Dear Mr. Heath:
You ask several questions about Wisconsin's shoreland zoning statutes and administrative rules. Your request is prompted by Oneida County's comprehensive review of its zoning and shoreland protection ordinance.
Specifically, you request an attorney general's opinion on the following: (1) May a county enact a shoreland zoning ordinance that does not expressly regulate legal nonconforming uses, structures, and properties? (2) May a county enact a shoreland zoning ordinance that does not include the "50% rule" for altering, adding to, or repairing nonconforming structures? If so, what, if anything, would then restrict the county's authority to regulate or not regulate alterations, additions, or repairs to legal nonconforming structures? (3) Under Wisconsin zoning law, "[d]oes an isolated lot, on which there is a pre-existing dwelling or principal structure between 40 feet and 75 feet of the [Ordinary High Water Mark] of a navigable water, constitute an `existing development pattern'?"
First, in my opinion, a county may not enact a shoreland zoning ordinance that fails to require legal nonconforming uses discontinued for 12 months or longer to conform to the zoning ordinance. Second, a county may enact a shoreland zoning ordinance with no "50% rule" but should, and has broad authority to, restrict nonconforming uses or structures in some manner to bring them ultimately into compliance with the ordinance. Indeed, not somehow restricting a nonconforming use or structure would render its status as nonconforming meaningless. Third, an isolated lot having a principal structure within 75 feet of the ordinary high water mark ("OHWM") is not an "existing development pattern."
For clarification, "nonconforming use or structure" in this opinion refers both to legal nonconforming land uses contrary to a zoning ordinance and to legal nonconforming structures with a conforming use but not conforming to the dimensional standards of an ordinance. Although statutes, administrative rules, zoning ordinances, or caselaw sometimes use "nonconforming use" to refer to both those circumstances, using "nonconforming use or structure" here may avoid some ambiguity.
Your three questions are more fully discussed here in the order in which you have asked those questions.
May a county enact a shoreland zoning ordinance that does not expressly regulate legal nonconforming uses, structures, and properties?
You quote section 59.69(10)(a), Stats. Although section 59.692 applies more specifically to county shoreland zoning, section 59.69(10) applies as well. "Except as otherwise specified, all provisions of s. 59.69 apply to ordinances... enacted under [sec. 59.692]...." Sec. 59.692(2)(a), Stats.
Section 59.69(10)(a) sets forth a county's statutory obligations regarding an ordinance on nonconforming uses:
An ordinance enacted under this section may not prohibit
the continuance of the lawful use of any building or premises for any trade or industry for which such building or premises is used at the time that the ordinances take effect, but the alteration of, or addition to, or repair in excess of 50% of its assessed value of any existing building or structure for the purpose of carrying on any prohibited trade or new industry within the district where such buildings or structures are located, may be prohibited
. The continuance of the nonconforming use of a temporary structure may be prohibited
. If the nonconforming use is discontinued for a period of 12 months, any future use of the building and premises shall conform
to the ordinance.
On the one hand, section 59.69(10)(a), as quoted here, is expressly mandatory in two respects about county nonconforming use ordinances: (1) lawful continuation of a legal nonconforming trade or industrial use or structure may not be
prohibited, and (2) if a legal nonconforming use or structure is discontinued for 12 months or longer, future use must conform
to the ordinance. On the other hand, section 59.69(10)(a) is expressly permissive in two respects: (1) a county may choose
either to enact or not to enact the "50% rule," and (2) a county may choose
either to prohibit or not to prohibit the legal nonconforming use of a temporary structure.
Wisconsin Administrative Code NR 115.05(3)(e), as applied to shoreland zoning ordinances, is on these points similar to section 59.69(10)(a), except that it goes beyond trade and industrial uses to encompass all nonconforming uses or structures. This broader application of Wisconsin Administrative Code NR 115.05(3)(e) is authorized by the expansive DNR authority in sections 59.692 and 281.31 to establish county shoreland zoning standards by administrative rule. See
, e.g.
, secs. 59.692(1)(c) and 281.31(1), Stats. This more expansive authority derives in turn from the extra protections required for shorelands pursuant to the state's "active public trust duty... in respect to navigable waters." Just v. Marinette County
, 56 Wis. 2d 7, 18-19, 201 N.W.2d 761 (1972). Compare
also
section 62.23(7)(h), which on relevant points is more restrictive for cities.
It follows, therefore, from section 59.69(10)(a), Stats., and Wisconsin Administrative Code NR 115.05(3)(e) that a county may choose to enact a zoning ordinance not regulating nonconforming uses, structures, or properties, except that its ordinance must regulate the reuse of nonconforming uses or structures discontinued for 12 months or longer. When read together, sections 59.69(10)(a) and 59.692(1m), and Wisconsin Administrative Code NR 115.05(3)(e) are mandatory in requiring that a shoreland zoning ordinance be enacted that does not prohibit the lawful continuation of nonconforming uses or structures, but those provisions are not similarly mandatory in requiring that a shoreland zoning ordinance shall regulate nonconforming uses or structures, except for the need to regulate nonconforming uses or structures discontinued for 12 months or longer.
This interpretation of what is required by section 59.692(1m), which requires counties to enact a shoreland zoning ordinance, and of what is and is not required by section 59.69(10)(a), and Wisconsin Administrative Code NR 115.05(3)(e) follows the "general rule of express mention and implied exclusion" under which the "express mention of one matter excludes other similar matters not mentioned." Teamsters Union Local 695 v. Waukesha County
, 57 Wis. 2d 62, 67 n.6, 203 N.W.2d 707 (1973) ("expressio unius est exclusio alterius
"). Rules of statutory construction apply similarly to administrative rules. Basinas v. State
, 104 Wis. 2d 539, 546, 312 N.W.2d 483 (1981).
May a county enact a shoreland zoning ordinance that does not include the "50% rule" for altering, adding to, or repairing nonconforming uses or structures? If so, what, if anything, would then restrict the county's authority to regulate or not regulate alterations, additions, or repairs to nonconforming uses or structures?
Under section 59.692, the Department of Natural Resources ("DNR") has promulgated administrative rules governing county shoreland zoning ordinances. For DNR's specific authority on shoreland zoning, see
, in particular, section 59.692(1)(c), (1m), (6), and (7)(ar) and (c). See
also
sec. 59.692(1s), as created by 1997 Wisconsin Act 27, 2174 and sec. 283.31, Stats. (1995-96).
Wisconsin's shoreland management rules are found in Wisconsin Administrative Code ch. NR 115. The "50% rule" limiting the extent of alterations, additions, or repairs that may be made to nonconforming uses or structures in shoreland areas is referenced in that rule as follows:
Under s. 59.97(10), Stats., the continuation of the lawful use of a building, structure or property, existing at the time an ordinance... takes effect... shall not be prohibited
, but the alteration of, addition to, or repair, over the life of the building or structure, in excess of 50% of the equalized assessed value... may be prohibited
.
Wisconsin Administrative Code NR 115.05(3)(e) (emphasis added) (sec. 59.97, Stats. (1993-94), referenced therein, was renumbered sec. 59.69, Stats., by 1995 Wis. Act 201, 475). Section 59.69(10)(a), which on the points relevant here, including reference to the 50% rule, is similar to Wisconsin Administrative Code NR 115.05(3)(e), except that NR 115.05(3)(e) goes beyond trade or industrial uses or structures to encompass all nonconforming uses or structures. Specifically, Wisconsin Administrative Code NR 115.05(3)(e) allows the 50% rule for all structures, so long as lawful uses may continue. Accordingly, the rule allows for more expansive regulation by counties of nonconforming buildings than the statute.
Wisconsin Administrative Code NR 115.05(3)(e), on its face, plainly allows a county to choose not to enact the "50% rule" for nonconforming uses or structures that are altered, added to, or repaired. That is so because the rule says alterations, additions, or repairs in excess of 50% "may be
prohibited." See
also
sec. 59.69(10)(a), Stats. (alterations, additions, or repairs in excess of 50% "may be prohibited"). Under the rules of statutory construction, "may" is generally construed as permissive. State v. Camara
, 28 Wis. 2d 365, 371, 137 N.W.2d 1 (1965). That is particularly so if, as in Wisconsin Administrative Code NR 115.05(3)(e), "may" appears near "shall." Scanlon v. Menasha
, 16 Wis. 2d 437, 443, 114 N.W.2d 791 (1962). Thus, a county need not enact the 50% rule.
Furthermore, for certain damaged or destroyed nonconforming structures, a county not only need not, but indeed may not, enact a 50% rule to limit the costs incurred in restoring the damaged or destroyed structure. Section 59.692(1s), created by 1997 Wisconsin Act 27, 2174pm, reads as follows:
(a) Restrictions that are applicable to damaged or destroyed nonconforming structures and that are contained in an ordinance enacted under this section may not prohibit
the restoration of a nonconforming structure if the structure will be restored to the size, subject to par. (b), location and use that it had immediately before the damage or destruction occurred or impose any limits on the costs
of the repair, reconstruction or improvement if all of the following apply:
1. The nonconforming structure was damaged or destroyed after the effective date of this subdivision [October 14, 1997].
2. The damage or destruction was caused by violent wind, vandalism, fire or a flood.
(b) An ordinance enacted under this section to which par. (a) applies shall allow for the size of a structure to be larger than the size it was immediately before the damage or destruction if necessary for the structure to comply with applicable state or federal requirements.
This recently enacted subsection, therefore, covers nonconforming structures damaged or destroyed after October 14, 1997, by "violent wind, vandalism, fire or a flood." Under it, a county must allow those structures to be restored to the same size, at the same location, and for the same use as they had before the damage or destruction and must allow restoration to an even larger size, but only if required by state or federal law. The repair, reconstruction, or improvement costs for those damaged or destroyed structures may not be limited. As a result, a county ordinance may have no 50% rule for restoring those damaged or destroyed nonconforming structures.
However, counties retain broad authority to regulate nonconforming uses or structures outside of section 59.692(1s). This leads to the second half of your question, which is what, if anything, restricts a county's authority to regulate or not regulate alterations, additions, or repairs to nonconforming uses or structures if there is no 50% rule in its county shoreland zoning ordinance? If a county's zoning ordinance has no "50% rule," the county may still, nonetheless, otherwise regulate nonconforming uses by ordinance so long as its ordinance is consistent with the law as described above. See
Waukesha County v. Pewaukee Marina, Inc.
, 187 Wis. 2d 18, 22-24, 522 N.W.2d 536 (Ct. App. 1994) ("Seitz II
").
In addition, the common law may limit the extension of legal nonconforming uses or structures if the extension is contrary to the spirit of zoning. Wis. Const. art. XIV, 13 (common law continues unless varied by legislature); In re Custody of D.M.M.
, 137 Wis. 2d 375, 390, 404 N.W.2d 530 (1987) (no change in common law unless clearly indicated); Aaby v. Citizens Nat. Bank
, 197 Wis. 56, 57, 221 N.W. 417 (1928) ("common law prevails in Wisconsin until changed by statute"). See
also
2B Norman J. Singer, Sutherland Statutory Construction 50.01, at 90 (5th ed. 1992) (repeal revives the common law). In fact, the absence of any restrictions on nonconforming uses or structures is contrary to the common law reasons for having nonconforming uses at all. If there were no restrictions, that would mean classifying a structure or use as nonconforming would have no significance.
Under the common law, some extensions of nonconforming uses or structures are prohibited even if no specific zoning ordinance provision is violated. Seitz II
, 187 Wis. 2d at 26-27. In Seitz II
, Seitz argued that to prohibit change in a nonconforming use, a specific ordinance provision must be violated. Id.
at 25. The court rejected the argument. Change in a nonconforming use may be prohibited without reliance on a specific ordinance provision. Id.
at 26. This is "part of the general practice of zoning." Id.
at 24.
Reliance on common law is also the practice under caselaw elsewhere as well.
The right to continue a nonconforming use does not include a right to extend or enlarge it. This appears to be the rule whether or not the municipal corporation has adopted an ordinance which specifically limits the right of a nonconforming user to enlarge or extend his use, since, without reference to express language, the courts
have held that expansion of a nonconforming use offends the spirit of zoning regulation.
1 Kenneth H. Young, Anderson's American Law of Zoning (4th ed. 1996) 6.45 at 623-624 (citations omitted). Although some courts have allowed alterations, other "courts, relying upon the basic policy which dictates early termination of nonconforming uses, have disapproved structural alterations without the aid of a restrictive ordinance." Anderson 6.56 at 658.
The presumption under Wisconsin caselaw is that "[n]on-conforming uses are... not to be enlarged in derogation of the general scheme of the ordinance for the use of property." Yorkville v. Fonk
, 3 Wis. 2d 371, 378, 88 N.W.2d 319 (1958) (citations omitted). "[T]he spirit of zoning is to restrict a nonconforming use and to eliminate such uses as quickly as possible." Waukesha County v. Seitz
, 140 Wis. 2d 111, 116, 409 N.W.2d 403 (Ct. App. 1987) ("Seitz I
").
Your letter in passing also touches on whether a county remains subject to other minimum shoreland zoning requirements if it repeals its 50% rule. Even so, a county must still comply with all minimum requirements of section 59.692 and Wisconsin Administrative Code NR 115.05. A county must enact a county shoreland zoning ordinance. Sec. 59.692(1m), Stats. A county shoreland zoning ordinance may not be less restrictive than state law allows. Sec. 59.692(7)(ar), Stats. Thus, the minimum lot size and setback requirements of Wisconsin Administrative Code NR 115.05(3)(a) and (b) still apply. Unlike the 50% rule, those lot size and setback requirements are not permissive. They are mandatory.
To summarize, a county may enact a shoreland zoning ordinance without a "50% rule," but a county may, consistent with the law, also regulate the expansion, alteration, or repair of nonconforming structures by other means. The common law may also limit the extension of nonconforming uses or structures. All minimum shoreland zoning law requirements still apply.
Under Wisconsin zoning law, "[d]oes an isolated lot, on which there is a pre-existing dwelling or principal structure between 40 feet and 75 feet of the OHWM of a navigable water, constitute an 'existing development pattern'?"
Wisconsin by administrative rule sets the relevant, minimum setback requirement for all county shoreland zoning ordinances:
Unless an existing development pattern
exists, a setback of 75 feet from the ordinary high-water mark of an adjacent body of water to the nearest part of a building or structure, shall be required for all buildings and structures, except piers, boat hoists and boathouses.
Wis. Admin. Code NR 115.05(3)(b)1. (emphasis added). This rule has the force and effect of law. State ex rel. Staples v. DHSS
, 115 Wis. 2d 363, 367, 340 N. W.2d 194 (1983). You ask about the meaning of the term "existing development pattern" as used in this quoted rule provision. It is not defined in Wisconsin Administrative Code ch. NR 115.
When not defined, nontechnical words in a statute or rule are given their relevant, ordinary and accepted meaning, which may be found in a dictionary. State ex rel. First Nat. Bank & Trust v. Skow
, 91 Wis. 2d 773, 781, 284 N.W.2d 74 (1979). See
also
sec. 990.01(1), Stats. ("words and phrases shall be construed according to common and approved usage"). As noted above, the rules of statutory construction also apply to administrative rules. Basinas
, 104 Wis. 2d at 546.
The most relevant, ordinary and accepted dictionary definition of "pattern" is "a representative instance: a typical example." Webster's Third New International Dictionary
1657 (1986). An "isolated lot" is by definition not "a representative instance: a typical example" of "existing development." Instead, "isolated" is defined as "occurring alone or once: unique." Webster's Third New International Dictionary
1199 (1986). What is "occurring alone or once: unique" cannot also be a "typical example." Thus, an "isolated lot, on which there is a pre-existing dwelling or principal structure between 40 feet and 75 feet of the OHWM of a navigable water" is not an "existing development pattern" under Wisconsin Administrative Code NR 115.05(3)(b)1.
"[T]he spirit of zoning is to restrict a nonconforming use and to eliminate such uses as quickly as possible." Seitz I
, 140 Wis. 2d at 116. "Non-conforming uses are... not to be enlarged in derogation of the general scheme of the ordinance for the use of property." Yorkville
, 3 Wis. 2d at 378. In contrast to that fundamental purpose behind the law of legal nonconforming uses, if isolated nonconforming uses were deemed an "existing development pattern," that could in some instances nullify the 75-foot setback restriction in Wis. Admin. Code NR 115.05(3)(b)1. That would be contrary to the fundamental policy in the law of zoning not to extend but rather to restrict legal nonconforming uses.
That is not a sound interpretation of the words "existing development pattern." A sound interpretation would not render the rule void or meaningless. Associated Hospital Service v. Milwaukee
, 13 Wis. 2d. 447, 463, 109 N.W.2d 271 (1961). Rather it would further the policy of the rule. State v. Clausen
, 105 Wis. 2d 231, 244, 313 N.W.2d 819 (1982).
In summary, a county may not enact a shoreland zoning ordinance that does not regulate nonconforming uses or structures whose use has been discontinued for 12 months or longer. A county may have a shoreland zoning ordinance without a "50% rule," but may regulate nonconforming structures by other means. Without a 50% rule, the common law limits the extension of nonconforming uses or structures. Finally, under state law, an "isolated lot" is not an "existing development pattern."
Sincerely,
James E. Doyle
Attorney General
JED:PP
A county may not enact a shoreland zoning ordinance without a provision in it regulating nonconforming uses or structures whose use has been discontinued for 12 months or longer. A county may enact a shoreland zoning ordinance without the "50% rule." That is allowed under section 59.69(10)(a), Stats., and Wisconsin Administrative Code NR 115.05(3)(e). If an ordinance has no "50% rule," common law controls.
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