The Best of the Legal Hotline: Zoning: Why it Matters to Your Buyers and Sellers

 Tracy Rucka  |    June 06, 2012

The broker was asked about the difference between ‚Äúgeneral zoning‚ÄĚ and ‚Äúshoreland zoning‚ÄĚ regulations. How can the broker explain the difference to potential buyers?¬†

There may be three forms of zoning involved in this situation: (1) general zoning, (2) shoreland zoning (county), and (3) shoreland-wetland zoning (cities and villages with wetlands shown on the wetland inventory maps).

General zoning is a regulatory land use planning tool used by local governments. Zoning regulates how a parcel of land may be used and the density of development. The area subject to zoning jurisdiction is divided into zoning districts and mapped. Then the zoning ordinance is adopted detailing applicable standards and rules that apply in each district. Within each district, certain land uses are permitted, known as permitted uses, and while other uses may be allowed if certain conditions are met, known as conditional uses, and a conditional use permit is issued. 

A buyer will need to determine what zoning category applies to the property and review the zoning ordinances to determine what is permitted. Although many local zoning ordinances refer to R-1 Single Family Residential or C-1 Commercial zoning, the permitted uses are not necessarily the same from community to community. Brokers should recommend the buyer investigate the ordinance before drafting an offer or draft an offer with a contingency to determine if the buyer’s intended use or building will be permitted or requires a conditional use permit. 

Wisconsin’s Public Trust Doctrine requires the state to protect public rights in the commercial and recreational use of navigable waters. One tool the DNR uses to accomplish this is the administrative code rules establishing the parameters of local shoreland zoning ordinances that limit development along navigable waterways. 

The first shoreland zoning rules were adopted in 1968 to protect Wisconsin natural resources, lakes and streams; they were designed to protect water quality and natural habitats from unrestrained waterfront development. Wis. Stat. ¬ß 59.692(1)(b) defines ‚Äúshorelands‚ÄĚ as the area within one thousand feet from a lake, pond or flowage, or within three hundred feet from a river or stream or to the landward side of the floodplain, whichever distance is greater. Navigable waters are defined in Wis. Stat. ¬ß 281.31 as Lake Superior, Lake Michigan, all natural inland lakes within this state and all streams, ponds, sloughs, flowages and other waters within the territorial limits of this state ‚ÄĒ including the Wisconsin portion of boundary waters, which are navigable under the laws of this state.

Wis. Admin. Code ch. NR 115 establishes the standards for county shoreland zoning ordinances while Wis. Admin. Code ch. NR 117 sets up the parameters for city and village shoreland‚ąíwetland zoning ordinances. Cities and villages are to establish a shoreland‚ąíwetland zoning district for all wetlands of five acres or more, and all portions of wetlands of five acres or more, which are shown on the final wetland inventory maps and which are located in shorelands within the incorporated area of the city or village. Counties, cities and villages adopt zoning ordinances to regulate activities within shorelands and shoreland-wetlands. Communities may decide to also regulate those wetlands that are smaller than five acres or outside the shoreland zone.

The Real Estate Condition Report has a new question - C26.m about shoreland zoning. Why is this in all the RECRs, and what are mitigation plans? 

Although all residential properties are not in a shoreland zoning district, item C.26.m was added to the RECR to assure sellers disclose if the property is subject to a shoreland mitigation plan with the DNR. It is important for brokers to keep in mind that property will be subject to shoreland zoning when it is 300 feet from a stream or river or 1,000 feet from a lake, pond or flowage. The fact that the property does not abut the water does not exempt it. For example, in Madison, many properties that would otherwise appear to be in the city are in fact subject to shoreland zoning because of the perimeter around lakes Mendota and Monona and the Yaraha river. 

Per Wis. Admin. Code § NR 115.02(4r), mitigation is defined as balancing measures that are designed, implemented and function to restore natural functions and values that are otherwise lost through development and human activities. The need to engage in mitigation may be triggered, for instance, if the owner wants to exceed the 15 percent impervious surface standard or expand nonconforming structures closer than 75 feet from the water. In such cases, property owners who agree to perform mitigation must record the mitigation plan with the local register of deeds. This means that the mitigation requirements will run with the land and will be applicable to future property owners as well. Mitigation activities may include restoring a natural vegetative buffer along the shoreline, or removing an accessory structure near the water. Because mitigation requirements could impact a prospective buyer’s decision to purchase the property, a seller who has agreed to mitigation should disclose this information to prospective buyers. 

The buyer is thinking about purchasing a home. The seller disclosed that his home is a nonconforming structure. The buyer is concerned about having the ability to repair the home in the event of a fire or storm that damages or destroys the home. What will he be able to do?

The buyer will be able to restore the property if it was damaged or destroyed by natural disaster. Nonconforming structures that were damaged or destroyed on or after March 2, 2006 may be rebuilt if the damage or destruction was caused by a natural disaster. Natural disasters include violent wind, vandalism, fire, flood, ice, snow, or mold infestation. In addition, given the recent changes to the statute, the buyer will be allowed to repair, maintain, renovate or remodel the nonconforming structure without limits based on cost. Previously, owners were limited to 50 percent of the assessed value for such repairs or maintenance. For more information regarding nonconforming structures, see Tom Larson’s article on page 27.
The seller sold his property to buyers in 2006. There were two garages on the property at the time of the sale. In 2009, the buyers discovered that the seller had pulled a permit for only one garage about 24 years ago and built the second garage without a permit.

Is there a grandfathering clause similar to adverse possession that would allow the second garage to stay up?

According to Wis. Stat. ¬ß 62.23(7)(hb), a non-conforming structure is a ‚Äúdwelling or other building that existed lawfully before the current zoning ordinance was enacted or amended, but that does not conform with one or more of the development regulations in the current zoning ordinance.‚ÄĚ The ‚Äúdevelopment regulations‚ÄĚ in a zoning ordinance are defined as ‚Äúthe part of a zoning ordinance that applies to elements including setback, height, lot coverage and side yard.‚ÄĚ When a zoning ordinance is adopted or amended, there may be existing structures that may remain even though the structure does not comply with the new zoning ordinance.¬†

Whether this specific garage will be permitted to remain as a legal nonconforming structure ‚ÄĒ for example, grandfathered ‚ÄĒ will depend in part on whether the structure was in existence prior to the enactment of the zoning/ordinance that would not allow the construction of the second garage. If the building was built in compliance with a previous ordinance, the owner may be allowed to maintain the building as a non-conforming structure. The broker should encourage his client to contact an attorney to review the facts in question as well as the local ordinances to consider all his options. In addition, the attorney may assist in obtaining a variance if such action would be deemed prudent.¬†

Tracy Rucka is Director of Professional Standards and Practices for the WRA.

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