed in accordance with Table 1., or to the maximum extent practicable. The design shall be based on an average annual rainfall, as compared to no runoff management controls. Table 1. TSS Reduction Standards Page 139

140 Development Type New Development In fill 5 acres In fill < 5 acres on or after October 1, 2012 Redevelopment In fill < 5 acres and before October 1, 2012 TSS Reduction 80 percent 80 percent 80 percent 40 percent of load from parking areas and roads 40 percent [2] Discharge of urban stormwater pollutants to wetlands shall be minimized to the extent practical. Where such discharges are proposed, the impact of the proposed discharge on wetland functional values shall be assessed using a method acceptable to the Director. At a minimum, stormwater discharges shall be pretreated prior to discharge to wetlands. Significant degradation of wetland functional values due to stormwater pollutant loads shall be avoided. [3] Notwithstanding Subsection G(3)(a)[1] to [2], if the design cannot achieve the applicable total suspended solids reduction specified, the stormwater management plan shall include a written and site-specific explanation of why that level of reduction is not attained and the total suspended solids load shall be reduced to the maximum extent practicable. (b) Peak discharge. [1] By design, stormwater management practices shall be employed to reduce the one-hundredyear, twenty-four-hour postdevelopment runoff rate to the ten-year, twenty-four-hour presettlement runoff rate. The postdeveloped one-year, twenty-four-hour and the two-year, twenty-four-hour runoff rate shall be controlled to be no greater than the one-year, twenty-fourhour and the two-year, twenty-four-hour presettlement runoff rate. Presettlement conditions shall assume "good hydrologic conditions" for appropriate land covers as identified in TR-55 or an equivalent methodology. The meaning of "hydrologic soil group" and "runoff curve number" are as determined in TR-55. However, the presettlement state curve number shall not be greater than the curve numbers in Table 2. Table 2 Maximum Presettlement Runoff Curve Numbers Hydrologic Soil Group A B C D Runoff Curve Number [2] By design, stormwater management practices shall be employed to meet peak discharge requirements of City adopted stormwater management plans for specific areas or watersheds where applicable. [3] This Subsection G(3)(b) of the section does not apply to any of the following: [a] A redevelopment postconstruction site, if the impervious surface area of the redevelopment is not increased from existing conditions. [b] An infill development area less than five acres, unless determined otherwise by the City per Subsection D(1)(c). [4] Increases or decreases in the hydrology of wetlands shall be minimized to the extent practical. Where such changes are proposed, the impact of the proposal on wetland functional values shall be assessed using a methodology acceptable to the Director. Significant degradation of wetland functional values shall be avoided. (c) Infiltration. BMPs shall be designed, installed, and maintained to infiltrate runoff to the maximum extent practicable in accordance with the following or to the maximum extent practical. [1] Low imperviousness. For development up to 40 percent connected imperviousness, such as parks, cemeteries, and low density residential development, infiltrate sufficient runoff volume so that the post development infiltration volume shall be at least 90 percent of the pre development infiltration volume, based on an average annual rainfall. However, when designing appropriate infiltration systems to meet this requirement, no more than one percent of the post construction site is required as an effective infiltration area. Page 140

141 [2] Moderate imperviousness. For development with more than 40 percent and up to 80 percent connected imperviousness, such as medium and high density residential, multi family development, industrial and institutional development, and office parks, infiltrate sufficient runoff volume so that the post development infiltration volume shall be at least 75 percent of the pre development infiltration volume, based on an average annual rainfall. However, when designing appropriate infiltration systems to meet this requirement, no more than 2 percent of the post construction site is required as an effective infiltration area. [3] High imperviousness. For development with more than 80 percent connected imperviousness, such as commercial strip malls, shopping centers, and commercial downtowns, infiltrate sufficient runoff volume so that the post development infiltration volume shall be at least 60 percent of the pre development infiltration volume, based on an average annual rainfall. However, when designing appropriate infiltration systems to meet this requirement, no more than 2 percent of the post construction site is required as an effective infiltration area. [4] Predevelopment condition shall be the same as in Subsection G(3)(b). [5] Before infiltrating runoff, pretreatment shall be required for parking lot runoff and for runoff from new road construction in commercial, industrial and institutional areas that will enter an infiltration system. The pretreatment shall be designed to protect the infiltration system from clogging prior to scheduled maintenance and to protect groundwater quality in accordance with Subsection G(3)(c)[8]. Pretreatment options may include, but are not limited to, oil/grease separation, sedimentation, biofiltration, filtration, swales or filter strips. [6] Exclusions. The runoff from the following areas are prohibited from meeting the requirements of this paragraph: [a] Areas associated with Tier 1 industrial facilities identified in NR (2)(a), Wis. Adm. Code, including storage, loading, rooftop and parking. [b] Storage and loading areas of tier 2 industrial facilities identified in NR216.21(2)(b), Wis. Adm. Code. [c] Fueling and vehicle maintenance areas. [d] Areas within 1,000 feet upgradient or within 100 feet downgradient of karst features. [e] Areas with less than three feet separation distance from the bottom of the infiltration system to the elevation of seasonal high groundwater or the top of bedrock, except this Subsection G(3)(c)[5][e] does not prohibit infiltration of roof runoff. [f] Areas with runoff from industrial, commercial and institutional parking lots and roads and residential arterial roads with less than five feet separation distance from the bottom of the infiltration system to the elevation of seasonal high groundwater or the top of bedrock. [g] Areas within 400 feet of a community water system well as specified in NR811.16(4), Wis. Adm. Code, or within 100 feet of a private well as specified in NR (4), Wis. Adm. Code, for runoff infiltrated from commercial, industrial and institutional land uses or regional devices for residential development. [h] Areas where contaminants of concern, as defined in NR (2), Wis. Adm. Code, are present in the soil through which infiltration will occur. [i] Any area where the soil does not exhibit one of the following soil characteristics between the bottom of the infiltration system and the seasonal high groundwater and top of bedrock: at least a three-foot soil layer with 20% fines or greater; or at least a five-foot soil layer with 10% fines or greater. This does not apply where the soil medium within the infiltration system provides an equivalent level of protection. This subsection does not prohibit infiltration of roof runoff. [7] Exemptions. The following are not required to meet the requirements of this paragraph: [a] Areas where the infiltration rate of the soil is less than 0.6 inches/hour measured at the site. [b] Parking areas and access roads less than 5,000 square feet for commercial and industrial development. [c] Redevelopment postconstruction sites. [d] Infill development areas less than five acres. [e] Infiltration areas during periods when the soil on the site is frozen. [f] Roads in commercial, industrial and institutional land uses, and arterial residential roads. [8] Infiltration systems designed in accordance with this paragraph shall, to the extent technically and economically feasible, minimize the level of pollutants infiltrating to groundwater and shall maintain compliance with the preventative action limit at a point of standards application in Page 141

142 accordance with Ch. NR 140, Wis. Adm. Code. However, if site-specific information indicates that compliance with a preventative action limit is not achievable, the infiltration BMP may not be installed or shall be modified to prevent infiltration, to the maximum extent practicable. Notwithstanding the above, the discharge from BMPs shall remain below the enforcement standard at the point of standards application. (d) Protective areas. The following are minimum standards for protective areas; however, the City may imposed greater limits based on site-specific information. [1] "Protective area" means an area of land that commences at the top of the channel of lakes, streams and rivers, or at the delineated boundary of wetlands, and that is the greatest of the following widths, as measured horizontally from the top of the channel or delineated wetland boundary to the closest impervious surface. However, in this paragraph, "protective area" does not include any area of land adjacent to any stream enclosed within a pipe or culvert such that runoff cannot enter the enclosure at this location. [a] For outstanding resource waters and exceptional resource waters, 75 feet. [b] For perennial and intermittent streams identified on a United States Geological Survey 7.5- minute series topographic map, or a county soil survey map, whichever is more current: 50 feet. [c] For lakes: 50 feet. [d] For highly susceptible wetlands: 75 feet. Highly susceptible wetlands include the following types: calcareous fens, sedge meadows, open and coniferous bogs, low prairies, coniferous swamps, lowland hardwood swamps, and ephemeral ponds. Wetland boundary delineations shall be made in accordance with NR (1m). This paragraph does not apply to wetlands that have been completely filled in accordance with all applicable state and federal regulations. The protective area for wetlands that have been partially filled in accordance with all applicable state and federal regulations shall be measured from the wetland boundary delineation after fill has been placed. [e] For less susceptible wetlands: 10% of the average wetland width, but no less than 10 feet nor more than 30 feet. Less susceptible wetlands include degraded wetlands dominated by invasive species such as reed canary grass. [f] In Subsection G(3)(d)[1][a], [d] and [e], determinations of the extent of the protective area adjacent to wetlands shall be made on the basis of the sensitivity and runoff susceptibility of the wetland in accordance with the standards and criteria in NR [g] For concentrated flow channels with drainage areas greater than 130 acres: 20 feet. [2] This paragraph applies to postconstruction sites located within a protective area, except those areas exempted pursuant Subsection G(3)(d)[4] below. [3] The following requirements shall be met: [a] Impervious surfaces shall be kept out of the protective area to the maximum extent practicable. The stormwater management plan shall contain a written site-specific explanation for any parts of the protective area that are disturbed during construction. [b] Where land-disturbing construction activity occurs within a protective area, and where no impervious surface is present, adequate sod or self-sustaining vegetative cover of 70% or greater shall be established and maintained. The adequate sod or self-sustaining vegetative cover shall be sufficient to provide for bank stability, maintenance of fish habitat and filtering of pollutants from upslope overland flow areas under sheet flow conditions. Nonvegetative materials, such as rock riprap, may be employed on the bank as necessary to prevent erosion, such as on steep slopes or where high velocity flows occur. [c] Best management practices such as filter strips, or swales that are designed to control pollutants from nonpoint sources may be located in the protective area. [4] This paragraph does not apply to: [a] Redevelopment postconstruction sites, if meeting the protective area standards is deemed impractical by the City. [b] Infill development areas less than five acres, if meeting the protective area standards is deemed impractical by the City. [c] Structures that cross or access surface waters, such as boat landings, bridges and culverts. [d] Structures constructed in accordance with (1v), Wis. Stats. Page 142

143 [e] Postconstruction sites from which runoff does not enter the protective area's surface water, except to the extent that vegetative ground cover is necessary to maintain bank stability and is deemed acceptable to the City. (e) Fueling and vehicle maintenance areas. Fueling and vehicle maintenance areas shall, to the maximum extent practicable, have BMPs designed, installed and maintained to reduce petroleum within runoff, such that the runoff that enters waters of the state contains no visible petroleum sheen. (f) Swale treatment for transportation facilities. [1] Applicability. Except as provided in Subsection G(3)(f)[2], transportation facilities that use swales for runoff conveyance and pollutant removal meet all of the requirements of this section if the swales are designed to the maximum extent practicable to do all of the following: [a] Be vegetated. However, where appropriate, nonvegetative measures may be employed to prevent erosion or provide for runoff treatment, such as rock riprap stabilization or check dams. [b] Carry runoff through a swale for 200 feet or more in length that is designed with a flow velocity no greater than 1.5 feet per second for the peak flow generated using either a twoyear, twenty-four-hour design storm or a two-year storm with a duration equal to the time of concentration as appropriate. If a swale of 200 feet in length cannot be designed with a flow velocity of 1.5 feet per second or less, then the flow velocity shall be reduced to the maximum extent practicable. [2] Exemptions. The City of New Berlin may, consistent with water quality standards, require other provisions of this section be met on a transportation facility with an average daily travel of vehicles greater than 2,500 and where the initial surface water of the state that the runoff directly enters is any of the following: [a] An outstanding resource water. [b] An exceptional resource water. [c] Waters listed in 303(d) of the Federal Clean Water Act that are identified as impaired in whole or in part, due to nonpoint source impacts. [d] Waters where targeted performance standards are developed under NR , Wis. Adm. Code, to meet water quality standards. (g) Storm sewers and culverts. [1] Storm sewers and culverts shall be designed for a twenty-five-year storm event as defined by the New Berlin Developer's Handbook. [2] Storm sewers shall be designed to be self-cleaning with a minimum velocity of two feet/second and a maximum velocity of 12 feet/second. (4) General considerations for on-site and off-site stormwater management measures. The following considerations shall be observed in managing runoff: (a) Natural topography and land cover features such as natural swales, natural depressions, native soil infiltrating capacity, and natural groundwater recharge areas shall be preserved and used, to the extent possible, to meet the requirements of this section. (b) Emergency overland flow routes for all stormwater facilities shall be provided to prevent exceeding the safe capacity of downstream drainage facilities and prevent endangerment of downstream property or public safety. (5) Location and regional treatment option. (a) All BMPs may be located on site or off site as part of a regional stormwater device, practice or system. (b) Postconstruction runoff within a non-navigable surface water that flows into a regional BMP, such as a wet detention pond, is not required to meet the performance standards of this section. Postconstruction BMPs may be located in non-navigable surface waters. (c) Except as allowed under par. (d), postconstruction runoff from new development shall meet the postconstruction performance standards prior to entering a navigable surface water. (d) Postconstruction runoff from any development within a navigable surface water that flows into a BMP is not required to meet the performance standards of this section if: [1] The BMP was constructed prior to the effective date of this section and the BMP either received a permit issued under Ch. 30, Wis. Stats., or the BMP did not require a Ch. 30, Wis. Stats., permit; and [2] The BMP is designed to provide runoff treatment from future upland development. Page 143

144 (e) Runoff from existing development, redevelopment and infill areas shall meet the postconstruction performance standards in accordance with this paragraph. [1] To the maximum extent practicable, BMPs shall be located to treat runoff prior to discharge to navigable surface waters. [2] Postconstruction BMPs for such runoff may be located in a navigable surface water if allowable under all other applicable federal, state and local regulations such as Ch. NR 103, Wis. Adm. Code and Ch. 30, Wis. Stats. (f) The discharge of runoff from a BMP, such as a wet detention pond, or after a series of such BMPs is subject to this chapter. (g) The City of New Berlin may approve off-site management measures, provided that all of the following conditions are met: [1] The City of New Berlin determines that the postconstruction runoff is covered by a stormwater management system plan that is approved by the City of New Berlin and that contains management requirements consistent with the purpose and intent of this section. [2] The off-site facility meets all of the following conditions: [a] The facility is in place. [b] The facility is designed and adequately sized to provide a level of stormwater control equal to or greater than that which would be afforded by on-site practices meeting the performance standards of this section. [c] The facility has a legally obligated entity responsible for its long-term operation and maintenance. (h) Where a regional treatment option exists such that the City of New Berlin exempts the applicant from all or part of the minimum on-site stormwater management requirements, the applicant shall be required to pay a fee in an amount determined in negotiation with the City of New Berlin. In determining the fee for postconstruction runoff, the City of New Berlin shall consider an equitable distribution of the cost for land, engineering design, construction, and maintenance of the regional treatment option. (6) Milwaukee Metropolitan Sewerage District (MMSD) rules on surface water and stormwater runoff management. (a) These rules are effective January 1, 2002, and are hereby adopted by reference for those portions of the City within the ultimate sewer service area as established by MMSD. Said ultimate sewer service area is depicted on the MMSD sewer service map for the City of New Berlin. Future amendments to the MMSD rules are also adopted by reference. A copy of Chapter 13, as well as the MMSD sewer service map for the City of New Berlin, shall be on file and open to public inspection in the offices of the City Clerk and Department of Community Development. The MMSD rules and stormwater quantity guidance materials on best management practices for peak stormwater runoff apply to development adding 0.5 acre or more of impervious surface within the MMSD ultimate sewer service area for the City of New Berlin and are available to read and print from the District's website, (b) The MMSD rules on stormwater runoff management and plan submittal requirements shall be complied with as to all property within the MMSD ultimate sewer service area, in addition to the other stormwater provisions of this chapter, including but not limited to plat approval under Chapter 275, Zoning, construction site erosion control, and postconstruction stormwater quality best management practices to abate pollutant runoff. A violation of the MMSD rules shall be a violation of this chapter with respect to those properties within the MMSD ultimate sewer service area. (7) Alternate requirements. The City of New Berlin may establish stormwater management requirements more stringent than those set forth in this section if the City of New Berlin determines that an added level of protection is needed to protect sensitive resources. H. Permitting requirements, procedures and fees. (1) Permit required. No responsible party may undertake a land-disturbing construction activity without receiving a postconstruction runoff permit from the City of New Berlin prior to commencing the proposed activity. (2) Permit application and fees. Unless specifically excluded by this section, any responsible party desiring a permit shall submit to the City of New Berlin a permit application made on a form provided by the City of New Berlin for that purpose. Page 144

145 (a) Unless otherwise excepted by this section, a permit application must be accompanied by a stormwater management plan, a maintenance agreement and a nonrefundable permit administration fee. (b) The stormwater management plan shall be prepared to meet the requirements of Subsections G and I; the maintenance agreement shall be prepared to meet the requirements of Subsection K; the financial guarantee shall meet the requirements of Subsection J; and fees shall be those established by the City of New Berlin as set forth in Subsection L. (3) Review and approval of permit application. The City of New Berlin shall review any permit application that is submitted with a stormwater management plan, maintenance agreement, and the required fee. The following approval procedure shall be used: (a) Within 45 business days of the receipt of a complete permit application, including all items as required by Subsection H(2), the City of New Berlin shall inform the applicant whether the application, plan and maintenance agreement are approved or disapproved based on the requirements of this section. (b) If the stormwater permit application, plan and maintenance agreement are approved, or if an agreed upon payment of fees in lieu of stormwater management practices is made, the City of New Berlin shall issue the permit. (c) If the stormwater permit application, plan or maintenance agreement is disapproved, the City of New Berlin shall detail in writing the reasons for disapproval. (d) The City of New Berlin may request additional information from the applicant. If additional information is submitted, the City of New Berlin shall have 45 business days from the date the additional information is received to inform the applicant that the plan and maintenance agreement are either approved or disapproved. (e) Failure by the City of New Berlin to inform the permit applicant of a decision within 45 business days of a required submittal shall not be deemed to mean approval of the submittal, and the applicant may not proceed as if a permit had been issued until the Director responds in writing with a decision. If the Director, following the first forty-five day period, fails to respond after written request to do so by the applicant within 45 days of request, then the failure to respond shall be deemed to mean approval of the submittal, and the applicant may proceed as if a permit had been issued. (4) Permit requirements. All permits issued under this section shall be subject to the following conditions, and holders of permits issued under this section shall be deemed to have accepted these conditions. The City of New Berlin may suspend or revoke a permit for violation of a permit condition, following written notification of the responsible party. An action by the City of New Berlin to suspend or revoke this permit may be appealed in accordance with Subsection N. (a) Compliance with this permit does not relieve the responsible party of the responsibility to comply with other applicable federal, state, and local laws and regulations. (b) The responsible party shall design and install all structural and nonstructural stormwater management measures in accordance with the approved stormwater management plan and this permit. (c) The responsible party shall notify the City of New Berlin at least five business days before commencing any work in conjunction with the stormwater management plan and within five business days upon completion of the stormwater management practices. If required as a special condition under Subsection H(5), the responsible party shall make additional notification according to a schedule set forth by the City of New Berlin so that practice installations can be inspected during construction. (d) Practice installations required as part of this section shall be certified "as-built" by a licensed professional engineer. Completed stormwater management practices must pass a final inspection by the City of New Berlin or its designee to determine if they are in accordance with the approved stormwater management plan and ordinance. The City of New Berlin or its designee shall notify the responsible party in writing of any changes required in such practices to bring them into compliance with the conditions of this permit. (e) The responsible party shall notify the City of New Berlin of any significant modifications it intends to make to an approved stormwater management plan. The City of New Berlin may require that the proposed modifications be submitted for approval prior to incorporation into the stormwater management plan and execution by the responsible party. (f) The responsible party shall maintain all stormwater management practices in accordance with the stormwater management plan until the practices either become the responsibility of the City of New Berlin or are transferred to subsequent private owners, as specified in the approved maintenance agreement. Page 145

146 (g) If the responsible party fails to maintain all stormwater management practices, the City of New Berlin may perform any work or operations necessary to bring stormwater management measures into conformance with the approved stormwater management plan, and make a special assessment or charge against the property as authorized under Subch. VII of Ch. 66, Wis. Stats., or charge such costs against the financial guarantee posted under Subsection K. (h) If so directed by the City of New Berlin, the responsible party shall repair at the responsible party's own expense all damage to adjoining municipal facilities and drainageways caused by runoff, where such damage is caused by activities that are not in compliance with the approved stormwater management plan. (i) The responsible party shall permit property access to the City of New Berlin or its designee for the purpose of inspecting the property for compliance with the approved stormwater management plan and this permit. (j) Where site development or redevelopment involves changes in direction, increases in peak rate and/or total volume of runoff from a site, the City of New Berlin may require the responsible party to make appropriate legal arrangements with affected property owners concerning the prevention of endangerment to property or public safety. (k) The responsible party is subject to the enforcement actions and penalties detailed in Subsection M, if the responsible party fails to comply with the terms of this permit. (5) Permit conditions. Permits issued under this subsection may include conditions established by the City of New Berlin in addition to the requirements needed to meet the performance standards in Subsection G or a financial guarantee as provided for in Subsection H(4)(d). (6) Permit duration. Permits issued under this section shall be valid from the date of issuance through the date the City of New Berlin notifies the responsible party that all stormwater management practices have passed the final inspection required under Subsection H(4)(d). I. Stormwater management plan. (1) Plan requirements. The stormwater management plan required under Subsection H(2) shall contain at a minimum the following information: (a) Name, address, and telephone number for the following or their designees: landowner; developer; project engineer for practice design and certification; person(s) responsible for installation of stormwater management practices; and person(s) responsible for maintenance of stormwater management practices prior to the transfer, if any, of maintenance responsibility to another party. (b) A proper legal description of the property proposed to be developed, referenced to the U.S. Public Land Survey system or to block and lot numbers within a recorded land subdivision plat. (c) Predevelopment site conditions, including: [1] One or more site maps at a scale of not less than one inch equals 100 feet. The site maps shall show the following: site location and legal property description; predominant soil types and hydrologic soil groups; existing cover type and condition; topographic contours of the site at a scale not to exceed 100 feet; topography and drainage network including enough of the contiguous properties to show runoff patterns onto, through, and from the site; watercourses that may affect or be affected by runoff from the site; flow path and direction for all stormwater conveyance sections, including time of travel and time of concentration applicable to each; watershed boundaries used in hydrology determinations to show compliance with performance standards; lakes, streams, wetlands, channels, ditches, and other watercourses on and immediately adjacent to the site; limits of the one-hundred-year floodplain; location of wells and wellhead protection areas covering the project area and delineated pursuant to NR , Wis. Adm. Code. [2] Hydrology and pollutant-loading computations as needed to show compliance with performance standards. All major assumptions used in developing input parameters shall be clearly stated. The geographic areas used in making the calculations shall be clearly cross-referenced to the required map(s). (d) Postdevelopment site conditions, including: [1] Explanation of the provisions to preserve and use natural topography and land cover features to minimize changes in peak flow runoff rates and volumes to surface waters and wetlands. [2] Explanation of any restrictions on stormwater management measures in the development area imposed by wellhead protection plans and ordinances. Page 146

147 [3] One or more site maps at a scale of not less than one inch equals 100 feet showing the following: postconstruction pervious areas including vegetative cover type and condition; impervious surfaces including all buildings, structures, and pavement; postconstruction topographic contours of the site at a scale not to exceed 100 feet; postconstruction drainage network including enough of the contiguous properties to show runoff patterns onto, through, and from the site; locations and dimensions of drainage easements; locations of maintenance easements specified in the maintenance agreement; flow path and direction for all stormwater conveyance sections, including time of travel and time of concentration applicable to each; location and type of all stormwater management conveyance and treatment practices, including the on-site and off-site tributary drainage area; location and type of conveyance system that will carry runoff from the drainage and treatment practices to the nearest adequate outlet such as a curbed street, storm drain, or natural drainageway; watershed boundaries used in hydrology and pollutant-loading calculations and any changes to lakes, streams, wetlands, channels, ditches, and other watercourses on and immediately adjacent to the site. [4] Hydrology and pollutant-loading computations as needed to show compliance with performance standards. All major assumptions used in developing input parameters shall be clearly stated. The computations shall be made for each discharge point in the development, and the geographic areas used in making the calculations shall be clearly cross-referenced to the required map(s). [5] Results of investigations of soils and groundwater required for the placement and design of stormwater management measures. Detailed drawings including cross sections and profiles of all permanent stormwater conveyance and treatment practices. (e) Construction specifications, description and installation schedule for the stormwater management practices needed to meet the performance standards in Subsection G. (f) A maintenance plan developed for the life of each stormwater management practice, including the required maintenance activities and maintenance activity schedule. (g) Cost estimates for the construction, operation, and maintenance of each stormwater management practice. (h) Typed written narrative for BMP design(s), including a description of design procedures, software used and computer model schematics, flow rates, design results, and any relative information or assumptions used for the design. (i) Other information requested in writing by the City of New Berlin to determine compliance of the proposed stormwater management measures with the provisions of this section. (j) All site investigations, plans, designs, computations, and drawings shall be certified by a licensed Wisconsin professional engineer to be prepared in accordance with accepted engineering practice and requirements of this section. (2) Alternate requirements. The City of New Berlin may prescribe alternative submittal requirements for applicants seeking an exemption to on-site stormwater management performance standards under Subsection G(5). J. Maintenance agreement. (1) Maintenance agreement required. The maintenance agreement required under Subsection H(2) for stormwater management practices shall be an agreement between the City of New Berlin and the responsible party to provide for maintenance of stormwater practices beyond the duration period of this permit. The maintenance agreement shall be filed with the County Register of Deeds as a property deed restriction so that it is binding upon all subsequent owners of the land served by the stormwater management practices. (2) Agreement provisions. The maintenance agreement shall contain the following information and provisions and be consistent with the maintenance plan required by Subsection I(1)(f). (a) Identification of the stormwater facilities and designation of the drainage area served by the facilities. (b) A schedule for regular maintenance of each aspect of the stormwater management system consistent with the stormwater management plan required under Subsection H(2). (c) Identification of the responsible party(s), organization or city, county or City responsible for long-term inspection and maintenance of the stormwater management practices identified in the stormwater management plan required under Subsection H(2). (d) Requirement that the responsible party(s), organization or city, county, or City shall maintain stormwater management practices in accordance with the schedule included in Subsection J(2)(b). Page 147

148 (e) Authorization for the City of New Berlin to access the property to conduct inspections of stormwater management practices as necessary to ascertain that the practices are being maintained and operated in accordance with the agreement. (f) Agreement that the party designated under Subsection J(2)(c) as responsible for long-term inspection and maintenance of the stormwater management practices, if notified by the City of New Berlin of maintenance problems which require correction, will undertake corrective action within a reasonable time frame as set by the City of New Berlin. (g) Authorization of the City of New Berlin to perform the corrected actions identified in the City notification under Subsection J(2)(g) if the responsible party designated under Subsection J(2)(c) does not make the required corrections in the specified time period. The City of New Berlin shall enter the amount due on the tax rolls and collect the money as a special charge against the property pursuant to Subch. VII of Ch. 66, Wis. Stats. K. Financial guarantee. (1) Establishment of the guarantee. The City of New Berlin may require the submittal of a financial guarantee, the form and type of which shall be acceptable to the City of New Berlin. The financial guarantee shall be in an amount determined by the City of New Berlin to be the estimated cost of construction and the estimated cost of maintenance of the stormwater management practices during the period which the designated party in the maintenance agreement has maintenance responsibility. The financial guarantee shall give the City of New Berlin the authorization to use the funds to complete the stormwater management practices or restore the project site, as deemed fit by the City, if the responsible party defaults or does not properly implement the approved stormwater management plan upon written notice to the responsible party by the administering authority that the requirements of this section have not been met. (2) Conditions for release. Conditions for the release of the financial guarantee are as follows: (a) The City of New Berlin shall release the portion of the financial guarantee established under this section, less any costs incurred by the City of New Berlin to complete installation of practices, upon submission of as-built plans by a licensed professional engineer. The City of New Berlin may make provisions for a partial pro-rata release of the financial guarantee based on the completion of various development stages. (b) The City of New Berlin shall release the portion of the financial guarantee established under this section to assure maintenance of stormwater practices, less any costs incurred by the City of New Berlin, at such time that the responsibility for practice maintenance is passed on to another entity via an approved maintenance agreement. L. Fee schedule. The fees referred to in other subsections of this section shall be established by the City of New Berlin and may from time to time be modified by resolution. A schedule of the fees established by the City of New Berlin shall be available for review in the City Hall. M. Enforcement. (1) Any land-disturbing construction activity or postconstruction runoff initiated after the effective date of this section by any person, firm, association, or corporation subject to the ordinance provisions shall be deemed a violation unless conducted in accordance with the requirements of this section. (2) The City of New Berlin shall notify the responsible party by certified mail of any noncomplying landdisturbing construction activity or postconstruction runoff. The notice shall described the nature of the violation, remedial actions needed, a schedule of remedial action, and additional enforcement action which may be taken. (3) Upon receipt of written notification from the City of New Berlin under Subsection M(2), the responsible party shall correct work that does not comply with the stormwater management plan or other provisions of this permit. The responsible party shall make corrections as necessary to meet the specifications and schedule set forth by the City of New Berlin in the notice. (4) If the violations to a permit issued pursuant to this section are likely to result in damage to properties, public facilities, or waters of the state, the City of New Berlin may enter the land and take emergency actions necessary to prevent such damage. The costs incurred by the City of New Berlin plus interest and legal costs shall be billed to the responsible party. Page 148

149 (5) The City of New Berlin is authorized to post a stop-work order on all land-disturbing construction activity that is in violation of this section or to request the municipal attorney to obtain a cease-and-desist order in any court with jurisdiction. (6) The City of New Berlin may revoke a permit issued under this section for noncompliance with ordinance provisions. (7) Any permit revocation, stop-work order, or cease-and-desist order shall remain in effect unless retracted by the City of New Berlin or by a court with jurisdiction. (8) The City of New Berlin is authorized to refer any violation of this section, or of a stop-work order or ceaseand-desist order issued pursuant to this section, to the Municipal Attorney for the commencement of further legal proceedings in any court with jurisdiction. (9) Any person, firm, association, or corporation who does not comply with the provisions of this section shall be subject to a forfeiture of not less than $500 or more than $1,000 per offense, together with the costs of prosecution. Each day that the violation exists shall constitute a separate offense. (10) Compliance with the provisions of this section may also be enforced by injunction in any court with jurisdiction. It shall not be necessary to prosecute for forfeiture or a cease-and-desist order before resorting to injunctional proceedings. (11) When the City of New Berlin determines that the holder of a permit issued pursuant to this section has failed to follow practices set forth in the stormwater management plan, or has failed to comply with schedules set forth in said stormwater management plan, the City of New Berlin or a party designated by the City of New Berlin may enter upon the land and perform the work or other operations necessary to bring the condition of said lands into conformance with requirements of the approved plan. The City of New Berlin shall keep a detailed accounting of the costs and expenses of performing this work. These costs and expenses shall be deducted from any financial security posted pursuant to Subsection K of this section. Where such a security has not been established, or where such a security is insufficient to cover these costs, the costs and expenses shall be entered on the tax roll as a special charge against the property and collected with any other taxes levied thereon for the year in which the work is completed. N. Appeals. (1) Board of Appeals. The Board of Appeals, created pursuant to of the City of New Berlin ordinances pursuant to (4)(b), Wis. Stats., shall hear and decide appeals where it is alleged that there is error in any order, decision or determination made by the City of New Berlin in administering this section. The Board shall also use the rules, procedures, duties, and powers authorized by statute in hearing and deciding appeals. Upon appeal, the Board may authorize variances from the provisions of this section that are not contrary to the public interest and where, owing to special conditions, a literal enforcement of the ordinance will result in unnecessary hardship. (2) Who may appeal. Appeals to the Board of Appeals may be taken by any aggrieved person or by an officer, department, board or bureau of the City of New Berlin affected by any decision of the City of New Berlin Construction site erosion control. [Added by Ord. No. 2268] A. Authority. (1) This section is adopted under the authority granted by , Wis. Stats., for cities. This section supersedes all provisions of an ordinance previously enacted under 62.23, Wis. Stats., that relate to construction site erosion control. Except as otherwise specified in Wis. Stats., 62.23, Wis. Stats., applies to this section and to any amendments to this section. (2) The provisions of this section are deemed not to limit any other lawful regulatory powers of the same governing body. (3) The City Common Council hereby designates the City of New Berlin to administer and enforce the provisions of this section. (4) The requirements of this section do not preempt more stringent erosion and sediment control requirements that may be imposed by any of the following: (a) Wisconsin Department of Natural Resources administrative rules, permits or approvals including those authorized under and , Wis. Stats. Page 149

150 (b) Targeted nonagricultural performance standards promulgated in rules by the Wisconsin Department of Natural Resources under NR , Wis. Adm. Code. B. Findings of fact. The City of New Berlin finds that runoff from land-disturbing construction activity carries a significant amount of sediment and other pollutants to the waters of the state in the City of New Berlin. C. Purpose. It is the purpose of this section to further the maintenance of safe and healthful conditions; prevent and control water pollution; prevent and control soil erosion; protect spawning grounds, fish and aquatic life; control building sites, placement of structures and land uses; preserve ground cover and scenic beauty; and promote sound economic growth, by minimizing the amount of sediment and other pollutants carried by runoff or discharged from land-disturbing construction activity to waters of the state in the City of New Berlin. D. Applicability and jurisdiction. (1) Applicability. (a) This section applies to the following land-disturbing construction activities except as provided under Subsection D(1)(b). [1] A construction site which has one or more acres of land-disturbing construction activity. [2] Those involving grading, removal of protective ground cover or vegetation, excavation, land filling or other land disturbing activity affecting a surface area of 4,000 square feet or more. [3] Those involving excavation or filling or a combination of excavation and filling affecting 400 cubic yards or more of dirt, sand or other excavation or fill material. [4] Those involving street, highway, road or bridge construction, enlargement, relocation or reconstruction. [5] Those involving the laying, repairing, replacing or enlarging of an underground pipe or facility for a distance of 300 feet or more. [6] Those involving grading, removal of protective ground cover or vegetation, excavation and filling or other land disturbing activity within 200 feet of a lake, stream or wetland. (b) This section does not apply to the following: [1] A construction project that is exempted by federal statutes or regulations from the requirement to have a national pollutant discharge elimination system permit issued under chapter 40, Code of Federal Regulations, part 122, for land-disturbing construction activity. [2] Nonpoint discharges from agricultural facilities and practices. [3] Nonpoint discharges from silviculture activities. [4] Routine maintenance for project sites under five acres of land disturbance if performed to maintain the original line and grade, hydraulic capacity or original purpose of the facility. (c) Notwithstanding the applicability requirements in Subsection D(1)(a), this section applies to construction sites of any size that, in the opinion of the City of New Berlin, are likely to carry sediment and pollutants to downstream stormwater facilities and waters of the state or which degrades safe and healthful conditions or endangers property, the environment, or downstream facilities. (2) Jurisdiction. This section applies to land-disturbing construction activity on construction sites located within the boundaries and jurisdiction of the City of New Berlin. (3) Exclusions. This section is not applicable to activities conducted by a state agency, as defined under (1), Wis. Stats., but also including the office of district attorney, which are subject to the state plan promulgated or a memorandum of understanding entered into under (2), Wis. Stats. E. Definitions. As used in this section, the following terms shall have the meanings indicated: ADMINISTERING AUTHORITY A governmental employee or a regional planning commission empowered under , Wis. Stats., that is designated by the City of New Berlin to administer this section. AGRICULTURAL FACILITIES AND PRACTICES Has the meaning in (1), Wis. Stats. AVERAGE ANNUAL RAINFALL A calendar year of precipitation, excluding snow, which is considered typical. BEST MANAGEMENT PRACTICE or BMP Structural or nonstructural measures, practices, techniques or devices employed to avoid or minimize soil, sediment or pollutants carried in runoff to waters of the state. BUSINESS DAY A day the office of the City Hall is routinely and customarily open for business. Page 150

151 CEASE-AND-DESIST ORDER A court-issued order to halt land-disturbing construction activity that is being conducted without the required permit. CONSTRUCTION SITE An area upon which one or more land-disturbing construction activities occur, including areas that are part of a larger common plan of development or sale where multiple separate and distinct land-disturbing construction activities may be taking place at different times on different schedules but under one plan, including landfills and quarry activity only to the extent not regulated by the Department of Natural Resources or controlled by an approved plan of operation. DIVISION OF LAND The creation from one parcel of two or more parcels or buildings on a site of one or fewer acres each in area where such creation occurs at one time or through the successive partition within a five-year period. EROSION The process by which the land's surface is worn away by the action of wind, water, ice or gravity. EROSION AND SEDIMENT CONTROL PLAN A comprehensive plan developed to address pollution caused by erosion and sedimentation of soil particles or rock fragments during construction. EXTRATERRITORIAL The unincorporated area within three miles of the corporate limits of a first, second, or third class city, or within 1.5 miles of a fourth class city or City. FINAL STABILIZATION Means that all land-disturbing construction activities at the construction site have been completed and that a uniform perennial vegetative cover has been established with a density of at least 70% of the cover for the unpaved areas and areas not covered by permanent structures or that employ equivalent permanent stabilization measures. GOVERNING BODY County board of supervisors, town board of supervisors, village board of trustees, village council, or city council. LAND-DISTURBING CONSTRUCTION ACTIVITY Any man-made alteration of the land surface resulting in a change in the topography or existing vegetative or nonvegetative soil cover, that may result in runoff and lead to an increase in soil erosion and movement of sediment into waters of the state. Land-disturbing construction activity includes clearing and grubbing, demolition, excavating, pit trench dewatering, filling and grading activities. MEP or MAXIMUM EXTENT PRACTICABLE A level of implementing best management practices in order to achieve a performance standard specified in this chapter which takes into account the best available technology, cost-effectiveness and other competing issues such as human safety and welfare, endangered and threatened resources, historic properties and geographic features. MEP allows flexibility in the way to meet the performance standards and may vary based on the performance standard and site conditions. PERFORMANCE STANDARD A narrative or measurable number specifying the minimum acceptable outcome for a facility or practice. PERMIT A written authorization made by the City of New Berlin to the applicant to conduct land-disturbing construction activity or to discharge postconstruction runoff to waters of the state. POLLUTANT Has the meaning given in (13), Wis. Stats. POLLUTION Has the meaning given in (10), Wis. Stats. RESPONSIBLE PARTY Any entity holding fee title to the property or performing services to meet the performance standards of this section through a contract or other agreement. RUNOFF Stormwater or precipitation, including rain, snow or ice melt or similar water, that moves on the land surface via sheet or channelized flow. Page 151

152 SEDIMENT Settleable solid material that is transported by runoff, suspended within runoff or deposited by runoff away from its original location. SEPARATE STORM SEWER A conveyance or system of conveyances, including roads with drainage systems, streets, catch basins, curbs, gutters, ditches, constructed channels or storm drains, which meets all of the following criteria: (1) Is designed or used for collecting water or conveying runoff. (2) Is not part of a combined sewer system. (3) Is not draining to a stormwater treatment device or system. (4) Discharges directly or indirectly to waters of the state. SITE The entire area included in the legal description of the land on which the land-disturbing construction activity is proposed in the permit application. STOP-WORK ORDER An order issued by the City of New Berlin which requires that all construction activity on the site be stopped. TECHNICAL STANDARD A document that specifies design, predicted performance and operation and maintenance specifications for a material, device or method. WATERS OF THE STATE Has the meaning given in (18), Wis. Stats. F. Technical standards. (1) Design criteria, standards and specifications. All BMPs required to comply with this section shall meet the design criteria, standards and specifications based on any of the following: (a) Applicable design criteria, standards and specifications developed through NR 151, subchapter 5, nonagricultural performance standards as maintained by the WDNR. These standards are maintained on the WDNR internet site. (b) Other design guidance and technical standards identified or developed by the Wisconsin Department of Natural Resources under subchapter V of Chapter NR 151, Wis. Adm. Code. (c) For this section, average annual basis is calculated using the appropriate annual rainfall or runoff factor, also referred to as the R factor, or an equivalent design storm using a type II distribution, with consideration given to the geographic location of the site and the period of disturbance. (2) Other standards. Other technical standards not identified or developed in Subsection F(1), may be used, provided that the methods have been approved by the City Engineer. G. Performance standards. (1) Responsible party. The responsible party shall implement an erosion and sediment control plan, developed in accordance with Subsection I, that incorporates the requirements of this section. (2) Plan. A written plan shall be developed in accordance with Subsection I and implemented for each construction site. (3) Erosion and other pollutant control requirements. The plan required under Subsection G(2) shall include the following: (a) BMPs that, by design, achieve to the maximum extent practicable, a reduction of 80% of the sediment load carried in runoff, on an average annual basis, as compared with no sediment or erosion controls until the construction site has undergone final stabilization. No person shall be required to exceed an eighty-percent sediment reduction to meet the requirements of this paragraph. Erosion and sediment control BMPs may be used alone or in combination to meet the requirements of this paragraph. Credit toward meeting the sediment reduction shall be given for limiting the duration or area, or both, of land-disturbing construction activity, or other appropriate mechanism. (b) Notwithstanding Subsection G(3)(a), if BMPs cannot be designed and implemented to reduce the sediment load by 80% on an average annual basis, the plan shall include a written and site-specific explanation as to why the eighty-percent reduction goal is not attainable, and the sediment load shall be reduced to the maximum extent practicable. (c) Where appropriate, the plan shall include sediment controls to do all of the following to the maximum extent practicable: [1] Prevent tracking of sediment from the construction site onto roads and other paved surfaces. [2] Prevent the discharge of sediment as part of site dewatering. Page 152

153 [3] Protect the separate storm drain inlet structure from receiving sediment. [4] Prevent runoff of sediment from leaving the construction site and/or entering waters of the state. (d) The use, storage and disposal of chemicals, cement and other compounds and materials used on the construction site shall be managed during the construction period, to prevent their entrance into waters of the state. However, projects that require the placement of these materials in waters of the state, such as constructing bridge footings or BMP installations, are not prohibited by this paragraph. (4) Location. The BMPs used to comply with this section shall be located prior to runoff entering waters of the state. (5) Alternate requirements. The City of New Berlin may establish stormwater management requirements more stringent than those set forth in this section if the City of New Berlin determines that an added level of protection is needed for sensitive resources. H. Permitting requirements, procedures and fees. (1) Permit required. No responsible party may commence a land-disturbing construction activity subject to this section without receiving prior approval of an erosion and sediment control plan for the site and a permit from the City of New Berlin. (2) Permit application and fees. At least one responsible party desiring to undertake a land-disturbing construction activity subject to this section shall submit an application for a permit and an erosion and sediment control plan that meets the requirements of Subsection I and shall pay an application fee as required in Subsection J to the City of New Berlin. By submitting an application, the applicant is authorizing the City of New Berlin to enter the site to obtain information required for the review of the erosion and sediment control plan. (3) Review and approval of permit application. The City of New Berlin shall review any permit application that is submitted with an erosion and sediment control plan and the required fee. The following approval procedure shall be used: (a) Within 20 business days of the receipt of a complete permit application, as required by Subsection H(2), the City of New Berlin shall inform the applicant whether the application and plan are approved or disapproved based on the requirements of this section. (b) If the permit application and plan are approved, the City of New Berlin shall issue the permit. (c) If the permit application or plan is disapproved, the City of New Berlin shall state in writing the reasons for disapproval. (d) The City of New Berlin may request additional information from the applicant. If additional information is submitted, the City of New Berlin shall have 20 business days from the date the additional information is received to inform the applicant that the plan is either approved or disapproved. (e) Failure by the City of New Berlin to inform the permit applicant of a decision within 30 business days of a required submittal shall be deemed to mean approval of the submittal and the applicant may proceed as if a permit had been issued. (4) Surety bond. As a condition of approval and issuance of the permit, the City of New Berlin may require the applicant to deposit a surety bond or irrevocable letter of credit to guarantee a good faith execution of the approved erosion control plan and any permit conditions. (5) Permit requirements. All permits shall require the responsible party to: (a) Notify the City of New Berlin within 48 hours of commencing any land-disturbing construction activity. (b) Notify the City of New Berlin of completion of any BMPs within 14 days after their installation. (c) Obtain permission in writing from the City of New Berlin prior to any modification pursuant to Subsection I(3) of the erosion and sediment control plan. (d) Install all BMPs as identified in the approved erosion and sediment control plan. (e) Maintain all road drainage systems, stormwater drainage systems, BMPs and other facilities or pollutant control measures identified in the erosion and sediment control plan. (f) Site dewatering. Water pumped from the site shall be treated by temporary sedimentation basins, grit chambers, sand filters, upflow chambers, hydro-cyclones, swirl concentrators or other appropriate controls designed and used to remove particles of 100 microns or greater for the highest dewatering pumping rate. If the water is demonstrated to have no particles greater than 100 microns during dewatering operations, then no control is needed before discharge, except as determined by the City Engineer. Water may not be discharged in a manner that causes erosion of the site or receiving channels. Page 153

154 (g) Water and material disposal. All waste and unused building materials, including garbage, debris, cleaning wastes, wastewater, toxic materials or hazardous materials, shall be properly disposed and not allowed to be carried by runoff into a receiving channel or storm sewer system. (h) Tracking. Each site shall have graveled roads, access drives and parking areas of sufficient width and length to prevent sediment or other native material from being tracked onto public or private roadways. Any such material, mud or dirt reaching a public or private road shall be removed by street cleaning, not flushing, as determined by the city and no later than the end of each workday on a project. Street cleaning shall consist of removing all the material off the roadways, leaving the street clean of any sediment. All removed material shall be disposed of properly. (i) Drain inlet protection. All storm drain inlets shall be protected with a straw bale, filter fabric or equivalent barrier meeting accepted design criteria, standards and specifications. (j) Site erosion control. The following criteria [Subsection E(1) through (4)] apply only to land development or land disturbing activities that may reasonably be expected to result in runoff leaving the site: [1] Channelized runoff from adjacent areas passing through the site shall be diverted around disturbed areas, if practical. Otherwise, the channel shall be protected as described below in Subsection E(3)(c). Sheetflow runoff from adjacent areas greater than 10,000 square feet in area shall also be diverted around disturbed areas, unless shown to have resultant runoff velocities of less than 0.5 feet per second across the disturbed area for the set of one-year design storms. Diverted runoff shall be conveyed in a manner that will not erode the conveyance and receiving channels. [2] All activities on the site shall be conducted in a logical sequence to minimize the area of bare soil exposed at any one time. [3] Runoff from the entire disturbed area on the site shall be controlled by meeting either Subsection (e)[3](a) and (b) or (a) and (c). [a] All disturbed ground left inactive for seven or more days shall be stabilized by seeding or sodding (only available prior to September 15) or by mulching, covering or other equivalent control measure. Due to inclement weather or extenuating circumstances, the City Engineer may vary this requirement up to 21 days. [b] For sites with more than 10 acres disturbed at one time or if a channel originates in the disturbed area, one or more sedimentation basins shall be constructed. Each sedimentation basin shall have a surface area of at least 1% of the area draining to the basin and at least three feet of depth and constructed in accordance with accepted design specifications. Sediment shall be removed to maintain a depth of three feet. The basin shall be designed to trap sediment greater than 15 microns in size, based on the set of one-year design storms having durations of 0.5 to 24 hours. The basin discharge rate shall also be sufficiently low as to not cause erosion along the discharge channel or the receiving water. [c] For sites with less than 10 acres disturbed at one time, filter fences, straw bales or equivalent control measures shall be placed along all sideslope and downslope sides of the site. If a channel or area of concentrated runoff passes through the site, filter fences shall be placed along the channel edges to reduce sediment reaching the channel. [4] Any soil or dirt storage piles containing more than 10 cubic yards of material should not be located with a downslope drainage length of less than 25 feet to a roadway or drainage channel. If remaining more than seven days, they shall be stabilized by mulching, vegetative cover, tarps or other means. Filter fence barriers or straw bales shall be placed immediately on the downslope side of the piles. In-street utility repair or construction soil or dirt storage piles located closer than 25 feet of a roadway or drainage channel must be covered with tarps or suitable alternative control if exposed for more than seven days and the storm drain inlets must be protected with straw bale or other appropriate filtering barriers. [5] Runoff from sites on slopes of 12% or more slope may require additional or different controls than listed in Subsection E(3) above. Requirements for such slopes shall be as specified by the City Engineer. (k) Windborne materials. Control of soil particles carried from the site by wind is also required. Control measures shall be as directed by the City Engineer as dictated by weather conditions. (l) Repair any siltation or erosion damage to adjacent lands and drainageways resulting from landdisturbing construction activities and document repairs in a site erosion control log. Page 154

155 (m) Inspect the BMPs within 24 hours after each rain of 0.5 inches or more which results in runoff during active construction periods, and at least once each week make needed repairs and document the findings of the inspections in a site erosion control log with the date of inspection, the name of the person conducting the inspection, and a description of the present phase of the construction at the site. (n) Allow the City of New Berlin to enter the site for the purpose of inspecting compliance with the erosion and sediment control plan or for performing any work necessary to bring the site into compliance with the control plan. Keep a copy of the erosion and sediment control plan at the construction site. (6) Permit conditions. Permits issued under this section may include conditions established by the City of New Berlin, in addition to the requirements set forth in Subsection H(5), where needed to assure compliance with the performance standards in Subsection G. (7) Permit duration. Permits issued under this section shall be valid for a period of 180 days or the length of the building permit or other construction authorizations, whichever is longer, from the date of issuance. The City of New Berlin may extend the period one or more times for up to an additional 180 days. The City of New Berlin may require additional BMPs as a condition of the extension if they are necessary to meet the requirements of this section. (8) Maintenance. The responsible party throughout the duration of the construction activities shall maintain all BMPs necessary to meet the requirements of this section until the site has undergone final stabilization. (9) BMPs that are no longer necessary for erosion and sediment control must be removed by the responsible party. I. Erosion and sediment control plan, statement, and amendments. (1) Erosion and sediment control plan. (a) An erosion and sediment control plan shall be prepared and submitted to the City of New Berlin. (b) The erosion and sediment control plan shall be designed to meet the performance standards in Subsection G and other requirements of this section. (c) The erosion and sediment control plan shall address pollution caused by soil erosion and sedimentation during construction and up to final stabilization of the site. The erosion and sediment control plan shall include, at a minimum, the following items: [1] The name(s) and address(es) of the owner or developer of the site and of any consulting firm retained by the applicant, together with the name of the applicant's principal contact at such firm. The application shall also include start and end dates for construction. [2] Description of the site and nature of the construction activity, including representation of the limits of land disturbance on a United States Geological Service 7.5 minute series topographic map. [3] A sequence of construction of the development site, including stripping and clearing; rough grading; construction of utilities, infrastructure, and buildings; and final grading and landscaping. Sequencing shall identify the expected date on which clearing will begin, the estimated duration of exposure of cleared areas, areas of clearing, installation of temporary erosion and sediment control measures, and establishment of permanent vegetation. [4] Estimates of the total area of the site and the total area of the site that is expected to be disturbed by construction activities. [5] Estimates, including calculations, if any, of the runoff coefficient of the site before and after construction activities are completed. [6] Calculations to show the expected percent reduction in the average annual sediment load carried in runoff as compared to no sediment or erosion controls. [7] Existing data describing the surface soil as well as subsoils. [8] Depth to groundwater, as indicated by Natural Resources Conservation Service soil information where available. [9] Name of the immediate named receiving water from the United States Geological Service 7.5 minute series topographic maps. (d) The erosion and sediment control plan shall include a site map. The site map shall include the following items and shall be at a scale not greater than 100 feet per inch and at a contour interval not to exceed two feet: [1] Existing topography, vegetative cover, natural and engineered drainage systems, roads and surface waters. Lakes, streams, wetlands, channels, ditches and other watercourses on and immediately adjacent to the site shall be shown. Any identified one-hundred-year floodplains, flood fringes and floodways shall also be shown. Page 155

156 [2] Boundaries of the construction site. [3] Drainage patterns and approximate slopes anticipated after major grading activities. [4] Areas of soil disturbance. [5] Location of major structural and nonstructural controls identified in the plan. [6] Location of areas where stabilization practices will be employed. [7] Areas which will be vegetated following construction. [8] Aerial extent of wetland acreage on the site and locations where stormwater is discharged to a surface water or wetland. [9] Locations of all surface waters and wetlands within one mile of the construction site. [10] An alphanumeric or equivalent grid overlying the entire construction site map. (e) Each erosion and sediment control plan shall include a description of appropriate controls and measures that will be performed at the site to prevent pollutants from reaching waters of the state. The plan shall clearly describe the appropriate control measures for each major activity and the timing during the construction process that the measures will be implemented. The description of erosion controls shall include, when appropriate, the following minimum requirements: [1] Description of interim and permanent stabilization practices, including a practice implementation schedule. Site plans shall ensure that existing vegetation is preserved where attainable and that disturbed portions of the site are stabilized. [2] Description of structural practices to divert flow away from exposed soils, store flows or otherwise limit runoff and the discharge of pollutants from the site. Unless otherwise specifically approved in writing by the City of New Berlin, structural measures shall be installed on upland soils. [3] Management of overland flow at all sites, unless otherwise controlled by outfall controls. [4] Trapping of sediment in channelized flow. [5] Staging construction to limit bare areas subject to erosion. [6] Protection of downslope drainage inlets where they occur. [7] Minimization of tracking at all sites. [8] Clean up of off-site sediment deposits. [9] Proper disposal of building and waste materials at all sites. [10] Stabilization of drainageways. [11] Control of soil erosion from dirt stockpiles. [12] Installation of permanent stabilization practices as soon as possible after final grading. [13] Minimization of dust to the maximum extent practicable. (f) The erosion and sediment control plan shall require that velocity dissipation devices be placed at discharge locations and along the length of any outfall channel, as necessary, to provide a nonerosive flow from the structure to a watercourse so that the natural physical and biological characteristics and functions are maintained and protected. (2) Erosion and sediment control plan statement. For each construction site identified under Subsection D(1)(c), an erosion and sediment control plan statement shall be prepared. This statement shall be submitted to the City of New Berlin. The control plan statement shall briefly describe the site, including a site map. Further, it shall also include the best management practices that will be used to meet the requirements of the ordinance, including the site development schedule. (3) Amendments. The applicant shall amend the plan if any of the following occur: (a) There is a change in design, construction, operation or maintenance at the site which has the reasonable potential for the discharge of pollutants to waters of the state and which has not otherwise been addressed in the plan. (b) The actions required by the plan fail to reduce the impacts of pollutants carried by construction site runoff. (c) The City of New Berlin notifies the applicant of changes needed in the plan. (4) Content of control plan statement for land disturbing and land development activities covering less than one acre, but meeting the applicability requirements stated herein. An erosion control plan statement, with simple map, shall be submitted to briefly describe the site and erosion controls, including the site development schedule, that will be used to meet the requirements of this chapter. (5) Review of control plan. Within 30 days of receipt of the application, control plan or control plan statement and fee, the City Engineer shall review the application and control plan to determine if the requirements of this chapter are met. The City Engineer may request comments from other departments or agencies. If the requirements of this chapter are met, the City Engineer shall approve the plan, inform the applicant and issue a permit. If the conditions are not met, the City Engineer shall inform the applicant in writing Page 156

157 and may either require needed information or disapprove the plan. Within 20 days of receipt of needed information, the City Engineer shall again determine if the plans meet the requirements of this chapter. If the plan is disapproved, the City Engineer shall inform the applicant in writing of the reasons for the disapproval. J. Fee schedule. The fees referred to in other sections of this section shall be established by the City of New Berlin and may from time to time be modified by resolution. A schedule of the fees established by the City of New Berlin shall be available for review in the City Hall. (1) Surety bond. As a condition of approval and issuance of the permit, the City Engineer may require the applicant to deposit a surety bond, irrevocable letter of credit or other financial guaranty as approved by the City Attorney to guarantee a good faith execution of the approved control plan and any permit conditions. This shall be in the amount of not less than the cost of construction of the erosion and sediment control practices and shall include all phases of the plan from the clearing and stockpiling operations to final grading and landscaping, including a maintenance guaranty for a period of not less than two years from the commencement of construction. The city shall have the authority to use the funds to complete the project if the landowner defaults or does not properly implement the approved plan. A performance bond may be replaced with a maintenance agreement for a stated period of time in an amount equal to a percentage of the cost of the construction of the improvements and usually between 10% and 15%. (2) Fees. A nonrefundable fee as set by the Common Council will be required of the permittee at initial application. In such cases where in the opinion of the City Engineer the scope of the proposed work is such that the fee is not sufficient to cover costs likely to be incurred by the city in reviewing and monitoring the erosion control plan, the permittee will be provided with an estimate of the additional required funds as part of the initial review. To obtain the permit, the permittee must deposit money with the city, post a bond or make other adequate financial arrangements to assure that the costs will be paid. K. Inspection. If land-disturbing construction activities are being carried out without a permit required by this section, the City of New Berlin may enter the land pursuant to the provisions of (1), (2) and (3), Wis. Stats. L. Enforcement. (1) The City of New Berlin may post a stop-work order if any of the following occurs: (a) Any land-disturbing construction activity regulated under this section is being undertaken without a permit. (b) The erosion and sediment control plan is not being implemented in a good faith manner. (c) The conditions of the permit are not being met. (2) If the responsible party does not cease activity as required in a stop-work order posted under this section or fails to comply with the erosion and sediment control plan or permit conditions, the City of New Berlin may revoke the permit. (3) If the responsible party, where no permit has been issued, does not cease the activity after being notified by the City of New Berlin, or if a responsible party violates a stop-work order posted under Subsection L(1), the City of New Berlin may request the City Attorney to obtain a cease-and-desist order in any court with jurisdiction. (4) The City of New Berlin may retract the stop-work order issued under Subsection L(1) or the permit revocation under Subsection L(2). (5) After posting a stop-work order under Subsection L(1), the City of New Berlin may issue a notice of intent to the responsible party of its intent to perform work necessary to comply with this section. The City of New Berlin may go on the land and commence the work after issuing the notice of intent. The costs of the work performed under this subsection by the City of New Berlin, plus interest at the rate authorized by City of New Berlin shall be billed to the responsible party. In the event a responsible party fails to pay the amount due, the clerk shall enter the amount due on the tax rolls and collect as a special assessment against the property pursuant to Subch. VII of Ch. 66, Wis. Stats. (6) Any person violating any of the provisions of this section shall be subject to a forfeiture of not less than $500 nor more than $1,000 and the costs of prosecution for each violation. Each day a violation exists shall constitute a separate offense. Page 157

158 (7) Compliance with the provisions of this section may also be enforced by injunction in any court with jurisdiction. It shall not be necessary to prosecute for forfeiture or a cease-and-desist order before resorting to injunctional proceedings. M. Appeals. (1) Board of Appeals. The Board of Appeals created pursuant to of this chapter pursuant to (4)(b), Wis. Stats.: (a) Shall hear and decide appeals where it is alleged that there is error in any order, decision or determination made by the City of New Berlin in administering this section except for cease-anddesist orders obtained under Subsection L(3). (b) Upon appeal, the Board may authorize variances from the provisions of this section which are not contrary to the public interest and where owing to special conditions a literal enforcement of the provisions of the ordinance will result in unnecessary hardship; and (c) Shall use the rules, procedures, duties and powers authorized by statute in hearing and deciding appeals and authorizing variances. (2) Who may appeal. Appeals to the Board may be taken by any aggrieved person or by any office, department, board, or bureau of the City of New Berlin affected by any decision of the City of New Berlin Illicit charges and connections. [Added by Ord. No. 2269] A. Definitions. The following definitions shall be applicable in this section: ILLICIT CONNECTION Any drain or conveyance, whether on the surface or subsurface, which allows an illegal discharge to enter the storm drain system, including but not limited to any conveyances which allow any nonstormwater discharge including sewage, process wastewater, and wash water to enter the storm drain system and any connections to the storm drain system from indoor drains and sinks, regardless of whether said drain or connection had been allowed, permitted, or approved by a government agency prior to the adoption of this section. PERSON Any individual, association, organization, partnership, firm, corporation or other entity recognized by law and acting as either the owner or as the owner's agent. STORM DRAINAGE SYSTEM Publicly owned facilities by which stormwater is collected and/or conveyed, including but not limited to any roads with drainage systems, municipal streets, gutters, curbs, inlets, piped storm drains, pumping facilities, retention and detention basins, natural and human-made or altered drainage channels, reservoirs, and other drainage structures. B. Discharges prohibited. No person shall discharge, spill or dump substances or materials which are not entirely composed of stormwater into receiving bodies of water or onto driveways, sidewalks, parking lots or other areas that drain into the storm drainage system. C. Connections prohibited. The construction, use, maintenance or continued existence of illicit connections to the storm drainage system is prohibited. This prohibition expressly includes, without limitation, illicit connections made prior to the adoption of this section, regardless of whether the connection was permissible under law or practice applicable or prevailing at the time of construction. D. Exemptions. The following activities are exempt from the provisions of this section unless found to have an adverse impact on the stormwater: (1) Discharges authorized by a permit issued by the Wisconsin Department of Natural Resources. (2) Discharges resulting from fire-fighting activities. (3) Discharges from uncontaminated groundwater, potable water source, roof drains, foundation drain and sump pump, air conditioning condensation, springs, lawn watering, individual residential car washing, water main and hydrant flushing and swimming pools if the water has been dechlorinated. Page 158

159 E. Enforcement. Whenever the City finds a person has violated a prohibition or failed to meet a requirement of this section, the City may order compliance by written notice of violation to the responsible person. Such notice may require without limitation: (1) The elimination of illicit connections or discharges; (2) That violating discharges, practices, or operations shall cease and desist; (3) The abatement or remediation of stormwater pollution or contamination hazards and the restoration of any affected property; (4) In the event the person fails to eliminate the illicit connections or discharge, fails to cease and desist in discharges, practices or operations in violation of this section or fails to abate or remediate the stormwater pollution or contamination hazards, that person may be subject to a forfeiture of not less than $100 nor more than $1,000 for each offense, together with the cost of prosecution. Each day that the violation exists shall constitute a separate offense. (5) In the event that an illicit discharge is identified, and emergency cleanup action is undertaken by the City, WDNR, or other authority having jurisdiction, the persons may be subject to all associated cleanup costs incurred Landscaping and buffering. A. Philosophy and purpose. (1) Design philosophy. The City of New Berlin encourages a natural approach to landscape design, utilizing large massing of shrubs and perennials which provide an established, healthy, vigorous landscape. Plant material should be arranged as a series of rhythmic layers with the larger plant materials located to the back of the border and shorter shrubs/perennials located near the front of the border. Rhythm, as in nature, is created through the repetition of form, texture, and color; trees are generally clustered in groups, rather than as equally spaced trees. When walls or architectural fencing is used, plant materials should be placed intermittently along them to create a softening affect. (2) General purpose. The purpose of these regulations is to provide for the City of New Berlin: (a) To aid in stabilizing the environment's ecological balance by contributing to the processes of air purification, oxygen regeneration, and stormwater runoff retardation, while at the same time aiding in noise, glare and heat abatement. (b) To ensure that the local stock of native trees and vegetation is preserved and replenished. (c) To provide visual buffering and enhance the beautification of the City. (d) To safeguard and enhance property values and to protect public and private investment. (e) To preserve and protect the unique identity and environment of the City of New Berlin and preserve the economic base attracted to the City of New Berlin by such factors. (f) To conserve energy, water, and natural resources through the use of applicable landscape materials and maintenance procedures and strategies. (g) To protect the public health, safety and general welfare. B. Applicability. All multifamily dwellings and nonresidential development shall be landscaped in accordance with this section and shall submit a landscaping plan as part of the required site plan. (1) In cases where development landscaping cannot be met in full due to site constraints, the Department of Community Development may waive the requirement or substitute alternative landscaping quantities or methods through the use of Low Impact / Sustainable Design, alternative storm water best management practices / green infrastructure (which may include, but are not limited to, bio-retention, infiltration, pervious surfaces, green roofs, rain gardens, underground storage, and/or rain harvesting/reuse). C. General provisions. (1) Landscape plans. (a) All landscape plans submitted shall be prepared by a qualified or licensed landscape architect, forester, master gardener and/or landscape professional. (2) Fiscal security. (a) At the time of final execution of a certified survey map, subdivision plat or landscape plan with the City, the owner is required to make a fiscal arrangement either by bond, escrowed funds, certificate of Page 159

160 deposit or letter of credit with the City to ensure that the owner is in full compliance with landscape installation and maintenance requirements. (b) Developer shall submit a cost estimate for the landscaping based on actual BID s or qualified or licensed landscape architect, forester, master gardener and/or landscape professional estimate. The actual surety shall be 100% (one hundred percent) of the accepted BID. (c) Additionally, a maintenance portion of the surety is required to ensure that the landscape installation is maintained during its critical establishment (three-year) period following installation. The amount of the maintenance portion of the surety shall be twenty percent of the original surety. (d) After the critical three-year establishment period following initial installation, the developer shall be responsible for continued maintenance until such time when the homeowners' association or designee shall be responsible for the perpetual care and maintenance of the required landscape area. (e) Any owner must also grant a temporary access easement and license to the City or its licensed contracted agent to enter upon the land for the purposes of installing the required landscaping for the length specified for maintenance compliance, typically three years, in the event that such landscaping is not in place by the date specified in the agreement. (f) Should the City have to provide for full compliance, the applicant will forfeit the fiscal deposit. Such fiscal arrangements shall be released when landscape improvement verification and compliance is received. (g) Return of fiscal security. [1] Installation security. When it is determined that the landscaping has been installed in accordance with an approved landscape plan, the City of New Berlin shall return the surety to the applicant. [2] Maintenance security. After a period of three years has passed from the date at which the installation was accepted by the City, the maintenance security shall be returned to the applicant after an inspection has been completed by the City of New Berlin that there has been no loss of plant materials in terms of both quantity and health. [3] The Department of Community Development shall authorize the refunding of the deposits. (h) A qualified or licensed landscape architect, forester, master gardener and/or landscape professional shall perform the final inspection of the site to ensure adherence to the landscape plan and required installation techniques per this chapter. The qualified or licensed landscape architect, forester, master gardener and/or landscape professional will be required to sign a letter of compliance before the fiscal security will be released. The City of New Berlin must also concur with the letter of compliance before the fiscal security will be released. (i) Required securities shall be as follows: [1] Installation compliance security. A fiscal arrangement on file in the Department of Community Development shall be deposited with the City at the time of execution of an approved Zoning Permit and/or development agreement. [2] Maintenance compliance security. A fiscal arrangement on file in the Department of Community Development shall be deposited with the City at the time of execution of an approved Zoning Permit and/or development agreement. (3) New plant materials. (a) Native or adapted plants. In order to assure adequate growth and survival of new plantings, all landscape plans shall utilize only native or adapted plants that reflect the surrounding plant materials and environment. (b) Tree installation. [1] New trees shall be properly planted in accordance with recommended planting procedures by the International Society of Arboriculture. See Figure VIII-3 and the following instructions. [2] Minimum procedures. [a] All ropes and ties shall be removed from around the tree and root ball. [b] Remove as much of the wire basket as possible. [c] Cut any burlap away from at least the top half of the root ball. [d] Dig a shallow, broad planting hole that, where room allows, is as much as three times the diameter of the root ball but only as deep as the root ball. [e] Identify the trunk flare that should be partially visible after the tree has been planted. [f] Place tree at the proper height and set root ball on firmly packed soil to prevent settling. [g] Straighten the tree and then fill the hole, gently but firmly, using water to settle the soil around the root ball. Page 160

161 Figure VIII-3 Proper Tree Installation [h] Stake the tree, if necessary, using two opposing, flexible ties. [i] Mulch the base of the tree using a two- to four-inch layer of mulch, keeping mulch two inches from the trunk of the tree. (4) Existing plant materials. Healthy, existing trees and shrubs shall be incorporated into the landscape to the maximum extent feasible, per the requirements of Subsection C(3)(b) above. (5) Plant protection. All planting beds shall be provided with weed barriers, mulched, and provided with a permanent edge or curbing. (6) Species mix. To prevent uniform insect or disease susceptibility on a development, in an adjacent area or within a district, species diversity is required and extensive monocultures are prohibited. The following minimum requirements shall apply to any development: Table Number of Trees on Site Maximum Percentage of any One Species % % % 60 or more 20% Page 161

162 (7) Plant sizes. At the time of installation, plantings required by this section shall be no smaller than the following: (a) Deciduous trees. [1] A minimum of 50% of the proposed deciduous trees shall have a minimum size of four inches DBH. [2] All remaining deciduous trees shall have a minimum size of two inches DBH. (b) Evergreen trees. [1] A minimum of 50% of the proposed evergreen trees shall have a minimum height of eight feet. [2] All remaining evergreen trees shall have a minimum height of six feet. (c) All ornamental trees. All ornamental trees shall have a minimum size of two inches DBH. (d) All shrubs. All shrubs shall be from five-gallon or greater planters. (8) Plant quality. (a) All plants shall meet the standards of "American Standard of Nursery Stock," ANSI Z (as amended), American Association of Nurserymen specifications for Number 1 Grade and shall be of normal health, height and leaf density, and shall be free of any defects. (b) Plants shall meet all requirements of federal, state, and local law with respect to plant type, labeling, nursery or plant inspection, disease, insect, and other pest infestation, and any other requirements. (c) Substandard "B-grade" or "park grade" plants are not acceptable. (9) Plant quantity. Subsections D through G of this section detail the quantity of landscaping required for each specific use category. (10) Restoration and re-vegetation of disturbed areas. All open areas not occupied by buildings, parking, or storage shall be sodded and/or re-vegetated. Exceptions to this requirement may be permitted when: (a) Areas are intended for future expansion, in which case the areas shall be seeded/re-vegetated and protected from soil erosion and maintained with grass. (b) Undisturbed area containing existing natural vegetation shall be maintained and kept free of foreign material and noxious materials. (11) Reserved. (12) Slopes and berms. Slopes and berms steeper than three feet horizontal to one foot vertical shall not be permitted without special treatment, such as terracing or retaining walls, as approved by the Department. (13) Location of required landscaping. (a) Placement; minimum guidelines. [1] Hardiest species of plantings (including those engineered for high-traffic areas) in the highest vehicular and pedestrian traffic areas; [2] The native species of shade trees away from the highest vehicular and pedestrian traffic areas; [3] Located to not obscure vehicle sight distances; [4] Located so future growth is not over a sidewalk or parking/drive area; [5] Located to soften tall and long building walls; [6] Emphasis of plantings within buffer yards; and [7] Any fruit-bearing trees located away from parking/drive areas. (b) All required landscaping shall be located outside the base setback line unless it is part of an approved landscaping plan. (c) All required landscaping elements shall be located on the property they serve. Landscaping located on adjacent properties or street rights-of-way shall not count toward the landscaping requirements of this section unless prior approval is obtained from staff. (d) Consideration shall be given to the mature height and spread of a tree during the planning of landscaping. No tree shall be located in such a manner as to extend beyond the lot line once it has reached its mature size. (e) No landscaping shall be located within a utility easement, drainage easement, or road right-of-way except for seeding or sodding with prior approval by the Director. (f) No encroachment by structures, berms, trees, shrubs, paved surfaces or changes in grade greater than 4 inches, are allowed in easement areas without approval of the Director. (14) Maintenance. (a) General requirements. [1] Environmental quality and its protection is a high priority. Modification or horticultural practices to respond to changing environmental conditions can minimize pest problems. The landscape investment needs to be protected from pest damage. This fact needs to be balanced with the goal of protecting the neighboring waters, soils, flora and fauna from damaging chemical buildup. Page 162

163 Environmental conditions, such as temperature, humidity, rainfall, and snow cover, influence pest populations and can help to predict periods when pests are likely to reach unacceptable levels. These factors can be weighted with field monitoring to determine when pest controls are necessary and which control method will be most effective. [2] Mechanical and biological controls are preferred over pesticide applications. When used, nontoxic chemicals and biodegradable chemicals are preferred. Applications of pesticides in the environment should be pest-specific, time-specific, quantity-controlled and monitored for effectiveness. Pesticide use should not become routine or institutionalized on a "blind" schedule. As chemical technology changes, it is important to stay current on all integrated pestmanagement techniques. [3] The goal of the landscape maintenance requirements is to provide a well maintained landscape in the most visible public areas of the development emphasizing minimum environmental impact with reduced chemical use. [4] In manicured landscape areas weekly lawn mowing will be necessary, including spring cleanup, control of broadleaf weeds, attention to fertilization, pruning of woody plant material, edging of planting beds and leaf removal in fall. (b) Required maintenance practices. [1] The developer shall be responsible for the upkeep and continued maintenance of the required landscape materials as per the maintenance standards set forth in this provision. They include: [a] The regular maintenance of all required landscape areas and plant materials in a vigorous and healthy condition, free from diseases, pest, weeds, and litter. This maintenance shall include weeding, watering, fertilizing, pruning, mowing, edging, mulching or other needed maintenance in accordance with generally accepted horticultural practices. [b] The maintenance, repair or replacement of landscape structures (walls, architectural features, etc.) to a structurally sound condition. [c] Plant replacement. Any plant materials included in an approved landscaping plan that do not survive a plant establishment period of three years after installation shall be replaced with plant material(s) of the same or like species of equal size within the next planting season, but in any event, within 12 months of the plant's demise. Said replacement shall be made by the property owner or, in the case of landscape plant materials located within a landscape easement under the control of a homeowners' association, the homeowners' association shall be responsible for said replacement. Should the replacement not occur in accordance with this section, the City of New Berlin may cash the applicant's maintenance surety and perform the replacement. [2] Failure to regularly maintain as described in these maintenance requirements shall constitute a violation of this provision and may be enforced in accordance with the City of New Berlin building inspection policy. Notice of noncompliance may be issued to the owner requiring the immediate attention to conform to these maintenance requirements. The City may correct, repair or replace landscape materials as required by this provision. Costs for such repair, or replacement within the first three years, will be covered by the developer's maintenance surety. [3] Required plant materials, if dead, diseased, or severely damaged, shall be removed by the owner as soon as possible but no later than 60 days after notification. All such plants shall be replaced within 60 days of notification or by the next planting season, whichever comes first. [4] Replacement plants must be of the same size and species as shown on the approved landscape plan or must be equivalent in terms of quality and size. Such replacement will not be considered an amendment to the approved plan. [5] All water shall be provided by the owner with adequate hose bibs and/or hydrants. [6] All fertilizers and pesticides shall be applied in accordance with manufacturer's directions. Where alternate products are available, the environmental impact of the products shall govern which is used. [7] Wood mulch. Maintain at a depth of three to four inches; apply annually as needed. [8] Stone mulch. Maintain at a depth of two to three inches; clean and remove leaf and windblown debris and apply fresh stone as needed. [9] Watering. All trees shall be watered as necessary to maintain vigor. On average, trees require one inch of rainfall a week. Supplemental watering is necessary if this rainfall does not occur. Water availability is particularly critical during the tree's transition periods: when the tree is putting on new leaves and again at leaf drop. Plants should not be watered until a moisture check has Page 163

164 been made of representative plants in the landscape. Check the soil to a depth of four inches. If it is still moist, don't water. Overwatering will suffocate the roots and kill the tree. This is particularly true in the heavy, clay soils. Maintain a large enough mulch saucer around the perimeter of the root zone to fill with water. All properties within the City are encouraged to use water conservation techniques as outlined in the City of New Berlin Water Conservation Plan including, but not limited to the following. [a] Rain gardens; [b] Low flow fixtures; [c] Rain barrels; [d] Rain harvesting tanks; [e] Water harvesting for landscape irrigation; [f] Limit watering landscaping the hours of 9:00 AM and 9:00 PM when possible; and [g] Watering through the use of a hand-held watering can or other hand-held container or hose is encouraged, provided any such watering device is utilized manually and in conjunction with an automatic hand-held shut-off valve. [10] New lawns should be watered at such frequency as weather conditions require, replenishing soil moisture four to six inches below the root zone. [11] Pruning. [a] Damaged trees or those that constitute health or safety hazards shall be pruned at any time of the year as required. [b] Remove dead, diseased or damaged branches that are smaller in diameter than the trunk or branch to which they are attached, which have a vertical spacing of from 18 to 48 inches and radial orientation, so as not to overlay one another. [c] Remove branches clean and close to the main branch without leaving stubs. [12] Mowing. Turf should be kept at a height of two to three inches. Mowing should be done frequently enough so that no more than 1/3 of the grass blade is removed per cutting. Cutting away half or more of the grass stems at once exposes stems that have been shaded and may burn in strong sunlight and also shocks the root, requiring recovery time. Mowing equipment such as mulching mowers shall be used as often as possible to permit recycling of clippings. Blades on all equipment should be kept sharp to prevent the tearing of the grass blades. Grass adjacent to fixed objects should be trimmed to the same height as the general turf. (15) Vision clearance triangle. (a) Intersection of local streets. No obstructions, such as structures, parking, or vegetation, shall be permitted in any district between the heights of three feet and 10 feet above the plane through the mean curb grades within the triangular space formed by any two existing or proposed intersecting street or alley right-of-way lines and a line joining points on such lines located a minimum of 30 feet from their intersection. In establishing the vision triangle, the edge of pavement or curb shall be used.. See Figure VIII-4. (b) Intersection with arterial streets. In the case of arterial streets, one or more of which has an established right-of-way of 100 feet or more, intersecting with any other street, the corner cutoff distances establishing the vision triangle clearance space shall be increased to 60 feet. See Figure VIII-4. (c) Intersection with a railway. In the case of a railway intersecting with a street, the corner cutoff distances establishing the vision triangle clearance space shall be increased to 120 feet. See Figure VIII-4. Figure VIII-4 Vision Clearance Triangles Page 164

165 LOCAL STREET INTERSECTION ARTERIAL STREET INTERSECTION RAILROAD STREET INTERSECTING A D. Landscaping requirements for multi-family and nonresidential uses. (1) All multi-family and nonresidential land uses shall install at least one tree and three shrubs for every 3,600 square feet of lot area covered by open space. This landscaping shall be in addition to any parking lot perimeter requirements set forth in this chapter. This landscaping may be credited toward the parking interior landscaping requirements set forth in this chapter. (2) A minimum of 60% of the required landscaping shall be located in the front yard. (3) Trees shall be no closer than seven feet from any structure and shall be installed with at least 50 square feet of non-paved area around the trunk. (4) Planting beds may contain a combination of living plant materials and mulch. However, living plant materials shall comprise no less than 50% of the required planting beds. (5) Plant materials shall be located to enhance views from public streets and sidewalks. (6) Any existing trees and shrubs that shall be preserved and are protected during construction according to specifications in A(5) shall be credited against this landscaping requirement. (7) When demonstrated by the applicant that the development site cannot or should not be landscaped in accordance within the landscape provisions of this chapter, the Department of Community Development may waive certain requirements or substitute alternative landscaping quantities or methods through the use of Low Impact / Sustainable Design, alternative storm water best management practices / green infrastructure (which may include, but are not limited to, bio-retention, infiltration, pervious surfaces, green roofs, rain gardens, underground storage, and/or rain harvesting/reuse). E. Parking lot landscaping. (1) Purpose and intent. It is the intent of these standards to require screening along parking lots adjacent to the required street yard to enhance the visual quality of commercial districts by developing visual relief from the expanse of asphalt, concrete and vehicles. It is encouraged that the landscape development of the screening buffer take on a more natural appearance, where organic lines are used over straight formal lines. (2) Perimeter landscaping. (a) Applicability. All parking lots containing five or more spaces shall provide perimeter landscaping pursuant to this section: (b) Minimum planting requirements. [1] A minimum of one shade or evergreen tree per 20 linear feet of parking surfaces and one shrub per five linear feet of parking surfaces shall be planted along the perimeter of any parking area when adjacent to an arterial street. A minimum of one shade or evergreen tree per 30 linear feet Page 165

166 of parking surfaces and one shrub per 10 linear feet of parking surfaces shall be planted along the perimeter of any parking area when adjacent to any non-arterial street. [2] For parking lots adjacent to a side or rear lot line, a minimum of one evergreen or shade tree per 30 linear feet of parking surfaces and one shrub per five linear feet of parking surfaces shall be planted along the perimeter of any parking area when adjacent to a side or rear lot line. (c) General requirements. [1] Perimeter planting areas shall be designed to maintain and protect visibility at driveways and access points. [2] Perimeter landscaping shall provide a semi-opaque screen during the winter season. [3] Berms may be utilized as part of the perimeter landscaping. [4] Where walls or fences are utilized within perimeter landscaping, a minimum of one evergreen tree and three shrubs shall be required every 40 linear feet of wall or fence and shall be planted on the side of the fence or wall facing the surrounding streets, walks, parks, trails and other public use properties. [5] Plants in perimeter landscaping areas should be grouped instead of evenly spaced. (3) Parking lot interiors. The use of landscaped islands and medians shall be used to provide positive guidance to motorists and establish proper driving patterns and/or storm water best management practices. (a) Applicability. All parking lots with 40 or more parking spaces shall comply with these interior parking lot landscaping requirements, unless the Director finds that landscaped islands are not appropriate for a particular site. Landscaping used to fulfill the perimeter parking lot landscaping requirements as outlined in Subsection E(2) shall not be used to satisfy these interior parking lot landscaping requirements. (b) General requirements. [1] Each individual landscaped island shall include a minimum of one tree and two shrubs or appropriate storm water plantings. [2] Landscaped islands shall be at least 170 square feet in size with the smallest dimension of pervious surface being six feet to allow for adequate root aeration and expansion. Any landscaped island that is less than 170 square feet in area may not be used in the minimum fivepercent interior landscaping requirement calculation. [3] Plant materials shall be chosen and arranged to maximize the shading of parking spaces. [4] Plant materials shall be arranged to minimize obstruction of parking spaces as well as visibility and access on and off site. [5] Landscaped islands shall be dispersed throughout the parking area in order to break up large areas of surfaced parking. F. Buffering and screening. (1) Purpose. Bufferyards shall be required around the boundary of all new developments to separate adjacent incompatible land uses and screen or soften the detrimental impacts of incompatible uses upon one another and upon the surrounding property line. (2) General provisions. (a) Location. [1] Bufferyards shall be located between the uses for which they are required to buffer or screen. [2] When the same property owner owns and is developing adjoining parcels, the required bufferyard may be placed on either parcel or astride the boundary. [3] When a different property owner owns the adjacent property, the bufferyard shall be placed on the property being developed. However, a buffer that meets the requirement of both parcels may be placed astride the boundary if a written agreement, signed by both owners, is filed with the Plan Commission and is recorded in the Waukesha County Register of Deeds Office to run with the property as a covenant. (b) Structures. No structure shall be permitted within a required buffer other than a wall, landscaping, fence, sidepath, or earth berm. As demonstrated by the applicant, that due to site constraints, parking areas and driveways may encroach upon bufferyards up to 5 feet with approval from the Department of Community Development. Encroachments greater than 5 feet shall be approved by the Plan Commission and the applicant shall be required to provide justification for the encroachment. Page 166

167 (3) Minimum required bufferyard. The following table sets forth the minimum required bufferyard based upon the adjacent land uses and not the Zoning District. The abbreviations used in the table are described as follows: (a) Moderate bufferyard. An "A" in a cell indicates a moderate bufferyard is required with a minimum width of 10 feet. (b) Average bufferyard. A "B" in a cell indicates an average bufferyard is required with a minimum width of 15 feet. (c) Substantial bufferyard. A "C" in a cell indicates a substantial bufferyard is required with a minimum width of 25 feet. (d) Major bufferyard. A "D" in a cell indicates a major bufferyard is required with a minimum width of 40 feet. (e) No bufferyard required. An "N" in a cell indicates that there is no minimum bufferyard required. Proposed Use ADJACENT TO: Singlefamily or two-family residential uses Multifamily residential uses Institutional/ public/semipublic uses Office or commercial uses (5,000 square feet or less) Office or commercial uses (5,000 square feet or more) Fully enclosed manufacturing/ industrial uses (20,000 square feet or less) All other manufacturing/ industrial uses Singleor Two- Family Residential Uses Multi- Family Residential Uses Table Institutional/ Public Semipublic Uses Office or Commercial Uses (5,000 square feet or less) Office or Commercial Uses (5,000 square feet or more) Fully Enclosed Manufacturing/ Industrial Uses (20,000 square feet or less) All Other Manufacturing/ Industrial Uses Q-1 or L- 1 Uses N A A B C C D D A N A A B C D D A A N A B B C D B A A N A B D D C B B A N B C C C C B B B N C C D D C D C C N B Q-1 or L-1 uses D D D D C C B N (4) Minimum planting requirements. For every 100 linear feet of a bufferyard, the following number of plants shall be provided for each required bufferyard as set forth in Table Page 167

168 Required Bufferyard Minimum Trees (Deciduous or Ornamental) (per 100 lineal feet) Table Page 168 Minimum Evergreen Trees (per 100 lineal feet) Minimum Shrubs (per 100 lineal feet) "A" 3 None 3 "B" "C" "D" G. Screening of mechanical equipment and dumpsters. (1) Screening of mechanical equipment. (a) Applicability. [1] The mechanical equipment screening standards of this section shall apply to the following: [a] Electrical and gas-powered mechanical equipment; [b] Duct work and major plumbing lines used to heat, cool or ventilate; and [c] Power systems for the building or site on which the equipment is located. [2] Antennas and vent openings shall not be considered mechanical equipment for purposes of these screening standards. (b) Required screening. All mechanical equipment shall be screened from view to the maximum practical extent as follows: [1] Roof-mounted equipment. Roof-mounted mechanical equipment shall be screened by a parapet wall or similar structural feature that is an integral part of the building's architectural design. The parapet wall or similar structure shall be of a height equal to or greater than the height of the mechanical equipment being screened. [2] Wall-mounted equipment. Wall-mounted mechanical equipment that protrudes more than six inches from the outer building wall shall be screened from view by structural features that are compatible with the architecture or the subject building. Wall-mounted mechanical equipment that protrudes six inches or less from the outer building wall shall be designed to blend with the color and architectural design of the subject building. [3] Ground-mounted equipment. Ground-mounted mechanical equipment shall be screened from view by a decorative wall that is compatible with the architecture and landscaping of a development site. The wall shall be of a height equal to or greater than the height of the mechanical equipment being screened. (c) Alternative screening. Alternative screening methods, including but not limited to increased landscaping, larger setbacks and grouping of equipment may be permitted with the approval of the Director. (2) Screening of dumpsters. (a) Applicability. All dumpsters shall be screened from view from any public right-of-way according to the following provisions. (b) Required screening. [1] Access to dumpster. One side of the dumpster shall remain accessible for refuse removal and shall be screened by a solid gate with a minimum height of five feet. The gate shall be maintained in good working order and shall remain closed except when refuse pickups occur. [2] Additional screening. Any side of a dumpster that is not used for access and is visible from a public right-of-way shall be screened from view by a solid wall with a minimum height of six feet. The wall shall be architecturally compatible with other buildings and structures on the site. [3] Alternative screening. Alternative screening methods may be permitted with the approval of the Plan Commission. H. Fences and walls. Fences and walls may be permitted as elements of a landscape plan and, in some locations, may be used to conceal storage or other unsightly or conflicting land uses. All fences or walls shall meet the following requirements:

169 (1) Materials. Fences or walls shall be constructed of wood, stone, brick, decorative concrete block, wrought iron, materials designed to resemble any of the latter materials, or a combination of any of these materials. (a) All fencing shall be finished on both sides, except fencing that is accessory to a residential use. (b) Plywood, particleboard, sheet metal, concrete slabs, concrete barriers, or similar materials shall not be used in fencing or walls intended to provide screening or buffering. (c) Chain link fencing, with or without slats, shall not be used for screening or buffering purposes. (d) Barbed wire, electrical fencing and similar fence materials may only be used in conjunction with a permitted agricultural use. (2) Fences and walls abutting public roads. Where opaque or solid fences or walls will abut a public road, they shall be screened from the road. Breaks in the screening shall be created along with changes in the fence's/wall's setback, height or material to provide visual diversity. Where more than two consecutive rear lots' lines will abut a public road, it shall be the developer's responsibility to install a wall or fence that will delineate the property line in order to assure diversity of setback, screening and streetscape views. (3) Required plantings. Where fencing continues for more than 40 feet, a minimum of one evergreen tree or three shrubs shall be planted along the outer, public side of the fence for each 40 linear feet. (4) Maintenance. Where walls, fences and other structures are an integral part of the landscape plan, such structures shall be maintained in good repair. Structures that are leaning, broken, missing parts, peeling paint, or are in any other way damaged shall be immediately repaired or replaced. I. Enforcement. All plantings are subject to periodic inspections to ensure compliance with the regulations of this section and with the approved landscape plan. Failure to comply with these regulations shall be a violation of this chapter and may be subject to the enforcement and penalties provisions set forth in Article X Off-street parking, loading and access. A. Off-street parking requirements. (1) Applicability. In all districts and in connection with every use, there shall be provided at the time any use or building is erected, enlarged, extended, increased, used or occupied, off-street parking stalls for all vehicles in accordance with the following provisions. (2) Rules for computing parking spaces. The following rules shall apply when computing parking spaces: (a) Multiple uses. Unless otherwise noted or approved, off-street parking areas serving more than one use shall provide parking in an amount equal to the combined total of the requirements for each use. (b) Fractions. When a measurement of the number of required spaces results in a fractional number, any fraction of 1/2 or less shall be rounded down to the next lower whole number and any fraction of more than 1/2 shall be rounded up to the next higher whole number. (c) Area measurements. Unless otherwise specifically noted, all square-footage-based parking standards shall be computed on the basis of gross floor area of the building. (d) Occupancy- or capacity-based standards. For the purpose of computing parking requirements based on employees, students, residents, or occupants, calculations shall be based on the largest number of persons working on a single shift, the maximum enrollment or the maximum fire-rated capacity, whichever is applicable and whichever results in a greater number of parking spaces; for manufacturing, processing, fabrication and storage operations, one space per employee for the two consecutive work shifts with the largest number of employees. In addition, adequate visitor parking shall be provided. (e) Unlisted uses. Upon receiving a development application for a use not specifically listed in the offstreet parking schedule below, staff shall apply the off-street parking standard specified for the listed use that is deemed most similar to the proposed use in regards to use, size and intensity of use. If the staff determines that there is no use similar in use, intensity or size, the staff may require the applicant to prepare a parking study. The study must include estimates of parking demand based on recommendations of the Institute of Traffic Engineers (ITE), or other acceptable estimates as approved by the Community Development Director, and should include other reliable data collected from uses or combinations of uses that are the same as or comparable with the proposed use. Comparability will be determined by density, scale, bulk, area, type of activity, and location. The study must document the source of data used to develop the recommendations. (f) Independent Parking Space Study. An applicant may choose to prepare an independent parking space study in order to better accommodate reduced parking spaces. DCD Staff may approve up to Page 169

170 a 15 percent reduction, however any reductions greater than 15 percent shall require Plan Commission approval. Requirements shall include the following: [1] Estimates of parking demand based on recommendations of the Institute of Traffic Engineers Manual (ITE), Urban Land Institute, or other acceptable estimates as approved by the Community Development Director, and/or [2] Reliable data collected from uses or combinations of uses that are the same as or comparable with the proposed use. Comparability will be determined by the source of the data used to develop the recommendations. (g) Bicycle Parking. All parking lot areas containing fifty spaces or more shall consider providing bicycle parking facilities (bike racks) that accommodates a minimum of five bicycles. (h) Mass Transit. For developments that are adjacent to mass transit options or offer car/van pools, or other forms of alternative transportation may request a reduction in the number of required parking spaces based on supporting documentation. (i) Parking Maximum- Cannot provide more than 15% above the required amount of parking unless applicant can prove additional parking is needed. (3) Minimum number of required spaces. Table sets forth the minimum number of parking spaces required for each use unless applicant follows Section A(2)(f). Table Use Required Parking Spaces Agricultural and Residential Uses Boardinghouses, One space per bed rooming houses, dormitories, and community living arrangements Elderly housing Single-family and two-family dwellings Multiple-family dwellings One space per dwelling unit. Plan Commission may reduce the parking requirement when assisted care is provided. Plan Commission may require an additional 10% of the parking requirement for guest parking. Two spaces per dwelling unit. A minimum of 400 square feet of parking shall be provided in an attached garage. Two spaces per dwelling unit plus 1/10 of a space per dwelling unit shall be provided for guest parking. A minimum of one space per dwelling unit shall be provided in an attached or underground garage. Commercial Uses Adult-oriented establishments Tattoo and body piercing establishments Amphitheaters, auditoriums, stadiums and theaters Amusement centers, arcades, aquariums, banquet halls, One space per 200 square feet or one space per three persons of occupant load, whichever is greater One space per 200 square feet One space per two seats One space per three persons at maximum capacity Page 170

171 exhibition halls Automotive body repair, or service Automotive sales or rental, farm equipment sales or service Automotive fuel sales Bars and taverns Bed-and-breakfast Establishment Bowling alley Contracting and construction sales, contractor bulk sales Department stores and shopping centers One space per 200 square feet of sales, office or waiting area, plus two spaces per service bay One space per 100 square feet of indoor sales or office space, plus one space per 500 square feet of outdoor sales area One space per 200 square feet of sales, office or waiting area, plus one space per fuel pump or service bay One space per 100 square feet of customer service area. One space per 100 square feet of customer service area for extension of premise. Two spaces for the owner or operator, plus one space for each bedroom rented to the public Five spaces per bowling lane, plus additional spaces as may be required for ancillary uses located within the same establishment One space per 400 square feet of indoor office, sales, or storage, plus one space per 1,000 square feet of outdoor sales One space per 300 square feet of customer sales Fairgrounds One space per three seats for any stadium or theater seating, plus one space per 100 square feet of sale or show floor space Funeral services One space per four seats or 35 spaces per chapel unit, whichever is greatest Greenhouses One space per 150 square feet of inside sales or display, plus one space per 500 square feet of outside sales and display area Hotels and motels One space per room or suite Outdoor displays, One space per 750 square feet sales or storage Personal services One space per 200 square feet Restaurant One space per 50 square feet or one space per two seats, whichever is greater. One space per 100 square feet of customer service area or one space per every four seats, whichever is greater for extension of premise. Self-storage facility One space per 200 square feet of office space, plus one space per two storage units Service commercial One space per 200 square feet uses Telecommunication One space per structure structures Veterinary clinics One space per 400 square feet Wholesale One space per 500 square feet commercial uses All other commercial One space per 150 square feet or one space per two seats/capacity, whichever is uses greater Office Uses Business offices, One space per 200 square feet Page 171

172 government office, public service offices, contracting and construction office Financial institution Medical, dental, and other professional health service offices One space per 300 square feet One space per 250 square feet Post offices One space per 300 square feet Manufacturing/Industrial Uses Light industrial or heavy industrial uses Industrial sales Laboratories Freight services, distribution centers, weight scales and truck terminals Warehousing or storage Excavation, mineral extraction, processing, storage and other related operations Quarrying or peat and soil removal Recycling centers, central composting facilities and landfills One space per 300 square feet of office space, plus one space per 200 square feet of indoor sales area, plus one space per 1,000 square feet of outdoor storage or sales, plus one space per 500 square feet One space per 200 square feet of indoor sales area, plus one space per 500 square feet of outdoor sales area One space per 400 square feet One space per 500 square feet One space per 2,000 square feet One space per 200 square feet of office area or one space per employee, whichever is greater One space per 1,000 square feet Institutional/Public/Semipublic Uses Golf courses Six spaces per hole Golf driving ranges Two space per tee Hospitals One space per bed Libraries, museums and galleries Marinas Miniature golf courses One space per employee, plus adequate parking for queuing One space per 300 square feet of assembly area, one space per four seats of fixed seating Two spaces per boat slip Two spaces per hole Organizational clubs One space per 100 square feet Racquetball, Five spaces per court handball and tennis courts Health Clubs One space per 200 square feet. Page 172

173 Skating rinks Volleyball courts All other recreational uses Churches Assisted care facilities Elementary, middle and high schools Colleges, universities and other graduate institutions Nursery schools Day-care centers One space per 200 square feet 15 spaces per court, plus one space per employee One space per three patrons, plus one space per employee One space per three seats Two spaces per three bedrooms for residents and visitors, plus one space per employee One space for each staff member, plus one space for each five students over the age of 16, plus parking for all other facilities such as auditoriums or stadiums One space for each staff member and student, excluding students housed in dormitories One space for each staff member, plus one space per 1 1/2 students One space for each staff member, plus one space per six students; for family day-care homes, the driveway may be used for parking Other Uses Parking spaces for other permitted or special uses not listed herein shall be provided in accordance with requirements designated by the Plan Commission or CDA. (4) Parking requirements for physically disabled. All off-street parking areas open to the public shall provide and reserve parking spaces for use by motor vehicles which transport physically disabled persons in accordance with the applicable State and Federal requirements. (a) Van Accessible Spaces. One in every eight accessible spaces, but not less than one, shall be served by an access aisle 96 inches wide minimum and shall be designated van accessible as required by ADAAG and/or State Building Code. (b) Dimensions. Parking spaces for the physically disabled shall be a minimum of 96 inches wide. Access aisles adjacent to accessible space shall be a minimum of 60 inches wide except as provided in (b) above. (c) Location. Parking spaces that are to be reserved for the physically disabled and which serve a particular building shall be located on the shortest accessible route of travel from adjacent parking to an accessible entrance. In parking facilities that do not serve a particular building, accessible parking shall be located on the shortest accessible route of travel to an accessible pedestrian entrance of the parking facility. In buildings with multiple accessible entrances with adjacent parking, accessible parking spaces shall be dispersed and located closest to the accessible entrances. (d) Other. Parking spaces reserved for the physically disabled may be subject to additional standards as defined in , Wis. Stats the ADAAG and the State Building Code. (5) Access. Adequate access to a public street shall be provided for each parking space. (6) Minimum area. The minimum area for each parking space, excluding the area needed to maneuver, shall be nine feet wide and eighteen feet long, except for designated handicapped parking, (7) Minimum design standards. (a) Method of measurement. All drive aisles and parking space widths shall be measured from edge of pavement to edge of pavement. Parking stall depths can be measured to the face of curb where applicable. (b) Dimensions. The minimum size of a parking space may be altered based on aisle width and angle of parking. Parking stalls shall conform to the following minimum dimensions: Page 173

174 Angle of Parking (degrees) No parking or parallel One-Way Manuevering Lane Width (feet) Table Two-Way Manuevering Lane Width (feet) Parking Stall Width (feet) Parking Stall Length (feet) Angle of Parking (degrees) 0 - parallel Total Width of One Tier of Spaces Plus Maneuvering Lane (feet) Total Width of Two Tiers of Spaces Plus Maneuvering Lane (One-Way) (feet) Total Width of Two Tiers of Spaces Plus Maneuvering Lane (Two-Way) (feet) (b) Maneuverability areas. The following provisions shall be followed to maintain efficient maneuverability: [1] Turnaround area. Where more than three parking spaces are served by a single driveway, a turnaround area shall be provided or other provision made to permit cars to exit the parking lot without backing onto any street or sidewalk. [2] Backup area. Each parking space shall be provided with a sufficient backup area to permit egress in one maneuver, consisting of one backward and forward movement. (c) Surface. [1] All off-street parking areas and aisles in agricultural and single-family residential districts shall be graded and surfaced so as to be dust-free and properly drained. All driveways shall be completed within 18 months of receiving a building permit. [2] Parking areas and aisles in all other districts shall be paved with an asphalt or concrete surface. The parking lot design and thickness shall be shown on the site plan. [3] Paving of parking areas may be waived for up to 12 months by the Plan Commission to allow new parking areas to settle or because of the season. The Plan Commission may require the appropriate financial surety to guarantee that the required paving will be completed. (d) Wheel stops and continuous curbs. Wheel stops or continuous curbs shall be provided, located and designed to protect screening, buffering, landscaping, and pedestrian ways from damage or encroachment of vehicles and provide necessary traffic control in the parking area. [1] Continuous curbs. Continuous curbs shall be made of asphalt, concrete, stone or other similar material and shall have a minimum height of six inches and a minimum width of six inches. They shall form a continuous edge around all raised landscaped areas adjacent to parking and maneuverability areas which are not protected by wheel stops. [2] Wheel stops. Where continuous curb cannot be used, wheel stops or bollards may be approved. Each wheel stop shall be a singular block of reinforced concrete, stone or other durable material with a minimum height of six inches, a minimum width of six inches and a minimum length of eight feet. Wheel stops are to be securely attached to the ground and may be used only at the end of parking stalls. Bollards shall be of a durable material, reinforced concrete or decorative metal, and should be placed approximately one bollard per parking space. [Review with Ron] Page 174

175 [3] Placement. Wheel stops, continuous curbs, and/or bollards shall be located a minimum of four feet from any structures, buildings, walls, or plant material, excluding ground cover, to prevent a vehicle from driving onto the landscaped area or hitting any structure or plant material at the edge of a parking area. [4] Raised parking lot islands shall have vertical face curbs. (e) Location. [1] Parking spaces shall be located on the same lot as the principal use they serve. [2] No more than 50% of parking spaces may be permitted in the front yard in the Rm-1, O-1, O-2, M-1, and M-2 Zoning Districts. [3] Parking for business and industrial uses shall not be located in a residential district. Parking for home occupations shall be in accordance with G(4)(a)[9]. (f) Setback. [1] Parking lots shall be located in such a manner to provide convenient access to the facilities they serve. [2] Parking areas, including aisles in manufacturing, industrial, quarrying, and landfill districts shall be set back a minimum of 50 feet from the base setback line and a minimum of five feet from other lot lines for providing area for landscaping, drainage, vehicle overhang, and sign placement. [3] Parking areas, including aisles, in other districts shall be set back a minimum of 10 feet from the base setback line and a minimum of five feet from other lot lines. [4] Setbacks may be required to be greater due to, but not limited to: [a] The need for snow storage; [b] Preservation of existing vegetation; [c] Slopes; [d] Drainage; [e] Vision triangles; [f] Vehicular turning radii; [g] The effect of street salting; or [h] Utility location. (8) Joint or shared parking. Joint or shared parking is encouraged and permitted if the multiple uses that the shared parking will benefit can cooperatively establish and operate the facilities. Shared parking may be applied when land uses have different parking demand patterns and are able to use the same parking spaces/areas throughout the day. Shared parking is most effective when these land uses have significantly different peak parking characteristics that vary by time of day, day of week, and/or season of the year. General parking lots and/or on-street parking that is available for patrons of nearby businesses/commercial districts is a form of shared parking. The applicant shall have the burden of proof for reduction of the total number of parking spaces and shall document and submit information substantiating his request. Joint or shared parking may be approved if: (a) A sufficient number of spaces are provided to meet the highest demand of the participating uses; (b) Evidence has been submitted, to the satisfaction of the Plan Commission, by the parties operating the shared parking facility, documenting the nature of uses and the times when the individual uses will operate so as to demonstrate the lack of potential conflict between them. (c) The shared parking spaces will not be located in excess of 500 feet from the uses they are intended to serve; (d) A shared parking agreement is submitted that provides evidence that the parking lot is either large enough to accommodate multiple users or that parking spaces will be shared at specific times of the day (i.e., one activity uses the spaces during daytime hours and another activity use the spaces during evening hours); and (e) Any additional documents, covenants, deed restrictions, or other agreements as may be deemed necessary by the Plan Commission to ensure that the required spaces are provided and maintained for during the life of the development. (9) Adjustments to required parking. (a) Purpose. The purpose of this section is to allow adjustments to the minimum number of parking spaces required to avoid constructing unneeded and excessive off-street parking facilities. Reducing the amount of excess off-street parking facilities is intended to provide for more cost-efficient site development, eliminate constructing more impervious surface than necessary, minimize stormwater runoff, avoid construction of unnecessarily large stormwater management facilities, and provide more landscape areas and open space on commercial and industrial sites. To achieve these purposes, the Page 175

176 Plan Commission may reduce the minimum number of required off-street parking spaces in specific cases as described in this section. (b) Adjustments. In all commercial and industrial districts, the minimum number of required parking spaces may be adjusted by the Plan Commission on a case-by-case basis. The petitioner for such an adjustment shall show to the satisfaction of the Plan Commission that adequate parking will be provided for customers, clients, visitors, and employees. The following factors shall be used as a basis to adjust parking requirements: [1] The applicant or developer can provide evidence that actual parking demands will be less than the ordinance requirements. The petitioner shall submit written documentation and data to the satisfaction of the Plan Commission that the operation will require less parking than the ordinance requires. [2] There is an adequate availability of joint or shared parking. The petitioner shall submit written documentation to the satisfaction of the Plan Commission that an adequate amount of joint or shared parking spaces are available to satisfy the parking demand. All joint or shared parking shall meet the requirements set forth in A(8). [3] There is an adequate availability of off-site parking spaces that may account for not more than 50% of an activity's required parking and shall be located not more than 300 feet from the principal use that it is intended to serve. [4] When a reduction of parking spaces attributable to shared parking or off-site parking is requested, the petitioner shall submit written verification that such parking is available and shall include copies of any contracts, joint lease agreements, purchase agreements, and other such documentation to show that such shared parking can be accomplished. The City Attorney shall provide an opinion designating the method by which the required shared parking shall be provided. Off-site shared parking spaces shall be clearly posted for the joint use of employees and/or tenants or customers of each respective use sharing those spaces. [5] Use of alternative transportation. Upon demonstration to the Plan Commission that effective alternative transportation to the automobile will occur, the Plan Commission may reduce parking requirements. Alternative transportation may include, but is not limited to, bus transit, van pool operations, car pool/ride sharing, and bicycles. Parking management plans/operations may also be used as a basis to reduce required parking. Parking management plans may include, but are not limited to, flexible working hours or shifts, preferential parking for car pools/van pools, transit/van pool fare subsidy, imposition of a charge for parking, and establishment of a transportation coordinator to implement car pool, van pool, and transit programs. Proposals for adjustments of parking requirements under this section shall show how the alternative transportation modes will be implemented, the permanency of such modes, extent of the program, the number of vehicles the mode will replace, and other pertinent information. (c) Additional open space. The site plan for the commercial or industrial use shall be designed to provide sufficient open space on the subject site to accommodate the additional parking spaces otherwise required by this chapter. Such open space shall be in addition to required yards, setbacks, driveways, private streets, loading and service areas. Sufficient open space shall be provided which, if converted to parking spaces, would provide off-street parking to meet the full requirements of this chapter at the time of application. (d) Changes in occupancy or use. When the use of a building, structure, or land is changed to another use or occupant that requires more parking spaces than required for the use existing immediately prior to such change, additional parking spaces shall be constructed for the new use or occupant in the amount necessary to conform to this chapter. (e) Changes in intensity of use. When the intensity of use of a building, structure or land is increased by an addition of employees, gross floor area, seating capacity, or other unit of measurement, additional parking spaces shall be constructed for such additions in the amount necessary to conform to this chapter. B. Special off-street parking requirements for certain uses and districts. (1) Parking and storage of recreational vehicles and equipment. No person shall park or store recreational vehicles on a lot in a residential district except within a fully enclosed structure unless otherwise permitted herein. (a) General provisions. Page 176

177 [1] Vehicles or equipment stored or parked on a trailer intended for such use shall count as one recreational vehicle. [2] Except within an approved trailer camp, no recreational vehicle or mobile home shall be used for the purpose of permanent habitation, living, or housekeeping purposes in the City of New Berlin; permanent habitation being defined as more than seven days habitation. [3] On no property where the storage of recreational vehicles is otherwise permitted shall such storage out of doors be so located, used, operated, or so arranged, or the vehicles or equipment be deteriorated so as to create a nuisance or adversely affect the property values and general desirability of the neighborhood. [4] The Director or his designee or any affected property owner may present such a complaint in writing to the Plan Commission for a determination. A copy of such complaint shall be mailed to the recreational vehicle owner at least 10 days prior to the Plan Commission meeting. The owner shall be permitted to present evidence in defense of his parking, maintenance, or storage arrangement. [5] The Plan Commission shall be entitled, if it deems necessary, to issue written orders stating the manner and time in which such parking or storage shall be covered, screened, moved, rearranged, relocated, removed, or limit the number, or require conditions for the vehicle or equipment to be repaired and maintained so as to eliminate such adverse effect. [6] Variances from the dimensional provisions of this section may be granted by the Board of Appeals under the provision of of this chapter. (b) Major recreational vehicles. [1] Major recreational vehicles shall be parked and are only allowed on a driveway, turnaround, spur, or other hard all-weather dust-free surface. Parking areas existing before passage of this chapter are allowed to remain, subject to a two-foot setback. [2] One major recreational vehicle may be stored outside on an occupied residential lot of 20,000 square feet or less, provided that the vehicle or equipment shall not exceed 8.5 feet in width, 13 feet in height, and 32 feet in overall length. [3] One major recreational vehicle may be stored outside on an occupied residential lot of more than 20,000 square feet, provided that it shall not exceed 8.5 feet in width, 13 feet in height, and 37 feet in overall length. (c) Outside parking provisions. Outside parking of recreational vehicles and equipment are subject to the following provisions: [1] There shall be a minimum setback of five feet from the side and rear lot lines. [2] The parking or storage of recreational vehicles or equipment in the front yard shall only be allowed on a driveway or turnaround and parked as close to the home as possible. [3] Recreational vehicles and equipment shall not be located in rights-of-way, vision clearance triangles, or drainage and utility easement areas. [4] The recreational vehicle shall be maintained and be in good condition and safe for effective performance of the function for which it is intended. The exterior of the vehicle shall be intact. [5] Recreational vehicles shall be roadworthy. Vehicles that require a license shall be properly licensed. [6] No recreational vehicles or equipment shall be stored in any open space outside a building unless such equipment is wholly owned by the property owner who shall be in residence at the property in question. If the property is rented, such storage shall be permitted to the tenant only, provided that such equipment is owned by the tenant. [7] All equipment shall be parked or stored as inconspicuously as possible on the property. The area around the equipment or vehicle shall be kept weed-free and free of accumulation of other storage material. (d) Abrogation. This chapter is not intended to allow parking and storage of recreational vehicles or equipment where they may be otherwise prohibited by deed restriction, covenant, prior orders, developer's agreement, or otherwise limited by topography or environmental restrictions. (2) Vehicles permitted in a residential or agricultural district. Parking of vehicles accessory to a residential use shall be limited to those vehicles actually used by the resident for personal use, agricultural use, or temporary parking for guests. Vehicles not in keeping with residential character shall not be permitted. (a) No truck, construction equipment, or other vehicle of a business or industrial nature shall be parked upon a residential or agricultural lot except: [1] Vehicles approved by the Plan Commission as part of a permitted home occupation. Page 177

178 [2] A personal pickup truck not to exceed one ton and 20 feet in length with a standard bed, special tool boxes, or cap not to exceed six inches beyond each side or top of a standard cab. No tow truck, stake body, or dump truck may be parked on a residential lot. [3] A passenger-sized van not to exceed one ton and 20 feet in length. No step van or chassis van shall be parked on a residential lot without Plan Commission approval. [4] Agricultural tractors and related equipment in an agricultural district as part of an approved agricultural or horticultural use. (b) Outside parking of autos, trucks and vans are subject to the following provisions: [1] They shall be located not closer than five feet to a side or rear lot line. [2] They shall only be allowed on a hard all-weather driveway or turnaround and parked as close to the home as is practical. [3] They shall be located outside of all ultimate rights-of-way and vision clearance triangles. [4] Luggage racks and overhead racks are permitted, provided that they do not exceed eight feet in overall height from ground level. [5] The truck or van shall be maintained and be in good condition. All vehicles shall be safe, licensed, drivable, and roadworthy. The exterior of the body shall be intact. [6] No truck or van may be parked in any open space outside of a building unless such equipment is wholly owned by the property owner who shall be in residence at the property in question or used by the occupant in connection with continued employment. [7] In no case shall a residential zoned or used parcel be used for the parking or storing of a semitrailer or tractor. [8] Display of vehicles for sale, see C(9)(d) for requirements. (c) Outside parking of automobiles, station wagons, personal pickups, and passenger vans are subject to the following provisions: [1] They shall be located not closer than five feet to a side or rear lot line, except in the case of a legal nonconforming driveway location. [2] They shall only be allowed on an all-weather driveway or turnaround. [3] They shall be located outside of all ultimate rights-of-way and vision clearance triangles, unless legally parked on the street. [4] All vehicles shall be safe, licensed, drivable, and roadworthy. [5] No vehicle may be regularly parked in any open space outside of a building unless such vehicle is wholly owned by the property owner who shall be in residence at the property in question or used by the occupant in connection with continued employment. [6] Vehicles for sale shall meet the requirements described in C(9)(a). (3) Complaints. (a) The Director or any affected property owner may present a written complaint of a nuisance or adverse effect on property values in writing to the Plan Commission for a determination. A copy of such complaint shall be mailed to the vehicle owner at least 10 days prior to the Plan Commission meeting. The owner shall be permitted to present evidence in defense of the parking, maintenance, or storage arrangement. (b) The Plan Commission shall be entitled, if it deems it necessary, to issue written orders stating the manner and time in which such parking or storage shall be covered, screened, moved, rearranged, relocated, removed, or limit the number or require conditions for the vehicle or equipment to be repaired and maintained so as to eliminate such adverse effect. (c) The Plan Commission, in making determinations, shall consider the size of the lot, the proximity to neighbors, the size of vehicles, the size of the existing garage, and other uses on the land. (4) Outside parking or storage of junked vehicles or equipment. In all districts, no abandoned, dismantled, unlicensed, inoperative, wrecked, or junked vehicle or equipment, or a vehicle or equipment under repair or awaiting parts, shall be parked or stored for a period to exceed 30 days unless the vehicle is within a fully enclosed structure. (5) In the A-1, A-2, R-1/R-2, R-2E, R-3, R-4, R-4.5, R-5, Rd-1, Rm-1, B-1, B-2, B-3, B-5, O-1, O-2, I-1 and P- 1 Zoning Districts, the parking and storage of semitractors and semitrailers, except for pickup and deliveries, is prohibited. Parking or storage of construction vehicles and equipment, except during periods of permitted construction activity, is prohibited. (a) In the B-2 Zoning District, all storage and parking of vehicles and equipment, other than required customer and employee off-street parking, shall be inside, except the outside parking of two vehicles in accordance with the type and size limitations as specified in this chapter. Page 178

179 (b) In the B-3 Zoning District, parking or storage of construction vehicles and equipment must be fully screened from a public street and any adjacent property located outside of the B-3 District. (c) In the I-1 Zoning District, public works or utility storage buildings or yards are exempt from this prohibition. (6) In the M-1, M-2, Q-1 and L-1 Zoning District, the parking and storage of semitractors, semitrailers and construction equipment is permitted in accordance with an approved site plan and plan of operation. C. Off-street loading requirements. (1) Applicability. On every lot on which a business or industrial use, with the exception of the City Center District, is hereafter established, space with access to a public street or alley shall be provided as indicated below for the loading and unloading of vehicles off the public right-of-way. (2) Minimum number of required spaces. The number of loading spaces required is as follows: Table Gross Floor Area of Building Required Loading Spaces (square feet) 5,000-24, ,000-49, ,000-99, , , , ,999 5 For each additional 74,000 square feet (or fraction thereof) of gross floor area over 250,000, one additional loading space shall be provided. (3) Access. Each loading space shall have access to a dedicated public street or alley. (4) Minimum area. The minimum area for each loading space, excluding the area needed to maneuver, shall be 10 feet wide and 79 feet long with a height clearance of 14 feet. (5) Minimum design standards. (a) Loading areas shall be surfaced with an asphalt or concrete surface. (b) No part of any truck or van that is being loaded or unloaded may extend into the right-of-way of a public thoroughfare. (c) Loading spaces shall be designed with sufficient apron area to accommodate truck-turning movements and to prevent backing of trucks onto any street right-of-way. (d) Single-bay loading docks shall provide sufficient area for the largest vehicle using the facility to maneuver without encroaching upon a street right-of-way. (e) Minimum dimensional standards for loading spaces shall be as outlined in Table See also Figure VIII-5. Overall Truck Length (feet) Truck Berth Width (feet) Table Minimum Truck Apron Length (feet) Minimum Dock Approach (feet) Page 179

180 Figure VIII-5 Elements of Truck Loading/Unloading Dock Design D. Vehicle stacking space requirements. Vehicle stacking spaces for drive-through facilities shall be provided according to the following provisions: (1) Minimum number of stacking spaces. The number of stacking spaces shall be provided as follows. See Figure VIII-6 for illustration of stacking spaces. Page 180

181 Table Minimum Stacking Spaces Activity (per lane) Measured From: Financial institution 4 Teller or window Restaurant 8 Pickup window Full-service automotive 7 Entrance wash Self-service automotive 2 Washing bay wash Fuel or gasoline pump island 2 Pump island Other As determined by Plan Commission Figure VIII-6 Vehicle Stacking Spaces (2) Design and layout. (a) Stacking spaces shall be a minimum of nine feet by 20 feet in size. (b) Stacking spaces may not impede on- or off-site traffic movements or movements in or out of off-street parking spaces. Page 181

182 (c) Stacking spaces shall be separated from other internal driveways by surface markings. Raised medians may be required where deemed necessary by staff for the purpose of traffic movement and safety. E. Driveways. All driveways installed, altered, changed, reconstructed, or extended after the effective date of this chapter shall meet the following requirements: (1) Driveways. Driveways shall be set back a minimum of five feet from all side lot lines, except in the case of an approved joint or shared driveway. (2) Surfacing. All driveways in agricultural and single-family residential districts shall be graded and surfaced so as to be dust-free and properly drained. Driveways in all other districts shall be paved with an asphalt or concrete surface. Paving of driveways may be waived for up to 12 months to allow for settling or because of the season. Appropriate financial surety may be required to guarantee that the required driveway surfacing will be completed. (3) Driveways located on culs-de-sac and curved streets. Driveways located on cul-de-sacs and curved streets shall not extend beyond the lot line extended to the curbline or pavement edge, unless otherwise permitted by the Plan Commission. Figure VIII-7 Driveway Location with Respect to Side Lot Line Extended (4) Driveway opening widths. Driveway opening widths for vehicular ingress and egress shall be the following: Table Page 182

183 Zoning District Minimum Driveway Width at the Property Line (feet) Maximum Driveway Width at Right-of-Way (feet) Maximum Driveway Width at Curbline or Pavement (feet) Agricultural Single-family and duplex residential Multifamily residential Commercial, office, park and institutional Manufacturing, quarrying and landfill (5) Vehicular entrances. Vehicular entrances shall minimize conflict with pedestrian traffic, and driveways on arterial streets shall further be located opposite driveway openings on the opposite side of the street to minimize turning movement conflicts. F. Arterial street and highway access. No direct private access (driveway) shall be permitted to the existing or proposed rights-of-way of expressways, nor to any controlled access arterial street without permission of the Plan Commission and the highway agency that has access-control jurisdiction. In addition, direct public or private access (driveway) to streets and highways shall be permitted in accordance with the following: (1) Freeways, interstate highways and interchanges. Driveways in the vicinity of freeways, interstate highways and their interchanges or turning lanes shall be located a minimum of 200 feet from the most remote end of the exit or entrance ramp. (2) Arterial streets and collectors. Driveways on arterial streets and collectors shall be located a minimum of 300 feet from a street intersection unless the lot width is less than 200 feet, in which case the Plan Commission shall determine the driveway location. Said setback shall be measured from the intersection of the right-of-way on the two streets. (3) Local streets. Driveways on collector or local streets shall be located a minimum of 100 feet from a street intersection or at the farthest point from the intersection. Said setback shall be measured from the intersection of the right-of-way on the two streets. (4) Corner lots. Driveways on corner lots shall be located on the least heavily traveled street. (5) Access barriers. Access barriers, such as curbing, fencing, ditching, landscaping, or other topographic barriers, shall be erected to prevent unauthorized vehicular ingress or egress to the above specified streets or highways. (6) Temporary access. The Common Council may grant temporary access to the above rights-of-way after review and recommendation by the Plan Commission and the highway agencies having jurisdiction. Such access permit shall be temporary, revocable, and subject to any conditions required. G. Parking lot circulation and lot layout. (1) Circulation internal to the site shall be reviewed as part of the plan submittal. (2) Off-street parking lots shall be designed to accommodate traffic volumes and pedestrian circulation based on the land use served. (3) The internal circulation pattern shall be designed to allow users to maneuver in an efficient and safe manner. (4) The use of landscape islands and medians shall be used to provide positive guidance to motorists and establish property driving patterns. (5) Turning radii for a single-unit truck (SU-design vehicle) shall be provided as a minimum to all portions of the lot. Page 183

184 Adequate public facilities. A. Purpose. The purpose of these adequate public facilities regulations is to ensure that all utilities and other facilities and services needed to support development are available concurrently with the impacts of such development. B. General requirements. (1) Approval conditioned upon adequate public facilities. The approval of all development shall be conditioned upon the provision of adequate public facilities and services necessary to serve the new development. No building permit shall be issued unless such public facilities and services are in place or the commitments described in this section have been made. (2) Level of service standards. This section establishes level of service standards for transportation facilities. No site plan or building permit shall be approved or issued in a manner that will result in a reduction in the levels of service below the adopted level of service standard for such facilities. (3) Developer s Handbook. All public improvements (and private improvements when required by the Director) are to be built according to the standards as described in the Developer s Handbook, as approved and amended by the Board of Public Works upon date of application. This includes, but is not limited to, roads, sanitary sewer utilities, water utilities and stormwater facilities. C. Transportation. (1) Levels of service. (a) General standard. All developments shall be required to demonstrate that there will be no significant adverse impact on existing levels of service, access, and vehicular movement on any arterial or collector street or intersection within 1/4 mile of the site or that any such adverse impact has been mitigated to the maximum extent feasible. The Department of Community Development shall be authorized to increase this distance to one mile. (b) Waiver or modification. The Department of Community Development may waive or modify these requirements upon a showing by the applicant that the impact of the proposed development on adjacent roads and intersections will be minimal and insignificant. (c) Development in all districts. All development shall have safe and adequate access to the nearest paved road. "Safe and adequate access" shall mean that a paved access road is available to provide access to the nearest paved road on the City's street system prior to the issuance of the first building permit for the development. (2) Thresholds for traffic impact analysis. A traffic impact analysis (TIA) shall be required to be submitted with applications for development review and approval of: (a) Any subdivision or multifamily residential development with 40 or more dwellings units; (b) Any nonresidential development that exceeds 100 peak-hour trips based on traffic generation estimates of the latest edition of the Institute of Transportation Engineers' Trip Generation Manual; (c) Any application for a change to the zoning district boundaries (rezoning); (d) Any development that the Department of Community Development determines may have an adverse impact on traffic in the surrounding area. (3) Contents. The TIA shall contain the following information: (a) Traffic impact area. Identification of the precise boundaries of the traffic impact area, which shall be approved in advance by staff. (b) Current LOS. The current projected average daily traffic volumes (level of service) on the segments and intersections of the road system in the traffic impact area based upon existing conditions and factoring in already approved developments. For purposes of these transportation facility standards, "approved development" shall mean developments that have received preliminary or final approvals from the Plan Commission or its predecessors and that have not been completed. (c) LOS including the proposed development. The projected average daily traffic volumes (level of service) of the segments and intersections on the road system in the traffic impact area based upon existing conditions, the demands from approved development, and the proposed development. (d) Future LOS. The future LOS should be computed for ten years after full buildout of the proposed development. (e) Study findings. A summary outlining the study findings on the traffic impacts of the proposed development, including a detailed description of proposed improvements and mitigation measures necessary to maintain the adopted level of service standard. Page 184

185 (f) Other information. Other information as may reasonably be required by the Department of Community Development to determine compliance with the applicable level of service standards. (4) Minimum approval requirements. At a minimum, the Plan Commission shall require that, at the time of final plat or development plan approval, all necessary transportation facilities and services to meet the applicable level of service standard are: (a) Currently in place and available to serve the new development; or (b) Guaranteed by an enforceable development or improvement agreement that ensures that the public facilities will be in place at the time that the impacts of the proposed development will occur. D. Emergency communications. Plan Commission may require, at the developer s expense, the installation of an amplifier system for emergency communications. The Police Department and Fire Department shall be consulted with to see whether the use, size or construction of a structure warrants such a amplifier system Architectural design standards. A. Purpose. The purpose of this section is to promote compatible development; to promote stability of property values; to foster the attractiveness and functional utility of the community as a place to live and work; to preserve the character and quality of the built environment by maintaining the integrity of those areas which have a discernible character or are of a special historic significance; to protect certain public investments in the area; and, to raise the level of community expectations for the quality of its environment. B. Applicability. (1) No land shall be developed and no building shall be erected, structurally altered, or moved unless it meets the provisions set forth in this section. (2) Upon the filing of a site plan, staff shall decide if the proposed development qualifies as an infill development or a greenfield development. This decision will determine the architectural standards of Subsection C below that must be met to gain approval of the site plan. C. General design standards. (1) Infill development. (a) Architectural character. [1] All new development or redevelopment shall be compatible with the established architectural character of the surrounding area utilizing a building design and style that is complementary to the surrounding uses and structures. Compatibility may be achieved through the repetition of similar rooflines, similar proportions in relation to height, size, scale and mass, similar door and window patterns, building materials and color, and building orientation. See Figures VIII-8 and VIII-9. [2] No building shall be permitted a design or exterior appearance which is so identical with those adjoining as to create excessive monotony. Figure VIII-8 Architectural Character - Residential Page 185

186 Figure VIII-9 Architectural Character - Nonresidential Page 186

187 (b) Building size, height, bulk, scale and mass. [1] Buildings shall maintain a similar size, height, bulk, scale and mass of surrounding architecture. [2] If a proposed structure is to be larger than the structures in surrounding developments, the building shall be subdivided into massing that is proportional to the mass and scale of surrounding structures. (c) Building rooflines and roof shapes. The visual continuity of roofs and their contributing elements (parapet walls, coping, cornices, etc.) shall be maintained in building development or redevelopment. (d) Building materials. [1] While only materials, techniques, and product types prescribed here are allowed, equivalent or better practices and products are encouraged. Proposed materials shall be submitted to staff and the Architectural Review Committee for approval. Where the proposed materials are dissimilar to the prevailing materials in the surrounding area, other characteristics such as scale, proportion, detailing, color and texture shall be utilized to ensure that enough similarity exists for the building to be compatible, despite the use of different materials. The Plan Commission or Community Development Authority may waive or modify any of all of the requirements in this section in accordance with Section C. [2] No building or addition to a building shall be permitted where any exposed facade is constructed or faced with a finished material which is visibly incompatible with other building facades in the area and which presents an unattractive appearance to the public and surrounding properties. [3] Building materials shall not create excessive glare. If highly reflective building materials are proposed, such as aluminum, unpainted metal and reflective glass, the potential for glare shall be evaluated to determine if the glare will create a significant adverse impact on adjacent property Page 187

188 owners, neighborhoods or community in terms of vehicular safety, outdoor activities, and enjoyment of views. If so, such reflective materials shall be prohibited. [4] Mirror glass with a reflectivity or opacity of greater than 60% shall be prohibited. [5] Clear glass shall be used for commercial storefront display windows and doors. [6] Recommended materials. Permitted Materials are those that are allowed for each district. Considered Materials are materials that may be permitted in certain cases depending on the character of existing buildings, specific site issues, staff approval, and/or Architectural Review Committee approval. See also Figure VIII-10, Recommended Materials chart. [a] Rm-1, Multi-Family Residential Permitted Materials Building Walls Brick exposed or painted Stucco smooth or sand finish only Native stone Precast masonry rough faced for exposed foundation wall only Gypsum reinforced fiber concrete - for trim elements only Manufactured cementious siding Cedar shakes Considered Materials Building Walls Vinyl siding only with full profile windows and trim (only for building additional that already have this material) EIFS (Exterior Insulated Finish Systems) not at ground level, not to exceed 25% of total wall surface Precast masonry rough faced as base course material, not to exceed 15% of total wall surface Permitted Materials Freestanding Walls & Fences Any material approved for Building Walls in the Permitted section except for gypsum reinforced fiber concrete or cedar shakes Wood pickets, wood lattice, and wood boards patterns to be approved by staff and/or the Architectural Review Committee Walls should be capped in wood, stone, or brick Painted or stained composites of wood and plastic Wrought iron The Plan Commission or Community Development Authority may waive or modify any of all of the requirements in this section in accordance with Section C. [b] All B-1, B-2, B-3 and B-5 Commercial Districts Permitted Materials Building Walls Brick exposed or painted Stucco smooth or sand finish only Native stone Glass panel system Precast masonry rough faced for exposed foundation wall only Gypsum reinforced fiber concrete - for trim elements only Manufactured cementious siding Considered Materials Building Walls Vinyl siding only with full profile windows and trim EIFS (Exterior Insulated Finish Systems) not at ground level, not to exceed 25% of total wall surface Precast masonry rough faced as base course material, not to exceed 15% of total wall surface Cedar shakes Page 188

189 Permitted Materials Freestanding Walls & Fences Any material approved for Building Walls in the Permitted section except for glass panel system, gypsum reinforced fiber concrete, or cedar shakes Wood lattice and wood boards patterns to be approved by staff and/or the Architectural Review Committee Walls should be capped in wood, stone, or brick Painted or stained composites of wood and plastic Wrought iron [c] All O-1, O-2 and O-3 Office Districts Permitted Materials Building Walls Brick exposed or painted Native stone Glass panel system Precast masonry rough faced for exposed foundation wall only Manufactured cementious siding Considered Materials Building Walls Vinyl siding only with full profile windows and trim EIFS (Exterior Insulated Finish Systems) not at ground level, not to exceed 25% of total wall surface Precast masonry rough faced as base course material, not to exceed 15% of total wall surface Stucco smooth or sand finish only Permitted Materials Freestanding Walls & Fences Any material approved for Building Walls in the Permitted section except for glass panel system Wood lattice and wood boards patterns to be approved by staff and/or the Architectural Review Committee Walls should be capped in wood, stone, or brick Painted or stained composites of wood and plastic Wrought iron [d] M-1 Light Manufacturing Zoning District Permitted Materials Building Walls Brick exposed or painted Native stone Glass panel system Precast masonry rough faced Manufactured cementious siding Considered Materials Building Walls EIFS (Exterior Insulated Finish Systems) not at ground level, not to exceed 50% of total wall surface Stucco smooth or sand finish only Permitted Materials Freestanding Walls & Fences Any material approved for Building Walls in the Permitted section except for glass panel system Page 189

190 Wood lattice and wood boards patterns to be approved by staff and/or the Architectural Review Committee Walls should be capped in wood, stone, or brick Painted or stained composites of wood and plastic Wrought iron [e] M-2, General Industrial Permitted Materials Building Walls Brick exposed or painted Native stone Glass panel system Precast masonry rough faced Manufactured cementious siding Considered Materials Building Walls EIFS (Exterior Insulated Finish Systems) not at ground level, not to exceed 50% of total wall surface Stucco smooth or sand finish only Vinyl siding Metal panels Permitted Materials Freestanding Walls & Fences Any material approved for Building Walls in the Permitted section except for glass panel system Wood lattice and wood boards patterns to be approved by staff and/or the Architectural Review Committee Walls should be capped in wood, stone, or brick Painted or stained composites of wood and plastic Wrought iron Page 190

191 Figure VIII 10 Recommended Materials Page 191

192 (e) Colors. Color shades shall be selected in general harmony with the existing surrounding buildings. (f) Building location and orientation. To the maximum extent feasible, primary facades and entrances shall face the adjacent street. Except for the M-1, M-2, Q-1 and L-1 Districts, all main entrances shall have a direct pedestrian connection to the street without requiring all pedestrians to walk through parking lots or cross driveways. (g) Mechanical equipment and service structures. All mechanical equipment and service structures shall be located in a manner to be unobtrusive or screened from view. Screening and buffering of mechanical equipment shall be in accordance with G. (h) Loading, trash, and utility areas. All loading, trash and utility areas shall be screened from street and sidepath views in accordance with Section G(2). Screening materials should complement the building, as well as adjacent buildings and be effective in every season. The only exception, is loading and overhead doors are allowed within the New Berlin Industrial Park as part of the SPO. (i) Additional architectural standards. Any additional architectural standards deemed appropriate in the City of New Berlin or in the vicinity of the project may be imposed by the Plan Commission. (2) Greenfield development sites. (a) Building design. Building design shall contribute to the uniqueness of a zoning district and the City of New Berlin with predominant materials, elements, features, color, and activity areas tailored specifically to the site and its context in consultation with the Plan Commission. (b) Building materials. [1] Material choices as noted in Section C (1)(d)(6). [2] Mirror glass with a reflectivity or opacity of greater than 60% shall be prohibited. [3] Clear glass shall be used for commercial storefront display windows and doors. (c) Multiple building developments. Each individual site shall feature predominant characteristics, including but not limited to consistent rooflines, use of compatible proportions in building mass and outdoor spaces, complementary relationships to the street, similar window and door patterns, and the use of similar building materials in terms of color, shades and textures. (d) Massing. A single large building mass shall be avoided in all residential and commercial districts. (e) Color. Color shades shall be used to facilitate unification of the development. The color shades should draw from other developments that have been approved in the City of New Berlin. D. Specific architectural design standards. (1) While the architectural design standards prescribed are required, Staff and/or the Architectural Review Committee shall have final approval. (2) Agricultural buildings. Agricultural buildings shall be designed to be appropriately proportioned to the intended agricultural use. (3) Building facades. (a) O-1, O-2 and O-3 Districts. In the O-1, O-2 and O-3 Districts, all building walls facing a street shall be permitted building materials. [1] Such materials shall extend around all four sides of the structure. [2] Building facades should be composed to define base, middle, and top elements. The base of the building anchors it to the ground and is the interface between the building and people. The transition between the middle of the building and the base and top should be articulated by the use of contrasting materials, window openings, or ornamental elements. The top terminates the building against the sky and provides an opportunity to create an interesting silhouette. [3] Building elevations should be articulated in ways that give the appearance of multiple layers which add depth and avoid the appearance of flat facades. Suggested techniques include: setting windows back from the exterior wall plane; adding decorative elements such as cornices, lintels, sills, awnings, and canopies; expressing structural columns through changes of plane; creating arcade walkways; and extending roof eaves. [4] A change in materials or stepbacks (from 6 inches to 10 inches) shall be incorporated to articulate the ground or first floor from upper floors. Stepbacks and patios can also be incorporated on upper floors to further articulate the building. [5] Building entries shall be clearly defined and articulated. [6] Ground level offices should include clear glass windows. (b) M-1, M-2, and I-1 Districts. In the M-1, M-2 and I-1 Districts, all building exteriors facing a street shall be permitted materials. Page 192

193 [1] Such materials shall extend around all four sides of the structure. [2] Large buildings should include some smaller masses and forms to break down the building scale and provide visual richness. Techniques include using recesses or projections, creating distinct building components, and occasionally varying roof forms. [3] Building elevations should be articulated in ways that give the appearance of multiple layers which add depth and avoid the appearance of flat facades. Suggested techniques include: setting windows back from the exterior wall plane; adding decorative elements such as cornices, lintels, or sills; expressing structural columns through changes of plane; and extending roof eaves. (c) B-1 and B-2 Districts. In the B-1 and B-2 Districts, all buildings exteriors facing a street shall be permitted building materials. [1] Building facades should be composed to define base, middle, and top elements. The base of the building anchors it to the ground and is the interface between the building and people. The transition between the middle of the building and the base and top should be articulated by the use of contrasting materials, window openings, or ornamental elements. The top terminates the building against the sky and provides an opportunity to create an interesting silhouette. [2] Building elevations should be articulated in ways that give the appearance of multiple layers which add depth and avoid the appearance of flat facades. Suggested techniques include: setting windows back from the exterior wall plane; adding decorative elements such as cornices, lintels, sills, awnings, and canopies; expressing structural columns through changes of plane; creating arcade walkways; and extending roof eaves. [3] Building orientation, setbacks, and design elements shall encourage visual continuity between developments. [4] A change in materials or stepbacks (from 6 inches to 10 inches) shall be incorporated to articulate the ground or first floor from upper floors. Stepbacks and patios can also be incorporated on upper floors to further articulate the building. [5] Building entries should be clearly defined and articulated. [6] Ground level retail should include clear glass windows. (d) Rm-1 District. In the Rm-1 District, all buildings exteriors facing a street shall be permitted building materials. [1] Materials shall be used in horizontal bands only and consistent on all facades. [2] Materials shall not be mixed on the same façade, except as bandings or approved details. [3] Building orientation, setbacks, and design elements shall encourage visual continuity between developments. [4] A change in materials or stepbacks (from 6 inches to 10 inches) shall be incorporated to articulate the ground or first floor from upper floors. Stepbacks and patios can also be incorporated on upper floors to further articulate the building. [5] Building entries should be clearly defined and articulated. (4) Freestanding Walls and Fences. (a) Walls shall be capped. (b) Solid piers with open fencing between are allowed. (c) Fences or walls used as fencing shall be consistent at all locations on a lot. Exceptions are for height changes per code requirements. (5) Loading, trash, and utility areas. (a) Materials shall complement primary building materials. (b) Areas shall be designed to accommodate snow removal. (6) Overhead dock door. No overhead dock doors on a business, industrial, institutional, or park building shall face a public street, with the exception of the New Berlin Industrial Park Special Plan Overlay District. The Plan Commission or CDA may permit overhead doors (not including docks) to face a public street when it has made a finding that there is no feasible alternative location for such doors Performance standards. This section permits specific uses in specific districts, and these performance standards are designed to limit, restrict, and prohibit the effects of those uses outside their premises or district. All structures, lands, air, and Page 193

194 waters shall hereafter, in addition to their use, site, and sanitary regulations, comply with the following performance standards: A. Air pollution. No person or activity shall emit smoke, fly ash, dust, particulates, fumes, vapors, mists, or gases in quantities to exceed established state or federal air pollution standards or constitute a nuisance to surrounding property owners. Dust and other types of pollution borne by the wind from such sources as storage areas, yards, roads, and the like within lot boundaries shall be kept to a minimum by appropriate landscaping, paving, oiling, fencing, or other acceptable means. B. Fire and explosive hazards. All activities involving the manufacturing, utilization, processing, or storage of flammable and explosive materials shall be provided with adequate safety devices against the hazard of fire and explosion and with adequate fire-fighting and fire-suppression equipment, as defined in the City of New Berlin Fire Code, Editor's Note: See Ch. 124, Fire Prevention. and devices that are standard in the industry. All materials that range from active to intense burning shall be manufactured, utilized, processed, and stored only in completely enclosed buildings which have incombustible exterior walls and an automatic fireextinguishing system. The aboveground storage capacity of materials that produce flammable or explosive vapors shall not exceed the following: Table Closed Cup Flash Point Gallons Over 187 o F. 400, o F to 187 o F. 200,000 Below 105 o F. 100,000 C. Glare and heat. No activity shall emit glare or heat that is visible or measurable outside its premises except activities that may emit direct or sky-reflected glare which shall not be visible outside their district. All operations producing intense glare or heat shall be conducted within a completely enclosed building. Exposed sources of light shall be shielded so as not to be visible outside their premises. D. Water quality protection. No activity shall locate, store, discharge, or permit the discharge of any treated, untreated, or inadequately treated liquid, gaseous or solid materials unless it meets all requirements of the City of New Berlin Stormwater Management Plan and Chapter 226, Stormwater Runoff. E. Noise. (1) No activity in B(5), M-2 General Industrial District, or in B(1), Q-1 Quarrying and Extractive District, shall produce a sound level outside the district boundary that exceeds the following sound level measured by a sound-level meter and associated octave band filter: Octave Band Frequency (cycles per second) Table Page 194 Sound Level (decibels) 0 to to to to to 1, ,200 to 2, ,400 to 4, Above 4,800 39

195 (2) No activity in any other district shall produce a sound level outside its premises that exceeds the following: Octave Band Frequency (cycles per second) Table Sound Level (decibels) 0 to to to to to 1, ,200 to 2, ,400 to 4, Above 4, (3) All noise shall be so muffled or otherwise controlled as not to become objectionable due to intermittence, duration, beat frequency, impulse character, periodic character or shrillness. (4) Sirens, whistles, and bells which are maintained and utilized solely to serve a public purpose are exempt from the sound level standards of this section. F. Odors. Except for food preparation and cooking odors emanating from residential properties and odors associated with property development and maintenance (such as construction, lawn care, and the painting and roofing of structures), no odor shall be created for periods exceeding a total of 15 minutes per day which is detectable by a healthy observer, such as the Director, who is unaffected by background odors such as tobacco and food, at the property line of the regulated use where any such use abuts any residential, business, office, institutional, or park district. G. Radioactivity and electrical disturbances. No activity shall emit radioactivity or electrical disturbances outside its premises that are dangerous or adversely affect the use of neighboring premises. H. Vibration. No activity in any district shall emit vibrations that are discernible without instruments outside its premises. No activity shall emit vibrations that exceed the following displacement measured with a threecomponent measuring system: Table Displacement (inches) Frequency (cycles per second) Outside the Premises Outside the District 0 to to to to to Page 195

196 50 and above I. Lighting. (1) General provisions. No exterior lighting used for parking lots, signage, recreational facilities, product display or security shall be permitted to spill over on operators of motor vehicles, pedestrians, and uses of land in the vicinity of the light source. These requirements shall not apply to lighting placed in a public right-of-way for public safety. (2) Type. Shielded luminaries or luminaries with cutoff optics and careful fixture placement shall be required so as to facilitate compliance with this section. (3) Orientation. Exterior lighting fixtures shall be oriented so that the lighting element (or a transparent shield) does not throw rays onto neighboring properties. Light rays shall not be directed into street rights-of-way or upward into the atmosphere. (4) Minimum lighting standards. All areas designated on approved site plans for vehicular parking, loading or circulation and used for any such purpose after sunset shall provide artificial illumination in such areas, exclusive of approved anti-vandal lighting. This standard shall not apply to properties in agricultural and single-family residential districts. (a) Multi-Family Development [1] The average illumination shall be 1.0 footcandles. [2] The average to minimum illumination ratio is approximately 5:1. [3] The maximum to minimum illumination ratio is approximately 20:1. [4] Street lighting, where required, on public roadways shall follow IESNA RP-8 specifications. (b) Non-residential Development [1] The average illumination shall be 2.0 footcandles. [2] The average to minimum illumination ratio is approximately 5:1 (0.4 footcandles minimum). [3] The maximum to minimum illumination ratio is approximately 20:1 (8.0 footcandles maximum). [4] Street lighting, where required, on public roadways shall follow IESNA RP-8 specifications. (5) Intensity of illumination. The intensity of illumination, measured at the side and rear property lines, shall not exceed 0.5 footcandles if the adjacent land uses are residential. (6) Height. Lights and light fixtures shall have a maximum height of 25 feet measured to the bottom of the luminiare. (7) Location. Light fixtures shall not be permitted within required bufferyards. (8) Flashing, flickering, and other distracting lighting. Flashing, flickering, and other distracting lighting that may distract motorists is prohibited. (9) Nuisances. Lighting which creates or becomes a public nuisance is not permitted. (10) Accent lighting. Accent lighting and low voltage lighting (12 volts or less) is exempt from these requirements. This would include decorative residential post lights or decorative residential building light. (11) Nonconforming lighting. All lighting fixtures approved prior to the adoption of this chapter and that do not comply with the provisions of this section shall be treated as and regulated as legal nonconforming uses. (13) Existing Development. Applicants are required to provide a lighting plan which covers the entire parcel as required above. Lighting meeting the minimum requirements of 0.4 footcandles will not be required to modify the lighting as part of refill/redevelopment projects as defined in Section (14) Reduced lighting levels after-hours. (See also Article VII.) Former Subsection J, Floodproofing, which immediately followed this subsection, was repealed by Ord. No See now Art. IXA, Floodplain Zoning Signs. [Amended by Ord. No. 2271] A. Purpose and intent. (1) The purpose of this section is to provide for and regulate the design, location, and safe construction of signs in a manner to ensure that all signs are compatible with surrounding land uses, are well maintained, and express the identity of individual proprietors and the City as a whole. Signs allowed within the City of New Berlin are for the purpose of location and identification not for advertisement. All sign permits, unless Page 196

197 otherwise specified, shall be applied for on forms provided by the Department of Community Development (DCD) and administratively reviewed by the Department.. (2) In considering a sign application, DCD staff shall consider: (a) The proposed content; (b) The appearance, material for construction, location, lighting, height and size of the sign; (c) Safety of operators of vehicles upon the adjoining streets and highways; (d) The effect of the sign on property values within the immediate area; (e) The effect of such sign with respect to the scenic beauty of the vicinity in which the sign is proposed to be located; (f) The effect of such sign and its content with respect to enforcing state laws, county and City ordinances; (g) The effect of the sign with respect to the danger to human life because of falling or combustibility; (h) The effect of the sign and content with respect to the prevention of crime; and (i) The effect of such sign and display with respect to the general welfare, morals, and the conserving of the taxable value of lands and building located within the City and in the immediate area adjacent to the proposed location of the sign. B. Compliance. (1) No sign shall hereafter be located, erected, moved, reconstructed, extended, enlarged, converted or structurally altered, nor shall the face of a sign or color be changed without a sign permit and conforming with the provisions of this chapter. No sign permit shall be issued to a business or property that does not have a zoning permit. (2) The Department of Community Development (DCD), upon review of a sign application, has the authority to administratively approve the sign application through the administrative permit policy, provided that it meets all the requirements of this chapter. C. Sign permit application requirements. Application for a sign permit shall be made on forms provided by the Department of Community Development and must contain or have attached thereto the following information: (1) Name, address, and telephone number of the applicant and the property owner; location of building, structure, or lot upon which the sign is to be attached or erected. (2) Name of person, firm, corporation, or association erecting the sign. (3) Written consent of the owner or lessee of the building, structure, or land to which or upon which the sign is to be affixed. (4) A scaled drawing of such sign indicating the dimensions, the materials to be used, the type of illumination, if any, and the method of construction and attachment. (5) A scaled colored copy of the proposed sign showing the exact color scheme is required. Staff may require a superimposed rendering of the site with the proposed sign(s) be submitted on a disk (PDF file, JPEG, TIF, GIF format). (6) A scaled site plan indicating the location and position of such sign in relation to nearby buildings or structures or public streets and rights-of-way. (7) Fees. The applicant shall pay all applicable fees. The fee schedule is on file with the Department of Community Development. If a sign is erected before a permit is issued, the violator shall be assessed a double fee for the sign permit. (8) Additional information as required by the Department of Community Development, the Plan Commission, or the Community Development Authority (where applicable). D. Procedure. Procedures for sign permits shall follow the procedures set forth in (1) Sign permit applications shall be filed with the permit application center and forwarded on to the Department of Community Development, which shall review the application for its completeness, accuracy, design integrity, material for construction. This determination and the permit shall be issued within five business days. If the application is incomplete or the sign application does not meet the requirements within the sign code, it may delay issuance of the sign permit or require that the application be forwarded to the Plan Commission or the Community Development Authority (where applicable) who shall approve or deny the application within 45 business days of receipt from the applicant. A sign permit shall be issued by the Department of Community Development. The permit shall become null and void if work authorized under the permit has not been completed within one year of the date of issuance. Page 197

198 (2) Architectural Review Committee. Under special circumstances, the Department of Community Development shall forward sign permit applications to the Architectural Review Committee to review the materials for construction and design integrity of selected proposed signage. (3) Construction review. Staff may refer a sign permit request to Inspection Services for review of construction details or specifications prior to approval. (4) Inspection. The sign owner shall call the Department of Community Development or designated member of staff for an electrical inspection (if applicable) upon completion of all permit requirements and installation. (5) Appeal. An applicant may appeal a decision made by staff to the Plan Commission or the Community Development Authority (where applicable) for determination. An additional review fee as determined by the Director shall be required for any sign application that is forwarded to the Plan Commission or the Community Development Authority (where applicable) for review. (6) Waiver. An applicant may request a waiver from the Plan Commission or Community Development Authority (where applicable) for the requirements set forth in this section. All sign waiver requests are subject to an application review fee as established by the Director. E. General provisions. (1) Existing signs. Signs lawfully existing at the time of the adoption or amendment of this chapter may be continued although the use, size or location does not conform with the provisions of this chapter. However, it shall be deemed a nonconforming use or structure, and the provisions of Article VII of this chapter shall apply to specific nonconforming rights. Any legal nonconforming sign hereafter relocated, moved, damaged, reconstructed, extended, enlarged, changed (including changing the sign face), altered, or modified shall be made to comply with the provisions of this chapter. By maintaining a sign in the established right-of-way of an adjoining street or highway, the owner does so at his own risk, and no damages will be awarded if the removal is required for public use or safety or right-of-way acquisition. (2) Sign size. The size of a sign shall be in proportion and coordinate with the building and site on which it is located and shall adhere to the size requirements in this section.; (3) Measurement of sign area. In calculating the area of a sign to determine whether it meets the requirement of this chapter, DCD staff shall include the sign copy and any border or frame surrounding that copy. Supporting members of a sign shall be excluded from the area calculation. Area of irregularly shaped signs or signs containing two or more detached elements shall be determined by the area of the smallest regular polygon that will encompass all elements of the sign. (See Figure VIII-10.) (4) Measurement of sign height. The height of the sign shall be computed as the distance from the base of the sign at the existing or new grade to the top of the highest attached component of the sign. Figure VIII-10 Examples of Measurement of Sign Area (4) Location. (a) All signs shall be constructed/erected on the business property. Page 198

199 (b) All overhanging sign parts and the sign base shall be located on the property and behind the ultimate right-of way. (c) No sign shall be located within the vision clearance triangle. [See also C(15).] (d) No sign shall identify or direct attention to a business, activity, or enterprise that is not located on the same premises as the sign. Off-premises signs, except official signs and special event signs identified in Section G(10), are prohibited in the City of New Berlin. (e) When required for safety, curbs, protective bumpers or planters shall be placed below signs to prevent damage from passing motor vehicles or pedestrians. (f) Signs shall not flash or blink other than approved Electronic Message Devices. Sirens, strobe lights and other illuminated devices shall not be used to draw attention to a sign or business. (5) Maintenance. (a) The owner of any sign shall keep it in good maintenance and repair, which includes restoring, repainting to the same color, or replacement of a worn or damaged legally existing sign to its original condition. The owner shall also maintain the premises on which the sign is erected in a clean, sanitary, and inoffensive condition, free and clear of all obnoxious substances, rubbish, weeds, and grass. Restoration or painting which changes the name, size, color, face or location of a sign will require a new sign permit. (b) The owner of any sign shall be required to have all parts and supports of a sign properly painted as directed by DCD staff unless they are galvanized or otherwise treated to prevent rust and deterioration. (c) The sign owner shall be responsible for the maintenance of the sign. If the sign ownership should transfer, the new owner shall be responsible for the maintenance of the sign. (d) If the name of the business changes, the property owner shall be required to submit a new sign application. F. Construction standards. (1) General standards. (a) Signs shall not resemble, imitate, or approximate the shape, size, form, or color of railroad or traffic signs, signals or devices. (b) Signs shall not obstruct or interfere with the effectiveness of railroad or traffic signs, signals or devices. Signs shall not be placed so as to obstruct or interfere with traffic visibility. (c) No person shall display upon any sign or other sign structure any obscene, indecent, or immoral matter. (d) No signs or any part thereof or sign anchors, braces, or guide rods shall be attached, fastened, or anchored to any fire escape, fire ladder, or standpipe, and no such sign or any part of any such sign or any anchor, brace, or guide rod shall be erected, put up, relocated, or maintained so as to hinder or prevent free ingress or egress through any door, doorway, window, or fire escape or so as to hinder or prevent the raising or placing of ladders against such building by the Fire Department of the City, as necessity therefore may require. (2) Lighting. (a) All signs and architectural enhancements (neon/lumiline accents) must be turned off outside of normal business hours. Neon/lumiline enhancements to a building shall require that a separate application be filed as an architectural enhancement. (b) No sign shall be lighted or flashing in such a way as to cause glare or impair driver visibility upon public ways or adjacent properties. Signs shall be internally illuminated along arterials or major thoroughfares. If external illumination is approved by staff, the fixture shall be mounted on a permanent unmovable base and the neck soldered so as to prevent the fixtures from being tampered with or redirected. (c) Signs with Electronic Message Boards may be illuminated and may display a message for a minimum duration of five seconds. Time and temperature devices may be cyclical. Messages displayed through an electronic message board may scroll, but shall not blink, flicker, flash, or display video. (d) All signs with electrical wiring shall require an electrical permit from the City Electrical Inspector. (3) Wind pressure and dead-load requirements. The applicant and installers shall ensure that all signs and other display structures shall be designed and constructed to withstand wind pressure of not less than 40 pounds per square foot of area and shall be constructed to receive dead loads as required by the Building Page 199

200 Inspector pursuant to the City Building Code Editor's Note: See Ch. 80, Building Construction. or other ordinance. (4) Supporting members or braces. The applicant and installer shall ensure that all signs shall be constructed of galvanized iron, properly treated wood, steel, copper, brass, or other noncorrosive incombustible material. Applicant and installer shall ensure that every means or device used for attaching any sign shall extend through the walls of the building if the safe and permanent support of such sign so requires and shall be securely anchored by wall plates and nuts to the inside of the walls. Small flat signs containing less than 10 square feet of area may be attached to a building by the use of lag bolts or other means. G. Signs permitted in all zoning districts without a permit. The following signs are permitted in all zoning districts without a permit, subject to the following and any other applicable regulations: (1) Real estate signs. One real estate sign not exceeding six square feet in area in a residential district or 32 square feet in other districts which acknowledges the sale, rental, or lease of the premises upon which the sign is temporarily located. In residential and non-residential zoning districts, the property owner and/or real estate company shall be allowed to place one sign on each street the property for sale abuts. Each sign must be placed on the property being sold, leased or rented. No real estate sign shall be located in a street right-of-way. No signs shall be placed off premises. Signs that become a hindrance or create a vision problem will be removed immediately. The property owner or real estate company shall be responsible for removing the signs no later than five days after the sale of the home. (2) Rummage sale and garage sale signs. One temporary rummage sale or garage sale sign not exceeding six square feet in area may be erected on the property having the sale and at the entrance to the subdivision. The signs shall be installed no sooner than 24 hours from the date of the rummage sale and such signs shall be removed within 24 hours following the sale. No such signs shall be erected or placed within a public right-of-way, on light poles, utility poles, etc. (3) Memorial signs. Memorial signs, tablets, names of buildings, and date of erection when cut into any masonry surface or when constructed of metal and affixed flat against a structure. (4) Flagpoles. Flagpoles shall be regulated as signs not requiring a permit and are permitted in any yard, provided that there are not more than three flagpoles on any lot, and flagpoles shall not exceed the height requirement for the district in which they are located. Flagpoles may display business name/logos in nonresidentially zoned districts. Flagpoles displaying business logos may be permitted as long as other flags are flying in conjunction with it and it is presented to DCD staff as part of an overall coordinated signage plan. One logo flag of a company or business shall be allowed, provided that it is flown along with the American flag and shall not be larger than that flag and no larger than 32 square feet in size. Flagpoles shall be set back at least 10 feet from the base setback line in residential districts and at least 20 feet in all other districts. Flagpoles shall not be closer than 10 feet to a side or rear lot line. Flags and flagpoles do not include banners, pennants, streamers, standards, and ensigns. (5) Holiday decorations. Holiday decorations may be erected and may encroach upon the street right-of-way, provided that such decorations will not cause a hazard to traffic or adjoining property. (6) Official signs. Official signs, such as traffic control, parking restrictions, and public building directional signs, may be erected and may encroach upon the street right-of-way, provided that such signs will not cause a hazard to traffic or adjoining property. (7) Election campaign signs. Election campaign signs may be erected, provided that permission is obtained from the property owner, renter or lessee prior to their placement and provided that such sign shall not be erected prior to the first day of the election campaign period, as defined in 12.04, Wis. Stats., as it may be amended from time to time, and shall be removed within seven days following the election. No election campaign sign shall be located in a street right-of-way or on public property. (8) Window signs. Window signs may be placed only on the inside of buildings and shall not be flashing. Signs displayed inside buildings and inside of the glass shall not be subject to the limitations on the number of signs. (9) Light pole signs. Light pole signs shall require that a coordinated sign application be filed prior to installation of the signage. Light pole signs shall be allowed in addition to the two-sign limit for a property, subject to the final approval being granted by DCD staff. Staff shall also approve the size, number and content of the light pole signs. (10) Special Event Sign. A sign advertising or announcing a special communitywide event or activity conducted by, or sponsored by, or on behalf a unit of local government, a charitable organization, or a not-for-profit corporation. A special communitywide event or activity is one that seeks to attract Page 200

201 donations, participants, or customers throughout the City. Signs shall not be erected 30 days prior to the event and signs shall be removed within 48 hours of the event. H. Signs permitted in residential zoning districts with a permit. Signs are permitted in any R-1, R-2, R-2E, R-3, R- 4, R-4.5, R-5, Rd-1 or Rm-1 Zoning District subject to the following regulations and other applicable standards in this chapter: (1) Home occupation and professional home office signs. One sign or nameplate to identify the approved business conducted on the property. Said sign shall not exceed six square feet in area and shall be mounted flush against the dwelling. The sign shall not be illuminated. No signs shall be permitted for home occupations within the Rm-1 Districts. (2) Farm or rural estate sign. One sign identifying the farm or estate property on parcels not less than five acres in area may be permitted. The sign shall not exceed 20 square feet in area. (3) Temporary development signs. One sign at the entrance to the development is allowed for the purpose of designating a new building or development or for promotion of a subdivision for a limited period of time, provided that the sign shall not exceed 32 square feet in area or 8 feet in height. DCD staff shall specify the period of time the sign may remain, based on the size of the development, allowing a reasonable time to market the development. The sign shall be removed once all the lots are sold or all the leaseable space in the building has been filled. (4) Temporary contracting business signs (painting, paving, landscaping, etc.) shall not exceed six square feet and shall be removed no later than five days following the completion of a project. Any project that takes longer than one week shall require that a sign permit application be filed for a temporary sign. No more than one sign may be placed on the property. (5) Subdivision Monument Signs. A permanent monument sign displaying the subdivision name may be placed at each entrance to the subdivision, not to exceed two signs per subdivision street frontage. Applicant shall submit an application for a sign permit including the following items: (a) A site plan indicating the location of the sign; (b) (c) Color rendering of the proposed sign. Subdivision monument signs may, at the discretion of DCD staff, be placed within the public rightof-way provided that such signs will not cause a hazard to traffic or adjoining property. A Release and Hold Harmless Agreement including the following language shall be required: [1] All subdivision monument sign placement, relocation and removal shall be at the property owner s sole expense. [2] The property owner(s) agrees to remove the subdivision monument signs upon receiving ten (10) days written notice from the City of New Berlin when the subdivision monument signs would impede construction, reconstruction or maintenance of the road right-of-way or interfere with vision of users of the roadway or otherwise interfere with traffic. [3] City shall not be liable for any liens filed against the property (signs). [4] The property owner(s) further agrees to remove the subdivision monument sign(s) upon receiving thirty (30) days written notice from the City of New Berlin for any or no reason at all. [5] All subdivision monument sign placement, replacement, relocation and removal shall be at the property owner s sole expense. If the individual subdivisions lots do not maintain the sign and it is in disrepair or becomes a hazard to public safety, the City shall have the authority to remove the sign. [6] The subdivision homeowners association shall be responsible for paying all maintenance of the signs and associated landscaping. Written agreements shall be on file with the City of New Berlin from the Developer and/or the homeowners association as to the future maintenance and care for any proposed landscaping and structure/monument repairs and/or removal. [7] If the subdivision homeowners association should become defunct, then the individual subdivision lots would be responsible for the maintenance of the sign and any landscaping. [8] This document shall be construed as a permit only and not as an easement. I. Signs permitted in nonresidential zoning districts with a permit. Signs are permitted in B-1, B-2, B-3, B-5, O-1, O-2, O-3, M-1, M-2, Q-1, L-1, I-1, P-1 or PUD Zoning District, subject to the following regulations and other applicable standards in this chapter. Existing deed restrictions and covenants or design guidelines and Page 201

202 standards with more restrictive requirements shall be enforced in conjunction with the sign section of this chapter ( ): (1) Sign type and permitted sizes. (a) Wall signs or building signs. Wall signs and building signs shall be placed against the exterior walls of buildings and shall not extend more than 12 inches outside of a building's wall surface; shall not exceed one square foot in area for every one linear foot of building face width on which it is mounted; and shall not exceed the height or project beyond the building. (b) Awning and canopy signs. Awning and canopy signs affixed flat to the surface of a marquee or canopy are permitted in lieu of a wall sign, provided that the sign does not extend vertically or horizontally beyond the limits of such marquee, awning, or canopy. An awning or canopy may extend up to 12 feet beyond the building to which it is affixed but shall not extend into a required front yard, side yard, or rear yard, nor shall it extend closer than one foot to the vertical plane formed by the curbline in a shopping center. A name sign not exceeding two square feet in area located immediately in front of the entrance to an establishment may be suspended from an awning or canopy, provided that the name sign is at least eight feet above the sidewalk. The canopy sign shall be considered one of the two allowable signs, subject to one of the signs being a monument/ground sign. (c) Monument signs. [1] All new signs and/or replacement of existing signs located along arterials or major thoroughfares shall be placed on a monument base constructed of the same material and color or shall enhance the exterior architecture of the principal building. Arterials include Calhoun Road, Cleveland Avenue, Greenfield Avenue, Lincoln Avenue, Moorland Road, National Avenue, Howard Avenue, Beloit Road, Coffee Road, Lawnsdale Road, Janesville Road, Racine Avenue, College Avenue, Sunny Slope Road, 124 th Street, Small Road, and Grange Avenue. [2] The width of the sign base shall be adjusted to match the width of the sign box/sign panel. The sign base shall be a minimum of 18 inches tall. The monument sign shall not exceed eight feet in height unless the sign incorporates an electronic reader board, then the sign can be up to nine feet tall. The sign shall be set back entirely outside the ultimate right-of-way and vision triangle. [3] Monument signs shall not exceed 32 square feet in face area per side. The face area includes all surface area of the signage box and sign face but excludes the surface area of the signage base described. [4] Monument signs may be positioned either parallel or perpendicular to the public right-of-way. [5] Address plaque or numbers shall be required on the monument base or incorporated onto the sign face. [6] The applicant may request a waiver from the Plan Commission for the requirement for a monument sign. If the waiver is granted, only one wall sign shall be permitted. If the waiver is granted and the business has multiple street frontages and the building exceeds 10,000 square feet in size, two wall signs may be permitted. (d) Ground signs. Ground signs shall not exceed eight feet in height and shall be set back entirely outside the ultimate right-of-way and shall not exceed 32 square feet in area on one side. (e) Pole signs. All pole signs are prohibited. (f) Roof signs. Roof signs are prohibited. (g) Time-and-temperature and Electronic Message Boards. Time-and-temperature devices and electronic message boards may be erected as wall signs, part of ground and monument signs and shall meet the requirement attendant to those sign types. Time-and-temperature devices may display the time, the temperature, activities occurring on the premises, and public events. Signs with Electronic Message Boards may be illuminated and may display a message for a minimum duration of five seconds. Time and temperature devices may be cyclical. Messages displayed through an electronic message board may scroll, but shall not blink, flicker, flash, or display video. (h) Off-premises signs. Off-premises signs are prohibited, except for where otherwise noted in this Section. (2) Number of signs. (a) Only two signs may be permitted per business. Owners may elect for them to be any combination of wall signs, ground signs, or monument signs, not exceeding a total of two, and approved by DCD staff. [1] Businesses with multiple street frontages and buildings exceeding 10,000 square feet may submit an application to the DCD for a possible third sign combination. One of the approved signs must Page 202

203 be a monument sign. Three wall signs will not be allowed. The building must meet both criteria for minimum building size and multiple street frontages. [2] Businesses within the New Berlin Industrial Park that choose not to install a monument sign are permitted one wall sign. Businesses with multiple street frontages and buildings exceeding 10,000 square feet may submit an application to the DCD for a possible second wall sign. The building must meet both criteria for minimum building size and multiple street frontages. TABLE SIGN COMBINATIONS Business/Industrial Parks >10,000 SF and Multiple ROW Frontages 1 ROW Frontage All Other Areas >10,000 SF and Multiple ROW Frontages 1 ROW Frontage Maximum of 1 Wall Sign X X Maximum of 2 Wall Signs X X Monument Sign Required X X Monument Sign Optional X X Maximum of 2 Signs Total X X Maximum of 3 Signs Total X X (b) All multitenant buildings may provide a tenant directory as part of the Master Identification Monument Sign as defined below in Section I(3)(b). (c) Separate wall or canopy or fascia signs may be allowed for each tenant in a retail, shopping, industrial or commercial center, subject to the approval of an overall coordinated sign plan by the DCD staff for the building. Size of wall signs approved in this manner shall be figured using the width of the bay occupied by each tenant. (e) Price signs for gasoline or diesel fuel sales as required by law shall not be subject to limitations on numbers of signs; however, such price signs shall not exceed 20 square feet in area and shall be incorporated into a permanent sign. (f) Directional signs six square feet in area or less and with a maximum height of four feet are allowed but shall require DCD staff approval. Directional signs include, but shall not be limited to, those that read "enter," "exit," "shipping," and "receiving." Directional signs may include the business logo and/or the business name. (g) Changeable copy reader boards may, upon DCD staff review and approval, be added to ground and monument signs without reducing the overall size of the sign; however, such reader boards shall not exceed 24 square feet in area. Changeable copy reader boards are only permitted when they are a part of a permanent sign. (h) Electronic message boards may, upon DCD staff review and approval, be added to ground and monument signs without reducing the overall size of the sign; however, such electronic message boards shall not exceed 24 square feet in area. Electronic message boards are only permitted when they are a part of a permanent sign. (i) ATM. ATM network signs shall be incorporated onto the sign face (ATM Network, Tyme, and Plus). The financial institution name shall be allowed on one face of the ATM unit and shall require a sign permit. (3) Overall coordinated sign plan. (a) The overall coordinated sign plan shall be developed and submitted to DCD staff for any building that has more than one tenant in all zoning districts. Page 203

204 (b) Master identification monument sign. The overall coordinated sign plan shall permit multitenant buildings to have one freestanding monument sign identifying the name of the industrial, commercial or office center as a master identification sign. [1] The master identification monument sign may display tenant names, but shall also include the name of the industrial, commercial or office center. [2] Master identification monument signs shall not exceed 32 square feet in face area. The face area includes all surface area of the signage box and sign face but excludes the surface area of the signage base described. (See illustration. Editor's Note: Figure VIII-10 provides an illustration of sign area measurement. ) [3] The height of the master identification monument sign shall be limited to eight feet tall, unless the sign incorporates an electronic reader board, then the sign can be up to nine feet tall. [4] The sign base shall be a minimum of 18 inches in height. The monument sign shall not exceed eight feet in height unless a waiver is approved by the Plan Commission and shall be set back entirely outside the ultimate right-of-way and vision triangle. If the sign incorporates an electronic reader board, then the sign can be up to nine feet tall. [5] Monument signs or master identification monument signs may be positioned either parallel or perpendicular to the public right-of-way. [6] Address plaque or numbers shall be required on the monument base or face of the sign. (c) Wall signs. Individual businesses within the development are allowed a wall sign meeting the provisions in sections I(1) and I(2) in addition to the master identification monument sign. (d) The intent of the overall coordinated sign plan is to set forth a theme for the placement, lettering style, color, construction, material and related design considerations of signs, while at the same time minimizing sign confusion and clutter. All multitenant buildings shall be required to submit an overall coordinated sign plan when applying for signage. J. Portable/temporary signs. (1) Department of Community Development staff may permit the temporary use of a portable sign, such as banners, pennants, and/or balloons, for display purposes in any district, provided that the portable sign meets the following criteria below. The permit application process in C shall be required for portable signs. All temporary banners installed without a permit shall be assessed a double fee. These types of sign permits shall only be charged the base sign fee plus the filing fee. (a) Portable/temporary signs shall be located outside any public right-of-way; will not be located closer than 10 feet to an adjacent property; will not be over 32 square feet in area; will not extend over or onto any street, alley, sidewalk, or other public thoroughfare without the approval of the Director; and will not cause a hazard to traffic or adjoining properties. (b) Portable/temporary sign permits shall expire after 45 days. No business shall be issued more than 4 portable sign permits in any given year (from January 1 to December 31). (c) Portable signs shall not be illuminated. (d) Temporary event signage shall also require a temporary sign permit. All events should have a valid zoning permit or approval from the City prior to any signage approval. (e) Temporary contracting business signs (painting, paving, landscaping, etc.) shall not exceed six square feet and shall be removed no later than five days following the completion of a project. Any project that takes longer than one month shall require that a sign permit application be filed for a temporary sign. No more than one sign may be placed on the property. (f) Portable sandwich board signs shall be permitted without a sign permit provided they are placed directly in front of the business storefront and they are only displayed during business hours of operation. One portable sandwich board sign is allowed per business. Portable sandwich board signs shall not exceed 4 feet in height and 2 feet in width. (2) The Department of Community Development staff may permit the temporary placement of directional signs by commercial establishments in construction zones for the purpose of identifying or showing the alternative access location of businesses affected by the construction. Placement of signs shall be at a point of barricade or detour. Signage shall not be placed in the travel portion of the road, block vision, or operation of construction vehicles. The business shall coordinate with the contractor for specific placement of the signage. The temporary signage shall be removed following completion of the construction project. This type of signage is subject to the following regulations: Page 204

205 (a) Single businesses affected by the construction are permitted to have one temporary sign at the point of barricade or detour. The signage is not to exceed six square feet in area. (b) A development of four or more businesses is permitted to place one temporary sign at the point of barricade or detour for all businesses within the development affected by the construction. Signage for four or more businesses is not to exceed 32 square feet per side in area. (c) The Director or his designee may remove signs that cause confusion, present a safety hazard or are located within the right-of-way. (d) The Director may order sign removal if the sign is considered a safety hazard or impedes the progress of a construction project. (e) Signage may be removed at the discretion of the construction manager during individual phases of the construction project. (3) Portable trailer signs are prohibited. Construction trailer signs shall require a sign permit and shall not exceed 32 square feet. K. Temporary construction/development signs. Temporary signs are permitted for projects with a valid zoning permit within the City of New Berlin only after the applicant has applied for and received a sign permit from the DCD. The permit procedures outlined in C and D shall be required for all temporary construction/development signs. All other provisions of the Sign Code shall apply. (1) Number of signs. Only one sign will be permitted per frontage on any parcel. All subcontractors and lending/financial partners shall be located on the same sign. (2) Size. Temporary construction/development signs shall not exceed 32 square feet in area and shall not exceed eight feet in height. (3) Duration. Temporary signs shall be removed following completion of the construction project, the installation of a permanent sign for the development or on a date stipulated by the sign permit. In multiphased projects, the principal development sign shall remain for a period of three years or until all the parcels have been conveyed. (4) Illumination. Temporary construction/development signs shall not be illuminated. Construction trailers shall not be floodlit to display signs. L. Enforcement. (1) Order to remove signs. No sign shall advertise a business that is in violation of this chapter or for which no zoning, occupancy and/or building permit has been issued. If the Director or his designee finds that any sign or other display structure regulated herein has been constructed or erected or is being maintained in violation of this chapter, the sign will be removed by the Director or his designee. Any sign located in a City of New Berlin right-of-way or advertising events not located within the City will be removed immediately. (a) Unsafe or hazardous signs. Any sign which is hereinafter found to be unsafe or insecure, or is a menace to the public, or by reason of its location creates a traffic hazard, or is dangerous to persons and property, as determined by the Director, his designee, the City Police Department or the Safety Commission, shall be removed, except for those on private property. (b) Abandoned signs. Any sign which does not advertise a bona fide business or product sold, or which is dilapidated or out of repair, shall be removed by the property owner. (c) Maintenance. If the sign owner violates the maintenance requirements of this chapter, the sign shall be removed by the property owner. (2) Compliance. A business or property that has signage that does not meet the requirements of the current Sign Code shall be required to bring all signage into compliance when they apply for any signage on the property. (3) Penalty. (a) If a sign is displayed before a permit is issued, the violator shall pay twice the normal amount for the sign permit. If the sign owner violates the maintenance requirements as set forth in this chapter, the owner must pay a fee equal to the rate paid for the sign permit. (b) Any person who violates any provision of this section or any order, rule, regulation or determination regarding signs shall be subject to the penalties prescribed in Article X of this chapter. Page 205

206 Newsracks. A. Purpose and intent. The purpose of the section is to provide for the safe and aesthetic placement of newsracks within the City to ensure that all newsracks will not harm the health, safety, morals, comfort, prosperity and general welfare of the public. B. Defined. "Newsrack" shall mean any unattended self-service or coin-operated box, container, storage unit or other dispenser installed, used or maintained for the display, distribution and sale of newspapers or other news periodicals. C. Effective date. This section shall become effective immediately upon publication. D. Nonconformities. Article VII shall not apply to newsracks. Newsracks existing prior to the effective date of this section that do not comply with the standards within this section shall be considered in violation of this section. E. Enforcement. This section shall be enforced in compliance with Article X of this chapter. In the event that the Director determines that a newsstand constitutes an immediate threat to public safety, the newsstand may be removed by the Director immediately. Page 206

207 ARTICLE IX Nonmetallic Mine Reclamation General provisions. A. Title. This article shall be known and may be cited as the "Nonmetallic Mining Reclamation Ordinance for the City of New Berlin." B. Purpose. The purpose of this article is to establish a local program to ensure the effective reclamation of nonmetallic mining sites on which nonmetallic mining takes place in the City of New Berlin after the effective date of this article, in compliance with Chapter NR 135, Wisconsin Administrative Code, and Subchapter I of Chapter 295, Wis. Stats. C. Statutory authority. This article is adopted under authority of (1), Wis. Stats., NR , Wisconsin Administrative Code, and 62.11(3), Wis. Stats. D. Restrictions adopted under other authority. The purpose of this article is to adopt and implement the uniform statewide standards for nonmetallic mining reclamation required by (1)(a), Wis. Stats., and contained in Chapter NR 135, Wisconsin Administrative Code. It is not intended that this article repeal, abrogate, annul, impair or interfere with any existing rules, regulations, ordinances or permits not concerning nonmetallic mining reclamation previously adopted pursuant to other Wisconsin law. E. Interpretation. In their interpretation and application, the provisions of this article shall be held to be the applicable requirements for nonmetallic mining reclamation and shall not be deemed a limitation or repeal of any other power granted by the Wisconsin statutes outside the reclamation requirements for nonmetallic mining sites required by subchapter I of Chapter 295, Wis. Stats., and Chapter NR 135, Wisconsin Administrative Code. Where any terms or requirements of this article may be inconsistent or conflicting, the more restrictive requirements or interpretation shall apply. Where a provision of this article is required by Wisconsin statutes, or by a standard in Chapter NR 135, Wisconsin Administrative Code, and where the provision is unclear, the provision shall be interpreted to be consistent with the Wisconsin statutes and the provisions of Chapter NR 135, Wisconsin Administrative Code. F. Severability. Should any portion of this article be declared unconstitutional or invalid by a court of competent jurisdiction, the remainder of this article shall not be affected. G. Applicability. (1) Overall applicability. The requirements of this article apply to all operators of nonmetallic mining sites within the City of New Berlin operating on or commencing to operate after August 1, 2001, except as exempted in Subsection B. This article does not apply to nonmetallic mining sites where nonmetallic mining permanently ceases before August 1, This article applies to nonmetallic mining conducted by or on behalf of the State of Wisconsin, by or on behalf of the City of New Berlin or for the benefit or use of the state or any state agency, board, commission or department, except for the waiver of financial assurance in D. (2) This article does not apply to the following activities: (a) Nonmetallic mining at a site or that portion of a site that is subject to permit and reclamation requirements of the Wisconsin Department of Natural Resources under 30.19, or 30.20, Wis. Stats., and complies with Chapter NR 340, Wisconsin Administrative Code. (b) Excavations subject to the permit and reclamation requirements of or 30.31, Wis. Stats. (c) Excavations or grading by a person solely for domestic or farm use at that person's residence or farm. (d) Excavations or grading conducted for the construction, reconstruction, maintenance or repair of a highway, railroad, airport facility, or any other transportation facility where the excavation or grading is entirely within the property boundaries of the transportation facility. (e) Grading conducted for preparing a construction site or restoring land following a flood or natural disaster. (f) Excavations for building construction purposes conducted on the building site. (g) Nonmetallic mining at nonmetallic mining sites where less than one acre of total affected acreage occurs over the life of the mine. [Amended by Ord. No. 2366] Page 207

208 (h) Any mining operation, the reclamation of which is required in a permit obtained under Ch. 293, Wis. Stats. (i) Any activities required to prepare, operate or close a solid waste disposal facility under Ch. 289, Wis. Stats., or a hazardous waste disposal facility under Ch. 291, Wis. Stats., that are conducted on the property where the facility is located, but an applicable nonmetallic mining reclamation ordinance and the standards established in this article apply to activities related to solid waste or hazardous waste disposal that are conducted at a nonmetallic mining site that is not on the property where the solid waste or hazardous waste disposal facility is located, such as activities to obtain nonmetallic minerals to be used for lining, capping, covering or constructing berms, dikes or roads. (j) Nonmetallic mining. [1] Nonmetallic mining conducted to obtain stone, soil, sand or gravel for construction, reconstruction, maintenance or repair of a highway, railroad, airport, or any other transportation facility or part thereof, if the nonmetallic mining is subject to the requirements of the Wisconsin Department of Transportation concerning the restoration of the nonmetallic mining site. [2] This exemption only applies to a nonmetallic mining operation with limited purpose and duration where the Wisconsin Department of Transportation actively imposes reclamation requirements and the operator reclaims the nonmetallic mining site in accordance with these requirements. The duration of the exemption shall be specific to the length of the Wisconsin Department of Transportation contract for construction of a specific transportation project. [3] If a nonmetallic mining site covered under Subsection G(2)(j)[1] and if used to concurrently supply materials for projects unrelated to the Wisconsin Department of Transportation project, the exemption in this subsection still applies, provided that the site is fully reclaimed under Wisconsin Department of Transportation contract and supervision. (k) Dredging for navigational purposes, to construct or maintain farm drainage ditches and for the remediation of environmental contamination and the disposal of spoils from these activities. (l) Removal of material from the bed of Lake Michigan or Lake Superior by a public utility pursuant to a permit under 30.21, Wis. Stats. H. Administration. The provisions of this article shall be administered by the City of New Berlin Department of Community Development. I. Effective date. The provisions of this article shall take effect on July 24, 2001, the date of publication Definitions. As used in this article, the following words shall have the meanings indicated: ALTERNATIVE REQUIREMENT An alternative to the reclamation standards of this article provided through a written authorization granted by the City of New Berlin pursuant to APPLICABLE RECLAMATION ORDINANCE A nonmetallic mining reclamation ordinance, including this article, that applies to a particular nonmetallic mining site and complies with the requirements of Chapter NR 135, Wisconsin Administrative Code, and Subchapter I of Ch. 295, Wis. Stats., unless the Wisconsin Department of Natural Resources is the regulatory authority as defined in Subsection (20)(b)3. If the Wisconsin Department of Natural Resources is the regulatory authority, "applicable reclamation ordinance" means the relevant and applicable provisions of Chapter NR 135, Wisconsin Administrative Code. BORROW SITE An area outside of a transportation project site from which stone, soil, sand or gravel is excavated for use at the project site, except the term does not include commercial sources. CITY The City of New Berlin. CONTEMPORANEOUS RECLAMATION The sequential or progressive reclamation of portions of the nonmetallic mining site affected by mining operations that is performed in advance of final site reclamation, but which may or may not be final reclamation, performed to minimize the area exposed to erosion, at any one time, by nonmetallic mining activities. Page 208

209 DEPARTMENT The Wisconsin Department of Natural Resources. ENVIRONMENTAL POLLUTION Has the meaning in (2), Wis. Stats. Editor's Note: The definition of "existing mine," which immediately followed this definition, was repealed by Ord. No FINANCIAL ASSURANCE A commitment of funds or resources by an operator to a regulatory authority that satisfies the requirements in and is sufficient to pay for reclamation activities required by this article. HIGHWALL A vertical or nearly vertical face in solid rock or a slope of consolidated or unconsolidated material that is steeper than 3:1. [Added by Ord. No. 2366] LANDOWNER The person who has title to land in fee simple or who holds a land contract for the land. A landowner is not a person who owns nonmetallic mineral rights to land, if a different person possesses title to that land in fee simple or holds a land contract for that land. LICENSED PROFESSIONAL GEOLOGIST A person who is licensed as professional geologist pursuant to Chapter 470 of the Wisconsin Statutes. [Added by Ord. No. 2366] NONMETALLIC MINERAL A product, commodity or material consisting principally of naturally occurring, organic or inorganic, nonmetallic, nonrenewable material. Nonmetallic minerals include, but are not limited to, stone, sand, gravel, asbestos, beryl, diamond, clay, coal, feldspar, peat, talc and topsoil. NONMETALLIC MINING or MINING All of following: A. Operations or activities at a nonmetallic mining site for the extraction from the earth of mineral aggregates or nonmetallic minerals for sale or use by the operator. Nonmetallic mining includes use of mining equipment or techniques to remove materials from the in-place nonmetallic mineral deposit, including drilling and blasting, as well as associated activities such as excavation, grading and dredging. Nonmetallic mining does not include removal from the earth of products or commodities that contain only minor or incidental amounts of nonmetallic minerals, such as commercial sod, agricultural crops, ornamental or garden plants, forest products, Christmas trees or plant nursery stock. B. Processes carried out at a nonmetallic mining site that are related to the preparation or processing of the mineral aggregates or nonmetallic minerals obtained from the nonmetallic mining site. These processes include, but are not limited to, stockpiling of materials, blending mineral aggregates or nonmetallic minerals with other mineral aggregates or nonmetallic minerals, blasting, grading, crushing, screening, scalping and dewatering. NONMETALLIC MINING RECLAMATION or RECLAMATION The rehabilitation of a nonmetallic mining site to achieve a land use specified in a nonmetallic mining reclamation plan approved under this article, including removal or reuse of nonmetallic mining refuse, grading of the nonmetallic mining site, removal, storage and replacement of topsoil, stabilization of soil conditions, reestablishment of vegetative cover, control of surface water and groundwater, prevention of environmental pollution and, if practicable, the restoration of plant, fish and wildlife habitat. NONMETALLIC MINING REFUSE Waste soil, rock and mineral, as well as other natural site material resulting from nonmetallic mining. Nonmetallic mining refuse does not include marketable by-products resulting directly from or displaced by the nonmetallic mining that are scheduled to be removed from the nonmetallic mining site within a reasonable period of time after extraction. NONMETALLIC MINING SITE or SITE All contiguous areas of present or proposed mining described in Subsection A, subject to the qualifications in Subsection B. A. "Nonmetallic mining site" means the following: (1) The location where nonmetallic mining is proposed or conducted. (2) Storage and processing areas that are in or contiguous to areas excavated for nonmetallic mining. Page 209

210 (3) Areas where nonmetallic mining refuse is deposited. (4) Areas affected by activities such as the construction or improvement of private roads or haulage ways for nonmetallic mining. (5) Areas where grading or regrading is necessary. (6) Areas where nonmetallic mining reclamation activities are carried out or structures needed for nonmetallic mining reclamation, such as topsoil stockpile areas, revegetation test plots, or channels for surface water diversion, are located. B. "Nonmetallic mine site" does not include any of the following areas: (1) Those portions of sites listed in Subsection A not used for nonmetallic mining or purposes related to nonmetallic mining after August 1, (2) Separate, previously mined areas that are not used for nonmetallic mineral extraction after August 1, 2001, and are not contiguous to mine sites, including separate areas that are connected to active mine sites by public or private roads. (3) Areas previously mined but used after August 1, 2001, for a non-mining activity, such as stockpiles of materials used for an industrial process unrelated to nonmetallic mining. OPERATOR Any person who is engaged in, or who has applied for a permit to engage in, nonmetallic mining, whether individually, jointly or through subsidiaries, agents, employees, contractors or subcontractors. Editor's Note: The former definition for "registered geologist," which immediately followed this definition, was repealed by Ord. No PERSON An individual, owner, operator, corporation, limited liability company, partnership, association, county, municipality, interstate agency or state agency or federal agency. [Added by Ord. No. 2366] REGISTERED PROFESSIONAL ENGINEER A person who is registered as a professional engineer pursuant to , Wis. Stats. [Amended by Ord. No. 2366] REGULATORY AUTHORITY The City of New Berlin. REPLACEMENT OF TOPSOIL The replacement or redistribution of topsoil or topsoil substitute material to all areas where topsoil was actually removed or affected by nonmetallic mining for the purposes of providing adequate vegetative cover and stabilization of soil conditions needed to achieve the approved post-mining land use and as required by the reclamation plan approved pursuant to this article. SOLID WASTE Any garbage, refuse, sludge from a waste treatment plant, water supply treatment plant or air pollution control facility and other discarded or salvageable materials, including solid, liquid, semisolid or contained gaseous materials resulting from industrial, commercial, mining and agricultural operations, and from community activities, but does not include solids or dissolved material in domestic sewage, or solid or dissolved materials in irrigation return flows or industrial discharges which are point sources subject to permits under Ch. 283, Wis. Stats., or source material, special nuclear material or by-product material, as defined in (1), Wis. Stats. TOPSOIL The surface layer of soil which is generally more fertile than the underlying soil layers, which is the natural medium for plant growth and which can provide the plant growth, soil stability and other attributes necessary to meet the success standards approved in the reclamation plan. TOPSOIL SUBSTITUTE MATERIAL Soil or other unconsolidated material either used alone or mixed with other beneficial materials and which can provide the plant growth, site stability and other attributes necessary to meet the success standards approved in the reclamation plan. UNRECLAIMED ACRE or UNRECLAIMED ACRES A. Those unreclaimed areas in which nonmetallic mining has occurred after August 1, 2001, and areas where nonmetallic mining reclamation has been completed but is not yet certified as reclaimed under C. However, the term does not include any areas described in Subsection B. Page 210

211 B. "Unreclaimed acre" or "unreclaimed acres" does not include: (1) Those areas where reclamation has been completed and certified as reclaimed under C. (2) Those areas previously affected by nonmetallic mining but which are not used for nonmetallic mining after August 1, (3) Those portions of nonmetallic mining sites which are included in a nonmetallic mining reclamation plan approved pursuant to this article but are not yet affected by nonmetallic mining. (4) Areas previously mined but used after August 1, 2001, for a non-mining activity, such as stockpiling of materials used for an industrial activity such as an asphalt plant, concrete batch plant, block and tile operation or other industry that uses products produced from nonmetallic mining. (5) For purposes of fees under , those areas within a nonmetallic mining site which the City has determined to have been successfully reclaimed on an interim basis in accordance with C Standards. All nonmetallic mining sites subject to this article shall be reclaimed in conformance with the standards contained below: A. General standards. (1) Refuse and other solid wastes. Nonmetallic mining refuse shall be reused in accordance with a reclamation plan. Other solid wastes shall be disposed of in accordance with applicable rules of the Wisconsin Department of Natural Resources adopted pursuant to Chs. 289 and 291, Wis. Stats. (2) Area disturbed and contemporaneous reclamation. Nonmetallic mining reclamation shall be conducted, to the extent practicable, to minimize the area disturbed by nonmetallic mining and to provide for nonmetallic mining reclamation of portions of the nonmetallic mining site while nonmetallic mining continues on other portions of the nonmetallic mining site. (3) Public health, safety and welfare. All nonmetallic mining sites shall be reclaimed in a manner so as to comply with federal, state and local regulations governing public health, safety and welfare. (4) Habitat restoration. When the land use required by the reclamation plan approved pursuant to this article requires plant, fish or wildlife habitat, it shall be restored, to the extent practicable, to a condition at least as suitable as that which existed before the lands were affected by nonmetallic mining operations. (5) Compliance with environmental regulations. Reclamation of nonmetallic mining sites shall comply with any other applicable federal, state and local laws, including those related to environmental protection, zoning and land use control. NOTE: Other applicable environmental, zoning or land use regulations may include Chapters NR 103, 115, 116, 117, 205, 216, 269, 105, 106, 140, 150, 151, 340, , and 812, Wisconsin Administrative Code, Chs. 30 and 91, Wis. Stats., and Section 404 of the Clean Water Act (33 U.S.C. 1344), which may be applicable to all or part of either an existing or proposed nonmetallic mining project, so long as they do not require or directly regulate the reclamation of nonmetallic mining sites as addressed under Subchapter I of Ch. 295, Wis. Stats. [Amended by Ord. No. 2366] B. Surface water and wetlands protection. Nonmetallic mining reclamation shall be conducted and completed in a manner that assures compliance with the Wisconsin Department of Natural Resources' water quality standards for surface waters and wetlands contained in Chapters NR 102 to NR 105, Wisconsin Administrative Code. Before disturbing the surface of a nonmetallic mining site and removing topsoil, all necessary measures for diversion and drainage of runoff from the site to prevent pollution of waters of the state shall be installed in accordance with the reclamation plans approved pursuant to this article. Diverted or channelized runoff resulting from reclamation may not adversely affect neighboring properties. C. Groundwater protection. (1) Groundwater quantity. A nonmetallic mining site shall be reclaimed in a manner that does not cause a permanent lowering of the water table that results in adverse effects on surface waters or a significant reduction in the quantity of groundwater reasonably available for future users of groundwater. (2) Groundwater quality. Nonmetallic mining reclamation shall be conducted in a manner which does not cause groundwater quality standards in Chapter NR 140, Wisconsin Administrative Code, to be exceeded at a point of standard application defined in that chapter. D. Topsoil management. (1) Removal. Topsoil and topsoil substitute material shall be provided as specified in the reclamation plan approved pursuant to this article in order to achieve reclamation to the approved post-mining land use. Page 211

212 Removal of on-site topsoil and topsoil substitute material removal shall be performed, when specified in the reclamation plan, prior to any mining activity associated with any specific phase of the mining operation. [Amended by Ord. No. 2366] (2) Volume. The operator shall obtain the volume of soil required to perform final reclamation by removal of on-site topsoil or topsoil substitute material or by obtaining topsoil or substitute material as needed to make up the volume of topsoil as specified in the reclamation plan approved pursuant to this article. (3) Storage. Once removed, topsoil or topsoil substitute material shall, as required by the reclamation plan approved pursuant to this article, either be used in contemporaneous reclamation or stored in an environmentally acceptable manner. The location of stockpiled topsoil or topsoil substitute material shall be chosen to protect the material from erosion or further disturbance or contamination. Runoff water shall be diverted around all locations in which topsoil or topsoil substitute material is stockpiled. E. Final grading and slopes. [Amended by Ord. No. 2366] (1) All areas affected by mining shall be addressed in the approved reclamation plan, pursuant to NR , to provide that a stable and safe condition consistent with the post-mining land use is achieved. The reclamation plan may designate highwalls or other unmined and undisturbed natural solid bedrock as stable and safe and not in need of reclamation or designate other areas affected by mining, including slopes comprised of unconsolidated materials that exceed a 3:1 slope, whether or not graded, as stable and safe. For slopes designated as stable under this subsection, the regulatory authority may require that either: a site-specific engineering analysis be performed by a registered professional engineer to demonstrate that an acceptable slope stability factor is attainable at a steeper slope, or the operator shall perform a field test plot demonstration to demonstrate that a stable and safe condition will be achieved and that the post-mining land use specified in the reclamation plan will not be adversely affected. (2) Final reclaimed slopes covered by topsoil or topsoil substitute material may not be steeper than a 3:1 horizontal to vertical incline, unless found acceptable through one or more of the following: alternative requirements are approved under NR ; steeper slopes are shown to be stable through a field plot demonstration approved as part of an approved reclamation plan; or stable slopes can be demonstrated based on site-specific engineering analysis performed by a registered professional engineer. All areas in the nonmetallic mine site where topsoil or topsoil substitute material is to be reapplied shall be graded or otherwise prepared prior to topsoil or topsoil substitute material redistribution to provide the optimum adherence between the topsoil or topsoil substitute material and the underlying material. (3) When the approved post-mining land use includes a body of water, the approved final grade at the edge of a body of water shall extend vertically six feet below the lowest seasonal water level. A slope no steeper than 3:1 shall be created at a designated location or locations, depending on the size of the water body, to allow for a safe exit. F. Topsoil redistribution for reclamation. Topsoil or topsoil substitute material shall be redistributed in accordance with the reclamation plan approved pursuant to this article in a manner which minimizes compaction and prevents erosion. Topsoil or topsoil substitute material shall be uniformly redistributed except where uniform redistribution is undesirable or impractical. Topsoil or topsoil substitute material redistribution may not be performed during or immediately after a precipitation event until the soils have sufficiently dried. G. Revegetation and site stabilization. Except for permanent roads or similar surfaces identified in the reclamation plan approved pursuant to this article, all surfaces affected by nonmetallic mining shall be reclaimed and stabilized by revegetation or other means. Revegetation and site stabilization shall be in accordance with the approved reclamation plan and shall be performed as soon as practicable after mining activity has permanently ceased in any part of the mine site. Note: Field test plot demonstrations are highly recommended to ensure that reclamation success standards are met and financial assurance is released as quickly as possible. When field test plots are employed, they should be approved as part of the reclamation plan under NR [Amended by Ord. No. 2366] H. Assessing completion of successful reclamation. (1) The criteria for assessing when reclamation is complete and, therefore, when the financial assurance may be released shall be specified in the reclamation plan approved pursuant to this article. Criteria to evaluate reclamation success shall be quantifiable. (2) Compliance with the revegetation success standards in the approved reclamation plan shall be determined by: Page 212

213 (a) On-site inspections by the City or its agent; (b) Reports presenting results obtained during reclamation evaluations, including summarized data on revegetation, photo documentation or other evidence that the criteria approved in the reclamation plan to ascertain success have been met; or (c) A combination of inspections and reports. (3) In those cases where the post-mining land use specified in the reclamation plan requires a return of the mining site to a pre-mining condition, the operator shall obtain baseline data on the existing plant community for use in the evaluation of reclamation success pursuant to this section. (4) Revegetation success may be determined by: (a) Comparison to an appropriate reference area; (b) Comparison to baseline data acquired at the mining site prior to its being affected by mining; or (c) Comparison to an approved alternate technical standard. (5) Revegetation using a variety of plants indigenous to the area is favored. I. Intermittent mining. Intermittent mining may be conducted, provided that the possibility of intermittent cessation of operations is addressed in an operator's reclamation permit, no environmental pollution or erosion of sediments is occurring, and financial assurance for reclamation pursuant to is maintained covering all remaining portions of the site that have been affected by nonmetallic mining and that have not been reclaimed. J. Maintenance. During the period of the site reclamation, after the operator has stated that reclamation is complete but prior to release of financial assurance, the operator shall perform any maintenance necessary to prevent erosion, sedimentation or environmental pollution, comply with the standards of this article, or to meet the goals specified in the reclamation plan approved pursuant to this article Nonmetallic mining reclamation permit application. A. Required submittal. All operators of any nonmetallic mining sites shall apply for a reclamation permit from the City. All applications for reclamation permits under this section shall be accompanied by the following information: [Amended by Ord. No. 2366] (1) A brief description of the general location and nature of the nonmetallic mine. (2) A legal description of the property on which the nonmetallic mine is located or proposed, including the parcel identification number. (3) The names, addresses and telephone numbers of all persons or organizations who are owners or lessors of the property on which the nonmetallic mining site is located. (4) The name, address and telephone number of the person or organization who is the operator. (5) A certification by the operator of his or her intent to comply with the statewide nonmetallic mining reclamation standards established by B. (Reserved) Editor's Note: Former Subsection B, Automatic permit for existing mines, was repealed by Ord. No C. Automatic permit for local transportation-related mines. (1) An operator of a nonmetallic mine may apply for an automatic permit under this subsection for any borrow site that meets all of the following criteria: (a) It will be opened and reclaimed under contract with the City within a period not exceeding 36 months; (b) It is intended to provide stone, soil, sand or gravel for the construction, reconstruction, maintenance or repair of a highway, railroad, airport facility or other transportation facility under contract with a municipality; (c) It is regulated and will be reclaimed under contract with the City in accordance with the requirements of the Wisconsin Department of Transportation concerning the restoration of nonmetallic mining sites; (d) It is not a commercial source; (e) It will be constructed, operated and reclaimed in accordance with applicable zoning requirements, if any; and (f) It is not otherwise exempt from the requirements of this article under G. (2) To request an automatic permit under this section, the applicant shall submit the following: Page 213

214 (a) A completed permit application, on a form provided by the City, in accordance with Subsection A(1) through (5); (b) Written documentation of the terms and conditions of the contract with respect to reclamation of the proposed borrow site, including the name, address and phone number of the person charged with oversight and enforcement of the reclamation provisions. (c) Written evidence to show that the borrow site and its reclamation is in compliance with applicable zoning requirements, if any. (d) The first year's annual fee, in accordance with a fee schedule established by the City under Mines permitted under this subsection shall not be subject to the plan review fee provided in D. New mines. (1) The operator of any nonmetallic mine site that engages in or plans to engage in nonmetallic mining that will begin operations after August 1st, 2001, or which has not applied for an automatic reclamation permit pursuant to Subsection B, shall submit an application that meets the requirements specified below to the Department of Community Development by certified mail at: 3805 S. Casper Drive, New Berlin, WI 53151, prior to beginning operations. This application shall be accompanied by a plan review fee as specified in (a) The information required by Subsection A. (b) The plan review and annual fees required by and (c) A reclamation plan conforming to (d) A certification that the operator will provide, as a condition of the reclamation permit, financial assurance as required by upon granting of the reclamation permit and before mining begins. (2) To avoid duplication, the permit application and submittals required under this subsection may, by reference, incorporate existing plans or materials that meet the requirements of this article Reclamation plan. A. Reclamation plan requirements. All operators of nonmetallic mining sites subject to this article shall prepare and submit a reclamation plan that meets the following requirements. (1) Plan required. An operator who conducts or plans to conduct nonmetallic mining shall submit to the City a reclamation plan that meets the requirements of this section and complies with the standards of To avoid duplication, the reclamation plan may, by reference, incorporate existing plans or materials that meet the requirements of this article. [Amended by Ord. No. 2366] (2) Existing site information. The reclamation plan shall include information sufficient to describe the existing natural and physical conditions of the site, including but not limited to: (a) Plan view maps and/or cross-section drawings of the nonmetallic mining site, including the general location (at a smaller scale); property boundaries and dimensions; the areal extent; delineation; labeling and measurement (in acres) of the general use of each area on the site (see nonmetallic mine definition); the geologic composition and depth of the nonmetallic mineral deposit; the distribution, thickness and type of topsoil; the location of surface waters and the existing drainage patterns, the approximate elevation of groundwater; and existing topography as determined by existing hydrogeologic information, with spot elevations and contours at two-foot contour intervals, except where slope is greater than 30% where the contour interval may be five feet or other contour interval as approved by the City. In specific instances where the existing hydrogeologic information is insufficient for the purposes of the reclamation plan, the applicant may supplement the information with the opinion of a licensed professional geologist or hydrologist. [Amended by Ord. No. 2366] (am) Topsoil or topsoil substitute material, if required to support revegetation needed for reclaiming the site to approved post-mining land use, can be identified using county soil surveys or other available information including that obtained from a soil scientist or the University of Wisconsin soil science extension agent or other available information resources. [Added by Ord. No. 2366] (b) Delineate from existing maps, biological resources, plant communities, and wildlife use at and adjacent to the proposed or operating mine site. These maps shall also delineate existing shorelands, Page 214

215 floodplains (including cross sections), wetlands, and primary environmental corridors, as defined by the City. NOTE: Pre-mining topsoil conditions may be estimated using the Soil Survey of Waukesha County, available from the City of New Berlin-Department of Community Development, unless the mining was conducted prior to the soil survey. (c) Location of man-made features on or near the site. (d) For proposed nonmetallic mine sites that include previously mined areas, the plan view map or crosssection drawing under Subsection A(2)(a) must also show the location and extent of land previously affected by nonmetallic mining, including the location of stockpiles, wash ponds and sediment basins. [Amended by Ord. No. 2366] (3) Post-mining land use. (a) Specification required. [1] The reclamation plan shall specify a proposed post-mining land use for the nonmetallic mine site. The proposed post-mining land use shall be consistent with local land use plans and local zoning at the time the plan is submitted, unless a change to the land use plan or zoning is proposed. The proposed post-mining land use shall also be consistent with all applicable local, state, or federal laws in effect at the time the plan is submitted. [2] NOTE: A proposed post-mining land use is necessary to determine the type and degree of reclamation needed to correspond with that land use. The post-mining land use will be key in determining the reclamation plan. Final slopes, drainage patterns, site hydrology, seed mixes and the degree of removal of mining-related structures, drainage structures, and sediment control structures will be dictated by the approved post-mining land use. (b) Land used for nonmetallic mineral extraction in areas zoned under an exclusive agricultural use ordinance pursuant to 91.75, Wis. Stats., shall be restored to agricultural use. NOTE: 91.75(9), Wis. Stats., contains this requirement; 91.01(1), Wis. Stats., defines the term "agricultural use." (4) Reclamation measures. The reclamation plan shall include a description of the proposed reclamation, including methods and procedures to be used and a proposed schedule and sequence for the completion of reclamation activities for various stages of reclamation of the nonmetallic mining site. The following shall be included: (a) A description of the proposed earthwork and reclamation, including final slope angles, high wall reduction, benching, terracing and other structural slope stabilization measures, and, if necessary, a site-specific engineering analysis performed by a registered professional engineer as provided by NR (1) and (2). [Amended by Ord. No. 2366] (b) The methods of topsoil or topsoil substitute material removal, storage, stabilization and conservation that will be used during reclamation. (c) A plan or map which shows anticipated topography of the reclaimed site and any water impoundments or artificial lakes needed to support the anticipated future land use of the site. (d) A plan or map which shows surface structures, roads and related facilities after the cessation of mining. (e) The estimated cost of reclamation for each stage of the project or the entire site if reclamation staging is not planned. (f) A revegetation plan, which shall include timing and methods of seed bed preparation, rates and kinds of soil amendments, seed application timing, methods and rates, mulching, netting and any other techniques needed to accomplish soil and slope stabilization. (g) Quantifiable standards for revegetation adequate to show that a sustainable stand of vegetation has been established which will support the approved post-mining land use. Standards for revegetation may be based on the percent vegetative cover, productivity, plant density, diversity or other applicable measures. (h) A plan and, if necessary, a narrative showing erosion-control measures to be employed during reclamation activities. These shall address how reclamation activities will be conducted to minimize erosion and pollution of surface and groundwater. (i) A description of any areas which will be reclaimed on an interim basis sufficient to qualify for the waiver of fees pursuant to C and which will be subsequently disturbed prior to final reclamation. Descriptions shall include an identification of the proposed areas involved, methods of reclamation to comply with the standards in and timing of interim and final reclamation. (j) A description of how the reclamation plan addresses the long-term safety of the reclaimed mining site. The description shall include a discussion of site-specific safety measures to be implemented at the site and include measures that address public safety with regard to adjacent land uses. Note: Page 215

216 Safety measures include visual warnings, physical barriers, slope modifications such as reclamation blasting, scaling of the rock face, creation of benches. Other measures may be employed if found to be equivalent by a registered professional engineer. [Added by Ord. No. 2366] (5) Plan criteria for success. The reclamation plan shall contain criteria for assuring successful reclamation in accordance H. (6) Certification of reclamation plan. (a) The operator shall provide a signed certification that reclamation will be carried out in accordance with the reclamation plan. If the operator does not own the land, the landowner or lessor, if different from the operator or owner, shall also provide signed certification that they concur with the reclamation plan and will allow its implementation. [Amended by Ord. No Editor's Note: Former Subsection A(6)(b), pertaining to circumstances not requiring written certification, which immediately followed this subsection was repealed by Ord. No ] (7) Approval. The operator shall keep a copy of the reclamation plan required by this section, once approved by the City under this article, at the mine site or, if not practicable, at the operator's nearest office or place of business. B. Existing mines. The operator of any nonmetallic mining site that submits an automatic permit application in conformance with B shall submit the reclamation plan required by A by August 1, C. (Reserved) Editor's Note: Former Subsection C, New mines, was repealed by Ord. No D. Existing plans and approvals. To avoid duplication of effort, the reclamation plan required by A may, by reference, incorporate existing plans or materials that meet the requirements of this article. Previous approvals for nonmetallic mining sites in operation on August 1, 2001, shall satisfy the requirements of A if they meet the following requirements: (1) The document has been approved by the City; and (2) The City finds that the document designates a post-mining land use and describes reclamation measures that meet the reclamation standards of this article. E. Review and approval of reclamation plan. The City shall approve, conditionally approve or deny the reclamation plan submitted under this section in writing in accordance with C(3) for existing mines and D for mines that apply for a reclamation permit in conformance with D. Conditional approvals of reclamation plans shall be made according to G and denials of reclamation plans shall be made pursuant to The operator shall keep a copy of the reclamation plan approved under this subsection at the mine site or, if not practicable, at the operator's nearest place of business Financial assurance. A. Financial assurance requirements. All operators of nonmetallic mining sites in the City shall prepare and submit a proof of financial assurance that meets the following requirements: (1) Notification. The regulatory authority shall provide written notification to the operator of the amount of financial assurance required under Subsection A(3). (2) Filing. Following approval of the nonmetallic mining reclamation permit and as a condition of the permit, the operator shall file a financial assurance with the City. The financial assurance shall provide that the operator shall faithfully perform all requirements in this article, an applicable reclamation ordinance and the reclamation plan. Financial assurance shall be payable exclusively to the City. In cases where one or more other regulatory authorities regulate a nonmetallic mining site, all financial assurance shall be made payable to the City only if it currently has primary regulatory responsibility. (3) Amount and duration of financial assurance. The amount of financial assurance shall equal as closely as possible the cost to the City of hiring a contractor to complete either final reclamation or progressive reclamation according to the approved reclamation plan. The amount of financial assurance shall be reviewed periodically by the City to assure it equals outstanding reclamation costs. Any financial assurance filed with the City shall be in an amount equal to the estimated cost for reclaiming all sites the operator has under project permits. The City may accept a lesser initial amount of financial assurance, provided that the permittee initiates a process to continuously increase the amount of financial assurance until it is adequate to effect reclamation. An escrow account may be established that is based on production gross sales and serves to provide regular payments to an account that is designed to grow to Page 216

217 the amount necessary to guarantee performance of reclamation by the expected time of final reclamation. The period of the financial assurance is dictated by the period of time required to establish the postmining land use declared and approved of in the reclamation plan. This may extend beyond the permit if required to accomplish successful and complete implementation of the reclamation plan. (4) Form and management. Financial assurance shall be provided by the operator and shall be by a bond or an alternate financial assurance. Financial assurance shall be payable to the City and released upon successful completion of the reclamation measures specified in the reclamation plan. Alternate financial assurances may include, but are not limited to, cash, certificates of deposits, irrevocable letters of credit, irrevocable trusts, established escrow accounts, demonstration of financial responsibility by meeting net worth requirements, or government securities. Any interest from the financial assurance shall be paid to the operator. Certificates of deposit shall be automatically renewable or other assurances shall be provided before the maturity date. Financial assurance arrangements may include, at the discretion of the City, a blend of different options for financial assurance, including a lien on the property on which the nonmetallic mining site occurs or a combination of financial assurance methods. (5) Multiple projects. Any operator who obtains a permit from the City for two or more nonmetallic mining sites may elect, at the time the second or subsequent site is approved, to post a single financial assurance in lieu of separate financial assurance instruments for each nonmetallic mining site. When an operator elects to post a single financial assurance in lieu of separate financial assurances for each mining site, no financial assurances previously posted on individual mining sites shall be released until the new financial assurance has been accepted by the City. (6) Multiple jurisdictions. In cases where more than one regulatory authority has jurisdiction, a cooperative financial security arrangement may be developed and implemented by the regulatory authorities to avoid requiring the permittee to prove financial assurance with more than one regulatory authority for the same nonmetallic mining site. Financial assurance is required for each site and two or more sites of less than one acre by the same operator, except that governmental units are not required to obtain financial assurance. (7) Certification of completion and release. (a) The operator shall notify the regulatory authority, by filing a notice of completion, at the time that he or she determines that reclamation of any portion of the mining site or the entire site is complete. The City shall inspect the mine site or portion thereof that was the subject of the notice of completion to determine if reclamation has been carried out in accordance with the approved reclamation plan. The City may partially release the financial assurance if it determines that compliance with a portion of the reclamation plan has been achieved and requires no waiting period. After determining that reclamation is complete, the City shall issue a certificate of completion and shall release the financial assurance or appropriately reduce the financial assurance in the case of reclamation of a portion of the mining site. (b) The City shall make a determination of whether or not the certification in Subsection A(7)(a) can be made within 60 days of the receipt of the request. (c) The City may make a determination under this subsection that: [1] Reclamation is not yet complete; [2] It is not possible to assess whether reclamation is complete due to weather conditions, snow cover or other relevant factors; [3] Reclamation is complete in a part of the mine; or [4] Reclamation is fully complete. (8) Forfeiture. Financial assurance shall be forfeited if any of the following occur: (a) A permit is revoked under and the appeals process has been completed. (b) An operator ceases mining operations and fails to reclaim the site in accordance with the reclamation plan. (9) Cancellation. Financial assurance shall provide that it may not be canceled by the surety or other holder or issuer except after not less than a ninety-day notice to the City in writing by registered or certified mail. Not less than 30 days prior to the expiration of the ninety-day notice of cancellation, the operator shall deliver to the City a replacement proof of financial assurance. In the absence of this replacement financial assurance, all mining shall cease until the time it is delivered and in effect. (10) Changing methods of financial assurance. The operator of a nonmetallic mining site may change from one method of financial assurance to another. This may not be done more than once a year unless required by an adjustment imposed pursuant to Subsection A(12). The operator shall give the City at least Page 217

218 60 days' notice prior to changing methods of financial assurance and may not actually change methods without the written approval of the City. (11) Bankruptcy notification. The operator of a nonmetallic mining site shall notify the regulatory authority by certified mail of the commencement of voluntary or involuntary proceeding under bankruptcy code, 11 U.S.C. et seq., naming the operator as debtor, within 10 days of commencement of the proceeding. (12) Adjustment of financial assurance. Financial assurance may be adjusted when required by the City. The City may notify the operator in writing that adjustment is necessary and the reasons for it. The City may adjust financial assurance based upon prevailing or projected interest or inflation rates, or the latest cost estimates for reclamation. (13) Net worth test. (a) Only an operator that meets the definition of "company" in (1)(b), Wis. Stats., may use the net worth method of providing financial assurance. (b) The operator shall submit information to the regulatory authority in satisfaction of the net worth test requirements of (4), Wis. Stats. The criteria in (6)(b), (d), (e), (f), (g), (h) and (i), Wis. Stats., shall apply. (c) An operator using the net worth test to provide financial assurance for more than one mine shall use the total cost of compliance for all mines in determining the net worth to reclamation cost ratio in accordance with (6), Wis. Stats. (d) Determinations under the net worth test shall be done in accordance with (5), Wis. Stats. (e) In addition, the operator shall submit a legally binding commitment to faithfully perform all compliance and reclamation work at the mine site that is required under this article. B. Existing mines. The operator of any nonmetallic mining site that submits an automatic permit application in conformance with B shall submit the financial assurance required by A by August 1, C. New mines. The operator of any nonmetallic mining site that applies for a reclamation permit in conformance with D shall submit the proof of financial assurance required by A as specified in the reclamation permit issued to it under this article. D. Public nonmetallic mining. The financial assurance requirements of this section do not apply to nonmetallic mining conducted by the State of Wisconsin, a state agency, board, commission or department, or the City Public notice and right of hearing. A. New mines. The City shall, except as provided in Subsection B, provide public notice and the opportunity for a public informational hearing as set forth below: (1) Public notice. (a) Except as provided in Subsection A(3) for existing mines, when the City receives a complete nonmetallic mining reclamation permit application that satisfies C, it shall publish a public notice of the application no later than 30 days after receipt. (b) The notice shall briefly describe the mining and reclamation planned at the nonmetallic mining site. The notice shall be published as a Class 2 notice pursuant to (2), Wis. Stats., in the official newspaper of the City. The notice shall mention the opportunity for public hearing pursuant to this section and shall give the locations at which the public may review the application and all supporting materials, including the reclamation plan. (c) Copies of the notice shall be forwarded by the City to the county or applicable local zoning board, the county and applicable local planning organization, the county land conservation officer, and owners of land within 600 feet of the boundaries of the parcel or parcels of land on which the site is located. (2) Hearing. Except as provided in Subsection A(3) for existing mines, the City shall provide for an opportunity for a public informational hearing on an application or request to issue a nonmetallic mining reclamation permit as follows: (a) If it conducts a zoning-related hearing on the nonmetallic mine site, the City shall provide the opportunity at this hearing to present testimony on reclamation-related matters. This opportunity shall fulfill the requirement for public hearing for a nonmetallic mining reclamation permit required by this section. The City shall consider the reclamation-related testimony in the zoning-related hearing in deciding on a permit application pursuant to this article. Page 218

219 (b) If there is no opportunity for a zoning-related hearing on the nonmetallic mine site as described in Subsection A(2)(a), opportunity for public hearing required by this section shall be provided as follows: [1] Any person residing within, owning property within, or whose principal place of business is within 600 feet of the boundary of the parcel or parcels of land in which the nonmetallic mining site is located or proposed may request a public informational hearing. The City shall hold a public hearing if requested by any of these persons within 30 days of the actual date of public notice under Subsection A(1). [2] A public informational hearing shall be held no sooner than 30 days nor later than 60 days after being requested. The hearing shall be conducted as an informational hearing for the purpose of explaining and receiving comment from affected persons on the nature, feasibility and effects of the proposed reclamation. Notice of the public informational hearing shall follow the general notice procedures of D of the City Municipal Code. [3] The subject matter and testimony at this informational hearing shall be limited to reclamation of the nonmetallic mine site. B. (Reserved) Editor s Note: Former Subsection B, Existing mines, was repealed by Ord. No C. Local transportation-related mines. No public notice or informational hearing is required for a nonmetallic mining reclamation permit issued to a local transportation-related mine pursuant to E Issuance of nonmetallic mining reclamation permit. A. Permit required. Every operator of a nonmetallic mining site in the City who engages in or plans to engage in nonmetallic mining after September 1, 2001, shall obtain a reclamation permit issued under this section, except for nonmetallic mining sites that are exempt from this article under G(2). No person may engage in nonmetallic mining or nonmetallic mining reclamation after September 1, 2001, without a reclamation permit issued pursuant to this article. B. (Reserved) Editor s Note: Former Subsection B, Automatic permits for existing mines, was repealed by Ord. No C. (Reserved) Editor s Note: Former Subsection C, Evaluation of follow-up submittals for existing mines, was repealed by Ord. No D. Permit issuance for new mines. Applications for reclamation permits for nonmetallic mining sites not in operation on August 1, 2001, that satisfy D shall be issued a reclamation permit or otherwise acted on as provided below. (1) Unless denied pursuant to , the City shall approve in writing a request that satisfies the requirements of D to issue a nonmetallic mining reclamation permit for a nonmetallic mine where mining has not yet taken place before August 1, 2001, or an existing nonmetallic mine where mining is not taking place on or after August 1, (2) The City may not issue an approval without prior or concurrent approval of the reclamation plan that meets the requirements of The regulatory authority may issue a reclamation permit subject to conditions in Subsection G, if appropriate. The permit decision shall be made no sooner than 30 days nor later than 90 days following receipt of the complete reclamation permit application and reclamation plan pursuant to this article, unless a public hearing is held pursuant to If a public hearing is held, the regulatory authority shall issue the reclamation permit, subject to conditions pursuant to Subsection G, if appropriate, or shall deny the permit as provided in , no later than 60 days after completing the public hearing. (3) Permits issued pursuant to this subsection shall require compliance with a reclamation plan that has been approved and satisfies the requirements of and provision by the applicant of financial assurance required under and payable to the City prior to beginning mining. E. Automatic permit for local transportation-related mines. (1) The City shall automatically issue an expedited permit under this subsection to any borrow site that: (a) Will be opened and reclaimed under contract with the City within a period not exceeding 36 months; Page 219

220 (b) Is a nonmetallic mine which is intended to provide stone, soil, sand or gravel for the construction, reconstruction, maintenance or repair of a highway, railroad, airport facility or other transportation facility under contract with the City; (c) Is regulated and will be reclaimed under contract with the City in accordance with the requirements of the Wisconsin Department of Transportation concerning the restoration of nonmetallic mining sites; (d) Is not a commercial source; (e) Will be constructed, operated and reclaimed in accordance with applicable zoning requirements, if any; and (f) Is not otherwise exempt from the requirements of this article under G(2). (2) In this subsection, "municipality" has the meaning defined in (8), Wis. Stats. (3) Automatic permits shall be issued under this subsection in accordance with the following provisions: (a) The applicant shall notify the City of the terms and conditions of the contract with respect to reclamation of the proposed borrow site. (b) The applicant shall provide evidence to the City to show that the borrow site and its reclamation will comply with applicable zoning requirements, if any. (c) The City shall accept the contractual provisions incorporating requirements of the Wisconsin Department of Transportation in lieu of a reclamation plan under (d) The City shall accept the contractual provisions in lieu of the financial assurance requirements in (e) The public notice and hearing provisions of do not apply to nonmetallic mining sites that are issued automatic permits under this subsection. NOTE: Local public notice and hearing requirements, if any, regarding zoning decisions still apply. (f) Mines permitted under this subsection shall pay an annual fee to the City as provided in , but shall not be subject to the plan review fee provided in NOTE: Fees may not be assessed for local transportation-related mines permitted under this subsection under that are greater than allowed by NR (1)(g), Wis. Administrative Code. See the note following C for details of this fee limitation. (g) The City shall issue the automatic permit within seven days of the receipt of a complete application. (h) If the borrow site is used to concurrently supply materials for other than the local transportation project, the automatic permitting in this subsection still applies, provided the site will be reclaimed under a contractual obligation with the City in accordance with the Wisconsin Department of Transportation requirements. (i) Notwithstanding , the operator of a borrow site under this subsection is required to submit only the information in an annual report necessary to identify the borrow site and to determine the applicable annual fee. F. Expedited review. Any operator of a nonmetallic mining site may request expedited review of a reclamation permit application under Subsection F(1) or (2) as follows: (1) The operator may submit a request for expedited permit review with payment of the expedited review fee specified in B. This request shall state the need for such expedited review and the date by which such expedited review is requested. (2) The operator may submit a request for expedited review under this subsection if the applicant requires a reclamation permit to perform services under contract with the City. This request for expedited review shall state the need for expedited review and shall include a copy of the applicable sections of the contract and the date by which the expedited review is requested. (3) Following receipt of a request under this subsection, the City shall inform the applicant of the estimated date for decision on issuance of the permit. If the applicant then elects not to proceed with the expedited review, the fee paid under Subsection F(1) shall be returned. (4) Expedited review under this subsection shall not waive, shorten or otherwise affect the public notice and right of hearing pursuant to This subsection does not impose an obligation upon the regulatory authority to act upon a permit application under this subsection by a specific date. G. Permit conditions. Any decision under this section may include conditions as provided below: (1) The City may issue a reclamation permit or approve a reclamation plan subject to general or site-specific conditions if needed to assure compliance with the nonmetallic mining reclamation requirements of this article. Page 220

221 (2) One required condition of the issued permit shall be that the new mine obtain financial assurance pursuant to prior to beginning mining Permit denial. An application for a nonmetallic mining reclamation permit shall be denied as set forth below: A. An application to issue a nonmetallic mining reclamation permit shall be denied, within the time frame for permit issuance specified in , if the City finds any of the following: (1) The applicant has, after being given an opportunity to make corrections, failed to provide to the City an adequate permit application, reclamation plan, financial assurance or any other submittal required by Chapter NR 135, Wisconsin Administrative Code, or this article. (2) The proposed nonmetallic mining site cannot be reclaimed in compliance with the reclamation standards contained in this article, Chapter NR 135, Wisconsin Administrative Code, or Subchapter I of Ch. 295, Wis. Stats. (3) The applicant, or its agent, principal or predecessor has, during the course of nonmetallic mining in Wisconsin within 10 years of the permit application or modification request being considered, shown a pattern of serious violations of this article or of federal, state or local environmental laws related to nonmetallic mining reclamation. The following may be considered in making this determination of a pattern of serious violations: (a) Results of judicial or administrative proceedings involving the operator or its agent, principal or predecessor. (b) Suspensions or revocations of nonmetallic mining reclamation permits pursuant to this article, other reclamation ordinances or Chapter NR 135, Wisconsin Administrative Code. (c) Forfeitures of financial assurance. B. A denial under this subsection shall be in writing and shall contain documentation of reasons for denial. C. A decision to deny an application to issue a reclamation permit may be reviewed under Alternative requirements. A. Scope of alternative requirements approvable. An operator of a nonmetallic mining site may request an alternative requirement to the reclamation standard established in The City may approve an alternative requirement to the reclamation standards established in this article if the operator demonstrates and the City finds that all of the following criteria are met: (1) The nonmetallic mining site, the surrounding property or the mining plan or reclamation plan has a unique characteristic which requires an alternative requirement. (2) Unnecessary hardship which is peculiar to the nonmetallic mining site or plan will result unless the alternative requirement is approved. (3) Reclamation in accordance with the proposed alternative requirement will achieve the planned postmining land use and long-term site stability in a manner that will not cause environmental pollution or threaten public health, safety or welfare. B. Procedures. (1) The operator of a nonmetallic mining site requesting an alternate requirement in Subsection A shall demonstrate all the criteria in Subsection A. This shall be submitted in writing to the Department of Community Development by certified mail at: 3805 S. Casper Drive, New Berlin, WI (2) The City shall, within 90 days of receipt of the request, approve, conditionally approve or deny the request in writing, based on the City's determination of compliance with the criteria under Subsection A. The written response shall include reasons and documentation as to why the request was or was not approved. (3) A request for an alternative requirement may be incorporated as part of an application to issue or modify a nonmetallic mining reclamation permit. Page 221

222 C. Transmittal of decision on request for alternative requirement. The decision on a request for alternate reclamation requirements shall be in writing to the applicant and shall include documentation of why the alternate requirement was or was not approved. D. Notice to Wisconsin Department of Natural Resources. A copy of any written decision on alternative requirements shall be submitted to the Wisconsin Department of Natural Resources within 10 days of issuance Permit duration. A. A nonmetallic mining reclamation permit issued under this article shall last through operation and reclamation of the nonmetallic mining site, unless suspended or revoked pursuant to B. B. If the mine operator is not the landowner, the reclamation permit duration shall not exceed the duration of the mine lease unless the lease is renewed or the permit is transferred to a subsequent lessee pursuant to Permit transfer. A nonmetallic mining reclamation permit issued under this article shall be transferred to a new owner or operator upon satisfaction of the following conditions: A. A nonmetallic mining reclamation permit may be transferred to a new operator upon submittal to the City of proof of financial assurance and a certification in writing by the new permit holder that all conditions of the permit will be complied with. B. The transfer is not valid until financial assurance has been submitted by the new operator and accepted by the City and the City makes a written finding that all conditions of the permit will be complied with. The previous operator shall maintain financial assurance until the new operator has received approval and provided the financial assurance under this section Previously permitted sites. For any nonmetallic mining site which had a reclamation permit previously issued by another regulatory authority pursuant to Chapter NR 135, Wisconsin Administrative Code, that becomes subject to reclamation permitting authority of the City, the terms and conditions of the previously issued county reclamation permit shall remain in force until modified by the City pursuant to A Review. Any permitting decision or action made by the City under this article may be reviewed as set forth in this section. Notwithstanding , 68.03(8) and (9), and 68.10(1)(b), Wis. Stats., any person who meets the requirements of (1), Wis. Stats., may obtain a contested case hearing under 68.11, Wis. Stats., on the City 's decision to issue, deny or modify a nonmetallic mining reclamation permit Permit modification. A. By the City: A nonmetallic mining reclamation permit issued under this article may be modified by the City if it finds that, due to changing conditions, the nonmetallic mining site is no longer in compliance with Chapter NR 135, Wisconsin Administrative Code, or this article. Such modification shall be by an order modifying the permit in accordance with This modifying order may require the operator to amend or submit new application information, reclamation plan, proof of financial assurance or other information needed to ensure compliance with Chapter NR 135, Wisconsin Administrative Code, or this article. B. At the operator's option: If the operator of any nonmetallic mine that holds a reclamation permit issued under this article desires to modify such permit or reclamation plan approved under this article, it may request such modification by submitting a written application for such modification to the Department of Community Page 222

223 Development by certified mail at: 3805 S. Casper Drive, New Berlin, WI The application for permit or plan modification shall be acted on using the standards and procedures of this article. C. Required by the operator: The operator of any nonmetallic mine that holds a reclamation permit issued under this article shall request a modification of such permit if changes occur to the area to be mined, the nature of the planned reclamation, or other aspects of mining required by the reclamation plan approved pursuant to this article. Such application for permit modification shall be acted on using the standards and procedures of this article. NOTE: Modification of the permit must be requested by the operator in such circumstances under NR , Wisconsin Administrative Code. D. Review: All actions by the City on permit modifications requested or initiated under this section are subject to review under Permit suspension and revocation. A. Grounds. The City may suspend or revoke a nonmetallic mining reclamation permit issued pursuant to this article if it finds the operator has done any of the following: (1) Failed to submit a satisfactory reclamation plan within the time frames specified in this article. (2) Failed to submit or maintain financial assurance as required by this article. (3) Failed on a repetitive and significant basis to follow the approved reclamation plan. B. Procedures. If the City finds grounds for suspending or revoking a nonmetallic mining reclamation permit set forth in Subsection A, it may issue a special order suspending or revoking such permit as set forth in B. C. Consequences. (1) If the City makes any of the findings in Subsection A. it may suspend a nonmetallic mining reclamation permit for up to 30 days. During the time of suspension, the operator may not conduct nonmetallic mining at the site, except for reclamation or measures to protect human health and the environment as ordered by the regulatory authority pursuant to (2) If the City makes any of the findings in Subsection A, it may revoke a nonmetallic mining reclamation permit. Upon permit revocation, the operator shall forfeit the financial assurance it has provided pursuant to this article to the City. The City may use forfeited financial assurance to reclaim the site to the extent needed to comply with this article and the applicable reclamation ordinance Annual operator reporting. A. Contents and deadline. Annual reports that satisfy the requirements of this section shall be submitted by the operators of nonmetallic mining sites. (1) Contents. The annual report required by this section shall include all of the following: (a) The name and mailing address of the operator. (b) The location of the nonmetallic mining site, including legal description, tax key number or parcel identification number, if available. (c) The identification number of the applicable nonmetallic mining permit, if assigned by the City. (d) The acreage currently affected by nonmetallic mining extraction and not yet reclaimed. (e) The amount of acreage that has been reclaimed to date, on a permanent basis and the amount reclaimed on an interim basis. (f) A date-stamped aerial photo or other date-stamped orthophoto approved by the City, accurately showing the acreage described in Subsection A(1)(d) and (e). (g) A map, with a scale of 1:100 (one inch equals 100 feet) or other scale approved by the City, accurately showing the acreage described in Subsection A(1)(d) and (e) and visualized in Subsection A(1)(f). (h) The following certification, signed by the operator: Page 223

224 "I certify that this information is true and accurate, and that the nonmetallic mining site described herein complies with all conditions of the applicable nonmetallic mining reclamation permit and Chapter NR 135, Wisconsin Administrative Code." (2) Deadline. The annual report shall cover activities on unreclaimed acreage for the previous calendar year and be submitted by January 31. [Amended by Ord. No. 2366] (3) When reporting may end. Annual reports shall be submitted by an operator for all active and intermittent mining sites to the City for each calendar year until nonmetallic mining reclamation at the site is certified as complete pursuant to C or at the time of release of financial assurance pursuant to A(7). B. Inspection in lieu of report. The City may, at its discretion, obtain the information required in Subsection A for a calendar year by written documentation of an inspection it completes during a calendar year, as set forth in this subsection. If the City obtains and documents the required information, the annual report need not be submitted by the operator. If the City determines that the operator need not submit an annual report pursuant to this subsection, it shall advise the operator in writing at least 30 days before the end of the applicable calendar year. In that case, the City shall require the operator to submit the certification required in Subsection A(1)(g). C. Retention of annual reports. Annual reports submitted under Subsection A or inspection records that replace them under Subsection B shall be retained by the City within the Department of Community Development for at least 10 years after the calendar year to which they apply. These records, or complete and accurate copies of them, shall be made available to the Wisconsin Department of Natural Resources upon written request or during its inspection or audit activities carried out pursuant to Chapter NR 135, Wisconsin Administrative Code Plan review fees. Plan review application and appropriate fees shall be submitted to the Department of Community Development in person or via certified mail at: 3805 S. Casper Drive, New Berlin, WI A. Amount and applicability. A person who intends to operate a nonmetallic mining site for which a permit application has been submitted under D shall submit a nonrefundable plan review fee in accordance with the fee schedule shown in Table 4, NR (5), Wisconsin Administrative Code, Editor's Note: See Table 1 below. unless modified by the City through the budget review process. No plan review fee may be assessed under this section for any existing nonmetallic mine site for which an application for an automatic reclamation permit is submitted that meets the requirements of B or for any local transportationrelated mining receiving an automatic permit under E. A separate plan review fee shall be paid under this section for any modification to an existing reclamation plan submitted pursuant to TABLE 1 NR (5) Table 4 Annual Fees for New or Proposed Mines Proposed Mine Size Rounded to the Nearest Whole Acre (acres) One-Time Review Fee 1 to 25 $ to 50 $1, or more $1,500 B. Expedited plan review fee. Any permit applicant requesting expedited review by the City under F shall pay the expedited review fee of 1.5x, unless modified by the City through the annual budget process. Such fee shall be in addition to that required in A. C. Relation to annual fee. Any reclamation plan review fee or expedited reclamation plan review fee collected under this section shall be added to and collected as part of the first annual fee collected under Page 224

225 D. NOTE: Plan review fees collected under this section are required under (3)(e)1.a., Wis. Stats., to equal as closely as possible the cost of examination and approval of such plans. Section , Wis. Stats., requires the regulatory authority to use its fees only for the administration of its reclamation ordinance Annual fees. A. Areas subject to fees, procedures and deadline. (1) General. Operators of all nonmetallic mining sites subject to reclamation permits issued under this article shall pay annual fees to the City of New Berlin, to the attention of the Department of Community Development, by certified mail at: 3805 S. Casper Drive, New Berlin, WI Fees paid under this section shall include both a share for the Wisconsin Department of Natural Resources under Subsection B and a share for the City under Subsection C that equals as closely as possible the costs of examination and approval of nonmetallic mining reclamation plans and the inspection of nonmetallic mining sites. (2) Areas subject to fees. Fees paid under this section shall be calculated by the City based on the number of unreclaimed acres, as defined in , present on a nonmetallic mining site at the end of each calendar year. For new or reopened mines that submit a reclamation permit application under D, the first year's annual fee shall be based upon the unreclaimed acres which are anticipated at the end of that calendar year. (3) Procedures and deadlines. Fees assessed pursuant to this section shall be paid to the City no later than December 31 for the subsequent year, except when required at the time of permit application under B and D. (4) Fees prior to reclamation certification. If reclamation has already occurred on portions of a nonmetallic mining site, the fees for such portions may be submitted with a request that they be held by the City pending certification of completed reclamation pursuant to B. Upon such certification, the City shall refund that portion of the annual fee that applies to the reclaimed areas. B. Wisconsin Department of Natural Resources' share of fee. (1) Fees paid under this section shall include a share for the Wisconsin Department of Natural Resources equal to the amount specified in Table 1, and NR (3) Wisconsin Administrative Code NR 135. Editor's Note: See Table 2 below. This share of the fees shall be used to support the Department's statewide cost to inspect, enforce, consult with and audit local nonmetallic mining reclamation programs under NR 135. [Amended by Ord. No. 2366] TABLE 2 NR (3) Table 1 Wisconsin Department of Natural Resources' Share of Annual Fees Collected by the City of New Berlin Mine Size in Unreclaimed Acres Rounded to the Nearest Whole Acre (acres) Annual Fee 1 to 5 $35 (does not include mines less than one acre) 6 to 10 $70 11 to 15 $ to 25 $ to 50 $ or larger $175 (2) For nonmetallic mining sites at which no nonmetallic mining has taken place during a calendar year, the share for the Wisconsin Department of Natural Resources shall be $15. Page 225

226 (3) The City of New Berlin shall forward fees collected under this subsection to the Wisconsin Department of Natural Resources by March 31 of the year for which they were collected. C. The City's share of fee. Fees paid under this section shall also include an annual fee due to the City, which shall be as shown in Table 2, and NR (5), Wisconsin Administrative Code, unless modified by the City through the annual budget process. By state law, City fees under this section may only be used to support reasonable expenses associated with administration of this article. TABLE 3 NR (4) Table 2 City of New Berlin Annual Fees Mine Size in Unreclaimed Acres Rounded to the Nearest Whole Acre (acres) Annual Fee 1 to 5 $450 (does not include mines less than one acre) 6 to 10 $ to 15 $ to 25 $1, to 50 $1, or larger $1,250 TABLE 4 NR (4) Table 3 Limit on Total Annual Fees For Automatically Permitted Local Transportation Project-Related Mines Mine Size in Unreclaimed Acres Rounded to the Nearest Whole Acre (acres) Annual Fee 1 to 5 $150 (does not include mines less than one acre) 6 to 10 $ to 15 $ to 25 $ to 50 $ or larger $750 D. Reduced fee for inactive mines. Any site (greater than one acre) on which no metallic mining activity has taken place in a calendar year shall be assessed a fee of $100 for the following calendar year Regulatory reporting and documentation. A. Reporting. The City shall send an annual report to the Wisconsin Department of Natural Resources by March 31 of each calendar year. The reports shall include the following information for the previous year's nonmetallic mining reclamation program: (1) The total number of nonmetallic mining reclamation permits in effect. Page 226

227 (2) The number of new permits issued within the jurisdiction of the City. (3) The number of acres approved for nonmetallic mining and the number of acres newly approved in the previous year. (4) The number of acres being mined or unreclaimed acres. [Amended by Ord. No. 2366] (5) The number of acres that have been reclaimed and have had financial assurance released pursuant to A(7). (6) The number of acres that are reclaimed and awaiting release from the financial assurance requirements of this article pursuant to A and B. (7) The number and nature of alternative requirements granted, permit modifications, violations, public hearings, enforcement actions, penalties that have been assessed and bond or financial assurance forfeitures. B. Documentation. The City shall, to the best of its ability, maintain the information set forth below and make it available to the Wisconsin Department of Natural Resources for that agency's audit of the City's reclamation program pursuant to Chapter NR 135, Wisconsin Administrative Code: (1) Documentation of compliance with Chapter NR 135, Wisconsin Administrative Code, and this article. (2) The procedures employed by the City regarding reclamation plan review, and the issuance and modification of permits. (3) The methods for review of annual reports received from operators. (4) The method and effectiveness of fee collection. (5) Procedures to accurately forward the Wisconsin Department of Natural Resources' portion of collected fees in a timely fashion. (6) Methods for conducting on-site compliance inspections and attendant reports, records and enforcement actions. (7) Responses to citizen complaints. (8) The method of and accuracy in determining the amount of the financial assurance obtained from the operator to guarantee reclamation performance. (9) The maintenance and availability of records. (10) The number and type of approvals for alternative requirements issued pursuant to (11) The method of determining the success of reclamation in meeting the criteria contained in the reclamation plan and subsequently releasing the financial assurance pursuant to A(7). (12) Any changes in local regulations, ordinances, funding and staffing mechanisms or any other factor which might affect the ability of the City to implement its nonmetallic mining reclamation program under this article. (13) The amount of fees collected in comparison to the amount of money actually expended for nonmetallic mining reclamation program administration. (14) Any other performance criterion necessary to ascertain compliance with Chapter NR 135, Wisconsin Administrative Code Completed reclamation: reporting, certification and effect. A. Reporting of completed reclamation. The operator of a nonmetallic mining site may report to the City completion of reclamation or interim reclamation for a portion of, or all of, the nonmetallic mining site pursuant to a reclamation plan prepared and approved pursuant to this article. Any report under this subsection shall be made on a form provided by the City. B. Certification of completed reclamation. (1) The City shall inspect a nonmetallic mining site for which reporting of reclamation or interim reclamation has been submitted pursuant to this subsection within 60 days of receipt and make a determination in writing of one of the following: (a) Reclamation or interim reclamation is not yet complete; (b) It is not possible to assess whether reclamation or interim reclamation is complete due to weather conditions, snow cover or other relevant factors; (c) Reclamation or interim reclamation is complete in a part of the mine; or (d) Reclamation or interim reclamation is fully complete. Page 227

228 (2) If it is determined under Subsection B(1) that reclamation or interim reclamation is complete, including revegetation as specified in a reclamation plan that conforms with the standards contained in H, the City shall issue the mine operator a written certificate of completion for the applicable area. C. Effect of completed reclamation. If reclamation is certified by the City as complete under Subsection B for part or all of a nonmetallic mining site, then: (1) No fee shall be assessed under for the area so certified. (2) The financial assurance required by shall be released or appropriately reduced in the case of completion of reclamation for a portion of the mining site. (3) For sites which are certified as interim reclaimed under Subsection B, financial assurance for reclaiming the certified area may be reduced only if the City determines that the balance is sufficient to ensure final reclamation of the entire site. D. Effect of inaction following report of completed reclamation. If no written response as required by Subsection B for an area of the mine site reported as reclaimed or interim reclaimed is given within 60 days of receiving such request, any annual fee paid to the City for it under shall be refunded Permit termination. When all final reclamation required by a reclamation plan conforming to and required by this article is certified as complete pursuant to A(7) and B, the City shall issue a written statement to the operator of the nonmetallic mining site, thereby terminating the reclamation permit Right of entry and inspection. For the purpose of ascertaining compliance with the provisions of Subchapter I of Chapter 295, Wis. Stats., Chapter NR 135, Wisconsin Administrative Code, or this article, any authorized officer, agent, employee or representative of the City may inspect any nonmetallic mining site subject to this article as provided below: A. No person may refuse entry or access onto a nonmetallic mining site of a duly authorized officer, employee or agent of the City or the Wisconsin Department of Natural Resources who presents appropriate credentials to inspect the site for compliance with the nonmetallic mining reclamation permit, this article, Chapter NR 135, Wisconsin Administrative Code, or Subchapter I of Ch. 295, Wis. Stats. B. Any person who enters the site under this right of inspection shall obtain training and provide their own safety equipment needed to comply with any federal, state or local laws or regulations controlling persons on the nonmetallic mining site Orders and citations. A. Enforcement orders. The City may issue orders as set forth in (1)(a), Wis. Stats., to enforce Subchapter I of Chapter 295, Wis. Stats., Chapter NR 135, Wisconsin Administrative Code, this article, a permit issued pursuant to this article or a reclamation plan required by and a permit issued under this article. A violation of this article, an order or permit issued pursuant to this article or a reclamation plan required by and a permit issued under this article shall be considered a violation of Subchapter I of Chapter 295, Wis. Stats., and Chapter NR 135, Wisconsin Administrative Code. B. Special orders. The City may issue a special order as set forth in (1)(b) and (c), Wis. Stats., suspending or revoking a nonmetallic mining reclamation permit pursuant to , or directing an operator to immediately cease an activity regulated under Subchapter I of Chapter 295, Wis. Stats., Chapter NR 135, Wisconsin Administrative Code, or this article until the necessary plan approval is obtained. C. Review of orders. A person holding a reclamation permit who is subject to an order pursuant this section shall have the right to review the order in a contested case hearing under 68.11, Wis. Stats., notwithstanding the provisions of , 68.03(8) and (9), and 68.10(1)(b), Wis. Stats. D. Citations. The City may issue a citation under , Wis. Stats., and 1-18 of the City of New Berlin Municipal Code to collect forfeitures to enforce Subchapter I of Chapter 295, Wis. Stats., Chapter NR 135, Page 228

229 Wisconsin Administrative Code, this article, a permit issued pursuant to this article or a reclamation plan required by and a permit issued under this article. The issuance of a citation under this subsection shall not preclude proceeding under any other ordinance or law relating to the same or any other matter. Proceeding under any other ordinance or law relating to the same or any other matter shall not preclude the issuance of a citation under this subsection. E. Enforcement. The City may submit any order issued under to abate violations of this article to a district attorney, corporation counsel, municipal attorney or the attorney general for enforcement. The district attorney, corporation counsel, municipal attorney or the attorney general may enforce those orders Violations and penalties. Any violation of Subchapter I of Chapter 295, Wis. Stats., Chapter NR 135, Wisconsin Administrative Code, this article, a permit issued pursuant to this article or a reclamation plan required by and a permit issued under this article may result in forfeitures as provided in (3), Wis. Stats., as follows: A. Any person who violates Chapter NR 135, Wisconsin Administrative Code, or an order issued under may be required to forfeit not less than $25 nor more than $1,000 for each violation. Each day of continued violation is a separate offense. While an order issued under is suspended, stayed or enjoined, this penalty does not accrue. B. Except for the violations referred to in Subsection A, any person who violates Subchapter I of Ch. 295, Wis. Stats., Chapter NR 135, Wisconsin Administrative Code, any reclamation plan approved pursuant to this article or an order issued pursuant to shall forfeit not less than $10 nor more than $5,000 for each violation. Each day of violation is a separate offense. While an order issued under is suspended, stayed or enjoined, this penalty does not accrue. Page 229

230 ARTICLE IXA Floodplain Zoning [Added by Ord. No. 2296] Statutory authorization, finding of fact, statement of purpose, title and general provisions. A. Statutory authorization. This article is adopted pursuant to the authorization in and Wis. Stats. and the requirements in 87.30, Wis. Stats. B. Finding of fact. Uncontrolled development and use of the floodplains and rivers of this municipality would impair the public health, safety, convenience, general welfare and tax base. C. Statement of purpose. This article is intended to regulate floodplain development to: (1) Protect life, health and property; (2) Minimize expenditures of public funds for flood control projects; (3) Minimize rescue and relief efforts undertaken at the expense of the taxpayers; (4) Minimize business interruptions and other economic disruptions; (5) Minimize damage to public facilities in the floodplain; (6) Minimize the occurrence of future flood blight areas in the floodplain; (7) Discourage the victimization of unwary land and home buyers; (8) Prevent increases in flood heights that could increase flood damage and result in conflicts between property owners; and (9) Discourage development in a floodplain if there is any practicable alternative to locate the activity, use or structure outside of the floodplain. D. Title. This article shall be known as the "Floodplain Zoning Ordinance for the City of New Berlin, Wisconsin." E. General provisions. (1) Areas to be regulated. This article regulates all areas that would be covered by the regional flood or base flood as shown on the Flood Insurance Rate Map (FIRM) or other maps approved by DNR. Base flood elevations are derived from the flood profiles in the Flood Insurance Study (FIS) and are shown as AE, A1-30, and AH Zones on the FIRM. Other regulatory zones are displayed as A and AO zones. Regional Flood Elevations (RFE) may be derived from other studies. If more than one map or revision is referenced, the most restrictive information shall apply. (2) Official maps and revisions. The boundaries of all floodplain districts are designated as A, AE, AH, AO or A1-30 on the maps based on the Flood Insurance Study (FIS) listed below. Any change to the base flood elevations (BFE) in the Flood Insurance Study (FIS) or any changes to the boundaries of the floodplain or floodway in the FIS or on the Flood Insurance Rate Map (FIRM) must be reviewed and approved by the DNR and FEMA through the Letter of Map Change Process (see Section ) before it is effective. No changes to regional flood elevations (RFEs) on non-fema maps shall be effective until approved by the DNR. These maps and revisions are on file in the office of the Department of Community Development, City of New Berlin. If more than one map or revision is referenced, the most current restrictive shall apply. (a) Based on the FIS: [1] Flood Insurance Rate Map (FIRM), panel numbers 55133C0218F, 55133C0219F, 55133C0238F, 55133C0239F, 55133C0327F, 55133C0329F, 55133C0331F, 55133C0332F, 55133C0334F, 55133C0342F, 55133C0351F, 55133C0352F, 55133C0353F, 55133C0354F, 55133C0361F and 55133C0362F, dated November 19, 2008 with corresponding profiles that are based on the Waukesha County Flood Insurance Study (FIS) dated November 19, 2008, volumes 55133CV001A-003A. Said panels with corresponding profiles that are based on the Waukesha County Flood Insurance Rate Study dated November 19, 2008, are hereby incorporated in the City of New Berlin Floodplain Ordinance and the Floodplain Districts as set forth in Section through as well as the City of New Berlin Zoning Map. Page 230

231 (b) Maps based upon other studies. Any maps referenced in this section must be approved by the DNR and be more restrictive than those based on the FIS at the site of the proposed development: [1] Any 100-year dam failure analyses as approved from time to time by the DNR and FEMA. [2] All DNR- and FEMA-approved floodplain maps, flood profiles, floodway data tables, regional or base flood elevations, Letters of Map Amendments, Letters of Map Revisions and other information are on file in the office of the Department of Community Development, City of New Berlin. (3) Establishment of floodplain zoning districts. The regional floodplain areas are divided into four districts as follows: (a) The Floodway District (FW) is the channel of a river or stream and those portions of the floodplain adjoining the channel required to carry the regional floodwaters and are contained within AE Zones as shown on the FIRM. (b) The Floodfringe District (FF) is that portion of the floodplain between the regional flood limits and the floodway and displayed as AE Zones on the FIRM. (c) The General Floodplain District (GFP) is those areas that have been or may be covered by floodwater during the regional flood and does not have a BFE or floodway boundary determined, including A, AH, and AO zones on the FIRM. (d) The Flood Storage District (FSD) is that area of the floodplain where storage of floodwaters is calculated to reduce the regional flood discharge. (4) Locating floodplain boundaries. Discrepancies between boundaries on the official floodplain zoning map and actual field conditions shall be resolved using the criteria in Subsection E(4)(a) or (b) below. If a significant difference exists, the map shall be amended according to Section The Director can rely on a boundary derived from a profile elevation to grant or deny a land use permit, whether or not a map amendment is required. The Director shall be responsible for documenting actual predevelopment field conditions and the basis upon which the district boundary was determined and for initiating any map amendments required under this section. Disputes between the Director and an applicant over the district boundary line shall be settled according to Section C(3) and the criteria in Subsection E(4)(a) and (b) below. Where the flood profiles are based on established base flood elevations from the FIRM, FEMA must approve any map amendment or revision pursuant to section (a) If flood profiles exist, the map scale and the profile elevations shall determine the district boundary. The regional or base flood elevations shall govern if there are any discrepancies. (b) Where flood profiles do not exist, the location of the boundary shall be determined by the map scale. (5) Removal of lands from floodplain. Compliance with the provisions of this article shall not be grounds for removing land from the floodplain unless it is filled at least two feet above the regional or base flood elevation, the fill is contiguous to land outside the floodplain, and the map is amended pursuant to Section Note: This procedure does not remove the requirements for the mandatory purchase of flood insurance. The property owner must contact FEMA to request a letter of map change (LOMC). (6) Compliance. Any development or use within the areas regulated by this article shall be in compliance with the terms of this article, and other applicable local, state, and federal regulations. (7) Municipalities and state agencies regulated. Unless specifically exempted by law, all cities, villages, towns, and counties are required to comply with this article and obtain all necessary permits. State agencies are required to comply if 13.48(13), Wis. Stats., applies. The construction, reconstruction, maintenance and repair of state highways and bridges by the Wisconsin Department of Transportation is exempt when , Wis. Stats., applies. (8) Abrogation and greater restrictions. (a) This article supersedes all the provisions of any municipal zoning ordinance enacted under or 87.30, Wis. Stats., which relate to floodplains. If another ordinance is more restrictive than this article, that ordinance shall continue in full force and effect to the extent of the greater restrictions, but not otherwise. (b) This article is not intended to repeal, abrogate or impair any existing deed restrictions, covenants or easements. If this article imposes greater restrictions, the provisions of this article shall prevail. (9) Interpretation. In their interpretation and application, the provisions of this article are the minimum requirements liberally construed in favor of the governing body and are not a limitation on or repeal of any other powers granted by the Wisconsin Statutes. If a provision of this article, required by ch. NR 116, Wis. Adm. Code, is unclear, the provision shall be interpreted in light of the standards in effect on the date of the adoption of this article or in effect on the date of the most recent text amendment to this article. Page 231

232 (10) Warning and disclaimer of liability. The flood protection standards in this article are based on engineering experience and research. Larger floods may occur or the flood height may be increased by man-made or natural causes. This article does not imply or guarantee that non-floodplain areas or permitted floodplain uses will be free from flooding and flood damages. This article does not create liability on the part of, or a cause of action against, the municipality or any officer or employee thereof for any flood damage that may result from reliance on this article. (11) Severability. Should any portion of this article be declared unconstitutional or invalid by a court of competent jurisdiction, the remainder of this article shall not be affected. (12) Annexed areas for cities and villages. The Waukesha County floodplain zoning provisions in effect on the date of annexation shall remain in effect and shall be enforced by the municipality for all annexed areas until the municipality adopts and enforces an ordinance which meets the requirements of ch. NR 116, Wis. Adm. Code, and 44 CFR 59-72, National Flood Insurance Program (NFIP). These annexed lands are described on the municipality's official Zoning Map. County floodplain zoning provisions are incorporated by reference for the purpose of administering this section and are on file in the office of the municipal Director. All plats or maps of annexation shall show the regional flood elevation and the location of the floodway General standards applicable to all floodplain districts. The community shall review all permit applications to determine whether proposed building sites will be reasonably safe from flooding. If a proposed building site is in a flood-prone area, all new construction and substantial improvements shall be designed or modified and adequately anchored to prevent flotation, collapse, or lateral movement of the structure resulting from hydrodynamic and hydrostatic loads; be constructed with materials resistant to flood damage; be constructed by methods and practices that minimize flood damages; and be constructed with electrical, heating, ventilation, plumbing, and air-conditioning equipment and other service facilities designed and/or located so as to prevent water from entering or accumulating within the components during condition of flooding. Subdivisions shall be reviewed for compliance with the above standards. All subdivision proposals (including manufactured home parks) shall include regional flood elevation and floodway data for any development that meets the subdivision definition of this article and all other requirements in section A.(2). A. Hydraulic and hydrologic analyses. (1) No floodplain development shall: (a) Obstruct flow, defined as development which blocks the conveyance of floodwaters by itself or with other development, causing any increase in the regional flood height; or (b) Cause any increase in the regional flood height due to floodplain storage area lost. (2) The Director shall deny permits if it is determined the proposed development will obstruct flow or cause any increase in the regional flood height, based on the officially adopted FIRM or other adopted map, unless the provisions of section are met. B. Watercourse alterations. No land use permit to alter or relocate a watercourse in a mapped floodplain shall be issued until the local official has notified in writing all adjacent municipalities, the Department and FEMA regional offices and required the applicant to secure all necessary state and federal permits. The standards of A must be met and the flood-carrying capacity of any altered or relocated watercourse shall be maintained. As soon as is practicable, but not later than six months after the date of the watercourse alteration or relocation and pursuant to section , the applicant shall apply, with community acknowledgement, for a Letter of Map Revision (LOMR) from FEMA. Any such alterations must be reviewed and approved by FEMA and the DNR through the LOMC process. C. Chapter 30, 31, Wis. Stats., development. Development which requires a permit from the Department, under chs. 30 and 31, Wis. Stats., such as docks, piers, wharves, bridges, culverts, dams and navigational aids, may be allowed if the necessary permits are obtained and amendments to the floodplain zoning ordinance are made according to Section Page 232

233 D. Public or private campgrounds. Public or private campgrounds shall have a low flood damage potential and shall meet the following provisions: (1) The campground is approved by the Department of Health Services; (2) A land use permit for the campground is issued by the Director; (3) The character of the river system and the elevation of the campground are such that a seventy-two-hour warning of an impending flood can be given to all campground occupants; (4) There is an adequate flood warning procedure for the campground that offers the minimum notice required under this section to all person in the campground. This procedure shall include a written agreement between the campground owner, the municipal emergency government coordinator and the chief law enforcement official which specifies the flood elevation at which evacuation shall occur, personnel responsible for monitoring flood elevations, types of warning systems to be used and the procedure for notifying at-risk parties, and the methods and personnel responsible for conducting the evacuation; (5) This agreement shall be for no more than one calendar year, at which time the agreement shall be reviewed and updated, by the officials identified in Subsection D(4), to remain in compliance with all applicable regulations, including those of the State Department of Health Services and all other applicable regulations; (6) Only camping units that are fully licensed, if required, and ready for highway use are allowed; (7) The camping units shall not occupy any site in the campground for more than 180 consecutive days, at which time the camping unit must be removed from the floodplain for a minimum of 24 hours; (8) All camping units that remain on site for more than 30 days shall be issued a limited authorization by the campground operator, a written copy of which is kept on file at the campground. Such authorization shall allow placement of a camping unit for a period not to exceed 180 days and shall ensure compliance with all the provisions of this section; (9) The municipality shall monitor the limited authorizations issued by the campground operator to assure compliance with the terms of this section; (10) All camping units that remain in place for more than 180 consecutive days must meet the applicable requirements in either Section , or for the floodplain district in which the structure is located; (11) The campground shall have signs clearly posted at all entrances warning of the flood hazard and the procedures for evacuation when a flood warning is issued; and (12) All service facilities, including but not limited to refuse collection, electrical service, gas lines, propane tanks, sewage systems and wells, shall be properly anchored and placed at or floodproofed to the flood protection elevation Floodway District (FW). A. Applicability. This section applies to all floodway areas on the floodplain zoning maps and those identified pursuant to Section A(4). B. Permitted uses. The following open space uses are allowed in the Floodway District and the floodway areas of the general Floodplain District, if: they are not prohibited by any other ordinance; they meet the standards in Subsections C and D; and all permits or certificates have been issued according to Section A: (1) Agricultural uses, such as farming, outdoor plant nurseries, horticulture, viticulture and wild crop harvesting. (2) Nonstructural industrial and commercial uses, such as loading areas, parking areas and airport landing strips. (3) Nonstructural recreational uses, such as golf courses, tennis courts, archery ranges, picnic grounds, boat ramps, swimming areas, parks, wildlife and nature preserves, game farms, fish hatcheries, shooting, trap and skeet activities, hunting and fishing areas and hiking and horseback riding trails, subject to the fill limitations of Subsection C(4). (4) Uses or structures accessory to open space uses, or classified as historic structures that comply with Subsections C and D. (5) Public utilities, streets and bridges that comply with Subsection C(3). (6) Extraction of sand, gravel or other materials that comply with Subsection C(4). Page 233

234 (7) Functionally water-dependent uses, such as docks, piers or wharves, dams, flowage areas, culverts, navigational aids and river crossings of transmission lines, and pipelines that comply with chs. 30, 31 Wis. Stats. C. Standards for developments in floodway areas. (1) General. (a) Any development in floodway areas shall comply with Section and have a low flood damage potential. (b) Applicants shall provide the following data to determine the effects of the proposal according to Section A: [1] A cross-section elevation view of the proposal, perpendicular to the watercourse, showing if the proposed development will obstruct flow; or [2] An analysis calculating the effects of this proposal on regional flood height. (c) The Director shall deny the permit application if the project will cause any increase in flood elevations upstream or downstream, based on the data submitted for Subsection (b) above. (2) Structures. Structures accessory to permanent open space uses or functionally dependent on a waterfront location may be allowed by permit if the structures comply with the following criteria: (a) The structure is not designed for human habitation and does not have a high flood damage potential and is constructed to minimize flood damage; (b) Shall have a minimum of two openings on different walls having a total net area not less than one square inch for every square foot of enclosed are, and the bottom of all such openings being no higher than one foot above grade. The opening shall be equipped with screens, louvers, or other coverings or devices provided that they permit the automatic entry and exit of floodwaters; (c) They must be anchored to resist flotation, collapse and lateral movement; (d) Mechanical and utility equipment must be elevated to, or floodproofed to or above, the flood protection elevation; and (e) They must not obstruct the flow of floodwaters or cause any increase in flood levels during the occurrence of the regional flood. (3) Public utilities, streets and bridges. Public utilities, streets and bridges may be allowed by permit if: (a) Adequate floodproofing measures are provided to the flood protection elevation; and (b) Construction meets the development standards of Section A. (4) Fills or deposition of material. Fills or deposition of materials may be allowed by permit if: (a) The requirements of Section A are met; (b) No material is deposited in navigable waters unless a permit is issued by the Department pursuant to ch. 30 Wis. Stats., and a permit pursuant to 404 of the Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C has been issued, if applicable, and all other requirements have been met; (c) The fill or other materials will be protected against erosion by riprap, vegetative cover, sheet piling or bulkheading; and (d) The fill is not classified as a solid or hazardous material. D. Prohibited uses. All uses not listed as permitted uses in Subsection B are prohibited, including the following uses: (1) Habitable structures, structures with high flood damage potential, or those not associated with permanent open-space uses; (2) Storing materials that are buoyant, flammable, explosive, injurious to property, water quality, or human, animal, plant, fish or other aquatic life; (3) Uses not in harmony with or detrimental to uses permitted in the adjoining districts; (4) Any private or public sewage systems, except potable latrines that are removed prior to flooding and systems associated with recreational areas and Department-approved campgrounds that meet the applicable provisions of local ordinances and ch. SPS 383, Wis. Adm. Code; (5) Any public or private wells which are used to obtain potable water, except those for recreational areas that meet the requirements of local ordinances and chs. NR 811 and NR 812, Wis. Adm. Code. (6) Any solid or hazardous waste disposal sites; (7) Any wastewater treatment ponds or facilities, except those permitted under NR (3)(b), Wis. Adm. Code; and Page 234

235 (8) Any sanitary sewer or water supply lines, except those to service exiting or proposed development located outside the floodway which complies with the regulations for the floodplain area occupied Floodfringe District (FF). A. Applicability. This section applies to all floodfringe areas shown on the floodplain zoning maps and those identified pursuant to Section A(4). B. Permitted uses. Any structure, land use, or development is allowed in the Floodfringe District if the standards in Subsection C are met, the use is not prohibited by this or any other ordinance or regulation and all permits or certificates specified in Section A have been issued. C. Standards for development in floodfringe areas. Section A shall apply in addition to the following requirements according to the use requested. Any existing structure in the floodfringe must meet the requirements of Section : (1) Residential uses. Any structure, including a manufactured home, which is to be newly constructed or moved into the floodfringe area, shall meet or exceed the following standards. Any existing structure in the floodfringe must meet the requirements of Section : (a) The elevation of the lowest floor shall be at or above the flood protection elevation on fill unless the requirement of Subsection (b) below can be met. The fill shall be one foot or more above the regional flood elevation extending at least 15 feet beyond the limits of the structure. (b) The basement or crawlway floor may be placed at the regional flood elevation if it is dry floodproofed to the flood protection elevation. No basement or crawlway floor is allowed below the regional flood elevation. (c) Contiguous dryland access shall be provided from a structure to land outside of the floodplain, except as provided in Subsection (d). (d) In developments where existing street or sewer line elevations make compliance with Subsection (c) impractical, the municipality may permit new development and substantial improvements where access roads are at or below the regional flood elevation, if: [1] The municipality has written assurance from police, fire and emergency services that rescue and relief will be provided to the structure(s) by wheeled vehicles during a regional flood event; or [2] The municipality has a DNR-approved emergency evacuation plan. (2) Accessory structures or uses. Accessory structures shall be constructed on fill with the lowest floor at or above the regional flood elevation. (3) Commercial uses. Any commercial structure which is erected, altered or moved into the floodfringe area shall meet the requirements of Subsection C(1). Subject to the requirements of Subsection C(5), storage yards, surface parking lots and other such uses may be placed at lower elevations if an adequate warning system exists to protect life and property. (4) Manufacturing and industrial uses. Any manufacturing or industrial structure which is erected, altered or moved into the floodfringe area shall have the lowest floor elevated to or above the flood protection elevation or meet the floodproofing standards in Section E. Subject to the requirements of Subsection C(5), storage yards, surface parking lots and other such uses may be placed at lower elevations if an adequate warning system exists to protect life and property. (5) Storage of materials. Materials that are buoyant, flammable, explosive, or injurious to property, water quality or human, animal, plant, fish or aquatic life shall be stored at or above the flood protection elevation or floodproofed in compliance with Section E. Adequate measures shall be taken to ensure that such materials will not enter the water body during flooding. (6) Public utilities, streets and bridges. All utilities, streets and bridges shall be designed to be compatible with comprehensive floodplain development plans; and: (a) When failure of public utilities, streets and bridges would endanger public health or safety, or where such facilities are deemed essential, construction or repair of such facilities shall only be permitted if they are designed to comply with Section E; (b) Minor roads or nonessential utilities may be constructed at lower elevations if they are designed to withstand flood forces to the regional flood elevation. (7) Sewage systems. All sewage disposal systems shall be designed to minimize or eliminate infiltration of flood water into the system, pursuant to Section E(3), to the flood protection elevation and shall meet the provisions of all local ordinances and ch. SPS 383, Wis. Adm. Code. Page 235

236 (8) Wells. All wells shall be designed to minimize or eliminate infiltration of flood waters into the system, pursuant to Section E(3), to the flood protection elevation and shall meet the provisions of chs. NR 811 and NR 812, Wis. Adm. Code. (9) Solid waste disposal sites. Disposal of solid or hazardous waste is prohibited in floodfringe areas. (10) Deposition of materials. Any deposited material must meet all the provisions of this article. (11) Manufactured homes. Owners or operators of all manufactured home parks and subdivisions shall provide adequate surface drainage to minimize flood damage, and prepare, secure approval and file an evacuation plan, indicating vehicular access and escape routes, with local emergency management authorities. (a) In existing manufactured home parks, all new homes, replacement homes on existing pads, and substantially improved homes shall: [1] Have the lowest floor elevated to the flood protection elevation; and [2] Be anchored so they do not float, collapse or move laterally during a flood. (b) Outside of existing manufactured home parks, including new manufactured home parks and all single units outside of existing parks, all new, replacement and substantially improved manufactured homes shall meet the residential development standards for the floodfringe in Subsection C(1). (12) Mobile recreational vehicles. All mobile recreational vehicles that are on site for 180 consecutive days or more or are not fully licensed and ready for highway use shall meet the elevation and anchoring requirements in Subsection C(11)(a) and (b). A mobile recreational vehicle is ready for highway use if it is on its wheels or jacking system, is attached to the site only by quick-disconnect utilities and security devices and has no permanently attached additions Other floodplain districts. Other floodplain districts may be established under this chapter and reflected on the floodplain zoning map. These districts may include General Floodplain Districts and Flood Storage Districts. A. General Floodplain District (GFP). (1) Applicability. The provisions for this district shall apply to all floodplains mapped as A, AO, or AH zones. (2) Permitted uses. Pursuant to Subsection A(4), it shall be determined whether the proposed use is located within a floodway or floodfringe area. Those uses permitted in floodway (Section B) and floodfringe areas (Section B) are allowed within the general floodplain district, according to the standards of Subsection (3), provided that all permits or certificates required under Section A have been issued. (3) Standards for development in the General Floodplain District. Section applies to floodway areas; Section applies to floodfringe areas. The rest of this article applies to either district. (a) In AO/AH Zones the structure s lowest floor must meet one of the conditions listed below whichever is higher: [1] at or above the flood protection elevation; or [2] two (2) feet above the highest adjacent grade around the structure; or [3] the depth as shown on the FIRM. (b) In AO/AH zones, provide plans showing adequate drainage paths to guide floodwaters around structures. (4) Determining floodway and floodfringe limits. Upon receiving an application for development within the General Floodplain District, the Director shall: (a) Require the applicant to submit two copies of an aerial photograph or a plan which shows the proposed development with respect to the General Floodplain District limits, stream channel, and existing floodplain developments, along with a legal description of the property, fill limits and elevations, building floor elevations and floodproofing measures; and the flood zone as shown on the FIRM. (b) Require the applicant to furnish any of the following information deemed necessary by the Department to evaluate the effects of the proposal upon flood height and flood flows, regional flood elevation and to determine floodway boundaries: [1] A Hydrologic and Hydraulic Study as specified in Section A(2)(c); [2] Plan (surface view) showing elevations or contours of the ground; pertinent structure, fill or storage elevations; size, location and layout of all proposed and existing structures on the site; Page 236

237 location and elevations of streets, water supply, and sanitary facilities; soil types and other pertinent information; [3] Specifications for building construction and materials, floodproofing, filling, dredging, channel improvement, storage, water supply and sanitary facilities. B. Flood Storage District. The flood storage district delineates that portion of the floodplain where storage of floodwaters has been taken into account and is relied upon to reduce the regional flood discharge. The district protects the flood storage areas and assures that any development in the storage areas will not decrease the effective flood storage capacity which would cause higher flood elevations. (1) Applicability. The provisions of this subsection apply to all areas within the Flood Storage District (FSD), as shown on the official floodplain zoning maps. (2) Permitted uses. Any use or development which occurs in a Flood Storage District must meet the applicable requirements in Section C. (3) Standards for development in Flood Storage Districts. (a) Development in a Flood Storage District shall not cause an increase equal or greater than 0.00 foot in the height of the regional flood. (b) No development shall be allowed which removes flood storage volume unless an equal volume of storage as defined by the predevelopment ground surface and the regional flood elevation shall be provided in the immediate area of the proposed development to compensate for the volume of storage which is lost (compensatory storage). Excavation below the groundwater table is not considered to provide an equal volume of storage. (c) If compensatory storage cannot be provided, the area may not be developed unless the entire area zoned as Flood Storage District, on this waterway, is rezoned to the Floodfringe District. This must include a revision to the floodplain study and map done for the waterway to revert to the higher regional flood discharge calculated without floodplain storage, as per Section of this article. (d) No area may be removed from the Flood Storage District unless it can be shown that the area has been filled to the flood protection elevation and is contiguous to other lands lying outside of the floodplain Nonconforming uses. A. General. (1) Applicability. If these standards conform with 62.23(7)(h), Wis. Stats., they shall apply to all modifications or additions to any nonconforming use or structure and to the use of any structure or premises which was lawful before the passage of this article or any amendment thereto. (2) The existing lawful use of a structure or its accessory use which is not in conformity with the provisions of this article may continue, subject to the following conditions: (a) No modifications or additions to a nonconforming use or structure shall be permitted unless they comply with this article. The words "modification" and "addition" include, but are not limited to, any alteration, addition, modification, structural repair, rebuilding or replacement of any such existing use, structure or accessory structure or use. Maintenance is not considered a modification; this includes painting, decorating, paneling and other nonstructural components and the maintenance, repair or replacement of existing private sewage or water supply systems or connections to public utilities. Any costs associated with the repair of a damaged structure are not considered maintenance. The construction of a deck that does not exceed 200 square feet and that is adjacent to the exterior wall of a principal structure is not an extension, modification or addition. The roof of the structure may extend over a portion of the deck in order to provide safe ingress and egress to the principal structure. (b) If a nonconforming use or the use of a nonconforming structure is discontinued for 12 consecutive months, it is no longer permitted, and any future use of the property, and any structure or building thereon, shall conform to the applicable requirements of this article. (c) The municipality shall keep a record which lists all nonconforming uses and nonconforming structures, their present equalized assessed value, the cost of all modifications or additions which have been permitted, and the percentage of the structure's total current value those modifications represent. Page 237

238 (d) No modification or addition to any nonconforming structure or any structure with a nonconforming use, which over the life of the structure would equal or exceed 50% of its present equalized assessed value, shall be allowed unless the entire structure is permanently changed to a conforming structure with a conforming use in compliance with the applicable requirements of this article. Contiguous dry land access must be provided for residential and commercial uses in compliance with Section C(1). The costs of elevating a nonconforming building or a building with a nonconforming use to the flood protection elevation are excluded from the 50% provisions of this subsection. (e) No maintenance to any nonconforming structure or any structure with a nonconforming use, the cost of which would equal or exceed 50% of its present equalized assessed value, shall be allowed unless the entire structure is permanently changed to a conforming structure with a conforming use in compliance with the applicable requirements of this article. Contiguous dry land access must be provided for residential and commercial uses in compliance with Section C(1). (f) If on a per event basis the total value of the work being done under (d) and (e) equals or exceeds 50% of the present equalized assessed value the work shall not be permitted unless the entire structure is permanently changed to a conforming structure with a conforming use in compliance with the applicable requirements of this article. Contiguous dry land access must be provided for residential and commercial uses in compliance with Section C(1). (g) Except as provided in Subsection (h), if any nonconforming structure or any structure with a nonconforming use is destroyed or is substantially damaged, it cannot be replaced, reconstructed or rebuilt unless the use and the structure meet the current ordinance requirements. A structure is considered substantially damaged if the total cost to restore the structure to its pre-damaged condition equals or exceeds 50% of the structure's present equalized assessed value. (h) For nonconforming buildings that are substantially damaged or destroyed by a nonflood disaster, the repair or reconstruction of any such nonconforming building shall be permitted in order to restore it to the size and use in effect prior to the damage event, provided that the minimum federal code requirements are met and all required permits have been granted prior to the start of construction. [1] Residential Structures [a] Shall have the lowest floor, including basement, elevated to or above the base flood elevation using fill, pilings, columns, posts or perimeter walls. Perimeter walls must meet the requirements of Section E(2). [b] Shall be anchored to prevent flotation, collapse, or lateral movement of the structure resulting from hydrodynamic and hydrostatic loads, including the effects of buoyancy and shall be constructed with methods and materials resistant to flood damage. [c] Shall be constructed with electrical, heating, ventilation, plumbing and air conditioning equipment and other service facilities that are designed and/or elevated so as to prevent water from entering or accumulating with the components during conditions of flooding. [d] In A Zones, obtain, review and utilize any flood data available from a federal, state or other source. [e] In AO Zones with no elevations specified, shall have the lowest floor, including basement, meet the standards in section A(3). [f] In AO Zones, shall have adequate drainage paths around structure on slopes to guide floodwaters around and away from the structure. [2] Nonresidential Structures [a] Shall meet the requirements of section A(2)(h)[1][b]-[d]. [b] Shall either have the lowest floor, including basement, elevated to or above the regional flood elevation; or, together with attendant utility and sanitary facilities, shall meet the standards in section E(1) or (2). [c] In AO Zones with no elevations specified, shall have the lowest floor, including basement, meet the standards in A(3) (i) A nonconforming historic structure may be altered if the alteration will not preclude the structures continued designation as a historic structure, the alteration will comply with Section C(1), flood-resistant materials are used, and construction practices and floodproofing methods that comply with Section E are used. Repair or rehabilitation of historic structures shall be exempt from the development standards of section A(2)(h)[1] if it is determined that the proposed repair or rehabilitation will not preclude the structure s continued designation as a historic structure and is the minimum necessary to preserve the historic character and design of the structure. Page 238

239 B. Floodway district. (1) No modification or addition shall be allowed to any nonconforming structure or any structure with a nonconforming use in a floodway area, unless such modification or addition: (a) Has been granted a permit or variance which meets all ordinance requirements; (b) Meets the requirements of Subsection A; (c) Shall not increase the obstruction to flood flows or regional flood height; and (d) Any addition to the existing structure shall be floodproofed, pursuant to Section E, by means other than the use of fill, to the flood protection elevation. (e) If any part of the foundation below the flood protection elevation is enclosed, the following standards shall apply: [1] The enclosed are shall be designed by a registered architect or engineer to allow for the efficient entry and exit of flood waters without human intervention. A minimum of two opening must be provided with a minimum net area of at least one square inch for every one square foot of the enclosed area. The lowest part of the opening can be no more than 12 inches above the adjacent grade; [2] The parts of the foundation located below the flood protection elevation must be constructed of flood-resistant materials; [3] Mechanical and utility equipment must be elevated or floodproofed to or above the flood protection elevation; and [4] The use must be limited to parking, building access or limited storage. (2) No new on-site sewage disposal system, or addition to an existing on-site sewage disposal system, except where an addition has been ordered by a government agency to correct a hazard to public health, shall be allowed in a floodway area. Any replacement, repair or maintenance of an existing on-site sewage disposal system in a floodway area shall meet the applicable requirements of all municipal ordinances, section E(3) and ch. SPS 383, Wis. Adm. Code. (3) No new well or modification to an existing well used to obtain potable water shall be allowed in a floodway area. Any replacement, repair or maintenance of an existing well in a floodway area shall meet the applicable requirements of all municipal ordinances, section E(3) and chs. NR 811 and NR 812, Wis. Adm. Code. C. Floodfringe district. (1) No modification or addition shall be allowed to any nonconforming structure or any structure with a nonconforming use unless such modification or addition has been granted a permit or variance by the municipality, and meets the requirements of Section C, except where Subsection C(2) is applicable. (2) Where compliance with the provisions of Subsection C(1) would result in unnecessary hardship and only where the structure will not be used for human habitation or be associated with a high flood damage potential, the Board of Appeals, using the procedures established in Section C(3), may grant a variance from those provisions of Subsection C(1) for modifications or additions, using the criteria listed below. Modifications or additions which are protected to elevations lower than the flood protection elevation may be permitted if: (a) No floor is allowed below the regional flood elevation for residential or commercial structures; (b) Human lives are not endangered; (c) Public facilities, such as water or sewer, shall not be installed; (d) Flood depths shall not exceed two feet; (e) Flood velocities shall not exceed two feet per second; and (f) The structure shall not be used for storage of materials as described in Section C(5). (3) All new private sewage disposal systems, or addition to, replacement, repair or maintenance of a private sewage disposal system, shall meet all the applicable provisions of all local ordinances,section E(3) and ch. SPS 383, Wis. Adm. Code. (4) All new wells, or addition to, replacement, repair or maintenance of a well, shall meet the applicable provisions of this article, section E(3) and chs. NR 811 and NR 812, Wis. Adm. Code. D. Flood storage district. No modifications or additions shall be allowed to any nonconforming structure in a flood storage area unless the standards outlined in Section B(3) are met. Page 239

240 Administration. The Director of Community Development shall administer this article. A. Director. (1) Duties and powers. The Director is authorized to administer this article and shall have the following duties and powers: (a) Advise applicants of the chapter provisions, assist in preparing permit applications and appeals, and assure that the regional flood elevation for the proposed development is shown on all permit applications. (b) Issue permits and inspect properties for compliance with provisions of this article; and issue certificates of compliance where appropriate. (c) Inspect and assess all damaged floodplain structures to determine if substantial damage to the structures has occurred. (d) Keep records of all official actions such as: [1] All permits issued, inspections made, and work approved; [2] Documentation of certified lowest floor and regional flood elevations for floodplain development; [3] Floodproofing certificates; [4] Records of water surface profiles, floodplain zoning maps and ordinances, nonconforming uses and structures, including changes, appeals, variances and amendments; [5] All substantial damage assessment reports for floodplain structures. [6] List of nonconforming structures and uses. (e) Submit copies of the following items to the Department regional office: [1] Within 10 days of the decision, a copy of any decisions on variances, appeals for map or text interpretations, and map or text amendments; [2] Copies of any case-by-case analyses, and any other information required by the Department, including an annual summary of floodplain zoning actions taken; [3] Copies of substantial damage assessments performed and all related correspondence concerning the assessments. (f) Investigate, prepare reports, and report violations of this article to the municipal Department of Community Development and attorney for prosecution. Copies of the reports shall also be sent to the Department regional office. (g) Submit copies of amendments and biennial reports to the FEMA regional office. (2) Land use permit. A land use permit shall be obtained before any new development; repair, modification or addition to an existing structure; or change in the use of a building or structure, including sewer and water facilities, may be initiated. All applications shall be submitted on the appropriate forms and in numbers as required by the Director. For projects requiring a land use permit, the Plan Commission shall review and take action for these projects upon receiving a written report from the Department of Community Development. Application submittals shall include, but not limited to, the following information: (a) General information. [1] Name and address of the applicant, property owner and contractor; [2] Legal description, proposed use, and whether it is new construction or a modification; (b) Site development plan. A site plan drawn to scale shall be submitted with the permit application form and shall contain: [1] Location, dimensions, area and elevation of the lot; [2] Location of the ordinary high water mark of any abutting navigable waterways; [3] Location of any structures with distances measured from the lot lines and street center lines; [4] Location of any existing or proposed on-site sewage systems or private water supply systems; [5] Location and elevation of existing or future access roads; [6] Location of floodplain and floodway limits as determined from the official floodplain zoning maps; [7] The elevation of the lowest floor of proposed buildings and any fill using National Geodetic Vertical Datum (NGVD); [8] Data sufficient to determine the regional flood elevation in NGVD at the location of the development and to determine whether or not the requirements of Section or are met; and Page 240

241 [9] Data to determine if the proposed development will cause an obstruction to flow or an increase in regional flood height or discharge according to Section A. This may include any of the information noted in Section C(1). (c) Hydraulic and hydrologic studies to analyze developments. All hydraulic and hydrologic studies shall be completed under the direct supervision of a professional engineer registered in the State. The study contractor shall be responsible for the technical adequacy of the study. All studies shall be reviewed and approved by DCD. [1] Zone A floodplains: [a] Hydrology. The appropriate method shall be based on the standards in ch. NR (3), Wis. Adm. Code, Hydrologic Analysis: Determination of Regional Flood Discharge. [b] Hydraulic modeling. The regional flood elevation shall be based on the standards in ch. NR (4), Wis. Adm. Code, Hydraulic Analysis: Determination of Regional Flood Elevation and the following: [i] determination of the required limits of the hydraulic model shall be based on detailed study information for downstream structures (dam, bridge, culvert) to determine adequate starting WSEL for the study. [ii] channel sections must be surveyed [iii] minimum four foot contour data in the overbanks shall be used for the development of cross section overbank and floodplain mapping. [iv] a maximum distance of 500 feet between cross sections is allowed in developed areas with additional intermediate cross sections required at transitions in channel bottom slope including a survey of the channel at each location. [v] the most current version of HEC_RAS shall be used. [vi] a survey of bridge and culvert openings and the top of road is required at each structure. [vii] additional cross sections are required at the downstream and upstream limits of the proposed development and any necessary intermediate locations based on the length of the reach if greater than 500 feet. [viii] standard accepted engineering practices shall be used when assigning parameters for the base model such as flow, Manning s N values, expansion and contraction coefficients or effective flow limits. The base model shall be calibrated to past flooding data such as high water marks to determine the reasonableness of the model results. If no historical data is available, adequate justification shall be provided for any parameters outside standard accepted engineering practices. [ix] the model must extend past the upstream limit of the difference in the existing and proposed flood profiles in order to provide a tie-in to existing studies. The height difference between the proposed flood profile and the existing study profiles shall be no more than 0.00 feet. [c] Mapping. A work map of each of the reach studied shall be provided, showing all cross section locations, floodway/floodplain limits based on best available topographic data, geographic limits of the proposed development and whether the proposed development is located in the floodway. [i] If the proposed development is located outside of the floodway, then it is determined to have no impact on the regional flood elevation. [ii] If any part of the proposed development is in the floodway, it must be added to the base model to show the difference between existing and proposed conditions. The study must ensure that all coefficients remain the same as in the existing model, unless adequate justification based on standard accepted engineering practices is provided. [2] Zone AE floodplains [a] Hydrology. If the proposed hydrology will change the existing study, the appropriate method shall be based on the standards in ch. NR (3), Wis. Adm. Code, Hydrologic Analysis: Determination of Regional Flood Discharge. [b] Hydraulic modeling. The regional flood elevation shall be based on the standards in ch. NR (4), Wis. Adm. Code, Hydraulic Analysis: Determination of Regional Flood Elevation and the following: [i] Duplicate Effective Model. The effective model shall be reproduced to ensure correct transference of the model data and to allow integration of the revised data to provide a continuous FIS model upstream and downstream of the revised reach. If data from the Page 241

242 effective model is available, models shall be generated that duplicate the FIS profiles and the elevations shown in the Floodway Data Table in the FIS report to within 0.1 foot. [ii] Corrected Effective Model. The Corrected Effective Model shall not include any manmade physical changes since the effective model date, but shall import the model into the most current version of HEC-RAS from Department review. [iii] Existing (Pre-Project Conditions) Model. The Existing Model shall be required to support conclusion about the actual impacts of the project associated with the Revised (Post- Project) Model or to establish more up-to-date models on which to base the Revised (Post-Project) Model. [iv] Revised (Post-Project Conditions) Model. The Revised (Post-Project Conditions) Model shall incorporate the Existing Model and any proposed changes to the topography caused by the proposed development. This model shall reflect proposed conditions. [v] All changes to the Duplicate Effective Model and subsequent models must be supported by certified topographic information, bridge plans, construction plans and survey notes. [vi] Changes to the hydraulic models shall be limited to the stream reach for which the revision is being requested. Cross sections upstream and downstream of the revised reach shall be identical to those in the effective model and result in water surface elevations and topwidths computed by the revised models matching those in the effective models upstream and downstream of the revised reach as required. The Effective Model shall not be truncated. [c] Mapping. Maps and associated engineering data shall be submitted to the Department for review which meet the following conditions: [i] Consistency between the revised hydraulic models, the revised floodplain and floodway delineations, the revised flood profiles, topographic work map, annotated FIRMS and/or Flood Boundary Floodway Maps (FBFMs), construction plans, bridge plans. [ii] Certified topographic map of suitable scale, contour interval, and a planimetric map showing the applicable items. If a digital version of the map is available, it may be submitted in order that the FIRM may be more easily revised. [iii] Annotated FIRM panel showing the revised 1% and 0.2% annual chance floodplains and floodway boundaries. [iv] If an annotated FIRM and/or FBFM and ditigital mapping data (GIS or CADD) are used then all supporting documentation or metadata must be included with the data submission along with the Universal Transverse Mercator (UTM) projection and State Plan Coordinate System in accordance with FEMA mapping specifications. [v] The revised floodplain boundaries shall tie into the effective floodplain boundaries. [vi] All cross sections from the effective model shall be labeled in accordance with the effective map and a cross section lookup table shall be included to relate to the model input numbering scheme. [vii] Both the current and proposed floodways shall be shown on the map. [viii] The stream centerline, or profile baseline used to measure stream distances in the model shall be visible on the map. (d) Expiration. See Section E. (3) Certificate of compliance. No land shall be occupied or used, and no building which is hereafter constructed, altered, added to, modified, repaired, rebuilt or replaced shall be occupied, until a certificate of compliance is issued by the Director, except where no permit is required, subject to the following provisions: (a) The certificate of compliance shall show that the building or premises or part thereof, and the proposed use, conform to the provisions of this article. (b) Application for such certificate shall be concurrent with the application for a permit. (c) If all ordinance provisions are met, the certificate of compliance shall be issued within 10 days after written notification that the permitted work is completed. (d) The applicant shall submit a certification signed by a registered professional engineer, architect or land surveyor that the fill, lowest floor and floodproofing elevations are in compliance with the permit issued. Floodproofing measures also require certification by a registered professional engineer or registered architect that floodproofing measures meet the requirements of Subsection E. Page 242

243 (4) Other permits. Prioir to obtaining a floodplain development permit the applicant must secure all necessary permits from federal, state, and local agencies, including those required by the U.S. Army Corps of Engineers under 404 of the Federal Water Pollution Control Act, Amendments of 1972, 33 U.S.C B. Department of Community Development. (1) The Department of Community Development shall review and advise the Plan Commission and the Common Council on all proposed amendments to this article, maps and text. C. Board of Appeals. The Board of Appeals, created under 62.23(7)(e), Wis. Stats., is hereby authorized or shall be appointed to act for the purposes of this article. The Board shall exercise the powers conferred by Wisconsin Statutes and adopt rules for the conduct of business. The Director shall not be the Secretary of the Board. (1) Powers and duties. The Board of Appeals shall: (a) Appeals: hear and decide appeals where it is alleged there is an error in any order, requirement, decision or determination made by the Department of Community Development in the enforcement or administration of this article. (b) Boundary disputes: hear and decide disputes concerning the district boundaries shown on the official floodplain zoning map. (c) Variances: hear and decide, upon appeal, variances from the article standards. (2) Appeals to the Board. (a) Appeals to the Board may be taken by any person aggrieved, or by any officer or department of the municipality affected by any decision of the Director. Such appeal shall be taken within 30 days unless otherwise provided by the rules of the Board, by filing with the official whose decision is in question, and with the Board, a notice of appeal specifying the reasons for the appeal. The official whose decision is in question shall transmit to the Board all records regarding the matter appealed. (b) Notice and hearing for appeals, including variances. [1] Notice. The Board shall: [a] Fix a reasonable time for the hearing; [b] Publish adequate notice pursuant to Wisconsin Statutes, specifying the date, time, place and subject of the hearing; [c] Assure that notice shall be mailed to the parties in interest and the Department regional office at least 10 days in advance of the hearing. [2] Hearing. Any party may appear in person or by agent. The Board shall: [a] Resolve boundary disputes according to Subsection C(3). [b] Decide variance applications according to Subsection C(4). [c] Decide appeals of permit denials according to Subsection D. (c) Decision. The final decision regarding the appeal or variance application shall: [1] Be made within a reasonable time; [2] Be sent to the Department regional office within 10 days of the decision; [3] Be a written determination signed by the chairman or secretary of the Board; [4] State the specific facts which are the basis for the Board's decision; [5] Either affirm, reverse, vary or modify the order, requirement, decision or determination appealed, in whole or in part, dismiss the appeal for lack of jurisdiction or grant or deny the variance application; [6] Include the reasons for granting an appeal, describing the hardship demonstrated by the applicant in the case of a variance, clearly stated in the recorded minutes of the Board proceedings. (3) Boundary disputes. The following procedure shall be used by the Board in hearing disputes concerning floodplain district boundaries: (a) If a floodplain district boundary is established by approximate or detailed floodplain studies, the flood elevations or profiles shall prevail in locating the boundary. If none exist, other evidence may be examined. (b) In all cases, the person contesting the boundary location shall be given a reasonable opportunity to present arguments and technical evidence to the Board. (c) If the boundary is incorrectly mapped, the Board should inform the person contesting the boundary location to petition the Common Council for a map amendment according to Section (4) Variance. Page 243

244 (a) The Board may, upon appeal, grant a variance from the standards of this article if an applicant convincingly demonstrates that: [1] Literal enforcement of the chapter provisions will cause unnecessary hardship; [2] The hardship is due to adoption of the floodplain ordinance and unique property conditions, not common to adjacent lots or premises. In such case the ordinance or map must be amended; [3] The variance is not contrary to the public interest; and [4] The variance is consistent with the purpose of this article in Section C. (b) In addition to the criteria in Subsection (a), to qualify for a variance under FEMA regulations, the following criteria must be met: [1] The variance may not cause any increase in the regional flood elevation; [2] Variances can only be granted for lots that are less than 1/2 acre and are contiguous to existing structures constructed below the RFE; [3] Variances shall only be granted upon a showing of good and sufficient cause, shall be the minimum relief necessary, shall not cause increased risks to public safety or nuisances, shall not increase costs for rescue and relief efforts and shall not be contrary to the purpose of this chapter. (c) 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. [5] Allow actions without the amendments to this article or map(s) required in Section [6] Allow any alteration of an historic structure, including its use, which would preclude its continued designation as an historic structure. (d) When a floodplain variance is granted, the Board shall notify the applicant in writing that it may increase flood insurance premiums and risks to life and property. A copy shall be maintained with the variance record. D. Review of appeals of permit denials. (1) The Department of Community Development (Subsection B) and the Board of Appeals shall review all data related to the appeal. This may include: (a) Permit application data listed in Subsection A(2). (b) Floodway/Floodfringe determination data in Section A(4). (c) Data listed in Section C(1)(b) where the applicant has not submitted this information to the Director. (d) Other data submitted with the application, or submitted to the Board with the appeal. (2) For appeals of all denied permits the Board shall: (a) Follow the procedures of Subsection C; (b) Consider Department of Community Development recommendations; and (c) Either uphold the denial or grant the appeal. (3) For appeals concerning increases in regional flood elevation the Board shall: (a) Uphold the denial where the Board agrees with the data showing an increase in flood elevation. Increases may only be allowed after amending the flood profile and map and all appropriate legal arrangements are made with all adversely affected property owners as per the requirements of section ; and (b) Grant the appeal where the Board agrees that the data properly demonstrates that the project does not cause an increase provided no other reasons for denial exist. E. Floodproofing standard for nonconforming structures of uses. (1) No permit or variance shall be issued for a non-residential structure designed to be watertight below the regional flood elevation until the applicant submits a plan certified by a registered professional engineer or architect that the floodproofing measures will protect the structure or development to the flood protection elevation and submits a FEMA Floodproofing Certificate. (2) For a structure designed to allow the entry of floodwaters, no permit or variance shall be issued until the applicant submits a plan either: (a) certified by a registered professional engineer or architect; or (b) meets or exceeds the following standards: Page 244

245 [1] a minimum of two opening having a total net area of not less than one square inch for every square foot of enclosed area subject to flooding; [2] the bottom of all openings shall be no higher than one foot above grade; and [3] openings may be equipped with screens, louvers, valves, or other coverings or devices provided that they permit the automatic entry and exist of floodwaters. (3) Floodproofing measures shall be designed, as appropriate, to: (a) Withstand flood pressures, depths, velocities, uplift and impact forces and other regional flood factors; (b) Protect structures to the flood protection elevation; (c) Anchor structures to foundations to resist flotation and lateral movement; and (d) Minimize or eliminate infiltration of flood waters. (e) Minimize or eliminate discharges into flood waters. F. Public information. (1) Place marks on structures to show the depth of inundation during the regional flood. (2) All maps, engineering data and regulations shall be available and widely distributed. (3) All real estate transfers should show what floodplain zoning district any real property is in Amendments. A. Obstructions or increases may only be permitted if amendments are made to this article, the official floodplain zoning maps, floodway lines and water surface profiles, in accordance with Section B. (1) In AE Zones with a mapped floodway, no obstructions or increases shall be permitted unless the applicant receives a Conditional Letter of Map Revision from FEMA and amendments are made to this article, the official floodplain zoning maps, floodway lines and water surface profiles, in accordance with section B. Any such alterations must be reviewed and approved by FEMA and the DNR. (2) In A Zones increases equal to or greater than 1.0 foot may only be permitted if the applicant receives a Conditional Letter of Map Revision from FEMA and amendments are made to this ordinance, the official floodplain maps, floodway lines, and water surface profiles, in accordance with B. B. The Common Council shall change or supplement the floodplain zoning district boundaries and this article in the manner outlined in section C below. Actions which require an amendment to the article and/or submittal of a Letter of Map Change (LOMC) include, but are not limited to, the following: (1) Any fill or floodplain encroachment that obstructs flow causing any increase in the regional flood height. (2) Any change to the floodplain boundaries and/or watercourse alterations on the FIRM; (3) Any change to any other officially adopted floodplain maps listed in section E(2)(b). (4) Any fill in the floodplain which raises the elevation of the filled area to a height at or above the flood protection elevation and is contiguous to land lying outside the floodplain. (5) Correction of discrepancies between the water surface profiles and floodplain zoning maps. (6) Any upgrade to a floodplain zoning ordinance text required by NR , Wis. Adm. Code, or otherwise required by law, or for changes by the municipality. (7) All channel relocations and changes to the maps to alter floodway lines or to remove an area from the floodway or the floodfringe that is based on a base flood elevation from a FIRM requires prior approval by FEMA. C. Procedures. Ordinance amendments may be made upon petition of any interested party according to the provisions of 62.23, Wis. Stats. Such petitions shall include all necessary data required by Sections A(4) and A(2). The Land Use Permit shall not be issued until a Conditional Letter of Map Revision is issued by FEMA for the proposed changes. (1) The proposed amendment shall be referred to the Department of Community Development for a public hearing and recommendation to the Common Council. The amendment and notice of public hearing shall be submitted to the Department regional office for review prior to the hearing. The amendment procedure shall comply with the provisions of 62.23, Wis. Stats. (2) No amendments shall become effective until reviewed and approved by the Department. (3) All persons petitioning for a map amendment that obstructs flow causing any increase in the regional flood height, shall obtain flooding easements or other appropriate legal arrangements from all adversely affected property owners and notify local units of government before the amendment can be approved by the Common Council. Page 245

246 Enforcement and penalties. Any violation of the provisions of this article by any person shall be unlawful and shall be referred to the City Attorney, who shall expeditiously prosecute all such violators. A violator shall, upon conviction, forfeit to the municipality a penalty of not less than $100 and not more than $1,000 for each offense, together with the taxable cost of such action. Each day that the violation exists shall constitute a separate offense. Every violation of this article is a public nuisance, and the creation may be enjoined and the maintenance may be abated by action at suit of the municipality, the state, or any citizen thereof pursuant to 87.30, Wis. Stats Definitions. A. Unless specifically defined, words and phrases in this article shall have their common law meaning and shall be applied in accordance with their common usage. Words used in the present tense include the future, the singular number includes the plural and the plural number includes the singular. The word "may" is permissive; "shall" is mandatory and is not discretionary. B. As used in this article, the following terms shall have the meanings indicated: A ZONES Those areas shown on the Official Floodplain Zoning Map which would be inundated by the regional flood. These areas may be numbered or unnumbered A Zones. The A Zones may or may not be reflective of flood profiles, depending on the availability of data for a given area. AH ZONE See AREA OF SHALLOW FLOODING AO ZONE See AREA OF SHALLOW FLOODING ACCESSORY STRUCTURE OR USE A facility, structure, building or use which is accessory or incidental to the principal use of a property, structure or building. ALTERATION An enhancement, upgrading or substantial change or modifications other than an addition or repair to a dwelling or to electrical, plumbing, heating, ventilating, air conditioning and other systems within a structure. AREA OF SHALLOW FLOODING A designated AO, AH, AR/AO, AR/AH, or VO Zone on a community s Flood Insurance Rate Map (FIRM) with a 1 percent or greater annual chance of flooding to an average depth of 1 to 3 feet where a clearly defined channel does not exist, where the path of flooding is unpredictable, and where velocity flood may be evident. Such flooding is characterized by ponding or sheet flow. BASE FLOOD The flood having a one-percent chance of being equaled or exceeded in any given year, as published by FEMA as part of a FIS and depicted on a FIRM. BASEMENT Any enclosed area of a building having its floor subgrade, i.e., below ground level, on all sides. BUILDING See "structure." BULKHEAD LINE A geographic line along a reach of navigable water that has been adopted by a municipal ordinance and approved by the Department pursuant to 30.11, Wis. Stats., and which allows limited filling between this bulkhead line and the original ordinary high water mark, except where such filling is prohibited by the floodway provisions of this article. CAMPGROUND Any parcel of land which is designed, maintained, intended or used for the purpose of providing sites for nonpermanent overnight use by four or more camping units, or which is advertised or represented as a camping area. CAMPING UNIT Any portable device, no more than 400 square feet in area, used as a temporary shelter, including but not limited to a camping trailer, motor home, bus, van, pick-up truck, or tent that is fully licensed, if required, and ready for highway use. Page 246

247 CERTIFICATE OF COMPLIANCE A certification that the construction and the use of land or a building, the elevation of fill or the lowest floor of a structure is in compliance with all of the provisions of this article. CHANNEL A natural or artificial watercourse with definite bed and banks to confine and conduct the normal flow of water. CRAWLWAYS or CRAWL SPACE An enclosed area below the first useable floor of a building, generally less than five feet in height, used for access to plumbing and electrical utilities. DECK An unenclosed exterior structure that has no roof or sides, but has a permeable floor which allows the infiltration of precipitation. DEPARTMENT The Wisconsin Department of Natural Resources. DEVELOPMENT Any artificial change to improved or unimproved real estate, including, but not limited to, the construction of buildings, structures or accessory structures; the construction of additions or alterations to buildings, structures or accessory structures; the repair of any damaged structure or the improvement or renovation of any structure, regardless of percentage of damage or improvement; the placement of buildings or structures; subdivision layout and site preparation; mining, dredging, filling, grading, paving, excavation or drilling operations; the storage, deposition or extraction of materials or equipment; and the installation, repair or removal of public or private sewage disposal systems or water supply facilities. DIRECTOR The City of New Berlin Director of Community Development or his/her designee. DRYLAND ACCESS A vehicular access route which is above the regional flood elevation and which connects land located in the floodplain to land outside the floodplain, such as a road with its surface above regional flood elevation and wide enough for wheeled rescue and relief vehicles. ENCROACHMENT Any fill, structure, equipment, building, use or development in the floodway. FEDERAL EMERGENCY MANAGEMENT AGENCY (FEMA) The federal agency that administers the National Flood Insurance Program. FLOOD or FLOODING A general and temporary condition of partial or complete inundation of normally dry land areas caused by one of the following conditions: (1) The overflow or rise of inland waters; (2) The rapid accumulation or runoff of surface waters from any source; (3) The inundation caused by waves or currents of water exceeding anticipated cyclical levels along the shore of Lake Michigan or Lake Superior; or (4) The sudden increase caused by an unusually high water level in a natural body of water, accompanied by a serve storm, or by an unanticipated force of nature, such as a seiche, or by some similarly unusual event. FLOOD INSURANCE RATE MAP (FIRM) A map of a community on which the Federal Insurance Administration has delineated both special flood hazard areas (the floodplain) and the risk premium zones applicable to the community. This map can only be amended by the Federal Emergency Management Agency. FLOOD FREQUENCY The probability of a flood occurrence which is determined from statistical analyses. The frequency of a particular flood event is usually expressed as occurring, on the average, once in a specified number of years or as a percent chance of occurring in any given year. FLOODFRINGE That portion of the floodplain outside of the floodway which is covered by floodwaters during the regional flood and associated with standing water rather than flowing water. FLOOD HAZARD BOUNDARY MAP A map designating approximate flood hazard areas. Flood hazard areas are designated as unnumbered A Zones and do not contain floodway lines or regional flood elevations. This map Page 247

248 forms the basis for both the regulatory and insurance aspects of the National Flood Insurance Program (NFIP) until superseded by a Flood Insurance Study and a Flood Insurance Rate Map. FLOOD INSURANCE STUDY A technical engineering examination, evaluation, and determination of the local flood hazard areas. It provides maps designating those areas affected by the regional flood and provides both flood insurance rate zones and base flood elevations and may provide floodway lines. The flood hazard areas are designated as numbered and unnumbered A Zones. Flood Insurance Rate Maps, that accompany the Flood Insurance Study, form the basis for both the regulatory and the insurance aspects of the National Flood Insurance Program. FLOODPLAIN Land which has been or may be covered by floodwater during the regional flood. It includes the floodway and the floodfringe, and may include other designated floodplain areas for regulatory purposes. FLOODPLAIN ISLAND A natural geologic land formation within the floodplain that is surrounded, but not covered, by floodwater during the regional flood. FLOODPLAIN MANAGEMENT Policy and procedures to ensure wise use of floodplains, including mapping and engineering, mitigation, education, and administration and enforcement of floodplain regulations. FLOOD PROFILE A graph or a longitudinal profile line showing the relationship of the water surface elevation of a flood event to locations of land surface elevations along a stream or river. FLOODPROOFING Any combination of structural provisions, changes or adjustments to properties and structures, water and sanitary facilities and contents of buildings subject to flooding, for the purpose of reducing or eliminating flood damage. FLOOD PROTECTION ELEVATION An elevation of two feet of freeboard above the water surface profile elevation designated for the regional flood. (See also "FREEBOARD.") FLOOD STORAGE Those floodplain areas where storage of floodwaters has been taken into account during analysis in reducing the regional flood discharge. FLOODWAY The channel of a river or stream and those portions of the floodplain adjoining the channel required to carry the regional flood discharge. FREEBOARD A safety factor expressed in terms of a specified number of feet above a calculated flood level. Freeboard compensates for any factors that cause flood heights greater than those calculated, including ice jams, debris accumulation, wave action, obstruction of bridge openings and floodways, the effects of watershed urbanization, loss of flood storage areas due to development and aggregation of the river or stream bed. HABITABLE STRUCTURE Any structure or portion thereof used or designed for human habitation. HEARING NOTICE Publication or posting meeting the requirements of ch. 985, Wis. Stats. For appeals, a Class 1 notice, published once at least one week (seven days) before the hearing, is required. For all zoning ordinances and amendments, a Class 2 notice, published twice, once each week consecutively, the last at least a week (seven days) before the hearing, is required. Local ordinances or bylaws may require additional notice, exceeding these minimums. HIGH FLOOD DAMAGE POTENTIAL Damage that could result from flooding that includes any danger to life or health or any significant economic loss to a structure or building and its contents. HIGHEST ADJACENT GRADE The highest natural elevation of the ground surface prior to construction next to the proposed walls of a structure. HISTORIC STRUCTURE Any structure that is either: (1) Listed individually in the National Register of Historic Places or preliminarily determined by the Secretary of the Interior as meeting the requirements for individual listing on the National Register; Page 248

249 (2) Certified or preliminarily determined by the Secretary of the Interior as contributing to the historical significance of a registered historic district or a district preliminarily determined by the Secretary to qualify as a registered historic district; (3) Individually listed on a state inventory of historic places in states with historic preservation programs which have been approved by the Secretary of the Interior; or (4) Individually listed on a local inventory of historic places in communities with historic preservation programs that have been certified either by an approved state program, as determined by the Secretary of the Interior; or by the Secretary of the Interior in states without approved programs. INCREASE IN REGIONAL FLOOD HEIGHT A calculated upward rise in the regional flood elevation greater than 0.00 foot, based on a comparison of existing conditions and proposed conditions which is directly attributable to development in the floodplain but not attributable to manipulation of mathematical variables such as roughness factors, expansion and contraction coefficients and discharge. LAND USE Any nonstructural use made of unimproved or improved real estate. (See also "development.") LOWEST ADJACENT GRADE Elevation of the lowest ground surface that touches any of the exterior walls of a building. LOWEST FLOOR The lowest floor of the lowest enclosed area (including basement). An unfinished or flood resistant enclosure, usable solely for parking of vehicles, building access or storage in an area other than a basement area is not considered a building s lowest floor; provided that such enclosure is not built so as to render the structure in violation of the applicable non-elevation design requirements of 44 CFR MAINTENANCE The act or process of restoring to original soundness, including redecorating, refinishing, non structural repairs, or the replacement of existing fixtures, systems or equipment with equivalent fixtures, systems or structures. MANUFACTURED HOME A structure transportable in one or more sections, which is built on a permanent chassis and is designed to be used with or without a permanent foundation when connected to required utilities. The term "manufactured home" includes a mobile home but does not include a "mobile recreational vehicle." MOBILE/MANUFACTURED HOME PARK OR SUBDIVISION A parcel (or contiguous parcels) of land, divided into two or more manufactured home lots for rent or sale. MOBILE/MANUFACTURED HOME PARK OR SUBDIVISION, EXISTING A parcel of land, divided into two or more manufactured home lots for rent or sale, on which the construction of facilities for servicing the lots is completed before the effective date of this article. At a minimum, this would include the installation of utilities, the construction of streets and either final site grading or the pouring of concrete pads. MOBILE/MANUFACTURED HOME PARK, EXPANSION TO EXISTING The preparation of additional sites by the construction of facilities for servicing the lots on which the manufactured homes are to be affixed. This includes installation of utilities, construction of streets and either final site grading, or the pouring of concrete pads. MOBILE RECREATIONAL VEHICLE A vehicle which is built on a single chassis, 400 square feet or less when measured at the largest horizontal projection, designed to be self-propelled, carried or permanently towable by a licensed, light-duty vehicle, is licensed for highway use if registration is required and is designed primarily not for use as a permanent dwelling, but as temporary living quarters for recreational, camping, travel or seasonal use. Manufactured homes that are towed or carried onto a parcel of land, but do not remain capable of being towed or carried, including park model homes, do not fall within the definition of "mobile recreational vehicles." MODEL, CORRECTED EFFECTIVE A hydraulic engineering model that corrects any errors that occur in the Duplicate Effective Model, adds any additional cross sections to the Duplicate Effective Model, or incorporates more detailed topographic information than that used in the current effective mode. Page 249

250 MODEL, DUPLICATE EFFECTIVE A copy of the hydraulic analysis used in the effective FIS and referred to as the effective model. MODEL, EFFECTIVE The hydraulic engineering model that was used to produce the current effective Flood Insurance Study. MODEL, EXISTING (PRE-PROJECT) A modification of the Duplicate Effective Model or Corrected Effective Model to reflect any man mad modifications that have occurred within the floodplain since the date of the effective model but prior to the construction of the project for which the revision is being requested. If no modification has occurred since the date of the effective model, then this model would be identical to the Corrected Effective Model or Duplicate Effective Model. MODEL, REVISED (POST-PROJECT) A modification of the Existing or Pre-Project Conditions Model, Duplicate Effective Model or Corrected Effective Model to reflect revised or post-project conditions. MUNICIPALITY or MUNICIPAL The City governmental units enacting, administering and enforcing this article. NEW CONSTRUCTION For floodplain management purposes, "new construction" means structures for which the start of construction commenced on or after the effective date of floodplain zoning regulations adopted by this community and includes any subsequent improvements to such structures. For the purpose of determining flood insurance rates, it includes any structures for which the "start of construction" commenced on or after the effective date of an initial FIRM or after December 31, 1974, whichever is later, and includes any subsequent improvements to such structures. NGVD or NATIONAL GEODETIC VERTICAL DATUM Elevations referenced to mean sea level datum, 1929 adjustment. NONCONFORMING STRUCTURE An existing lawful structure or building which is not in conformity with the dimensional or structural requirements of this article for the area of the floodplain which it occupies. (For example, an existing residential structure in the floodfringe district is a conforming use. However, if the lowest floor is lower than the flood protection elevation, the structure is nonconforming.) NONCONFORMING USE An existing lawful use or accessory use of a structure or building which is not in conformity with the provisions of this article for the area of the floodplain which it occupies (such as a residence in the floodway). OBSTRUCTION TO FLOW Any development which blocks the conveyance of floodwaters such that this development alone or together with any future development will cause an increase in regional flood height. OFFICIAL FLOODPLAIN ZONING MAP That map, adopted and made part of this article, as described in Section E(2), which has been approved by the Department and FEMA. OPEN SPACE USE Those uses having a relatively low flood damage potential and not involving structures. ORDINARY HIGH WATER MARK The point on the bank or shore up to which the presence and action of surface water is so continuous as to leave a distinctive mark such as by erosion, destruction or prevention of terrestrial vegetation, predominance of aquatic vegetation, or other easily recognized characteristic. PERSON An individual, or group of individuals, corporation, partnership, association, municipality or state agency. PRIVATE SEWAGE SYSTEM A sewage treatment and disposal system serving one structure with a septic tank and soil absorption field located on the same parcel as the structure. It also means an alternative sewage system approved by the Department of Commerce, including a substitute for the septic tank or soil absorption field, a holding tank, a system serving more than one structure or a system located on a different parcel than the structure. Page 250

251 PUBLIC UTILITIES Those utilities using underground or overhead transmission lines such as electric, telephone and telegraph, and distribution and collection systems such as water, sanitary sewer and storm sewer. REASONABLY SAFE FROM FLOODING Base floodwaters will not inundate the land or damage structures to be removed from the special flood hazard area and any subsurface waters related to the base flood will not damage existing or proposed buildings. REGIONAL FLOOD A flood determined to be representative of large floods known to have occurred in Wisconsin. A regional flood is a flood with a one-percent chance of being equaled or exceeded in any given year, and if depicted on the FIRM, the RFE is equivalent to the BFE. START OF CONSTRUCTION The date the building permit was issued, provided the actual start of construction, repair, reconstruction, rehabilitation, addition, placement, or other improvement was within 180 days of the permit date. The "actual start" means either the first placement of permanent construction on a site, such as the pouring of slab or footings, the installation of piles, the construction of columns, or any work beyond initial excavation, or the placement of a manufactured home on a foundation. Permanent construction does not include land preparation, such as clearing, grading and filling, nor does it include the installation of streets and/or walkways, nor does it include excavation for a basement, footings, piers or foundations or the erection of temporary forms, nor does it include the installation on the property of accessory buildings, such as garages or sheds not occupied as dwelling units or not part of the main structure. For an alteration, the actual start of construction means the first alteration of any wall, ceiling, floor or other structural part of a building, whether or not that alteration affects the external dimensions of the building. STRUCTURE Any man-made object with form, shape and utility, either permanently or temporarily attached to, placed upon or set into the ground, stream bed or lake bed, including, but not limited to, roofed and walled buildings, gas or liquid storage tanks, bridges, dams and culverts. SUBDIVISION Has the meaning given in (12), Wis. Stats. SUBSTANTIAL DAMAGE Damage of any origin sustained by a structure, whereby the cost of restoring the structure to its predamaged condition would equal or exceed 50% of the equalized assessed value of the structure before the damage occurred. SUBSTANTIAL IMPROVEMENT Any repair, reconstruction, rehabilitation, addition or improvement of a building or structure, the cost of which equals or exceeds 50 percent of the equalized assessed value of the structure before the improvement or repair is started. If the structure has sustained substantial damage, any repairs are considered substantial improvement regardless of the work preformed. The term does not, however, include either any project for the improvement of a building required to correct existing health, sanitary or safety code violations identified by the building official and that are the minimum necessary to assure safe living conditions; or any alteration of a historic structure provided that the alteration will not preclude the structure s continued designation as a historic structure. UNNECESSARY HARDSHIP Where special conditions affecting a particular property, which were not selfcreated, have made strict conformity with restrictions governing areas, setbacks, frontage, height or density unnecessarily burdensome or unreasonable in light of the purposes of this article. VARIANCE An authorization by the Board of Appeals for the construction or maintenance of a building or structure in a manner which is inconsistent with dimensional standards (not uses) contained in this article. VIOLATION The failure of a structure or other development to be fully compliant with this article. A structure or other development without required permits, lowest floor elevation documentation, floodproofing certificates or required floodway encroachment calculations is presumed to be in violation until such time as that documentation is provided. WATERSHED The entire region contributing runoff or surface water to a watercourse or body of water. Page 251

252 WATER SURFACE PROFILE A graphical representation showing the elevation of the water surface of a watercourse for each position along a reach of river or stream at a certain flood flow. A water surface profile of the regional flood is used in regulating floodplain areas. WELL An excavation opening in the ground made by digging, boring, drilling, driving or other methods, to obtain groundwater regardless of its intended use. Page 252

253 ARTICLE X Enforcement and Penalties Responsibility for inspection and enforcement. The Director shall have primary responsibility for enforcing all provisions of this chapter, pursuant to the policies and procedures set forth in this article. The Director is hereby empowered to cause any building, other structure, or tract of land to be inspected and examined for suspected or potential violations of this chapter after proper notification. If permission to enter the property is withheld, the Director may seek a court order to require inspection of the property Violations. A. Types of violations. Any violation of this chapter shall be subject to the remedies and penalties provided for in this chapter. Violations shall include: (1) Use, reuse, structure, or sign without permit or approval. To place any use, reuse, structure, or sign upon land that is subject to this chapter without all of the permits required by this chapter or any other ordinance; (2) Development without permit or approval. To engage in any development, construction, or other activity of any nature upon land that is subject to this chapter without all of the permits or approvals required by this chapter or any other ordinance; (3) Development, use, or sign inconsistent with permit. To engage in any development, use, construction, or other activity of any nature in any way inconsistent with the terms and conditions of any permit, approval, certificate, or other form of authorization required in order to engage in such activity; (4) Development, use, or sign inconsistent with conditions of approval. To violate, by act or omission, any term, condition, or qualification placed by a decisionmaking body upon any permit or other form of authorization; (5) Development or sign inconsistent with development ordinance. To erect, construct, reconstruct, alter, maintain, move, or use any building, structure, or sign, or to engage in development of any land in violation of any zoning, sign, or other regulation of this chapter; (6) Making lots or setbacks nonconforming. To reduce or diminish any lot area so that the lot size, width, setbacks, or open spaces shall be smaller than prescribed by this chapter; (7) Increasing intensity or density of use. To increase the intensity or density of use of any land or structure, except in accordance with the procedural requirements and substantive standards of this chapter; (8) Removing or defacing required notice. To remove, deface, obscure, or otherwise interfere with any notice required by this chapter; (9) Failure to remove signs or temporary uses. To fail to remove any sign or temporary use installed, created, erected, or maintained in violation of this chapter, or for which the permit has lapsed; (10) Illegal use of floodland area. To place or maintain a structure, fill, improvement, or development within any floodland area in violation of this chapter; and (11) All other violations. To establish or operate other activities, structures, or land uses in violation of any specific provisions, or the general purpose and intent, of this chapter. B. Continuing violations. Each day that a violation remains uncorrected after receiving notice of the violation from the Director or his/her designee by certified or registered mail shall constitute a separate violation of this chapter Remedies and enforcement powers. A. Persons authorized to seek relief. Only those persons or parties who would be specifically damaged by a violation of this chapter may institute appropriate action or proceeding for relief pursuant to the procedures set forth in this chapter. Such persons or parties may include the City, the Common Council, the Board of Appeals, the Plan Commission, the Director, or any adjacent or neighboring property owner. B. Types of remedies and enforcement powers. The City shall have the following remedies and enforcement powers: Page 253

254 (1) Revoke permits. Any development permit or other form of authorization required under this chapter may be revoked when the Director and the Plan Commission determine that: (a) There is departure from the plans, specifications, or conditions as required under terms of the permit; (b) The development permit was procured by false representation or was issued in error; or (c) Any of the provisions of this chapter are being violated. (2) Penalties. Any person who fails to comply with the provisions of this chapter or any order of the Director issued in accordance with this chapter or resists enforcement shall, upon conviction thereof, pay a penalty as specified in Chapter 1, General Provisions, 1-18 of the Code of the City of New Berlin. (3) Double fee. A double fee shall be charged if work is started before a permit is applied for or issued or if a building is occupied prior to the issuance of an occupancy permit. Such double fee shall not release the applicant from full compliance with this chapter nor from prosecution for violation of this chapter. The Director may waive the permit double fees for an applicant if the Director feels sufficient evidence has been provided to determine that a double fee is not warranted. If the Director denies the request, then the applicant may appeal to the Plan Commission. (4) Remedial action. Whenever an order of the Director, Building Inspector or other City official, pursuant to this chapter, has not been complied with, or where written agreements for compliance have not been made by the property owner, the City Attorney shall institute appropriate legal action or proceedings to prohibit the owner, agent, or occupant from using such structure, land, or water. The City may seek a court order in the nature of mandamus, abatement, or other action or proceeding to abate or remove a violation or to otherwise restore the premises in question to the condition in which they existed prior to the violation. (5) Injunctive relief. Compliance with the provisions of this chapter may also be enforced by injunctional order at the suit of the City or one or more adjacent or neighboring property owners who would be specifically damaged by the ordinance violation. (6) Declared nuisances. Any building erected, structurally altered, or placed on a lot, or any use carried on in violation of the provisions of this chapter, is hereby declared to be a nuisance per se, and the City may apply to any court of competent jurisdiction to restrain or abate such nuisance. (7) Other remedies. The City shall have such other remedies as are and as may be from time to time provided by Wisconsin law for the violation of zoning, subdivision, sign, or related ordinance provisions. (8) Other powers. In addition to the enforcement powers specified in this chapter, the City may exercise any and all enforcement powers granted by Wisconsin law. (9) Continuation. Nothing in this chapter shall prohibit the continuation of previous enforcement actions undertaken by the City pursuant to previous and valid ordinances and laws. C. Remedies cumulative. The remedies and enforcement powers established in this article shall be cumulative, and the City may exercise them in any order Enforcement procedures. A. Nonemergency matters. In the case of violations of this chapter that do not constitute an emergency or require immediate attention, the Director shall give notice of the nature of the violation to the property owner or to any applicant for any relevant permit in the manner hereafter stated, after which the persons receiving notice shall have up to 30 days to correct the violation before further enforcement action shall be taken. Notice shall be given in person, by mail unless the document is returned, or by posting notice on the premises. Notices of violation shall state the nature of the violation and the time period for compliance and may state the corrective steps necessary and the nature of subsequent penalties and enforcement actions should the situation not be corrected. B. Emergency matters. In the case of violations of this chapter that constitute an emergency as a result of safety or public concerns or violations that will create increased problems or costs if not remedied immediately, the City may use the enforcement powers available under this chapter without prior notice, but the Director shall attempt to give notice simultaneously with beginning enforcement action. Notice may be provided to the property owner and to applicants for any relevant permits. Page 254

255 ARTICLE XI Definitions Editor's Note: See also Ch. 235, Subdivision of Land, Art. VIII, Definitions Terms defined. For the purpose of this chapter, the following definitions shall be used. Words used in the present tense include the future; the singular number includes the plural number, and the plural number includes the singular number. The word "shall" is mandatory and not directory. Any words not defined in this section shall be presumed to have their customary dictionary definitions. ABUTTING or ADJOINING To physically touch or border upon or to share a common property line or border. ACCESSORY DWELLING A second dwelling unit integrated with a business that is located on the same lot as the business. "Accessory dwelling" does not mean a mobile home, recreational vehicle, or travel trailer. ACCESSORY USE See "use, accessory" below. ACRE A gross measure of land area equivalent to 43,560 square feet. ACREAGE, GROSS The total area within the lot lines of a lot, excluding any street right-of-way or ultimate right-of-way in all districts. ACREAGE, NET The total area of the property less any land used for private or public roads and rights-of-way and less 75% of any private conservancy lands. ACTIVE PARKS AND RECREATIONAL FACILITIES Any park or recreational facility that requires grading of the land, the construction of facilities, lighting, or is developed for ball fields. ADEQUATE PUBLIC FACILITIES (APF) The public facilities and services necessary to maintain the adopted level of service standards. See ADJACENT The same as "abutting or adjoining." ADULT-ORIENTED ESTABLISHMENTS Commercial establishments in which a significant portion of the business is: A. To display, sell, have in their possession for sale, offer for view, publish, disseminate, give, lease, or otherwise deal in any written or printed matter, pictures, films, sound recordings, machines, mechanical devices, models, facsimiles, or other material and paraphernalia depicting sexual conduct or nudity and which exclude minors by reason of age; B. To display for viewing any film or pictures depicting sexual conduct or nudity and which exclude minors by reason of age; and/or C. Where any person appears or performs in a manner depicting sexual conduct or involving nudity and from which minors are excluded by reason of age. ADVERSE IMPACT A condition that creates, imposes, aggravates, or leads to inadequate, impractical, unsafe, or unhealthy conditions on a site proposed for development or on an off-site property or facilities. ALLEY A public or private right-of-way, shown on a plat, which provides secondary access to a lot, block, or parcel of land. ADJUSTED TRACK ACREAGE DENSITY APPROACH The determination of the maximum number of permitted dwelling units on any given property shall be determined by multiplying the acreage classified as being in the categories of constrained land as described in G(2)(a) by the numerical density factor for that category of constrained land. Page 255

256 AGRIBUSINESS - In agriculture, agribusiness is a generic term that refers to the various businesses involved in food production, including farming and contract farming, seed supply, farm machinery, wholesale and distribution, processing, marketing, and retail sales. The term has two distinctly different connotations depending on context. ALLEY, PUBLIC A special, minor public right-of-way affording only secondary access to abutting properties. AMENDMENT Any addition, deletion, or revision of the text of this chapter or to the Official Zoning Map, adopted after public hearings. ANTENNA A device designed to transmit or receive broadcasts either through over-the-air signals from transmitters, including fixed television or radio signals, or microwave signals from earth-orbiting communications satellites. ANTENNA, EARTH STATION DISH A dish-shaped antenna designed to receive television broadcasts relayed by signals from earth-orbiting communications satellites. ANTENNA, TERRESTRIAL Any antenna designed to receive television and radio signals relayed from one ground location to another ground location. Such antennas are typically mounted on a freestanding tower or supported on the rooftop of a structure. APPLICANT Unless otherwise specified, an owner or other person with a legal property interest, including a subdivider, developer, or other agent of the landowner, who has filed an application for subdivision or development. ARTERIAL STREET See "street, arterial" below. ARTISAN FARMS Farms that specialize in the creation of specialty products or farming such as, wine-making, cheese-making, honey production, berry production, etc. ASSISTED LIVING FACILITIES Residences for the elderly that provide rooms, meals, personal care, and supervision of self-administered medication. They may provide additional services, such as recreational activities, financial services, and transportation. AUTOMOTIVE FUEL SALES The retail sales of unleaded and diesel gasoline. AWNING A temporary or removable structure constructed of canvas, wood, or metal, extending over a window, door, patio, or deck as protection against sun or rain. Permanent overhangs or structures over windows, doors, patios, or decks or driveways, or awnings with vertical attachments to the ground are canopies, not awnings. A ZONES Areas of potential flooding shown on the most recent Flood Insurance Rate Map which would be inundated by the regional flood as defined herein. These zones may be numbered as A0, A1 to A99, or be unnumbered A Zones. The A Zones may or may not be reflective of flood profiles, depending on the availability of data for a given area. BARS and TAVERNS Establishments providing or dispensing, for on-site consumption, any fermented malt beverage, malt beverage, special malt, vinous or spirituous liquors. The sale of food products, including but not limited to sandwiches and light snacks, may be secondary to the serving of the aforementioned drinks. BASE SETBACK LINE The planned right-of-way line as established by the Waukesha County Jurisdictional Highway Plan or the City of New Berlin Official Map, whichever is greater. BED-AND-BREAKFAST ESTABLISHMENTS Any place of lodging that provides four or fewer rooms for rent for more than 10 nights in a twelve-month period, is the owner's personal residence, is occupied by the owner at the time of rental, and in which the only meal served to guests is breakfast. Page 256

257 BEDROOM A private room, 100 square feet or more in area, planned for sleeping and separable from other rooms by a door. A bedroom is generally accessible to a bathroom without crossing another bedroom or living room. BERM In the context of landscaping, bufferyard, or screening requirements, a mound of earth typically used to shield, screen, and buffer undesirable views and to separate potentially incompatible uses. BREWER Any person who manufactures fermented malt beverages for sale or transportation, except that brewer does not include a permittee under Wis Stat Sec as said section may be amended from time to time. BREWPUB A brewpub is an entity which manufactures fermented malt beverages completely on premise solely to the extent authorized under Wis Stat Sec (1)(a) and which is eligible for a brewpub permit pursuant to Wis Stat Sec (2)(a) as said sections may be amended from time to time. BUFFER or BUFFERYARD Open spaces, landscaped areas, fences, walls, berms, or any combination thereof used to physically separate or screen one use or property from another use or property to visually shield or block noise, light, or other potential nuisances. BUILDING Any structure having a roof supported by columns or walls used or intended to be used for the shelter or enclosure of persons, animals, equipment, machinery or materials. A building shall be permanently affixed to the land. BUILDING, ACCESSORY A building detached from a principal building on the same lot and customarily incidental or subordinate to the principal building or use. BUILDING AREA The total area bounded by the exterior walls, as measured in square feet from the outside surface of the walls, to include only areas completely enclosed from the elements, having finished interior walls, ceilings, and floors and having light, ventilation, heating and other requirements of the Building Code, Editor's Note: See Ch. 80, Building Construction. but not including basements, garages, porches, breezeways, unfinished attics, and overhangs. BUILDING, DETACHED A building surrounded by open space and not attached to any other structure by any means. BUILDING HEIGHT See A. BUILDING LINE A line parallel to a particular lot line passing through the exterior point of the building that is closest to the lot line. See also "setback line." BUILDING MASS The three-dimensional bulk of a building made up of the height, width and depth. BUILDING, PRINCIPAL A building in which the principal use of the lot on which it is located is conducted. BUSINESS An occupation, employment, or enterprise which occupies time, attention, labor and materials, or wherein merchandise is exhibited or sold, or where services are offered other than home occupations. See also "home occupations." BUSINESS OFFICES Includes establishments providing executive, management, administrative, or professional services, including real estate, architecture, legal, travel, employment, advertising, design, engineering, accounting and similar uses. Business offices does not include health- or dental-related services. CANOPY A permanent structure without walls for the purpose of shielding driveways, sidewalks, or service areas from the elements. Page 257

258 CAPTIVE WILD ANIMALS Animals regulated under state and federal licenses such as deer, wild ducks, etc. All applicable state and federal regulations shall apply. CARPORT A roofed structure providing space for the parking or storage of motor vehicles and enclosed on not more than three sides. See also "garage, private." CEMETERY Land used or intended to be used for the burial of the dead and dedicated for cemetery services. CHANGE OF USE Any use that substantially differs from the previous use of a building or land in terms of, for example, required parking, landscaping, drainage, and particularly in terms of the new use's overall effect on the surrounding neighborhood and zoning district purpose. CHANGEABLE COPY READER BOARD a sign on which informational content is manually changed in the field. CHANNEL A natural or artificial watercourse or drainageway of perceptible extent with definite bed and banks to confine and conduct continuously or periodically flowing water. CHARACTER Those attributes, qualities, and features that make up and distinguish a development project and give such a project a sense of purpose, function, definition, and uniqueness. CHURCH (Neighborhood Scale) A place of gathering for religious observance, ministry, and fellowship & related social events and may include classrooms for periodic religious instruction, kitchen, meeting area principally for members and administrative offices. These facilities are identified as those with a total building footprint of less than 14,999 square feet. A total building size of equal to or less than 14,999 square feet shall be considered a principal use within all commercial, industrial, office and institutional districts and a conditional use in all agricultural and residential districts. CHURCH (Community Scale) - A place of gathering for religious observance, ministry, and fellowship & related social events and may include classrooms for periodic religious instruction, and administrative offices. These facilities are identified as those with a total building footprint greater than 15,000 square feet or which have accessory uses, which include, but are not limited to uses such as banquet facilities, day school, day care facilities, retail stores, restaurant, workout centers / club, gymnasium, health care facilities, assisted living facilities, library, and café. Community scale churches shall be a conditional use in all agricultural, commercial, office and institutional districts, a principal use in the industrial district and shall be prohibited in all residential districts. CITY The City of New Berlin, Waukesha County, Wisconsin. CITY'S MAP OF POTENTIAL CONSERVATION AREAS The map of potential conservation areas for the City of New Berlin consists of wetlands (the DNR Bureau of Fisheries Management and Habitat Protection); floodplains [Federal Emergency Management Agency (FEMA)]; moderate and steep slopes (the slopes were calculated from the spot elevations within the City of New Berlin); agriculturally zoned lands (City of New Berlin GIS data); conservancy zoned lands (City of New Berlin GIS data); environmental corridors (SEWRPC); and scenic vistas (City of New Berlin Comprehensive Plan). COLLECTOR STREET See "street, collector" below. COMMERCIAL FEED LOT The confinement of 200 or more head of livestock on a farm or other site for the purpose of intensive feeding prior to slaughter or shipment in such concentration that ground vegetation is substantially destroyed, where: A. The farm or site does not produce a minimum of 60% of the feed necessary to sustain the herd. B. The farm or site is insufficient in size to provide for the disposal of all animal wastes in a manner that they will not run off, seep, percolate, or wash into surface or subsurface waters. COMMON COUNCIL The Common Council of the City of New Berlin, Waukesha County, Wisconsin. Page 258

259 COMMUNITY LIVING ARRANGEMENTS The following facilities, licensed or operated or permitted under the authority of Wisconsin State Statutes: child welfare agencies under 48.60, group foster homes for children under 48.02(7m), and community-based residential facilities under The term does not include day-care centers, nursing homes, general hospitals, special hospitals, prisons, and jails. The establishment of a community living arrangement shall be in conformance with 46.03(22), 59.69, 62.23(7)(i), and 62.23(7a), Wis. Stats., and amendments thereto. COMPLETE APPLICATION An application for a development approval or permit that has been submitted in the required format, includes all mandatory information, and is accompanied by the established fee. COMPOSTING FACILITY A container or other designated location for the biological decomposition of organic material, such as vegetable scraps, leaves, grass clippings, vegetation, wood shavings, nonhuman manures, to produce material for fertilizing and conditioning soils. CONDITIONAL USE See "use, conditional" below. CONDOMINIUM The absolute ownership of a unit in a multiunit building based on a legal description of the airspace the unit actually occupies, plus an undivided interest in the ownership of the common elements, which are owned jointly with the other condominium unit owners. CONIFEROUS Trees and shrubs that generally have needles rather than leaves, bear cones, and typically remain green throughout the year. CONSERVATION AREAS That portion of a tract of land that is set aside for the protection of sensitive natural features, farmland, scenic views, and other unique features. Conservation areas may be accessible to the residents of the development and/or the municipality. It may also contain areas of conservancy lots that are not accessible to the public. CONSERVATION LOT A large, privately owned lot constituting part of an area of open land. The purpose of the conservancy lot is to provide surrounding residents with visual access to conservation area while keeping the land under private ownership and maintenance. Only a small portion of such lots may be developed, the remainder must be protected through conservation easements and used in conformance with standards for conservation areas. Public access to conservancy lots is not required. CONSTRAINED LANDS Constrained lands are identified as lands within the right-of-way, all land under existing private streets, wetlands, floodways, flood fringe, steep slopes, extensive rock outcroppings, and moderately steep slopes. CONTIGUOUS See "abutting or adjoining." CORNER LOT See "lot, corner" below. COSMETIC TATTOO ESTABLISHMENTS / PERMANENT COSMETICS This service includes application of permanent cosmetics such as eyeliner on the top and bottom of the eyes, lip liner and color for top and bottom lips and full and partial eyebrow coloration. COUNTY Waukesha County, Wisconsin. CUT The excavating of earth from the ground surface during the process of land development. DAY-CARE CENTER A building or structure where care, protection, and supervision are provided for children on a regular basis away from the primary residence for less than 24 hours, with or without compensation or the provision of educational purposes. This term could include, but are not limited to, day nurseries, nursery schools, preschools, play groups, day camps, or summer camps. See also "family day-care home" below. DBH See "diameter at breast height" below. Page 259

260 DCD The Department of Community Development. DECIDUOUS Trees and shrubs that lose their leaves at the end of each growing season and develop new ones the following season. DECK A platform, either freestanding or attached to a building, that is supported by pillars or posts. DENSITY, GROSS The numerical value obtained by dividing the total number of dwelling units in a development by the gross area of the tract of land (in acres) within a development. This would include all nonresidential land uses and private streets of the development, as well as rights-of-way of dedicated streets, the result being the number of dwelling units per gross acre of land. DENSITY, NET The numerical value obtained by dividing the total number of dwelling units in a development by the net area (in acres) with a development. The net area is the land within a development excluding public right-of-way, private streets and areas zoned FWO, C-1, C-2 or C-3. DEPARTMENT OF NATURAL RESOURCES The Wisconsin Department of Natural Resources (DNR). DEPARTMENT STORE A single commercial business that has a minimum building or floor area of 25,000 square feet. DESIGN STANDARDS The City of New Berlin Infrastructure and Site Design Standards. DEVELOPER See "subdivider or developer" below. DEVELOPMENT The carrying out of any building or construction activity, extraction or excavation operations, or the making of a substantial material change in the use or appearance of a structure or lot. "Development" shall not include the dividing of land into two or more parcels. (See "subdivision.") Development shall include: A. Any construction, placement, reconstruction, alteration of the size, or material change in the external appearance of a structure on a lot; B. Any change in the intensity of use of a lot, such as an increase in the number of dwelling units in a structure or on a tract of land or material increase in the intensity and impacts of the development; C. Any change in use of land or structure; D. Any alteration of a shore or bank of a river, stream, lake, reservoir, wetlands, or floodplains; E. The clearing of land as an adjunct of construction; F. The commencement of drilling, except to obtain soils samples, mining, stockpiling or fill materials, filling or excavation on a parcel of land; G. The demolition of a structure; H. The deposit of refuse, solid or liquid waste, or fill on a parcel of land; I. The cutting, filling, or grading of land; and J. The installation of landscaping within the public right-of-way, when installed in connection with the development of adjacent properties. DIAMETER AT BREAST HEIGHT (DBH) The trunk diameter of a tree, measured in inches at a height of 4.5 feet from the ground, or, in the case of a tree that is divided into multiple trunks, below 4.5 feet, as measured at the most narrow point beneath the point of trunk division. DIRECTOR The Director of the Department of Community Development, City of New Berlin or his/her designee. DISTRICT, BASIC A part or parts of the City for which the uniform regulations of this chapter govern the use and location of land and buildings. DISTRICT, OVERLAY A superimposing of certain additional requirements upon an underlying basic zoning district without disturbing the requirements of the basic district. In the instance of conflicting requirements, the more strict of the conflicting requirements shall apply. Page 260

261 DOUBLE FRONTAGE LOT See "lot, double frontage." DRAINAGE Surface water runoff or the removal of surface water or groundwater from land by drains, grading or other means, which includes runoff control to minimize erosion and sedimentation during and after construction. DRIVE-THROUGH FACILITY An establishment that encourages or permits customers to receive services, obtain goods, or be entertained while remaining in their motor vehicles. DRIVEWAY A private roadway providing access to a street or highway from a building or structure. DRIVEWAY, SHARED A driveway shared by adjacent property owners and privately owned and maintained. DRYLAND ACCESS A vehicular access route which is above the regional flood elevation and which connects land located in the floodplain to land which is outside the floodplain. Dryland access may include roads with their surface above the regional flood elevation and wide enough to accommodate wheeled vehicles. DUMPSTER A receptacle for common household or business waste as well as for recyclable goods. DWELLING, EFFICIENCY A dwelling unit consisting of one principal room with no separate sleeping rooms. DWELLING, MULTIPLE-FAMILY A residential building designed to be occupied by three or more households within separate dwelling units. DWELLING, SINGLE-FAMILY A detached building designed to be occupied exclusively by one household. DWELLING, TWO-FAMILY A detached building designed to be occupied by two households in two separate units. DWELLING UNIT A building or portion thereof, designed and used as living and sleeping quarters for a single household, that includes exclusive, sleeping, kitchen, eating, and sanitary facilities. EASEMENT An area where one or more property rights is reserved, conveyed, or granted by the property owner to and for the use of the public, a corporation, or other persons, for a designated part of the property, and for a specified or limited purpose without the transfer of title. A grant by the property owner of the use of a strip of land to the City, public, or to one or more persons or corporations for a specific purpose or purposes. EASEMENT SLOPE That portion of land lying outside the limits of the street right-of-way necessary to comply with the minimum slope requirements, as set forth in the specifications. EAVES The projecting lower edge of a roof that overhangs the exterior wall of the building. EDUCATIONAL FACILITIES Buildings or structures used to teach students. Educational facilities may include primary schools, elementary schools, middle schools, high schools, colleges, vocational schools, and other similar uses. ELDERLY HOUSING A dwelling unit or units designed and constructed to be occupied by elderly persons. An elderly person is a person who is 62 years of age or older on the date such person intends to occupy the premises or a family the head of which or his spouse is an elderly person as defined herein. ELECTRONIC MESSAGE BOARDS a sign capable of displaying words, symbols, figures or images that can be electronically changed by remote or automatic means. Video displays are not permitted as part of electronic message boards. ENVIRONMENTAL CORRIDOR Defined by the Regional Planning Commission as linear areas in the landscape which contain concentrations of high-value elements of the natural resources base. Page 261

262 EROSION The detachment and movement of soil, sediment, or rock fragments by water, wind, ice, or gravity. ESSENTIAL SERVICES Services provided by public and private utilities necessary for the exercise of the principal use or service of the principal structure. These services include underground, surface, or overhead gas, electrical, steam, water, sanitary sewerage, stormwater drainage, and communication systems and accessories thereto, such as poles, towers, wires, mains, drains, vaults, culverts, laterals, sewers, pipes, catch basins, water storage tanks, conduits, cables, fire alarm boxes, police call boxes, traffic signals, pumps, lift stations, and hydrants, but not including buildings. EXISTING RESOURCES AND SITE ANALYSIS MAP This map identifies, locates, and describes noteworthy features to be designed around sensitive subdivision layouts. The purpose of this key submission is to familiarize officials with existing condition on the applicant s tract and to provide complete and factual reference for them in making a site visit. This map should include an orthophoto, the topography, locations of ponds, streams, ditches, and other drainageways, vegetation cover features (including cultivated lands, permanent grass, meadow, pasture, old fields, hedgerow, wetlands, woodland) also soils, ridgelines, scenic views, geologic formations, manmade features, proposed streets, trails, parks easements, etc. See FAMILY Any number of persons related by blood, adoption, or marriage, or not to exceed four persons not so related, living together in one dwelling unit as a single housekeeping entity, excepting foster family homes. FAMILY DAY-CARE HOME A dwelling licensed as a day-care center by the State of Wisconsin pursuant to 48.65, Wis. Stats., where care is provided for not more than eight children. FARM BUILDINGS, GENERAL Buildings associated with agricultural uses, the raising of crops or the raising of animals and may include barns, silos, sheds, and storage bins intended for permitted agricultural uses and sized to meet demonstrated agricultural needs. FEDERAL EMERGENCY MANAGEMENT AGENCY (FEMA) The federal agency which administers the National Flood Insurance Program. This agency was formerly known as the Federal Insurance Administration (FIA) and was part of the United States Department of Housing and Urban Development (HUD). FENCE An artificially constructed barrier of any material or combination of materials erected to enclose, barricade, define boundaries, or screen. A fence shall not include shrubs, trees, or other growing plants. FILL A deposit of materials of any kind placed by artificial means. FINANCIAL GUARANTY OR SURETY An irrevocable letter of credit, a cash bond, or other financial guaranty approved by the City Attorney. FINANCIAL INSTITUTIONS Establishments engaged in deposit banking. Financial institutions may include, but are not limited to, commercial banks, loan or mortgage companies, stock brokers, savings institutions, and credit unions. FLOOD A temporary rise in stream flow or stage in lake level that results in water overtopping the banks and inundating areas adjacent to the stream channel or lake bed. FLOOD INSURANCE STUDY An examination, evaluation, and determination of flood hazards and, if appropriate, corresponding water surface elevations, or an examination, evaluation, and determination of mudslide (i.e., mud flow) and/or flood-related erosion hazards. Such studies shall result in the publication of a Flood Insurance Rate Map showing the intensity of flood hazards in either numbered or unnumbered A Zones. FLOODLANDS All lands contained in the regional flood or one-hundred-year recurrence interval flood. For the purpose of zoning regulation, the floodlands are divided into the Floodway Overlay District and the Floodplain Fringe Overlay District. Page 262

263 FLOODPLAIN FRINGE Those floodlands, outside the floodway, subject to inundation by the one-hundred-year recurrence interval flood. The floodplain fringe includes the Floodplain Fringe Overlay District. It is generally associated with standing water as opposed to rapidly flowing water. FLOODPLAIN ISLANDS A natural geological land formation within the floodplain that is surrounded, but not inundated, by floodwater during the regional flood. FLOODPLAIN ZONING MAP A portion of the Zoning Map that shows the flood hazard district boundaries and all information required by Wisconsin Administrative Code NR FLOOD PROFILE A graph showing the relationship of the floodwater surface elevation of a flood event of a specified recurrence interval to the streambed and other significant natural and man-made features along a stream. FLOODPROOFING Any combination of structural and nonstructural additions, changes, or adjustments which reduce or eliminate flood damage to unimproved and improved real estate, water and sanitary sewer facilities, structures and their contents. (See also J.) FLOOD PROTECTION ELEVATION A point two feet above the water surface elevation of the one-hundredyear recurrence interval flood. This safety factor, also called "freeboard," is intended to compensate for the many unknown factors that contribute to flood heights greater than those computed. Such unknown factors may include ice jams, debris accumulation, wave action, and obstructions of bridge openings. FLOOD STAGE The elevation of the floodwater surface above an officially established datum plane, which is mean sea level, 1929 adjustment, on the Supplementary Floodland Zoning Map. FLOOD STORAGE Those floodplain areas where storage of floodwaters has been taken into account in reducing the regional flood discharge. FLOODWAY A designated portion of the one-hundred-year recurrence interval flood area that will safely convey the regulatory flood discharge with small, acceptable upstream and downstream stage increases, limited in Wisconsin to 0.01 foot unless special legal measures are provided. The floodway, which includes the channel, is that portion of the floodplain not suited for human habitation. All fill, structures, and other development that would impair floodwater conveyance by adversely increasing flood stages or velocities or would itself be subject to flood damage should be prohibited in the floodway. FLOOR AREA, GROSS The sum of the gross horizontal areas of all floors measured in square feet, not including the basement floor, measured from the exterior faces of the exterior walls or from the center line of walls separating two buildings. Gross floor area shall include all areas used for storage, elevator shafts, and mechanical equipment. FLOOR AREA, NET For the purpose of calculating parking spaces, the sum of the gross horizontal areas of all floors measured in square feet, not including the basement floor or areas that are used primarily for storage, elevator shafts, and mechanical equipment, measured from the exterior faces of the exterior walls or from the center line of walls separating two buildings. FOSTER FAMILY HOMES The primary resident of a foster parent which is for four or fewer foster children and which is licensed under 48.62, Wis. Stats., and amendments thereto. FOWL, SMALL Any bird housed outdoors, including but not limited to, chickens, pigeons, ducks, geese, turkeys, peacocks and pheasants that are kept or raised for sale, resale, human consumption or pleasure. FOWL, LARGE Emus, rheas, ostriches (ratites) housed outdoors kept or raised for sale, resale, human consumption or pleasure. FREEBOARD A flood-protection elevation requirement designed as a safety factor which is usually expressed in terms of a specified number of feet above a calculated flood level. Freeboard compensates for the effects of Page 263

264 any factors that contribute to flood heights greater than those calculated. These factors include, but are not limited to, ice jams, debris accumulation, wave action, obstruction of bridge openings and floodways, the effects of urbanization on the hydrology of a watershed, loss of flood storage areas due to development and aggradation of the river or stream bed. FRONTAGE See "lot frontage." FRONTS Abutting a public right-of-way. See also "lot frontage." GARAGE, PRIVATE An accessory building primarily intended for and used for the enclosed storage or shelter of the private motor vehicles of the owner or occupant of the principal building. A private garage shall not mean a carport. GARAGE, PUBLIC Any building or portion thereof, not accessory to a residential building or structure, used for equipping, servicing, repairing, leasing, public parking of motor vehicles, snowmobiles, or other recreational vehicles for hire. GARAGE SALE See "rummage sale." GOVERNMENT OFFICE An establishment where office uses associated with functions of government agencies are conducted. Government offices may include office space for municipal, county, regional, and federal agencies. GRADE A. The average elevation of the land around a building; or B. The percent of rise or descent of a sloping surface as it exists or as rendered by cut and/or fill activities. GRADE, FINISHED The final elevation of the ground level after topsoil has been applied to graded slopes, as measured six feet from the exterior walls of the structure. GRADING The rearrangement of the earth's surface by stripping, cutting, filling, or stockpiling of earth or land. GREENFIELD DEVELOPMENT SITES Farmland and open areas where there has been no prior industrial or commercial activity and, therefore, where the threat of contamination is much lower than urbanized areas. HALF STREET Will be defined. Editor's Note: See HEAVY INDUSTRIAL USES The manufacturing, processing, or assembly of products where air, noise, or odor pollution may create excessive land use conflicts or where a portion of the use is located outside of an enclosed structure. HIGH-INTENSITY SOIL SURVEY A Class A soil survey, conducted by a certified soils scientist and prepared according to the standards of the National Cooperative Soil Survey, resulting in a soils map in which the mapping units are single phases of soils series and the mapping units delineated are contrasting soils of 1/8 acre or less in size. HISTORIC STRUCTURE Any structure that is: A. Listed individually in the National Register of Historic Places or preliminarily determined by the Secretary of Interior as meeting the requirements for individual listing on the National Register; B. Certified or preliminarily determined by the Secretary of Interior as contributing to the historical significance of a registered historic district or a district preliminarily determined by the Secretary to qualify as a registered historic district; C. Individually listed on a local inventory of historic places in states with historic preservation programs which have been approved by the Secretary of Interior; or D. Individually listed on a local inventory of historic places in communities with historic preservation programs which have been certified either by an approved state program, as determined by the Secretary of Interior, or directly by the Secretary of Interior in states without approved programs. Page 264

265 HOME OCCUPATION An occupation or profession for financial gain or profit which is incident to and carried on entirely within a dwelling unit located on a lot, exclusive of attached garage or patio area, by resident occupants of the dwelling unit and which occupation is clearly incidental to and accessory to the residential use of the premises. [See also G(4).] HOMEOWNER ASSOCIATION An organization formed to manage the common open space and facilities within a development that are not publicly maintained; membership in and financial support of such organization is mandatory for all land owners within the development. HOTELS or MOTELS A building in which lodging, with or without meals, is offered for compensation and in which there are more than five sleeping rooms. HOUSEHOLD A family living together in a single dwelling unit, with common access to and common use of all living and eating areas and of all areas and facilities for the preparation and serving of food, within the dwelling unit. See "family." IMPERVIOUS SURFACES Any portion of a lot that is covered by a structure or surface that prevents the passage or absorption of stormwater runoff, including but not limited to pavement, driveways and structures. IMPROVEMENTS Street grading and surfacing, with or without curbs and gutters, side paths, sidewalks, crosswalks, water mains, sanitary and storm sewers, culverts, bridges, street trees. INDUSTRIAL SALES The sale of merchandise to industrial uses that may include the sale of fuels, gases and industrial vehicles. INFILL DEVELOPMENT The development of vacant or partially developed parcels which are surrounded by or in close proximately to areas that are substantially or fully developed. INFILTRATION Means the entry and movement of precipitation or runoff into or through the soil. ISOLATED NATURAL FEATURES Isolated natural features are generally isolated from the environmental corridors by urban development and, although separated from the environmental corridor network, have important natural values. Isolated natural resource areas may provide the only available wildlife habitat in an area, provide good locations for local parks and natural areas, and lend unique and aesthetic character and natural diversity to an area. KEEPING AND RAISING OF ANIMALS The use of land for raising, pasturing or yarding of livestock. LANDFILL A disposal site in which refuse and earth, or other suitable cover material, are deposited and compacted in alternate layers of specified depth in accordance with an approved plan. LANDMARK Any structure or improvement which has a special character or special historic interest or value as part of the development, heritage or cultural characteristics of the community, state, or nation and which has been designated as a landmark pursuant to the provisions of the City of New Berlin Landmarks Commission Ordinance. Editor's Note: See Ch. 141, Historic Preservation. LANDMARK SITE Any parcel of land of historical significance due to substantial value in tracing the history of aboriginal man, or upon which a historic event has occurred, and which has been designated as a landmark site pursuant to the provisions of this chapter; or a parcel of land, or part thereof, on which is located a landmark and any abutting parcel, or part thereof, used as and constituting part of the premises on which the landmark is situated. LANDSCAPING Living material, such as grass, ground cover, flowers, shrubs, vines, hedges, and trees, and nonliving durable material, such as rocks, pebbles, sand, mulch, and wood chips or bark, but not including paving. Page 265

266 Landscaping is intended to be both decorative and functional. Functional uses of landscaping include protection against erosion, absorption of pollutants, sound retardation, visual barrier, buffering or screening between different land uses, shade to moderate temperatures, protection from wind, and oxygen renewal. Landscaping may serve as screening when it is densely planted. LAND USE MAP A map based on a series of maps that are part of the land use element of the Comprehensive Plan that shows the current land uses and future land uses that indicate productive agricultural soils, natural limitations for building site development, floodplains, wetlands and other environmentally sensitive lands, the boundaries of areas to which services of public utilities and community facilities will be provided in the future consistent with the plan's timetable, and the general location of future land uses by net density or other classifications. LETTER OF MAP AMENDMENT (LOMA) Official notification from the Federal Emergency Management Agency (FEMA) that an individual property or structure has been removed from a Flood Hazard Boundary Map or Flood Insurance Rate Map. LETTER OF MAP REVISION (LOMR) Official notification from the Federal Emergency Management Agency (FEMA) that a municipality's Flood Hazard Boundary Map or Flood Insurance Rate Map has been amended. A LOMR is issued when the revised map is not republished. LEVEL OF SERVICE (LOS) A. In general terms, an indicator of the extent or degree of service provided by or proposed to be provided by a facility based on and related to the operational characteristics of the facility. Generally, level of service indicates the capacity per unit of demand for a public facility. B. More specifically, in terms of transportation, level of service shall mean a qualitative measure describing operational conditions within a traffic stream; generally described in terms of such factors as speed, freedom to maneuver, traffic interruptions, comfort, convenience, and safety. LOS is usually expresses in terms of six levels, designated A through F, with A being the best and F being the worst. LIGHT INDUSTRIAL USES The manufacturing, processing or assembly of products within a fully enclosed structure where noise, odor, light, or vibration is not noticeable from the adjacent properties. LIMITS OF DISTURBANCE (LOD) The area(s) of a site, as established pursuant to A of this chapter, that may be disturbed by earth movement (grading), or cleared of vegetation, including disturbance or clearance to provide space for construction of principal and accessory uses and structures, driveways, parking areas, roads, drainage and stormwater management facilities, or utilities. LIVESTOCK - domestic farms animals which are typically kept for breeding, production of agricultural products, sale, consumption or pleasure (see also definitions for livestock, large and livestock, small) LIVESTOCK, LARGE cattle, bison, horses and other livestock generally weighing over 500 pounds, including pigs over 300 pounds. Pigs over 300 pounds are only permitted in the A-1 district. LIVESTOCK, SMALL small animals such as sheep, goats, miniature horses, small ponies, llamas, alpaca, potbellied pig and other non-commercial small breed pigs under 300 pounds and other livestock generally weighing under 500 pounds. LOADING AREA/DOCK An off-street space or berth for the loading or unloading of freight carriers on the same lot as the structure they serve. LOCAL STREET See "street, minor." LOT A platted parcel of land, having proper street frontage, sufficient in size to meet the lot width, lot frontage, lot area, and other open space provisions of this chapter, and separately owned, developed, and otherwise operated as a unit. Page 266

267 LOT AREA The total gross amount of horizontal land area within all lot lines. Public rights-of-way and private streets shall not be used in the calculation of lot areas except as noted in Article VI. LOT, CORNER A lot abutting two or more streets at their intersection, provided that the corner of such intersection shall have an angle of 135 or less, measured on the lot side. See Figure XI-1. LOT COVERAGE The total area of all buildings, measured at grade, all accessory structures including pools, patios, etc., and all paved areas as a percentage of the total area of the lot, with the following exceptions: sidepaths or paved paths no wider than 8 feet, pervious pavement, and green roofs. LOT DEPTH The average distance measured from the front lot line to the rear lot line in the general direction of the side lot lines. See Figure XI-1 and Figure XI-2. LOT, DOUBLE FRONTAGE A parcel of land, other than a corner lot, with frontage on more than one street or with frontage on a street and a navigable body of water. See Figure XI-1 and Section F. LOT, FLAG OR PANHANDLE A lot not meeting minimum frontage requirements and where the access to the public or private road is by a narrow private right-of-way or driveway known as the "panhandle." The length of the panhandle shall be measured from the frontage line to the nearest point of intersection with the lot's property line that parallels or almost parallels the frontage line. See Figure XI-1. LOT FRONTAGE The dimension of a lot abutting a public street measured along the street right-of-way line. See Figure XI-1. LOT, INTERIOR A lot situated with a one lot line fronting a single street and bounded by adjacent lots along each of its other lot lines. See Figure XI-1. Figure XI-1 Examples of Lot Types Page 267

268 LOT LINE The peripheral boundaries of a parcel of land and the total area lying within such boundaries. LOT LINE, FRONT The front property line which is coterminous with the street right-of-way. A front lot line is generally parallel to or less than 45 to the rear lot line. The front lot line is generally opposite the rear lot line. A corner lot or double frontage lot has more than one front lot line. See Figure XI-3. LOT LINE, REAR An internal lot line opposite a front yard. A rear lot line is generally parallel to or less than 45 to the front street right-of-way line. Where the street line is an arc, the angle is measured from the tangent of the arc. A lot line greater than 45 degrees from the front street right-of-way line would be a side lot line. See Figure XI-3. LOT LINE, SIDE An internal lot line generally extending perpendicular to the front lot line. The side lot lines extend between the front lot line and the rear lot line. See Figure XI-3. LOT OF RECORD A platted lot of a recorded subdivision, certified survey map or parcel of land for which the deed, prior to the adoption of this chapter, is on record with the Waukesha County Register of Deeds and which exists as described therein. LOT WIDTH The width of a parcel of land measured at the building setback line or required front yard setback. See Figure XI-1 and Figure XI-2. Figure XI-2 Examples of Lot Width and Lot Depth Page 268

269 MANUFACTURED HOME or MOBILE HOME A structure, transportable in one or more sections, which is built on a permanent chassis and is designed for use with or without a permanent foundation when connected to required utilities. Manufactured homes or mobile homes are not recreational vehicles, which remain licensed and ready for highway use and remain on site less than 180 consecutive days. MASS (MASSING) See "building mass." COMPREHENSIVE PLAN A document or series of documents prepared by the Plan Commission and duly adopted by said Commission setting forth policies for the future development or redevelopment of the City of New Berlin pursuant to and , Wis. Stats. MAXIMUM EXTENT FEASIBLE That no feasible and prudent alternative exists, and all possible efforts to comply with the regulation or minimize the potential harm or adverse impacts have been undertaken. Economic considerations may be taken into account but shall not be the overriding factor in determining "maximum extent feasible." MEDIUM-INTENSITY SOIL SURVEY A Class C soil survey, conducted by a certified soils scientist and prepared according to the standards of the National Cooperative Soil Survey, resulting in a soils map in which the mapping units are single phases of soils series and the mapping units delineated are contrasting soils of three acres or less in size. MINERAL EXTRACTION The extraction or excavation of rock, ore, stone, sand, gravel, soil, peat, and similar materials from the earth for off-site use. MINERAL PROCESSING The crushing, cleansing, separation or other similar processing activities of rock, ore, stone, sand, gravel, soil, peat, and similar materials that have been extracted or excavated from the earth. Page 269

270 MINOR STREET See "street, minor." MUNICIPALITY The City of New Berlin, Waukesha County, Wisconsin. NATIVE PLANT Plants that are inherent and original to a geographic region. NAVIGABLE WATER Lake Superior, Lake Michigan, all natural inland lakes within Wisconsin, and all rivers, streams, ponds, sloughs, flowages, and other waters within the territorial limits of this state, including the Wisconsin portion of boundary waters, which are navigable under the laws of this state. The Wisconsin Supreme Court has declared navigable all bodies of water with a bed differentiated from adjacent uplands and with levels of flow sufficient to support navigation by a recreational craft of the shallowest draft on an annually recurring basis. For the purpose of this chapter, rivers and streams will be presumed to be navigable if they are designated as either continuous or intermittent waterways on the United States Geological Survey quadrangle maps until such time that the Wisconsin Department of Natural Resources has made a determination that the waterway is not, in fact, navigable. Furthermore, streams not shown on USGS quadrangle maps may later be determined to be navigable by physical navigation. NGVD or NATIONAL GEODETIC VERTICAL DATUM Elevations referenced to mean sea level datum, 1929 adjustment. NONCONFORMING USE See "use, nonconforming." NUDITY The showing of the human male or female genitals, pubic area or buttocks with less than a fully opaque covering, or the showing of the female breast with less than a fully opaque covering of any portion thereof below the top of the areola, or the human male genitals in a discernible turgid state even if completely or opaquely covered. OFFICIAL LETTER OF MAP AMENDMENT See "letter of map amendment." OFFICIAL LETTER OF MAP REVISION See "letter of map revision." OFFICIAL MAP The document as described by 62.23(6), Wis. Stats., which shows the location of streets, highways, parkways, parks, playgrounds, railroad rights-of-way, waterways, and public transit facilities in the City of New Berlin. OFF-STREET PARKING All off-street areas and spaces, designed, used, required, or intended to be used for parking, storage, or display of motor vehicles and shall include all driveways, entrance drives, or access drives to such areas, but shall not include public streets and rights-of-way. ONE-HUNDRED-YEAR RECURRENCE INTERVAL FLOOD A flood event which has a one-percent chance of occurring or being exceeded in any given year on a particular lake, river or stream based upon engineering analysis of lake level or stream-flow records available for the watershed or an analysis of rainfall and runoff characteristics in the watershed, or both. Statistically, a one-percent annual probability will occur on average every 100 years. OPEN SPACE Land areas not occupied by buildings, structures, parking areas, streets, driveways, or alleys. Open space shall not include upper-floor decks and/or balconies. OPEN SPACE LAND A portion of a tract of land that is set aside for the protection of sensitive natural features, farmland, scenic views, and other unique features. Open space land may be accessible to residents of the development and/or the City of New Berlin, or it may contain areas of conservancy lots, which are not accessible to the public. OPEN SPACE USE Used for floodplain regulation, those uses having a relatively low flood damage potential and not involving structures. Page 270

271 ORDINARY HIGH-WATER MARK The point on the bank or shore of a body of water up to which the presence and action of surface water is so continuous as to leave a distinctive mark, such as by erosion, destruction or prevention of terrestrial vegetation, predominance of aquatic vegetation, or other easily recognized characteristic. ORGANIZATIONAL CLUB An organization of persons for special purposes or for the promulgation of sports, art, literature, politics, or other common goals, interests, or activities, characterized by membership requirements, dues, or regular meetings, excluding clubs operated for profit or for churches. OUTDOOR DISPLAYS AND SALES The display or sale of items, merchandise, junk, material, or vehicles outside of an enclosed structure for more than four consecutive days. OUTDOOR STORAGE The storage of items, merchandise, junk, material, or vehicles outside of an enclosed structure for more than four consecutive days that are not being displayed for sale. OUTLOT A parcel of land, other than a lot or block, so designated on the plat. PADDOCKS Fenced-in areas used for riding courses or academies, showing or displaying of animals, and the confined feeding of animals, not including general pasturing. PARKING AISLE The driveway or access drive by which a car enters and departs a parking space. PARKING LOT A structure, premises or lot used for the parking of vehicles, excluding parking areas accessory to single-family and two-family dwelling units. PARKING, SHARED The joint use of a parking lot for multiple uses. PARKING SPACE A graded and surfaced area of not less than 180 square feet in an area either enclosed or open for the parking of a motor vehicle, having adequate ingress and egress to a public street, alley or parking aisle. PARTIES IN INTEREST Any person(s) with incidence of ownership including all abutting property owners, all property owners within 100 feet, and all property owners of opposite frontages. PARTY WALL A wall containing no opening which extends from the elevation of building footings to the elevation of the outer surface of the roof or above, and which separates contiguous buildings or units but is in joint use for each building. PASSIVE PARKS AND RECREATIONAL FACILITIES Any park or recreational facility where there is no grading of the land, the construction of facilities, lighting, or is developed for ball fields. PERSON An individual or group of individuals, corporation, partnership, association, municipality, or state agency. PERSONAL SERVICES Establishments that primarily engage in providing personal services for individual(s). Personal services may sell goods as long as they are related to the approved personal service. Personal services may include examples such as:, laundry and dry-cleaning, barbershops, beauty salons, health and fitness studios, music schools, informational and instructional services, tanning salons, portrait shops,shoe repair/shoe shine shops, tailor/garment repair shops, small household appliance repair shops, coin-operated laundromat, travel office, and similar uses. PLAN COMMISSION The Plan Commission of the City of New Berlin. PLANNED UNIT DEVELOPMENT The development of a property for residential, commercial, industrial, or mixed use development when zoning regulations that would normally apply are superseded by controls that allow a more sensitive and more economical arrangement of buildings, streets, and open space on the site. PLAT A map of a subdivision. Page 271

272 PLAT APPROVAL JURISDICTION Includes all of the corporate limits of the City and extraterritorial lands. PLAT, PRELIMINARY A map showing the salient features of a proposed subdivision submitted to an approving authority for purposes of preliminary consideration; a plat map, upon which the subdivider's plan of the subdivision is presented and which he submits for approval and intends to record in final form in the office of the Waukesha County Register of Deeds Office. POWTS Private owner waste treatment systems, which can be located off-lot or on-lot. PREMISES A lot, parcel, tract, or plot of land, together with the buildings and structures thereon. PRIMARY ENVIRONMENTAL CORRIDOR Corridors which include the best remaining woodlands, wetlands, and wildlife habitat areas and are, in effect, a composite of the best residual elements of the natural resource base. These corridors have truly immeasurable environmental and recreational value. Their preservation in an essentially open, natural state, including park and open space site uses and country estate residential uses, will serve to maintain a high level of environmental quality, protect its natural beauty, and provide valuable recreation opportunities. PRINCIPAL USE See "use, principal." PRIVATE SEWAGE SYSTEM A sewage treatment and disposal system serving a single structure with a septic tank and soil absorption field located on the same parcel as the structure. This term also means an alternative sewage system approved by the Wisconsin Department of Commerce, including a substitute for the septic tank or soil absorption field; a holding tank; a system serving more than one structure; or a system located on a different parcel than the structure. PUBLIC HEARING A formal meeting held pursuant to this chapter, intended to inform and obtain public comment prior to taking action in accordance with this chapter. PUBLIC MEETING A meeting of members of a governmental body, for the purpose of exercising the responsibilities, authority, power or duties delegated to or vested in the body, which is held in a place reasonably accessible to members of the public and open to all citizens at all times. PUBLIC UTILITIES All persons, firms, corporations, copartnerships or a municipal authority providing gas, electricity, water, steam, telephone, cable, communications, telecommunications, sewer or other services of a similar nature. RAISING OF CROPS The use of land for planting, growing, cultivating, and harvesting of crops for human or livestock consumption. REACH A longitudinal segment of a stream generally including those floodlands wherein flood stages are primarily and commonly controlled by the same man-made or natural obstructions to flow. RECREATIONAL VEHICLE A vehicular-type portable structure without permanent foundation that can be towed, hauled or driven, which may be designed as temporary living accommodations, and is used for recreational, camping, and travel use. Recreational vehicles may include but are not limited to truck trailers, truck campers, pop-up tents, boats, jet skis, personal watercraft, snowmobiles, camping trailers, and self-propelled campers. RECREATIONAL VEHICLE, MAJOR A vehicle that is over 20 feet in length and seven feet in height. REDEVELOPMENT Any proposed expansion, addition, reduction, or other alteration to an existing building, structure, or other constructed feature on a lot or site. Redevelopment also includes changes in use to existing buildings, as well as modifications to site features such as parking, signage, landscaping, grading, stormwater management devices, or changes to outdoor storage. Page 272

273 REGIONAL FLOOD A flood determined to be representative of large floods known to have occurred in Southeastern Wisconsin. RELEVANT PLANS Any plan that places additional regulations, guidelines, policies, etc., on a specific property or area within the City of New Berlin. RETAIL COMMERCIAL USES Establishments primarily engaged in the sale of goods and materials to the general public. Retail commercial uses may include, but are not limited to, bookstores, antique stores, convenience stores, bakeries, grocery stores, and other similar uses. RIGHT-OF-WAY The width between property lines of a dedicated street or alley. RUMMAGE SALE The occasional sale of personal property at a residence conducted by one or more families in a neighborhood. Rummage sales do not exceed four consecutive days in length and are not conducted more often than three times per year. Rummage sales do not involve the resale of merchandise acquired for that purpose. Rummage sales are also known as "garage sales." Flea markets are not rummage sales. RUNOFF The rainfall, snowmelt, or irrigation water flowing over the ground surface. RURAL CONSERVATION SUBDIVISION These lots are generally defined as not being served by municipal sewer and water and not within the current sewer service area as defined in C. SCREENING A method of visually shielding or obscuring one abutting or nearby use or structure from another by fencing, walls, earthen berms, change of grade, or densely planted vegetation or landscaping. SCROLLING DISPLAY the vertical movement of a static message or display on an electronic message board. SECONDARY ENVIRONMENTAL CORRIDOR Often remnants of primary environmental corridors, which have been developed for intensive agricultural and urban uses. Secondary environmental corridors facilitate surface water drainage, maintain pockets of natural resource features, and provide corridors for the movement of wildlife, as well as for the movement and dispersal of seeds for a variety of plant species. Such corridors should also be preserved in essentially open, natural uses as development proceeds. SERVICE COMMERCIAL USES Establishments that primarily engage in rendering services to businesses, including but not limited to printers, equipment rental, protective services, mailing, photo finishing, and other similar services. SETBACK The minimum horizontal distance between an internal lot line or the base setback line and the regulated structure or item. SETBACK, FRONT YARD The horizontal distance between the base setback line and the nearest roofed or enclosed portion of a building or any projection thereof, excluding uncovered steps and stoops, gutters, and awnings. Where the street line is an arc, the setback shall be measured from the arc. The front yard setback may also be called the "street yard setback." See Figure XI-3. SETBACK, REAR YARD The minimum horizontal distance between the rear internal lot line and a line parallel thereto through the nearest roofed or enclosed portion of the principal structure, excluding uncovered steps and stoops, gutters, and awnings. A rear lot setback is opposite a front yard setback. A rear yard setback is not measured from a public road or street frontage. See Figure XI-3. SETBACK, SIDE YARD The minimum horizontal distance between the side internal lot line and a line parallel thereto through the nearest roofed or enclosed portion of the principal structure, excluding uncovered steps and stoops, gutters, and awnings. The side yard setback does not extend beyond the front building face into the front yard, or beyond the rear building face into the rear yard. See Figure XI-3. Page 273

274 Figure XI-3 Setbacks in a Typical Interior Lot SETBACK, ORDINARY HIGH-WATER MARK (OHWM) The minimum horizontal distance between the ordinary high-water mark of a navigable body of water and a line parallel thereto through the nearest roofed or enclosed portion of the principal structure, excluding uncovered steps and stoops, gutters, and awnings. SETBACK, WETLAND The minimum horizontal distance between the nearest delineated wetland and a line parallel through the nearest impervious surface. SEWRPC The Southeastern Wisconsin Regional Planning Commission. SEXUAL CONDUCT Acts or simulated acts of masturbation, homosexuality, sexual intercourse, or physical contact with a person's clothed or unclothed genitals, pubic area, buttocks, or, if such person is a female, breasts. SHOPPING CENTERS A group of commercial establishments which is planned, constructed, and managed as a total entity with ample customer and employee parking provided on site, with provision for goods delivery separated from customer access, and with aesthetic considerations and protection from the elements. Shopping centers are further defined by size and service area, and include "neighborhood shopping centers" which occupy about five to 10 acres and generally sell goods to meet the daily needs of customers and "community shopping centers" which occupy 10 to 30 acres and generally feature a junior department store or discount store and feature broader lines of shopper goods to encourage comparison shopping. SHORELAND Those lands lying within the following distances from the ordinary high-water mark of navigable waters: 1,000 feet from a lake, pond, or flowage and 300 feet from a river or stream or to the landward side of the floodplain, whichever distance is greater. Shorelands shall not include those adjacent to farm drainage ditches where: Page 274

275 A. Such lands are not adjacent to navigable stream or river; B. Those parts of such drainage ditches adjacent to such lands were nonnavigable streams before ditching or had no previous stream history; and C. Such lands are maintained in nonstructural agricultural use. SHRUB A woody plant consisting of several small stems from the ground or small branches near the ground; may be deciduous or evergreen. SIDE ON CORNER A name for the second front lot line on a corner lot. The term is misleading because both property lines are front lot lines and require front yard setbacks. An exception to the front yard setback is provided in C of this chapter. SIGN Any medium, including its structure, words, letters, figures, numerals, phrases, sentences, emblems, devices, designs, trade names, or trademarks, by which anything is made known and which are used to advertise or promote an individual, firm, association, corporation, profession, business, commodity, or product and which is visible from any public street or highway. SIGN, CANOPY or AWNING A sign that is mounted or painted on, or attached to a canopy, awning, or marquee. See Figure XI-4. SIGN COPY The message or advertisement, and any other symbols on the face of a sign. SIGN, DIRECTIONAL A sign which serves primarily to direct traffic to the location of a place, area or activity within the premise. SIGN FACE The area or display surface used for the message. SIGN, GROUND Any sign placed upon or supported by the ground independent of any other structure. See Figure XI-4. SIGN, MONUMENT A sign supported directly by the ground whose base is made of stone, concrete, metal, brick or similar materials that is not connected to or joined with any other building or structure. SIGN, POLE A sign that is mounted on a freestanding pole or other support so that the bottom of the sign is 10 feet or more above grade. See Figure XI-4. SIGN, PORTABLE A sign that is not permanent and is not affixed to a building, structure, or to the ground. Such sign is sometimes mounted on wheels to make it transportable. See Figure XI-4. SIGN, PROJECTING A sign that is wholly or partly dependent upon a building for support and which projects more than 12 inches from such building. See Figure XI-4. SIGN, ROOF A sign that is mounted on the roof of a building or which is wholly dependent upon a building for support and which projects above the point of a building with a flat roof, the eaves line of a building with a gambrel, gable, or hip roof, or the deckline of a building with a mansard roof. See Figure XI-4. SIGN, SANDWICH BOARD A two-sided portable sign constructed of wood, cardboard or similar rigid material generally displayed outside a commercial establishment to identify a product or service. SIGN, WALL A sign fastened to or painted on the wall of a building or structure in such a manner that the wall becomes the supporting structure for or forms the background surface of the sign and which does not project more than 12 inches from such building or structure. See Figure XI-4. Page 275

276 SIGN, WINDOW A sign that is applied or attached to the exterior or interior of a window or located in such manner within the building that it can readily be seen from the exterior of the building through a window. See Figure XI-4. Figure XI-4 Sign Types SILVICULTURE The practice of establishing, tending, and reproducing stands of trees; involves prescribing such cultural operations as weedings, thinnings, prunings, and measures to protect the trees from insects, disease, and other natural elements. SITE The entire area included in the legal description of the land on which a land-disturbing or landdevelopment activity is proposed in a zoning or use approval permit application. SITE CONTEXT MAP A map showing the location of the proposed subdivision within its neighborhood context. This map is prepared at a more general scale and is based on existing published data. The features that shall be shown on the site context maps include the following topography (from New Berlin or Waukesha County maps): stream valleys, wetlands complexes, primary and secondary environmental corridors and natural resource areas, woodlands, ridgelines, public roads and rights-of-way, trails, utility easements, public land, land protected under conservation easements, and floodplains. SLOPE, AVERAGE The difference in elevation divided by horizontal distance and shall be measured over the entire parcel based on two-foot contour intervals, as shown in the following formula: Average Slope = x length of contour lines (in feet) Site or parcel area in acres SLOPE, STEEP Land that has an average slope of 20% or greater. SPECIAL PLAN OVERLAY DISTRICT (SPO) The SPO Special Plan Overlay District may be applied in areas where specific regulations, design guidelines, and other recommendations have been created through the development of a planning document specific to various areas throughout New Berlin. STAFF The staff of the Community Development Department of the City of New Berlin, Wisconsin. Page 276