Oak Creek City Zoning Code
ARTICLE IX
Nonconforming Uses, Structures, and Lots
§ 17.0901 Existing nonconforming uses.
The lawful nonconforming use of land, or water; or a lawful nonconforming structure; or a lawful nonconforming use on a conforming or nonconforming lot which existed at the time of the adoption or amendment of this article may be continued although the use does not conform with the provisions of this article; however,
(a)
Only that portion of the land or water in actual use may be so continued and the use may not be extended, enlarged, substituted or moved; and the structure may not be extended, enlarged, reconstructed, substituted, moved or structurally altered except when required to do so by law or order or so as to comply with the provisions of this article.
(b)
Discontinuance. If such nonconforming use is discontinued or terminated for a period of 12 consecutive months, any future use of the structure, land, or water shall conform to the provisions of this article or current state statute.
(c)
Abolishment or destruction. When a nonconforming structure based on use is substantially damaged by fire, explosion, flood, or other calamity to the extent of more than 50% of its current equalized assessed value, it shall not be restored except so as to comply with the use provisions of this article or current state statute.
(d)
Substitution. A nonconforming use of land shall not be changed to another use except a use permitted in the district in which it is located.
(e)
The owners of property claiming to have a legal nonconforming use or a lawful conditional use, have the burden to prove that such use is in fact a nonconforming use or lawful conditional use in accordance with this article.
§ 17.0902 Conforming structures on nonconforming lots.
The use of a structure existing at the time of the adoption or amendment of this article may be continued although the lot area or lot width does not conform to the requirements of this article.
(a)
Additions and enlargements to the structures are permitted and shall conform with the established building setback, height, parking, loading, and access provisions of this article or current state statute.
(b)
Existing structures on nonconforming lots which are damaged or destroyed by fire, explosion, flood, or other calamity, may be reconstructed, and shall conform with the established building setback, height, parking, loading, and access provisions of this article or current state statute.
§ 17.0903 Nonconforming structures on a conforming or nonconforming lot.
The use of a structure existing at the time of the adoption or amendment of this article may be continued although the structure's size or location does not conform with the established building setback, height, parking, loading, and/or access provisions of this article.
(a)
Additions and enlargements to existing nonconforming structures are permitted and shall conform with the established building setback lines along streets and the yard, height, parking, loading, and access provisions of this article or current state statute.
(b)
Existing nonconforming structures which are damaged by fire, explosion, flood, or other calamity to the extent that such damage is less than 50% of the current equalized assessed value of the structure may be reconstructed and insofar as is practicable shall conform with the established building setback lines along streets and the yard, height, parking, loading, and access provisions of this article. Existing nonconforming structures which are substantially damaged or destroyed by fire, explosion, flood, or other calamity to the extent of 50% or more of the current equalized assessed value of the structure may be reconstructed and shall conform with the established building setbacks, height, parking, loading, and access provisions of this article or current state statute.
(c)
Existing nonconforming structures may be moved within the same lot or onto a different lot and, shall conform with the established building setback, height, parking, loading, and access provisions of this article.
§ 17.0904 Nonconforming signs.
(a)
All permanent signs which are in existence at the time of passage of this Zoning Ordinance, but which do not conform to one or more provisions of this Zoning Ordinance, shall be deemed to be a legal nonconforming sign and may be continued only as provided in this Zoning Ordinance.
(b)
Signs which do not conform to the provisions of this Zoning Ordinance, but which complied with all applicable ordinances, rules, and regulations in effect at the time of their erection, may remain so long as the use with which they are associated remains. No nonconforming sign shall be enlarged, reconstructed, or structurally altered or changed in any manner. Routine maintenance of nonconforming signs shall be permitted.
(c)
Any sign for which a permit has been lawfully granted prior to the effective date of this or any subsequent amendment of Article VI and which does not comply with the provisions of such amendment may nonetheless be completed in accordance with the approved plans, provided construction of the sign is started within 90 days after the passage of the ordinance amendment, and is diligently prosecuted to completion.
(d)
Whenever a nonconforming sign has been discontinued for a period of six consecutive months, or whenever there is evident a clear intent on the part of the owner to abandon a nonconforming sign, such sign shall not, after being discontinued or abandoned, be reestablished, and the sign thereafter shall be in conformity with the regulations of this Zoning Ordinance.
(e)
Normal maintenance of a nonconforming sign is permitted, including necessary nonstructural repairs and incidental alterations which do not extend or intensify the nonconforming features of the sign.
(f)
No structural alteration, enlargement or extension shall be made in a nonconforming sign, except in the following situations. No structural alteration shall be permitted which reduces the amount by which a sign is nonconforming if the alteration does not bring the sign into conformity with all applicable regulations of this Zoning Ordinance.
(g)
If a nonconforming sign is damaged or destroyed by any means to the extent of 50% or more of its replacement value at that time, the sign can be rebuilt or used thereafter only for a conforming use and in compliance with the provisions of the code. In the event the damage or destruction is less than 50% of its replacement value, based upon prevailing costs, the sign may then be restored to its original condition and the use may be continued which existed at the time of such partial destruction until the nonconforming sign is otherwise abated by the provisions of this Zoning Ordinance. In either event, restoration or repair must be started within a period of six months from the date of damage or destruction, and diligently prosecuted to completion.
(h)
Legal, permitted signs which do not meet the requirements of the minimum setback which conformed to the provisions of this article but were reduced in setback as a result of the exercise of eminent domain, the threat of the exercise of eminent domain, or acquisitions for right-of-way purposes by a governmental body and which are still located entirely upon private property and not in the twenty-five-foot sight triangle shall not be found to be nonconforming with the provisions of this Zoning Ordinance as a result of the loss of such territory if there is no other way to accommodate the sign on the subject parcel in accordance with the applicable provisions of Article VI.
§ 17.0905 Existing nonconforming lots.
A lot which does not contain sufficient width or area to conform to the dimensional requirements of the provisions of this article is a nonconforming lot. A nonconforming lot cannot be altered to decrease its width or area below or further below the dimensional standards applicable to that lot. A nonconforming lot may be used as a building site provided:
(a)
The use is permitted in the zoning district in which the lot is located, and the proposed building meets all other requirements of the Municipal Code; and
(b)
The lot is of record in the Register of Deeds office prior to the effective date of this article or any amendment to this article which affects the area or width of the lot; and
(c)
The lot abuts a dedicated street improved for and opened to the public for travel; and
(d)
The lot is:
(1)
At least 50 feet wide and 6,000 square feet in area, or
(2)
Less than 50 feet wide or less than 6,000 square feet in area and the lot is owned in separate ownership from the lands abutting the lot, or
(3)
Less than 50 feet wide or less than 6,000 square feet in area and abutting lands are in the same ownership, in which event the lot and the abutting lands must be combined prior to the issuance of a building permit. The combining of lands must result in a lot which is as close to the dimensional requirements of 50 feet wide and 6,000 square feet in area as is practicable in the judgment of the Common Council.
§ 17.0906 Wetland nonconforming uses.
Notwithstanding § 62.23(7)(h) of the Wisconsin Statutes, the repair, reconstruction, renovation, remodel, or expansion of a legal nonconforming structure, or any environmental control facility related to a legal nonconforming structure, located in the C-1 Wetland Conservancy District and in existence at the time of adoption or subsequent amendment of this article, or of an environmental control facility in existence on May 7,1982, related to that structure is permitted pursuant to § 62.231(5) of the Wisconsin Statutes. Section 62.23(7)(h), Wis. Stats., however, applies to any environmental control facility that was not in existence on May 7,1982, but was in existence on the effective date of this article or amendment.
§ 17.0907 Floodland nonconforming uses.
[Amended 9-3-2024 by Ord. No. 3110]
(a)
General.
(1)
Applicability.
a.
The standards in this section shall apply to all uses and buildings that do not conform to the provisions contained within a floodplain zoning ordinance or with § 87.30, Wis. Stats. and §§ NR 116.12-14, Wis. Adm. Code and 44 CFR 59-72. These standards shall apply to all modifications or additions to any nonconforming use or structure and to the use of any structure or premises which was lawful before the passage of this chapter or any amendment thereto. A party asserting existence of a lawfully established nonconforming use or structure has the burden of proving that the use or structure was compliant with the floodplain zoning ordinance in effect at the time the use or structure was created.
b.
As permit applications are received for additions, modifications, or substantial improvements to nonconforming buildings in the floodplain, municipalities shall develop a list of those nonconforming buildings, their present equalized assessed value and a list of the costs of those activities associated with changes to those buildings.
(2)
The existing lawful use of a structure or its accessory use which is not in conformity with the provisions of this chapter may continue subject to the following conditions:
a.
No modifications or additions to a nonconforming use or structure shall be permitted unless they comply with this chapter. The words "modification" and "addition" include, but are not limited to, any alteration, addition, modification, structural repair, rebuilding or replacement of any such existing use, structure or accessory structure or use. Maintenance is not considered a modification; this includes painting, decorating, paneling and other nonstructural components and the maintenance, repair or replacement of existing private sewage or water supply systems or connections to public utilities. Any costs associated with the repair of a damaged structure are not considered maintenance.
b.
The construction of a deck that does not exceed 200 square feet and that is adjacent to the exterior wall of a principal structure is not an extension, modification or addition. The roof of the structure may extend over a portion of the deck in order to provide safe ingress and egress to the principal structure.
c.
If a nonconforming use or the use of a nonconforming structure is discontinued for 12 consecutive months, it is no longer permitted and any future use of the property, and any structure or building thereon, shall conform to the applicable requirements of this chapter.
d.
The municipality shall keep a record which lists all nonconforming uses and nonconforming structures, their present equalized assessed value, the cost of all modifications or additions which have been permitted, and the percentage of the structure's total current value those modifications represent.
e.
No modification or addition to any nonconforming structure or any structure with a nonconforming use, which over the life of the structure would equal or exceed 50% of its present equalized assessed value, shall be allowed unless the entire structure is permanently changed to a conforming structure with a conforming use in compliance with the applicable requirements of this chapter. Contiguous dry land access must be provided for residential and commercial uses in compliance with § 17.0306. The costs of elevating the lowest floor of a nonconforming building or a building with a nonconforming use to the flood protection elevation are excluded from the 50% provisions of this subsection.
f.
No maintenance on a per event basis to any nonconforming structure or any structure with a nonconforming use, the cost of which would equal or exceed 50% of its present equalized assessed value, shall be allowed unless the entire structure is permanently changed to a conforming structure with a conforming use in compliance with the applicable requirements of this chapter. Contiguous dry land access must be provided for residential and commercial uses in compliance with § 17.0306. Maintenance to any nonconforming structure, which does not exceed 50% of its present equalized assessed value on a per event basis, does not count against the cumulative calculations over the life of the structure for substantial improvement calculations.
g.
If on a per event basis the total value of the work being done under § 17.0907(a)(2)d and e equals or exceeds 50% of the present equalized assessed value the work shall not be permitted unless the entire structure is permanently changed to a conforming structure with a conforming use in compliance with the applicable requirements of this chapter. Contiguous dry land access must be provided for residential and commercial uses in compliance with § 17.0306.
h.
Except as provided in Subsection (a)(2)g, if any nonconforming structure or any structure with a nonconforming use is destroyed or is substantially damaged, it cannot be replaced, reconstructed or rebuilt unless the use and the structure meet the current ordinance requirements. A structure is considered substantially damaged if the total cost to restore the structure to its pre-damaged condition equals or exceeds 50% of the structure's present equalized assessed value.
i.
For nonconforming buildings that are substantially damaged or destroyed by a nonflood disaster, the repair or reconstruction of any such nonconforming building shall be permitted in order to restore it to the size and use in effect prior to the damage event, provided that the following minimum requirements are met and all required permits have been granted prior to the start of construction:
1.
Residential structures.
[a]
Shall have the lowest floor, including basement, elevated to or above the flood protection elevation using fill, pilings, columns, posts or perimeter walls. Perimeter walls must meet the requirements of § 17.0804(i)(4)b.
[b]
Shall be anchored to prevent flotation, collapse, or lateral movement of the structure resulting from hydrodynamic and hydrostatic loads, including the effects of buoyancy and shall be constructed with methods and materials resistant to flood damage.
[c]
Shall be constructed with electrical, heating, ventilation, plumbing and air conditioning equipment and other service facilities that are designed and/or elevated so as to prevent water from entering or accumulating within the components during conditions of flooding.
[d]
In A Zones, obtain, review and utilize any flood data available from a federal, state or other source.
[e]
In AO Zones with no elevations specified, shall have the lowest floor, including basement, meet the standards in § 17.0306.
[f]
In AO Zones, shall have adequate drainage paths around structures on slopes to guide floodwaters around and away from the structure.
2.
Nonresidential structures.
[a]
Shall meet the requirements of § 17.0907(a)(2)i1[a] through [f].
[b]
Shall either have the lowest floor, including basement, elevated to or above the regional flood elevation; or, together with attendant utility and sanitary facilities, shall meet the standards in § 17.0804(i)(4)a or b.
(3)
A nonconforming historic structure may be altered if the alteration will not preclude the structure's continued designation as a historic structure, the alteration will comply with § 17.0306, flood-resistant materials are used, and construction practices and floodproofing methods that comply with § 17.0804(i)(4) are used. Repair or rehabilitation of historic structures shall be exempt from the development standards of § 17.0907(a)(2)i1 if it is determined that the proposed repair or rehabilitation will not preclude the structure's continued designation as a historic structure and is the minimum necessary to preserve the historic character and design of the structure.
(b)
Floodway District.
(1)
No modification or addition shall be allowed to any nonconforming structure or any structure with a nonconforming use in the Floodway District, unless such modification or addition:
a.
Has been granted a permit or variance which meets all ordinance requirements;
b.
Meets the requirements of § 17.0907(a);
c.
Shall not increase the obstruction to flood flows or regional flood height;
d.
Any addition to the existing structure shall be floodproofed, pursuant to § 17.0804(i)(4), by means other than the use of fill, to the flood protection elevation; and
e.
If any part of the foundation below the flood protection elevation is enclosed, the following standards shall apply:
1.
The enclosed area shall be designed by a registered architect or engineer to allow for the efficient entry and exit of floodwaters without human intervention. A minimum of two openings must be provided with a minimum net area of at least one square inch for every one square foot of the enclosed area. The lowest part of the opening can be no more than 12 inches above the adjacent grade;
2.
The parts of the foundation located below the flood protection elevation must be constructed of flood-resistant materials;
3.
Mechanical and utility equipment must be elevated or floodproofed to or above the flood protection elevation; and
4.
The use must be limited to parking, building access or limited storage.
(2)
No new on-site sewage disposal system, or addition to an existing on-site sewage disposal system, except where an addition has been ordered by a government agency to correct a hazard to public health, shall be allowed in the Floodway District. Any replacement, repair or maintenance of an existing on-site sewage disposal system in a floodway area shall meet the applicable requirements of all municipal ordinances, § 17.0804(i)(4)c and Ch. SPS 383, Wis. Adm. Code.
(3)
No new well or modification to an existing well used to obtain potable water shall be allowed in the Floodway District. Any replacement, repair or maintenance of an existing well in the Floodway District shall meet the applicable requirements of all municipal ordinances, § 17.0804(i)(4)c and Chs. NR 811 and NR 812, Wis. Adm. Code.
(c)
Floodfringe District.
(1)
No modification or addition shall be allowed to any nonconforming structure or any structure with a nonconforming use unless such modification or addition has been granted a permit or variance by the municipality and meets the requirements of § 17.0306 except where § 17.0907(c)(2) is applicable.
(2)
Where compliance with the provisions of Subsection (c)(1) would result in unnecessary hardship and only where the structure will not be used for human habitation or be associated with a high flood damage potential, the Board of Appeals, using the procedures established in § 17.0804(i)(2) and (3), may grant a variance from those provisions of Subsection (c)(1) for modifications or additions using the criteria listed below. Modifications or additions which are protected to elevations lower than the flood protection elevation may be permitted if:
a.
No floor is allowed below the regional flood elevation for residential or commercial structures;
b.
Human lives are not endangered;
c.
Public facilities, such as water or sewer, shall not be installed;
d.
Flood depths shall not exceed two feet;
e.
Flood velocities shall not exceed two feet per second; and
(3)
All new private sewage disposal systems, or addition to, replacement, repair or maintenance of a private sewage disposal system shall meet all the applicable provisions of all local ordinances, § 17.0804(i)(4)c and Ch. SPS 383, Wis. Adm. Code.
(4)
All new wells, or addition to, replacement, repair or maintenance of a well shall meet the applicable provisions of this chapter, § 17.0804(i)(4)c and Ch. NR 811 and NR 812, Wis. Adm. Code.
§ 17.0908 Interpretation and proof of uses.
The owners of property who want to alter their use that they claim is either a legal nonconforming use or a lawful conditional use should apply for the alteration of said use, or the building in which it is located, with the Community Development Director or their designee. The Community Development Director or their designee, after a review of City records, may require documentation of the applicant in support their claim. Based upon a review of the submitted documentation, the Community Development Director or their designee may approve or deny the applicant's claim. If denied, the applicant may seek an interpretation of the matter from the Board of Housing and Zoning Appeals.