Section 303.03. General variances.

 

(1)   Scope. Any person affected by a rule of the department may petition for a variance from the rule. The petition for variance shall establish an equivalency which meets the intent of the rule being petitioned.

(2)   Application for petition for variance. Application for a petition for variance from a rule shall be made on forms furnished by the division. The following shall be submitted when requesting a variance from a rule:

(a) A completed and notarized petition for variance form including a clear and concise written statement of the specific provisions of the rule from which the variance is requested along with a specific statement of the procedures and materials to be used if the variance is granted;

(b) A petition for variance fee as specified in ch. SPS 302 ;

(c) A completed position statement on the petition for variance from the department of health services, where applicable;

(d) A completed position statement on the petition for variance from the chief of the fire department having jurisdiction, where applicable; and

(e) A completed municipal recommendation on the petition for variance from the enforcement official of the municipality exercising jurisdiction, where applicable.

(3)   Division action.

(a) Upon receipt of the petition for variance form, the applicable fee and the position statement, and any other documents the petitioner may wish to submit, the division shall evaluate the petition for variance and determine if the petition for variance provides for an equivalency which meets the intent of the rule being petitioned.

(b) Except as provided in sub. (5) , requests for petitions for variance shall be evaluated on a first come, first serve basis with respect to the code involved.

(c) If additional information is needed by the division to review the petition for variance and make a determination, the division shall notify the owner in writing of the specific information required.

(d) If it is determined that the petition for variance provides an equivalency, the petition for variance shall be approved by the division.

(e) If it is determined that the petition for variance does not provide an equivalency, the division may:

1. Approve the petition for variance subject to specific conditions determined by the division which shall establish an equivalency which meets the intent of the rule;

2. Grant a temporary variance to delay enforcement of a rule to a specified date, not to exceed one year. In requesting the variance, the petitioner shall demonstrate that all available steps are being taken to safeguard the public and employees against the hazard covered by the rule from which the variance is sought and shall possess and describe a program for coming into compliance with the rule as quickly as possible. A temporary variance may be renewed no more than twice, not to exceed one year each, and only if the petitioner files an application for renewal at least 90 calendar days before expiration of the temporary variance;

3. Grant an experimental variance to allow the petitioner to participate in an experiment approved by the division to demonstrate or validate new or improved techniques to safeguard the health or safety of the public and employees; or

4. Deny the petition for variance.

(4)   Notification of petition for variance determination. The division shall notify the petitioner in writing of the petition for variance determination, including any conditions of approval. Any denial shall include the reason for denial, and information on the appeals procedure.

(5)   Time limit for processing.

(a) Except as provided in pars. (b) to (d) , the division shall review and make a determination on an application for a petition for variance within 30 business days. When an appointment process exists for a specific type of petition, the processing time shall begin on the appointment date. When an appointment process does not exist for a specific type of petition, the processing time shall begin on the day after receipt of the application and all forms, fees and other documents necessary to complete the review.

(b) Upon request of the petitioner and submittal of the required fee, the division shall facilitate the review of a petition in less than the processing time specified in par. (a) . The fee for this type of priority petition review shall be twice the fee required for the processing time specified in par. (a) . The division shall review and make a determination on an application for a priority petition for variance within 10 business days.

(c) Petitions for variance from a rule contained in chs. SPS 320 to 325 shall be processed by the division within 10 business days where a municipality administers and enforces the code, and within 15 business days where the division administers and enforces the code.

(d) Pursuant to s. 101.121 (3) (b) , Stats., petitions for variance from a rule for a historic building shall be processed by the division within 10 business days.

(e) When additional information is requested by the division to complete the review of the petition, the amount of time from the date of the request to the date of receipt by the division of the information will not be included in the processing times specified in pars. (a) to (d) . The full period for review specified in pars. (a) to (d) shall apply from the date of receipt of the additional information.

(f)

1. If a petition for variance is submitted with a request for a plan review under s. SPS 382.20 , the processing times of this subsection for the petition and the processing times of s. SPS 382.20 (1) for the plan review shall run concurrently.

2. If a petition for variance is submitted with a request for a plan review under either s. SPS 361.31 or 383.22 , the processing times of this subsection for the petition and the processing times of ss. SPS 361.31 (3) (a) and 383.22 (3) (a) for the plan review shall run consecutively, with the petition being processed first.

(6)   Modifications and revisions.

(a) If a petition for variance is initially denied by the division, the petitioner may, in writing, modify the request for variance by submitting additional or other alternatives in order to provide an equivalency and resubmit the application for the petition for variance.

(b) The petitioner may, in writing, request that his or her original petition statements or the conditions of approval be modified and resubmit the application for the petition for variance.

(7)   Revocation. The division may revoke any petition for variance where it is determined that the variance was obtained through fraud or deceit or where the petitioner has violated the specific conditions on which the variance was approved.

History: Cr. Register, November, 1988, No. 395 , eff. 12-1-88; correction in (2) (b) made under s. 13.93 (2m) (b) 7., Stats., Register, January, 1995, No. 469 ; am. (3) (a), (c), (d), (e) (intro.), 1., 3., (4), (6) (a) and (7), Register, September, 2000, No. 537 , eff. 10-1-00; correction in (5) (c) made under s. 13.93 (2m) (b) 7., Stats., Register, September, 2000, No. 537 ; CR 01-139 : am. (5) (f) 2. Register June 2002 No. 558 , eff. 7-1-02; correction in (2) (c) made under s. 13.93 (2m) (b) 6., Stats., Register June 2002 No. 558 ; CR 05-049 : am. (1) (2) (e) and (5) (a) to (e) Register July 2006 No. 607 , eff. 8-1-06; CR 06-119 : am. (5) (a) to (e) Register July 2007 No. 619 , eff. 8-1-07; CR 06-120 : am. (5) (d), Register February 2008 No. 626 , eff. 3-1-08; correction in (2) (b), (c), (5) (c), (f) 1., 2. made under s. 13.92 (4) (b) 6., 7., Stats., Register December 2011 No. 672 .

Note

The submittal of position statements and municipal recommendations is dependent on the rule being petitioned and is specified in the code under which the variance is requested. Microsoft Windows NT 6.1.7601 Service Pack 1 The department form required in this section is available from the Division of Industry Services at P.O. Box 7162, Madison, WI 53707-7162; or at telephone [phone] or 877/617-1565 or 411 (Telecommunications Relay); or at the Division's Web site at http://dsps.wi.gov/programs/industry-services . Microsoft Windows NT 6.1.7601 Service Pack 1