Center for Land Use Education
The Land Use Tracker
Volume 1, Issue 3
Winter 2002
IN THIS ISSUE:
| BEGINNER | |
 |
|
|
|
| BEGINNER/INTERMEDIATE | |
|
Rain and Snow - Where do They Go and What do They Take With Them |
| CASE LAW UPDATE | |
 |
What changes Invalidate a Nonconforming Use? |
| GENERAL ARTICLES | |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
PREVIOUS ARTICLE FRONT PAGE NEXT ARTICLE
What
Changes Invalidate a Nonconforming Use?
As communities adopt new land use policies and zoning in response to Wisconsin�s comprehensive planning law they must decide how to treat existing development that is no longer compatible with community goals and objectives. Nonconformities are uses, structures or lots that were legally established prior to a change in the ordinance and which do not comply with current ordinance standards. The Wisconsin Court of Appeals, District II, addressed changes allowed for nonconforming uses in its December 5, 2001 decision, Racine County v. Cape.
Wisconsin Statutes provide that nonconforming uses may continue as they were upon ordinance adoption. (ss. 59.69(10)(a), 60.61(5)(a) and 62.23(7)(h) Wis. Stats.) The Cape case relies on Waukesha County v. Seitz, in which the Wisconsin Supreme Court stated, �If an increase in volume, intensity or frequency of use is coupled with some element of identifiable change or extension, the enlargement will invalidate a legal nonconforming use. �However, a mere increase in the volume, intensity or frequency of a nonconforming use is not sufficient to invalidate it.� The court later clarified that an identifiable change occurs when the product or type of service the business puts into the stream of commerce changes. (Waukesha County v. Pewaukee Marina, Inc.)
|
Since the early 1960�s, Cape, a road and utility construction business, had recycled concrete for use at its own construction sites through the use of various crushing techniques. Crushing concrete for reuse by the company became a nonconforming use in 1970 when Racine County enacted a zoning ordinance prohibiting this activity where Cape is located. In 1992, Cape acquired a modern, portable concrete crusher to use in its recycling activities. This equipment allowed Cape to break concrete into smaller and more uniform pieces than possible through conventional means. The court concluded in this case that the portable crusher did not result in an identifiable change in the nonconforming use because there was no evidence that Cape had put a new product or service into the stream of commerce. Therefore, Cape maintains its ability to crush concrete as a nonconforming use. |
|
As a caveat, the court said that there may be circumstances where new equipment would alter the nonconforming use drastically enough to make it a new and different use under the zoning ordinance. There may also be instances where new processes have a significantly different effect on surrounding properties and therefore invalidate the nonconforming use. For example, this might apply if a company switched from mining by mechanical means to blasting.
Adapted from Local Land Use Planning & Zoning ETN Series: Relevant Case Law. James H. Schneider, UWEX Local Government Center and Richard K. Nordeng, Stafford Rosenbaum, LLP