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What Constitutes the Continuation of a Legal Non-Conforming Use

April 2, 2021

The Wisconsin Supreme Court has further refined the standard for what is a continuation of a legal non-conforming use.  In Village of Slinger vs. Polk Properties, LLC  the Court, in a unanimous decision, set a clear standard to judge a municipality’s effort to enforce the abandonment of a legal non-conforming use.

Non-conforming uses, or structures, are created when a rezoning of a parcel takes place, causing the current use to not conform with the new zoning designation placed on the property in question. Contrary to popular belief, a municipality does not need to give personal notice to any landowner that a rezone has, or will, take place if the rezoning is area-wide. If a municipality rezones a parcel as part of an area-wide rezoning, the nature and extent of the rezoning needs to be published as a class 2 notice in the local paper with 2 insertions each a week apart and the last insertion a week before the hearing. Once a property is rezoned and the current use of the property becomes legal non-conforming, the landowner must continue the legal non-conforming use or it is lost. A legal non-conforming use cannot be expanded, but the current use is protected until the use is abandoned by the current or subsequent owners.

In the Slinger case, the landowner rezoned the property to a residential zoning designation prior to the 2008 economic downturn. He improved part of the property with roads and infrastructure. But because of the Great Recession, he could not sell all the lots created, so he continued to farm the property that was not sold. Prior to the rezone, the land was used for agricultural purposes. After the rezone, the owner continued to use the land not sold as farmland.

Slinger tried to say that by rezoning and changing the use of part of the property to a residential zoning designation, Polk ceased using the property as farmland for the balance of the property. And, therefore, any attempt to continue to farm the land was illegal, as the non-conforming use was abandoned when the property was rezoned and improved. Slinger argued that the owner abandoned the use by converting the property to residential zoning and beginning the development process. The Supreme Court rejected that argument and stated that conforming part, but not all, of the property to a conforming use did not act as an abandonment of the legal non-conforming rights on the balance of a property converted.

In order for a non-conforming use to continue legally (for the use of a property to remain a legal non-conforming use), the owner must continue the non-conforming use and must not abandon the use of the property. The Court in Slinger has made it clear that in order for an owner to abandon a legal non-conforming use so that it becomes illegal, the owner must: 1) actually cease the use, and 2) have an intent to abandon the use. Both prongs of the test must be met before a legal non-conforming use can be considered abandoned by the owner of the property so designated.

The takeaway? Landowners who have property that has a legal non-conforming use should document their continued use and their intent to retain the rights to their legal non-conforming use. For owners of legal non-conforming parcels this clarification bolsters the landowners rights in the continuation of a non-conforming use and the value associated with it.

If you are an owner of a property that has a legal non-conforming use associated with it and want to know your rights, contact us here at Axley. We can make sure you know what you need to do and how to protect those rights associated with your property.