When used in this Article IX, the following terms shall have the following meanings:

9.1.1

NONCONFORMING USE. (Rep. & recr. #3517) A use of land, a dwelling, or a building that existed lawfully before the current zoning ordinance was enacted or amended, but that does not conform with the use restrictions in the current ordinance.

9.1.2

NONCONFORMING STRUCTURE. (Rep. & recr. #3517) A dwelling 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. Development regulations include setback, height, lot coverage, and side yard.

9.1.3

NONCONFORMING LOT. A tract of land that was lawfully created by a subdivision plat, certified survey map, deed or other lawful means but whose area, width, length or other dimensions are prohibited by a zoning ordinance subsequently enacted.

9.1.4

LEGAL NONCONFORMING USE. (Am. #3517) A nonconforming use that is permitted by law to continue after the adoption of a zoning ordinance prohibiting such use.

9.1.5

LEGAL NONCONFORMING STRUCTURE. A nonconforming structure which is permitted by law to continue in existence after the adoption of a zoning ordinance prohibiting the creation of that structure.

Historical Note: A person's right to build a garage cannot be rescinded by enactment of a zoning ordinance after a valid building permit has been issued. Wasilewski v. Biedrzycki, 192 N.W. 989, 180 Wis. 633 (1923).

9.1.6

LEGAL NONCONFORMING LOT. A nonconforming lot which is permitted by law to exist after the adoption of a zoning ordinance prohibiting the creation of that lot.

9.1.7

USE. Active and actual use of land or a structure as opposed to potential use, intended use, occasional use or sporadic use.

Historical Note: A city does not have to prove an "intent to abandon" a use in order to prove that a use has been discontinued. State ex rel. Peterson v. Burt, 166 N.W.2d 207, 42 Wis.2d 284 (1969). While the right to continue a legal nonconforming use is protected, the burden is upon the property owner to prove by the preponderance of evidence that the nonconforming use was in existence at the time the ordinance was passed and that the use of the property prior to the effective date of the ordinance was so active and actual that it can be said that he has acquired a vested interest in its continuance. Walworth County v. Hartwell, 214 N.W.2d 288, 62 Wis.2d 57 (1974); City of Lake Geneva v. Smuda, 249 N.W.2d 783, 75 Wis.2d 532 (1977).

9.2.1

LEGAL NONCONFORMING USES.

a.

State Statute Adopted. (Am. #3517) Section 62.23(7)(h), Wis. Stats., regulating legal nonconforming uses is hereby adopted and incorporated herein by reference. No legal nonconforming use may be extended or continued except as provided in §62.23(7)(h), Wis. Stats.

Historic Note: Section 62.23(7)(h) of the Wisconsin Statutes currently reads as follows:

"Nonconforming uses. The continued lawful use of a building, premises, structure, or fixture existing at the time of the adoption or amendment of a zoning ordinance may not be prohibited although the use does not conform with the provisions of the ordinance. The nonconforming use may not be extended. The total structural repairs or alterations in such a nonconforming building, premises, structure, or fixture shall not during its life exceed 50 percent of the assessed value of the building, premises, structure, or fixture unless permanently changed to a conforming use. If the nonconforming use is discontinued for a period of 12 months, any future use of the building, premises, structure, or fixture shall conform to the ordinance."

b.

Change in Legal Nonconforming Use. (Am. #3365) A legal nonconforming use may be changed to another nonconforming use if the City Council determines that the new use will have a lesser negative impact upon the neighborhood than the existing use. Such change in use may be granted in accordance with the conditional use procedures set forth in Section 2-500 of this chapter.

9.2.2

LEGAL NONCONFORMING STRUCTURES.

a.

Continuation. A legal nonconforming structure may continue in existence although its location, size or other dimensions do not conform to a zoning ordinance enacted after the structure was built.

b.

Burden of Proof. The burden is upon the property owner to prove by the preponderance of evidence that the nonconforming structure was in existence at the time the ordinance was passed.

c.

Structural Changes. Structural changes, including additions or enlargements, may be made to legal nonconforming structures provided that such changes do not increase the extent to which the structure fails to comply with the existing ordinances.

d.

Moving. A legal nonconforming structure shall not be moved to another location unless the movement eliminates or decreases the extent to which the structure fails to comply with existing zoning ordinances.

e.

Alteration, Restoration and Repair. (Am. #3517) If a legal nonconforming structure is damaged by fire, natural disaster or other cause, the structure may be restored or repaired.

f.

Applicability. This section does not apply to any structure which may be constructed on a legal nonconforming lot pursuant to Section 9.2.3 below.

9.2.3

LEGAL NONCONFORMING LOTS.

a.

Continuation. A legal nonconforming lot may continue in existence although its area, width, length or other dimensions do not conform to a zoning ordinance enacted after the lot was created.

b.

Burden of Proof. The burden is upon the property owner to prove by the preponderance of evidence that the nonconforming lot was in existence at the time the ordinance prohibiting such lot was enacted.

c.

New Construction and Reconstruction on Legal Nonconforming Lots.

1.

Residential Zoning Districts. A new, detached, single-family dwelling and related accessory structures may be constructed and a damaged, existing, single-family dwelling may be reconstructed as a detached, single-family dwelling on a legal nonconforming lot in a residential zoning district, provided that:

(a)

The structures comply with all other zoning ordinances applicable to the residential zoning district in which the lot is located; or

(b)

The owner obtains a variance from any zoning ordinance with which the structures do not comply.

2.

Other Zoning Districts. A new building and related accessory structures may be constructed and a damaged, existing building may be reconstructed on a legal nonconforming lot in nonresidential zoning districts, provided that:

(a)

The structures comply with all other zoning ordinances applicable to the zoning district in which the lot is located; or

(b)

The owner obtains a variance from any ordinance with which the structures do not comply.