With the enactment of 2011 Wisconsin Act 170, the regulatory environment related to nonconforming structures in Wisconsin has significantly changed. Because a “nonconforming” label on a home or building could raise concerns from buyers, lenders and/or title companies, REALTORS^® should understand the new laws related to nonconforming structures and be prepared to answer questions that will likely arise. This article is intended to provide an overview of Wisconsin’s nonconforming structure laws, and a number of answers to commonly asked questions regarding the regulation of nonconforming structures. 

Background

In the past, local ordinances often placed significant limitations on the ability to repair, maintain, replace and expand nonconforming structures in an effort to cause the structure to be brought back into compliance or fall into a state of disrepair and functional obsolescence. As a result, nonconforming structures were often considered a “higher risk” by lenders and title insurance companies, which were often reluctant to offer financing and title insurance policies on these structures. 

To address these issues, Wisconsin lawmakers have enacted several laws over the last several years that have transformed the way nonconforming structures are regulated in Wisconsin. In 2006, Wisconsin lawmakers passed a law that allows nonconforming homes and structures to be rebuilt if destroyed by natural disaster. See 2005 Wisconsin Act 112. In 2009, the Wisconsin Department of Natural Resources (DNR) updated the state’s shoreland zoning regulations (Wis. Admin. Code Ch. NR 115) to allow for unlimited maintenance and repair of nonconforming principal structures and more flexibility regarding expansions depending on how close the structures are located from the water. Most recently, in 2012, Wisconsin lawmakers made two other changes to nonconforming structure regulations: (1) local ordinances may not prohibit or limit the value of maintenance, repairs, and remodeling of nonconforming homes and buildings (see 2011 Wisconsin Act 170); and (2) nonconforming wet boathouses may be repaired and maintained without limits on the value of such repairs and maintenance (see 2011 Wisconsin Act 167).

Questions and Answers

To better understand these regulations, the following is a list of commonly asked questions regarding nonconforming structures:

• What is the difference between a “nonconforming structure” and a “nonconforming use”? While it is a common mistake for “nonconforming structure” and “nonconforming use” to be used synonymously, they have different meanings, and they are not regulated in the same manner. 
  • A “nonconforming structure” is defined as “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” are defined as “the part of a zoning ordinance that applies to elements including setback, height, lot coverage, and side yard.” See Wis. Stat. § 62.23(7)(hb). Example: a house that is located closer to one or more of the lot lines than the distance established by the setback requirement.
  • A “nonconforming use” is “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.” See Wis. Stat. § 62.23(7)(ab). Example: a commercial building located on a lot that is zoned exclusively for a residential use.
• Can communities limit the value of maintenance, repairs or improvements to nonconforming structures? No. Local ordinances cannot prohibit, or limit based on cost, the repair, maintenance, renovation, or remodeling of a nonconforming structure. See e.g., Wis. Stat. § 62.23(7)(hb).
• Can communities limit the value of maintenance, repairs or improvements to nonconforming structures located in shoreland areas? No. Local shoreland zoning ordinances cannot prohibit, or limit based on cost, the repair, maintenance, renovation or remodeling of a nonconforming structure. See Wis. Stat. 59.69(10e)
• Can communities regulate the maintenance, repairs or improvements to nonconforming structures through a means other than value? Yes. State law prohibits local communities from banning or limiting the value of all maintenance, repairs or improvements to nonconforming structures. However, communities may regulate such activities based on health or safety concerns, size, materials or some other rational basis. 
• Are repairs and maintenance to wet boathouses limited to 50 percent of the equalized value being repaired? No. Wet boathouses (located below the ordinary high water mark) can be maintained and repaired without limits on the value of such maintenance and repairs if the boathouse meets the following requirements: (1) the boathouse was in existence on December 16, 1979; (2) repairs and maintenance do not affect the size, location or configuration of the boathouse, and (3) the maintenance and repairs do not result in the boathouse being converted into living quarters. See Wis. Stat. § 30.121(3c). 
• Does the 50 percent rule apply to ordinary maintenance repairs of a nonconforming structure located in a floodplain? No. Property owners are allowed to make ordinary maintenance repairs to nonconforming structures located in a floodplain without limits on the value. Wis. Admin. Code § 116.15 (am). For purposes of floodplains, “ordinary maintenance and repairs” include internal and external painting, decorating, paneling as well as the replacement of doors, windows and other nonstructural components.
• Can a homeowner rebuild a nonconforming structure in the same location if destroyed by fire or a storm? Yes. Wisconsin law allows nonconforming homes and structures to be restored or rebuilt to the same size if they are damaged or destroyed by violent wind, vandalism, fire, flood, ice, snow, mold or infestation. See Wis. Stat. § 62.23(7)(hc). 
• Can a homeowner tear down a nonconforming structure and rebuild it in the same location if the structure is not damaged or destroyed by natural disaster? Maybe. Unless the home was damaged or destroyed by one of the events listed above, state law doesn’t protect the ability of homeowner to tear down and rebuild nonconforming structures. Accordingly, local zoning ordinances will determine whether this type of rebuilding is allowed. 
• Can a nonconforming structure located in a shoreland area be expanded? Maybe. The answer depends on the type of structure and the distance that the structure is located away from the water. State law specifically allows principal structures, such as homes and commercial buildings, to be expanded in some cases. Wis. Admin. Code § NR 115.05(1)(g). However, expansions to accessory structures are regulated by local ordinance and, thus, the applicable local ordinance should be reviewed to determine whether such expansion is allowed. While state law allows expansion of nonconforming principal structures, expansions are regulated based on how close the principal structure is located from the water:
  • No expansion if any part of the principal structure is located closer than 35 feet from the water.
  • Only vertical expansion, to a maximum height of 35 feet, of principal structures is allowed if the structure is located between 35 feet and 75 feet and local mitigation requirements are satisfied.
  • No limits on expansion, other than general building regulations, of nonconforming principal structures behind the 75-foot setback.

While state law regulates many aspects of nonconforming structures, local ordinances may impose different regulations. For questions related to specific properties, REALTORS^® should always consult the local zoning administrator in the community where the property is located. If you have additional questions regarding the regulation of nonconforming structures, please contact Tom Larson (tlarson@wra.org) at (608) 240-8254.

Tom Larson is Vice President of Legal and Public Affairs for the WRA.