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The Land Use Tracker |
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A recent court opinion about expansion of nonconforming uses� Lessard v. Burnett County Board of Adjustment, 2002 WI App 186, 256 Wis.2d 821 The owners of a campground applied for permission to increase the number of campsites from 21 to 44. The owners claimed they had originally planned for 44 camping sites. The property was zoned Residential-Recreational with campgrounds listed as a conditional use. Camping, however, was prohibited within the 75-foot shore land setback area. The campground predated the zoning ordinance, had no conditional use permit, and six of the existing 21 campsites were located in the shore land setback area. The County granted the conditional use permit for the new campsites with the condition that the six campsites near the water be moved inland within five years. The campground sued asserting that the County had no zoning jurisdiction over the expansion or in the alternative that it could not condition its approval on the move of six of the current campsites. They argued that the County had no jurisdiction over a non-structural expansion. The court held that the County ordinance permitted the continuation of pre-existing uses but this did not include the expansion of those uses to additional land area, regardless of whether a structure is involved. The campsite owners also argued that under Waukesha County v. Seitz, 140 Wis. 2d 111, 409 N.W. 2d 536 (1994), a nonconforming use may be expanded to accommodate increased volumes of demand. The court rejected this argument as well holding that Seitz sanctioned only increased volume and frequency of use, not physical expansion of a nonconforming use but Seitz allowed pier expansion. An argument that the entire property was grandfathered also failed. Finally, the court held that the condition that the six campsites on the water be moved was reasonably related to the legitimate goal of bringing the site into conformity with the ordinances and to eliminate (nonconforming) uses as quickly as possible. Case summary used with permission of author Suzanne K. Schalig, City Attorney for City of Brookfield |
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