At the request of the WRA, the Wisconsin Legislature will soon consider legislation that seeks to provide owners of legal, nonconforming homes and substandard lots with greater certainty as to how they can repair, maintain and improve their property. This legislation would accomplish these goals by (a) defining “nonconforming structures,” (b) allowing property owners to repair and maintain legal, nonconforming homes and buildings, and (c) codifying the standards in NR 115 related to the expansion of nonconforming structures and building on substandard lots in shoreland areas.
Background
A “nonconforming structure” is a home or building that does not meet one of the dimensional requirements found in the current zoning ordinance. This could be a setback requirement, height requirement, lot coverage ratio, impervious surface requirement or any other regulation relating to the size or the placement of a building on a lot. Generally, a building becomes nonconforming because a community changes the regulations after the home or building is constructed.
When a home is classified as “nonconforming,” significant restrictions are often placed on the ability to improve, expand or replace the building. These restrictions impact the value of the property because purchasers are obviously unwilling to pay the same amount for a home with these restrictions as they would for the same home with no restrictions. In addition, lenders are reluctant to offer financing because these homes are considered “higher risk” due to the fact that restrictions placed on the ability to maintain, repair and improve these structures reduces the functional life on the structures.
Current law protects the ability of property owners to rebuild their nonconforming homes and buildings if destroyed by natural disaster. See Wis. Stat. §§ 59.69(10m) and 62.231(5m). However, the law does not protect the ability to maintain, repair and improve these structures.
Proposed Legislation
To provide owners of legal, nonconforming structures with greater certainty regarding the use and value of their property, the proposed legislation would include the following changes to state law:
Allowing property owners to perform unlimited maintenance and repair: While zoning ordinances will change over time, such changes should not prevent or place artificial limits on the ability of property owners to maintain and repair their existing homes and buildings. Protecting the ability of property owners to keep their homes in good condition and make necessary repairs will help encourage greater investment in homes, buildings and older neighborhoods. Accordingly, the legislation would allow owners of nonconforming structures to maintain and repair their homes without limitations on the dollar value of such maintenance or repairs.
Codifying NR 115 Standards for Nonconforming Structures and Substandard Lots: Wisconsin’s shoreland zoning regulations were recently revised to include a more reasonable approach to regulating nonconforming waterfront homes and substandard lots. Under these recent changes, nonconforming waterfront homes and substandard lots are subject to the following requirements:
- Unlimited maintenance and repair is allowed.
- Expansion behind the 75-foot setback.
- Vertical expansion (to a maximum height of 35 feet) only between 35 feet and 75 feet of the water if local mitigation requirements are satisfied.
- No expansion between 35 feet and the water.
- Substandard lots may be built on as long as they have never been merged with adjacent lots.
While these regulations achieve a better balance between private property rights and environmental protection, Wisconsin’s shoreland zoning regulations are only minimum standards. This means that local governments can adopt more restrictive regulations on nonconforming waterfront homes, including the 50 percent rule. In fact, many communities continue to enforce the 50 percent rule today. Moreover, local government can prohibit building on all substandard lots or require them to be merged with adjacent lots owned by the same person.
To provide owners of nonconforming waterfront homes with greater certainty as to how their property can be repaired, maintained and improved, the legislation would codify the regulatory framework set forth in NR 115 into state statutes. By placing this framework into the statutes, local governments would be effectively prohibited from enacting and enforcing regulations that are more restrictive.
For more information on this proposed legislation, please contact Tom Larson (tlarson@wra.org) at (608) 241-2047.
Tom Larson is Vice President of Legal and Public Affairs for the WRA.