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If a Zoning Ordinance Provision is
Meant to Apply to Nonconforming Structures, Clearly State "Nonconforming
Structures" in the Ordinance
By Lynn Markham, Land Use
Specialist, CLUE
Hillis v. Village of Fox Point Board of Appeals Case No. 04-1787
(Ct. App., March 15, 2005)
Owners
of a house located in an area zoned for residential use applied for a
permit to construct an addition to their house. Neighbors objected to the
proposed addition arguing that expansion of the house was limited by the
50% value limitation for nonconforming uses found in the village�s
ordinance. Because the house had always met the use standards as a
residence in an area zoned for residential use, the court of appeals
concluded that the owners request was not subject to the fifty percent
limitation for nonconforming uses found in the village�s ordinance.
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This finding is consistent with previous
case law:
A 50% value limitation can be
specifically applied to structural alterations of nonconforming
structures (Klinger v. Oneida County, 149 Wis. 2d 838
(1989)).
Ordinances regulating nonconforming
structures must specifically say they apply to nonconforming
structures (County of Sauk v. Trager, 118 Wis. 2d 204
(1984)).
Therefore if a community wants to limit
structural alterations or expansion of nonconforming structures, they
can do so by including ordinance language that specifically refers to |
Nonconforming use: a lawful use of a structure or property
existing on the effective date of a zoning ordinance or ordinance
amendment, and continuing since that time which does not comply with
the specific terms of the ordinance.
Nonconforming structure: A structure lawfully existing prior to a
zoning ordinance or ordinance amendment, which fails to comply with
current dimensional standards of the ordinance such as setbacks, lot
coverage and height. |
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nonconforming
structures. |
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Reviewed by JoAnne
Kloppenburg from the Wisconsin Department of Justice
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