(a)

Nonconforming uses. The continued lawful use of a building, premises, structure, or fixture existing at the time of the adoption or amendment of the ordinance from which this chapter is derived shall not be prohibited although the use does not conform with the provisions of this chapter. 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 equalized 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 this chapter.

(b)

Restoration of certain nonconforming structures. Notwithstanding subsection (a) of this section, a nonconforming structure or building which is damaged or destroyed may be restored to the size, location and use that existed immediately prior to the damage or destruction, without limitations relating to the cost of repair, reconstruction or improvement if all of the following apply:

(1)

The nonconforming structure was damaged or destroyed on or after March 2, 2006.

(2)

The damage or destruction was caused by violent wind, vandalism, fire, flood, ice, snow, mold, or infestation.

The size of the structure may be larger than the size of the structure immediately prior to the structure being damaged or destroyed if necessary for the structure to comply with applicable state or federal requirements. The determination as to whether applicable state or federal regulations require that the structure be increased in size shall be determined by the building inspector.

(Code 1997, § 17.55; Rep. and Recr. #411; Rep. & Recr. #719; Ord. No. 830, § 1, 5-6-2024)

Editor's note— Ord. No. 830, § 2, adopted May 6, 2024, repealed § 52-198, which pertained to abolishment and derived from Code 1997, § 17.56; Rep. and Recr. #411; Del. #437.

Nonconforming lots on record in the county register of deeds office before the effective date or amendment of the ordinance from which this chapter is derived may be used in conformance with the use and developmental regulations of the district in which they are located. The owner of a nonconforming lot may apply to the plan commission for issuance of a special exception to the developmental regulations as specified below, in addition to the terms of a special exception as defined in section 52-11. All other exceptions to the developmental regulations of this code require a variance in accordance with section 52-291 zoning board of appeals.

(1)

Floor area ratio.

a.

The floor area ratio requirements of the applicable zoning district must be complied with unless the lot is nonconforming to lot size.

b.

In the RL-2 district, the floor area of all buildings on a lot shall not exceed 4,000 square feet, or a floor area ratio of .45, whichever is more restrictive.

c.

In the RL-1 and R-1 Districts, the floor area of all buildings on a lot shall not exceed the following:

1.

Lots less than 10,000 square feet in area shall comply with subsection (a)(2) above.

2.

Lots between 10,000 square feet and 12,500 square feet in area shall not have a floor area that exceeds 5,000 square feet, or a floor area ratio that exceeds 0.40, whichever is more restrictive.

3.

Lots greater than 12,500 square feet in area shall not have a floor area that exceeds 5,000 square feet.

d.

In all other districts, the maximum allowable floor area ratio shall be determined by the plan commission, but in no case shall the floor area exceed the area allowed on a conforming lot that contains the minimum lot size of the applicable zoning district.

(2)

Open space.

a.

The open space requirements of the applicable zoning district must be complied with unless the lot is nonconforming to lot size.

b.

The footprint of all buildings and structures shall not exceed the footprint that would be allowed in accordance with the open space provisions on a conforming lot that contains the minimum lot size of the applicable zoning district.

For example, a conforming 10,000 square foot lot in the RL-2 district must have 7,000 square feet of open space. Therefore, the footprint of all buildings and structures cannot exceed 3,000 square feet. This provision would limit the footprint of a nonconforming lot in the RL-2 district to 3,000 square feet.

(3)

Setbacks/yard requirements.

a.

The side yard setback requirements of the applicable zoning district must be complied with unless the lot is nonconforming to lot width, or if an addition is proposed, the addition does not create a greater encroachment to a lot line.

b.

In no case shall the side yard setback be reduced to less than five feet for new construction.

c.

Front, corner, shore, and wetland setbacks shall only be modified if there is no other conforming location on the property to build a reasonably sized structure. Consideration shall be given to increasing the floor area vertically before extending into the setback areas. Exceptions to this standard shall only be granted if the plan commission determines that the proposed improvements will improve safety conditions, such as relocating a detached garage that is currently located in the road right-of-way of the road that limits sight distance and the ability to properly and efficiently maintain the road right-of-way.

(4)

General requirements.

a.

All applications for a special exception shall be accompanied by supporting documentation that demonstrates that the granting of a special exception is justified in accordance with this section and the purpose and intent of the zoning code.

b.

Before considering the granting of a special exception, the plan commission shall conduct a public hearing which shall be noticed as a class 2 notice in accordance with section 52-295 of the zoning code.

c.

The plan commission, and, if appealed, common council have the authority to impose restrictions or conditions on any special exception approvals, such as greater limitations on height, floor area, open space, setbacks, impervious surface, building design, and landscaping that may exceed the restrictions otherwise provided in this article in order to protect adjacent properties, the surrounding neighborhood, natural resources, safety, or the public interest and welfare. The plan commission and common council shall explain the purpose and intent of any restrictions imposed.

d.

Adverse drainage and excessive grading are prohibited.

e.

If a variance or special exception has previously been granted for a property, any additional improvements that do not comply with the applicable zoning district standards require a variance in accordance with section 52-291 zoning board of appeals.

f.

If improvements are torn down that were previously granted by a special exception, the special exception is considered null and void and the ordinance at time of redevelopment applies unless the structure was damaged and the cause of the damage was outside of the control of the property owner such as wind, vandalism, fire, flood, ice, snow, mold, or infestation. In such cases, a structure may be reconstructed within its previously approved three-dimensional building envelope without a special exception.

g.

The applicant, or any person aggrieved by a decision of the plan commission, shall have the right to appeal the decision of the plan commission to the common council. Such appeals shall be made in writing and filed within 30 days of the plan commission's decision and shall specify the particular grounds supporting the appeal. Upon such appeal, all records and findings concerning the application shall be submitted to the common council by the city planner. The common council may adopt the decision of the plan commission or overrule or modify the decision of the plan commission.

h.

All special exceptions, as well as any conditions imposed by the plan commission, shall be recorded with the Waukesha County Register of Deeds prior to the issuance of a building permit.

(Code 1997, § 17.58; Rep. and Recr. #411; Am. #719)

(Ord. No. 777, § 2, 3-1-2021; Ord. No. 830, § 3, 5-6-2024)

Once a nonconforming use or structure has been changed to conform, it shall not revert back to a nonconforming use or structure. Once the zoning board of appeals has permitted the substitution of a more restrictive nonconforming use for an existing nonconforming use, it shall become subject to all the conditions required by the zoning board of appeals.

(Code 1997, § 17.59; Rep. and Recr. #411)

Pursuant to Wis. Stat. § 62.23(7), a nonconforming structure may be repaired, maintained, renovated, or remodeled if the structure existed lawfully on or before the effective date of this ordinance and upon compliance with all provisions of Chapter 16, Article II Floodplain Zoning. Lateral and vertical additions to a nonconforming structure are permitted if the addition complies with all dimensional standards of the zoning district. If a structure is nonconforming to the current floor area or open space requirements, the addition shall not increase the floor area or decrease the open space. If the nonconforming structure is located on a nonconforming lot, then section 52-199 shall apply to any lateral or vertical addition to the nonconforming structure instead of this section.

(Code 1997, § 17.60; Rep. and Recr. #411)

(Ord. No. 830, § 4, 5-6-2024)

Nothing contained in this chapter shall require any change in the plans, construction, size or designated use of any building or part thereof for which a building permit has been issued before the effective date of the ordinance from which this chapter is derived and the construction of which shall have been substantially undertaken on site within six months from the date of such permit. Any use of such building or premises which does not conform to the use regulations of the district in which located shall be considered a legal nonconforming use, subject to regulation as such.

(Code 1997, § 17.61; Rep. and Recr. #411)