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Land Use Forum
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Growing Frustration Over Regulations Affecting Nonconforming Structures
by Tom Larson
From Prairie du Chien to Minocqua and from Kenosha to Hudson, legislators from around the state are hearing a significant number of complaints from their constituents about the unreasonable regulations being applied to nonconforming structures. Waterfront property owners are being told that they cannot repair and improve their homes beyond a certain dollar amount because their homes are "nonconforming uses", which, in most cases, means they were built according to development regulations (setbacks, lot widths, building height, etc.) that have since been updated. Furthermore, they are told that the nonconforming use doctrine requires that these homes eventually be brought back into conformity with the new development regulations (i.e., moved behind the new setback line) or even eliminated.
The following information is intended to provide background information on the problems associated with nonconforming structures and a better understanding of what the Wisconsin
REALTORSŪ association is doing to address these problems.
Background
- What is the difference between a nonconforming use and a nonconforming structure? A nonconforming use is a use of land or building that is not permitted by the use restrictions of the zoning code. A factory or junkyard in a residential neighborhood is an example of a nonconforming use. In contrast, a nonconforming structure is building that is permitted by the use restrictions of the zoning code, but fails to meet a site development requirement (setback, height, lot size, etc) in the zoning code. An example of a nonconforming structure is a house that was built according to the setback requirement in place at the time of construction (e.g., 75 feet), but does not meet the new setback requirement (e.g., 100 feet). While the Wisconsin statutes authorize the regulation of nonconforming uses, no such authority exists for nonconforming structures. (See. Wis. Stat. Sec. 59.69(10), 60.61(5) and 62.23(7)(h)) However, the nonconforming use regulations have been improperly applied to nonconforming structures over the years due to an 1997 Attorney General's opinion that failed to distinguish between the two.
- How do the nonconforming use regulations affect nonconforming structures? In addition to the underlying premise that nonconforming uses must eventually be eliminated or brought back into conformity, the nonconforming use regulations prohibit the alteration, addition to, or repair of a structure that is being used for an illegal trade or practice in excess of 50 percent of its assessed value. (See. Wis. Stat. Sec. 59.69(10), 60.61(5); but see also 62.23(7)(h) which does not include the illegal use requirements.) The "illegal trade or practice" language is critical limitation to this provision, commonly referred to as "the 50 percent rule", but is almost always overlooked by regulators in the case of most structures. In fact, the statutes do not authorize placing limitations on structures where the structures are being used in a manner that is entirely consistent with the zoning code (i.e., houses in areas zoned for residential uses).
While the 50 percent rule may be reasonable for uses of property that are inconsistent with the uses of land in the surrounding area, this principle is entirely unreasonable when applied to someone's home or business simply because the development regulations have changed since the structure was built.
- How does "the 50 percent rule" impact homeowners? From a practical standpoint, the 50 percent rule prohibits homeowners from making routine repairs such as updating their kitchen, replacing the roof, re-siding the house, and other common improvements and repairs if the accumulative value of these and other repairs exceeds 50 percent of the home's assessed value. Although a home may have been built in accordance with the development regulations at the time, the 50 percent rule, as well as the entire non-conforming use doctrine, penalizes that homeowner simply because the development regulations have since changed.
The WRA is working with members of the Wisconsin Legislature and the Wisconsin Department of Natural Resources to address the problems associated with nonconforming structures. We hope to create a reasonable regulatory framework that treats homeowners fairly and (a) distinguishes between nonconforming uses and nonconforming structures, and (b) allows property owners to repair, remodel, maintain, and improve nonconforming structures in accordance with current local zoning and building regulations.
For more information of if you would like to provide comments, please contact
Tom Larson at (608) 240-8254.
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State Awards 2003 Comprehensive Planning Grants
by Tom Larson
The State of Wisconsin's Department of Administration recently announced the recipients of the 2003 Comprehensive Planning Grants. The comprehensive planning grant program is designed to help offset the costs of preparing a comprehensive plan and has provided over $9.5 million to approximately 535 local communities over the last four years. This year, $3 million was available in grant funding and approximately 321 communities submitted applications in hope of receiving a planning grant. Of the 321 grant applicants, 182 local governmental units (7 counties, 18 cities, 33 villages, and 124 towns) were awarded a comprehensive planning grant. For a complete list of the 2003 Comprehensive Planning Grant recipients, please visit the WRA Web site at
www.wra.org/Government/Land_Use/smart_growth/default.htm.
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Brownfields Program Receives Heavy Cuts
by Tom Larson
In an effort to balance the state's budget, Governor Doyle and the state Legislature's Joint Finance Committee made dramatic cuts to the state's Brownfield program. As part of the governor's deficit repair bill, the governor initially proposed a $3.5 million cut to the program during this fiscal year, and the Joint Finance Committee cut an additional $3.375 million from this year's brownfield budget, leaving only $750,000 for two Milwaukee programs.
Although these are short-term cuts, the financial future of the brownfields program is not clear. Both the governor and the Legislature will revisit the funding for this and other economic development programs as part of the 2003-05 state biennial budget.
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