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Court of Appeals Expands Seitz Rule to Include Legal Nonconforming Uses
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Published: June 14, 2011
Author: Charles (Buck) Sweeney
On May 25, 2011, the Court of Appeals for the Second District of Wisconsin delivered its decision in Hussein v. Village of Germantown Board of Zoning Appeals. The court addressed the question of whether the restrictions of a conditional use permit (CUP) remain enforceable after a municipality amends its zoning code to remove the conditional use that is the basis for the CUP. In its decision, the court held that a revision to a municipality’s zoning code that causes a property to become a legal nonconforming use results in the CUP losing its enforceability and the property gaining the vested right to continue its historically allowed use.
The court’s decision broadens the rule regarding expansion of legal nonconforming uses. After the Hussein decision a municipality will no longer be able to treat legal nonconforming uses that stem from preexisting CUPs differently than those that arise from historical use. When a municipality “zones out” a conditional use, the CUP is void and the use will be treated as if identical to a historical nonconforming use. Any restrictions or limitations included in the original CUP cease to exist when the CUP is voided and will no longer be enforceable. A property owner with a legal nonconforming use may expand its use as long as the expansion is based solely upon an increase in demand. That being said, a property owner with a legal nonconforming use expands at his own peril. An expansion of a nonconforming use which is not based solely upon increased demand will result in the forfeiture of the property’s legal nonconforming status.
For more information on conditional use permits and legal nonconforming uses, contact Buck Sweeney at 608.283.6743 or csweeney@axley.com. The author wishes to thank Kyle Foust, a summer clerk at Axley, for his assistance.
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