2. The damage or destruction was caused by violent wind, vandalism, fire or a flood.
(b) An ordinance enacted under this section to which par. (a) applies shall allow for the size of a structure to 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.
This recently enacted subsection, therefore, covers nonconforming structures damaged or destroyed after October 14, 1997, by "violent wind, vandalism, fire or a flood." Under it, a county must allow those structures to be restored to the same size, at the same location, and for the same use as they had before the damage or destruction and must allow restoration to an even larger size, but only if required by state or federal law. The repair, reconstruction, or improvement costs for those damaged or destroyed structures may not be limited. As a result, a county ordinance may have no 50% rule for restoring those damaged or destroyed nonconforming structures.
However, counties retain broad authority to regulate nonconforming uses or structures outside of section 59.692(1s). This leads to the second half of your question, which is what, if anything, restricts a county's authority to regulate or not regulate alterations, additions, or repairs to nonconforming uses or structures if there is no 50% rule in its county shoreland zoning ordinance? If a county's zoning ordinance has no "50% rule," the county may still, nonetheless, otherwise regulate nonconforming uses by ordinance so long as its ordinance is consistent with the law as described above. See
Waukesha County v. Pewaukee Marina, Inc.
, 187 Wis. 2d 18, 22-24, 522 N.W.2d 536 (Ct. App. 1994) ("Seitz II
").
In addition, the common law may limit the extension of legal nonconforming uses or structures if the extension is contrary to the spirit of zoning. Wis. Const. art. XIV, 13 (common law continues unless varied by legislature); In re Custody of D.M.M.
, 137 Wis. 2d 375, 390, 404 N.W.2d 530 (1987) (no change in common law unless clearly indicated); Aaby v. Citizens Nat. Bank
, 197 Wis. 56, 57, 221 N.W. 417 (1928) ("common law prevails in Wisconsin until changed by statute"). See
also
2B Norman J. Singer, Sutherland Statutory Construction 50.01, at 90 (5th ed. 1992) (repeal revives the common law). In fact, the absence of any restrictions on nonconforming uses or structures is contrary to the common law reasons for having nonconforming uses at all. If there were no restrictions, that would mean classifying a structure or use as nonconforming would have no significance.
Under the common law, some extensions of nonconforming uses or structures are prohibited even if no specific zoning ordinance provision is violated. Seitz II
, 187 Wis. 2d at 26-27. In Seitz II
, Seitz argued that to prohibit change in a nonconforming use, a specific ordinance provision must be violated. Id.
at 25. The court rejected the argument. Change in a nonconforming use may be prohibited without reliance on a specific ordinance provision. Id.
at 26. This is "part of the general practice of zoning." Id.
at 24.
Reliance on common law is also the practice under caselaw elsewhere as well.
The right to continue a nonconforming use does not include a right to extend or enlarge it. This appears to be the rule whether or not the municipal corporation has adopted an ordinance which specifically limits the right of a nonconforming user to enlarge or extend his use, since, without reference to express language, the courts
have held that expansion of a nonconforming use offends the spirit of zoning regulation.
1 Kenneth H. Young, Anderson's American Law of Zoning (4th ed. 1996) 6.45 at 623-624 (citations omitted). Although some courts have allowed alterations, other "courts, relying upon the basic policy which dictates early termination of nonconforming uses, have disapproved structural alterations without the aid of a restrictive ordinance." Anderson 6.56 at 658.
The presumption under Wisconsin caselaw is that "[n]on-conforming uses are... not to be enlarged in derogation of the general scheme of the ordinance for the use of property." Yorkville v. Fonk
, 3 Wis. 2d 371, 378, 88 N.W.2d 319 (1958) (citations omitted). "[T]he spirit of zoning is to restrict a nonconforming use and to eliminate such uses as quickly as possible." Waukesha County v. Seitz
, 140 Wis. 2d 111, 116, 409 N.W.2d 403 (Ct. App. 1987) ("Seitz I
").
Your letter in passing also touches on whether a county remains subject to other minimum shoreland zoning requirements if it repeals its 50% rule. Even so, a county must still comply with all minimum requirements of section 59.692 and Wisconsin Administrative Code NR 115.05. A county must enact a county shoreland zoning ordinance. Sec. 59.692(1m), Stats. A county shoreland zoning ordinance may not be less restrictive than state law allows. Sec. 59.692(7)(ar), Stats. Thus, the minimum lot size and setback requirements of Wisconsin Administrative Code NR 115.05(3)(a) and (b) still apply. Unlike the 50% rule, those lot size and setback requirements are not permissive. They are mandatory.
To summarize, a county may enact a shoreland zoning ordinance without a "50% rule," but a county may, consistent with the law, also regulate the expansion, alteration, or repair of nonconforming structures by other means. The common law may also limit the extension of nonconforming uses or structures. All minimum shoreland zoning law requirements still apply.
Under Wisconsin zoning law, "[d]oes an isolated lot, on which there is a pre-existing dwelling or principal structure between 40 feet and 75 feet of the OHWM of a navigable water, constitute an 'existing development pattern'?"
Wisconsin by administrative rule sets the relevant, minimum setback requirement for all county shoreland zoning ordinances:
Unless an existing development pattern
exists, a setback of 75 feet from the ordinary high-water mark of an adjacent body of water to the nearest part of a building or structure, shall be required for all buildings and structures, except piers, boat hoists and boathouses.
Wis. Admin. Code NR 115.05(3)(b)1. (emphasis added). This rule has the force and effect of law. State ex rel. Staples v. DHSS
, 115 Wis. 2d 363, 367, 340 N. W.2d 194 (1983). You ask about the meaning of the term "existing development pattern" as used in this quoted rule provision. It is not defined in Wisconsin Administrative Code ch. NR 115.
When not defined, nontechnical words in a statute or rule are given their relevant, ordinary and accepted meaning, which may be found in a dictionary. State ex rel. First Nat. Bank & Trust v. Skow
, 91 Wis. 2d 773, 781, 284 N.W.2d 74 (1979). See
also
sec. 990.01(1), Stats. ("words and phrases shall be construed according to common and approved usage"). As noted above, the rules of statutory construction also apply to administrative rules. Basinas
, 104 Wis. 2d at 546.
The most relevant, ordinary and accepted dictionary definition of "pattern" is "a representative instance: a typical example." Webster's Third New International Dictionary
1657 (1986). An "isolated lot" is by definition not "a representative instance: a typical example" of "existing development." Instead, "isolated" is defined as "occurring alone or once: unique." Webster's Third New International Dictionary
1199 (1986). What is "occurring alone or once: unique" cannot also be a "typical example." Thus, an "isolated lot, on which there is a pre-existing dwelling or principal structure between 40 feet and 75 feet of the OHWM of a navigable water" is not an "existing development pattern" under Wisconsin Administrative Code NR 115.05(3)(b)1.
"[T]he spirit of zoning is to restrict a nonconforming use and to eliminate such uses as quickly as possible." Seitz I
, 140 Wis. 2d at 116. "Non-conforming uses are... not to be enlarged in derogation of the general scheme of the ordinance for the use of property." Yorkville
, 3 Wis. 2d at 378. In contrast to that fundamental purpose behind the law of legal nonconforming uses, if isolated nonconforming uses were deemed an "existing development pattern," that could in some instances nullify the 75-foot setback restriction in Wis. Admin. Code NR 115.05(3)(b)1. That would be contrary to the fundamental policy in the law of zoning not to extend but rather to restrict legal nonconforming uses.
That is not a sound interpretation of the words "existing development pattern." A sound interpretation would not render the rule void or meaningless. Associated Hospital Service v. Milwaukee
, 13 Wis. 2d. 447, 463, 109 N.W.2d 271 (1961). Rather it would further the policy of the rule. State v. Clausen
, 105 Wis. 2d 231, 244, 313 N.W.2d 819 (1982).
In summary, a county may not enact a shoreland zoning ordinance that does not regulate nonconforming uses or structures whose use has been discontinued for 12 months or longer. A county may have a shoreland zoning ordinance without a "50% rule," but may regulate nonconforming structures by other means. Without a 50% rule, the common law limits the extension of nonconforming uses or structures. Finally, under state law, an "isolated lot" is not an "existing development pattern."
Sincerely,
James E. Doyle
Attorney General
JED:PP
A county may not enact a shoreland zoning ordinance without a provision in it regulating nonconforming uses or structures whose use has been discontinued for 12 months or longer. A county may enact a shoreland zoning ordinance without the "50% rule." That is allowed under section 59.69(10)(a), Stats., and Wisconsin Administrative Code NR 115.05(3)(e). If an ordinance has no "50% rule," common law controls.
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