Saturday, February 4, 2012

New Legislation Would Take Aim at Nonconforming Waterfront Property Regulations

This Miner Lake, Waupaca Chain O' Lakes property to the left is clearly a non conforming property as it is to close to the shoreline....

From the Lakeland Times:
Bill would allow unlimited maintenance, repair; codify NR115

It's still in draft form, but lawmakers are readying legislation that would take aim at the state's regulation of nonconforming structures, principally by allowing unlimited maintenance and repair and moving state shoreland zoning standards from administrative rule rubric to statutory standard.

The Wisconsin Realtors Association requested the legislation, according to an article posted on its website by Tom Larson, the WRA's vice president of legal and public affairs.

 For decades, the state's nonconforming statutory language, not to mention its regulatory companions, has shrouded homeowners in a cloud of uncertainty about what they can or cannot do with nonconforming structures. This new legislation, the WRA states, would remove that uncertainty.

The idea, the story states, is to clarify for property owners how they can repair, maintain and improve legal, nonconforming structures, or buildings that met zoning requirements when they were built but no longer do. As the WRA acknowledges, there are a variety of ways an existing structure can run afoul of changing dimensional requirements: setbacks, height, lot coverage ratio, impervious surface coverage, or "any other regulation relating to the size or the placement of a building on a lot."

Unlimited maintenance and repair

First, the legislation would allow property owners to perform unlimited maintenance and repair.

"While zoning ordinances will change over time, such changes should not prevent or place artificial limits on the ability of property owners to maintain and repair their existing homes and buildings," the WRA states. "Protecting the ability of property owners to keep their homes in good condition and make necessary repairs will help encourage greater investment in homes, buildings and older neighborhoods."

Specifically, the WRA points out, the legislation would allow owners of nonconforming structures to maintain and repair their homes without limitations on the dollar value of such maintenance or repairs.

That would be a significant change because even under the state's revised shoreland administrative code, NR115, local governments can - and do - still impose the so-called 50-percent rule, which limits repairs, alterations and additions to nonconforming structures to 50 percent of a structure's equalized value.

Perhaps the most important change under the proposed measure would be to codify into law the regulatory framework of NR115.

"By placing this framework into the statutes, local governments would be effectively prohibited from enacting and enforcing regulations that are more restrictive," the WRA states.

That's important, the story continues, because even though the revised NR115 represents what the group calls "a more reasonable approach to regulating nonconforming waterfront homes and substandard lots," local governments are free to transcend them, including but not limited to the 50-percent rule.

"While these regulations achieve a better balance between private property rights and environmental protection, Wisconsin's shoreland zoning regulations are only minimum standards," the WRA states. "This means that local governments can adopt more restrictive regulations on nonconforming waterfront homes."

So, for example, while substandard lots may be built upon under NR115 if they have never been merged with adjacent lots, the WRA observes, a local government could prohibit such building or require them to be merged with adjacent lots under one owner.

The same is true of allowing unlimited maintenance and repair, or vertical expansion up to 35 feet between 35 feet and 75 feet of the water if local mitigation requirements are satisfied.

The accumulation of local restrictions affects property values, the WRA states.

"These restrictions impact the value of the property because purchasers are obviously unwilling to pay the same amount for a home with these restrictions as they would for the same home with no restrictions," the group asserted. "In addition, lenders are reluctant to offer financing because these homes are considered 'higher risk' due to the fact that restrictions placed on the ability to maintain, repair and improve these structures reduces the functional life on the structures."

A significant concession

That the WRA recognizes the need for nonconforming legislation signals a marked departure from its previous position. The WRA was in fact one of the most influential partners with the DNR in rewriting NR115, and signed off on the final version.

In so doing, the organization touted the rule's language on nonconformity as one of its strongest points precisely because it allowed unlimited ordinary maintenance and repair, as well as expansion in certain circumstances. As such, though new impervious surface requirements might make many existing homes nonconforming, it no longer practically mattered.

Larson said the protections for nonconforming structures mattered most for the WRA.

"The biggest thing was the nonconforming structures," Larson told the Milwaukee Journal Sentinel. He told the Chicago Tribune the same thing, calling the proposal, according to the newspaper, a fair compromise, especially for owners of nonconforming structures.

"You can basically keep what you have," he was quoted as saying.

 The problem was, though that's what the rule stated, that's not what state statutes said was necessarily true, a fact the WRA is now acknowledging.

Indeed, in addition to the 50-percent rule, the law continues to allow counties to simply forbid any nonconforming residential structures to exist at all, and it endows towns with the same powers. The only restriction the statutes place on the elimination of nonconforming uses pertain to trade and industry, not residential ones.

The law reads: "An ordinance enacted under this section may not prohibit the continuance of the lawful use of any building, premises, structure, or fixture for any trade or industry for which such building, premises, structure, or fixture is used at the time that the ordinances take effect, but the alteration of, or addition to, or repair in excess of 50 percent of its assessed value of any existing building, premises, structure, or fixture for the purpose of carrying on any prohibited trade or new industry within the district where such buildings, premises, structures, or fixtures are located, may be prohibited."

To be sure, there is no evidence any municipality has tried to phase out or eliminate a nonconforming home based on that statutory allowance, but the language exists nonetheless.

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