A.
Previously lawful conditions. Within the districts established and
mapped by this chapter or amendments thereto, there may exist lots,
buildings, structures, or uses of land or building which were lawful
before this chapter or amendments were enacted but which do not now
conform to the regulations herein. As set forth in § 62.23(7)(h),
Wis. Stats., such nonconforming conditions may be continued but may
not be extended, repaired or altered beyond the limitations set forth
in said statute and as enumerated below. It is the intent of this
chapter to permit such nonconformities to continue in accordance with
said § 62.23(7)(h), Wis. Stats., and the provisions hereunder,
until the nonconformities are removed or corrected by economic forces
or otherwise, except that structures which are not buildings may be
required to conform if provided for in this chapter.
B.
Nonprecedent status of nonconformities. It is not the intent of this
chapter to encourage the undue survival of nonconformities since it
has been determined that they are incompatible with the character
of the district in which they are located. In particular, existing
nonconformities shall not be used as the basis for justifying deviations
from district regulations on other properties.
For the purpose of equitable administration of § 62.23(7)(h),
Wis. Stats., nonconforming conditions are hereby classified and separately
regulated as follows:
A.
Nonconforming lots.
(1)
Lots of record which are nonconforming (also called "substandard
lots") as to the minimum numerical regulations of the district in
which they are placed may be built upon so long as the regulations
relating to location and minimum sizes of buildings and uses thereon
will still be met and the required open space is not reduced by a
ratio more than the ratio which the lot area fails to meet the district
regulation for minimum lot size.
(2)
Vacant lots in common ownership which do not meet the minimum numerical requirements as to area or width shall not be conveyed separately to others except in conformity with the applicable provisions of Chapter 24, Subdivision and Platting, of this Code. Any such lots which fail to meet the following minimum criteria shall be denied a zoning permit until the lots are resubdivided to conform, or more nearly conform, to the district requirements:
(3)
Wetland or floodplain lots of record shall not be issued zoning permits
which would require destruction of the wetland or invasion of the
floodplain unless in conformance with an action by the Board of Appeals.
(4)
Buildings on substandard lots, which buildings otherwise conform
to all the locational, open space, floor area and parking regulations
of the district, shall not be considered nonconforming buildings for
purposes of § 62.23(7)(h), Wis. Stats.
B.
Nonconforming use of land.
(1)
No such use shall be expanded or enlarged. Expansion or enlargement examples include greater primary floor area; longer hours of operation; more employees; more output of emissions which adversely affect surrounding land uses, such as dust, odor, noise, traffic volume, etc., as listed in Article X, Performance Standards; more trucking volume per unit of time; and similar evidences.
(2)
Upon petition to and approval of the Board of Appeals, such use may
be changed to another use, provided the Board determines that the
new use would result in the same or less degree of nonconformity as
the previous use, provided further that if the new use is less nonconforming,
such new use shall thereafter determine the degree of legal nonconformity.
(3)
Where any such use is discontinued for a period of 12 consecutive
or for 18 cumulative months during any three-year period, any future
use of the land shall conform to the regulations of the district in
which it is located.
C.
Nonconforming buildings. Includes buildings which contain too little
or too much floor area; buildings which encroach upon floodplains
or upon required setbacks and yards; and buildings which have too
much height.
(1)
No such building shall be repaired or altered during its lifetime
to an extent, including the cost of floodproofing, which exceeds 50%
of its full market value at the time it became nonconforming. If such
a building is damaged to more than 50% of its full market value, it
shall be razed unless the reconstruction would bring the building
into compliance with the district regulations.
(2)
Alterations or extensions allowable within the limits of Subsection C(1) of this section preceding shall not increase the degree of nonconformity; for example, making an extension farther into an inadequate yard, adding more fill to the floodplain, adding floor area to a building which already exceeds the floor area ratio, converting more space to primary floor area without increasing already inadequate parking space, etc.
(3)
Alterations which tend to reduce the degree of nonconformity, for example, enlarging buildings which are too small, reducing buildings which are too large, or removing portions which encroach upon floodplains or required yard spaces, may be approved by the Board of Appeals if the Board first finds that the alteration makes a substantial reduction in the degree of nonconformity; does not prolong an overall nonconformity which would best be discouraged from survival; and as part of the alteration improves other shortcomings of the building or premises as enumerated in § 22-111, Building, site and operational plans. Where the Board is inclined to make such a finding involving § 22-111, it shall condition its approval upon receipt from the Plan Commission of a favorable recommendation on the alterations as reviewed under § 22-111.
D.
Nonconforming use of buildings. Includes buildings which may or may not be nonconforming as defined in Subsection C above but which contain uses which do not conform to the use regulations of the district in which the property is located; for example, an improper commercial use in a building designed for and located within a residence district and otherwise conforming to the district numerical regulations.
(1)
No such use shall be expanded or enlarged. Expansion or enlargement of "use" shall be defined as described in Subsection B(1) above (nonconforming use of land).
(2)
Structural repairs or alterations to a building containing a nonconforming
use shall not, as long as such use continues, exceed 50% of the full
market value of the building, and if the building is damaged to more
than 50% of said value, the building shall not be restored unless
the nonconforming use is removed.
(3)
Repairs to alterations allowable within the limits of Subsection D(2) of this section preceding shall not increase the degree of nonconformity; for example, devoting more floor space to the nonconforming use, changing the appearance and function of the building away from a conforming use or toward the nonconforming use, or other changes such as enumerated in Subsection B(1) of this section (nonconforming use of land).
(4)
Alterations which tend to reduce the degree of nonconformity, for example, reducing the floor space devoted to a nonconforming use in a mixed-use building, may be approved by the Board of Appeals if it first finds that the alteration makes a substantial reduction in the degree of nonconformity; does not prolong an overall nonconformity which would best be discouraged from survival; and as part of the alteration improves other shortcomings of the building or premises as enumerated in § 22-111, Building, site and operational plans. Where the Board is inclined to make such a finding involving § 22-111, it shall condition its approval upon receipt from the Plan Commission of a favorable recommendation on the alterations as reviewed under § 22-111.
(5)
Upon petition to and approval of the Boards of Appeals, such use
may be changed to another use, provided the Board determines that
the new use would result in the same or less degree of nonconformity
as the present use, and provided further that such new use shall thereafter
determine the degree of legal nonconformity.
(6)
Where any such use is discontinued for a period of 12 consecutive
or for 18 cumulative months during any three-year period, any future
use of the building shall conform to the regulations of the district
in which it is located.
E.
Nonconforming structures other than buildings. Includes signs, fences,
light poles, buried or aboveground tanks, and similar facilities which
do not conform to the regulations of the district in which the property
is located, or which are accessory to a principal building or use
which is nonconforming.
(1)
Such structures shall not be repaired or altered to an extent exceeding
50% of their individual full market value, and, if damaged to more
than 50% of their value, shall be removed or replaced with a facility
that conforms to the district regulations.
(2)
Notwithstanding the provisions of the preceding Subsection E(1), and in conformance with § 22-99A, if the district regulations or other sections of this chapter so provide, a nonconforming structure which is not a building may be required to be removed or made to conform before the fifty-percent level of repair, alterations or damage has been reached; for example, a fence which blocks a vision corner, a light pole fixture which causes glare to traffic on public streets, a tank which is leaking, etc.
F.
Restoration
of certain nonconforming structures. Pursuant to § 62.23(7)(hc),
Wis. Stats., and notwithstanding any other provisions of this section,
a nonconforming structure damaged or destroyed by violent wind, vandalism,
fire, flood, ice, snow, mold or infestation after March 2, 2006, may
be restored to the size, location, and use that it had immediately
before the damage or destruction occurred, and no limits may be imposed
on the costs of the repair, reconstruction, or improvement of said
structure. The size of the restored structure may be larger than the
size it was immediately before the damage or destruction if necessary
for the structure to comply with applicable state or federal requirements.[1]
Where, upon complaint to the Zoning Administrator, any nonconforming building, structure, or use shall be found by the Board of Appeals as a matter of fact to be a detriment to the public health, safety or general welfare, especially as defined by one or more of the performance standards of Article X, the hazardous aspect shall be ordered to be corrected or such aspect to be discontinued within such time as the Board may deem reasonable. Upon failure to carry out such order, the Village may take such steps as are necessary to remove such hazardous aspect or discontinue such use and assess the cost thereof against the property owner.
Subject to the procedures set forth in § 22-110, Conditional uses, nonconforming uses of land or of buildings, as classified herein, may petition to achieve conforming status by becoming a use permitted by conditional grant, notwithstanding the use regulations of the district in which the property is located. The Plan Commission in processing such a petition shall conclude that the existing nonconforming status is very unlikely to become conforming for the foreseeable future, that, with the imposition of conditions, the most deleterious aspects of the use which make it nonconforming in its circumstances can be largely ameliorated, and that deterioration of the use that may result from imposition of the fifty-percent limit on repair or alterations imposed by § 62.23(7)(h), Wis. Stats., over time may cause more damage to adjacent properties or the neighborhood than granting conforming conditions.
