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By: Attorney Davis Runde

You have likely heard the term “grandfathered in” as it relates to a building’s structure (its setback from the lot line, or its waterfront structures) or the use of the land which the building is set upon (e.g. operating a business in a now residentially zoned area).

Being grandfathered in allows a property owner to continue to use their land or building as they have been using it in the past, in the face of changes to the local zoning code. In legalese, this is called a pre-existing nonconforming use. In other words, a person was legally using their property in a way that is now illegal due to a newly established law.

The law – generally speaking – allows a person in this situation to continue to use their property in that manner, as a matter of right (this is different than a conditional use, which will be briefly discussed below). However, you need to be able to establish that you actually were using the property in that manner and that you are continuing to use the property in the same way, prior to the new law taking effect.

For example, if you purchase a property comprised of a home with multiple acres and some outbuildings, and the property is zoned as mixed use (residential and commercial), and your plan is to start an auto repair shop out of one of the outbuildings, you likely would be safe to start operating your new business. However, if the local zoning ordinance changes to purely residential before you get your business started, you likely will not be able to establish a pre-existing nonconforming use.

Another example, let’s say you did in fact get your auto repair shop up and running prior to the zoning change and have established a pre-existing nonconforming. Now you want to change your business to an insurance agency operating out of the same outbuilding, so you close up the auto-shop. This would likely end your protected status, and you would neither be able to reopen your auto-shop nor start the insurance agency. 

Much of pre-existing nonconforming use law operates under the “use it or lose it” standard. However, this does not mean you need to be operating the auto-shop 24/7. Generally speaking, you will run the risk of losing your protected status if you cease the pre-existing nonconforming use for a period of a year.

Additionally, there are limits on if you can enlarge pre-existing nonconforming uses. Let’s say the auto-shop is booming, and you want to build an additional outbuilding to service more customers. This would likely not be allowed. 

So, what happens if a person does end up losing their protected status and the pre-existing nonconforming use of their land? 

First, the person should make sure that the use that was previously allowed as a matter of right, is not allowed as a conditional use. In 2017, Wisconsin enacted a new law which stated that if an individual can show their use meets or agrees to meet the standards specified in the local ordinance for a conditional use permit (CUP), the local zoning authority must issue the CUP. Thus, if the use is possible as a conditional use, the property owner should apply for the CUP.

If a CUP is not an option, the person may apply for a variance. A use or area variance is a modification to the local zoning requirements or prohibitions, which will allow a nonconforming structure or use to exist. Variances are difficult to come by and a property owner will need to show that the current zoning code and the prohibition it imposes creates an undue hardship, that the property condition is unique, and that granting the variance will not cause harm to the public interest. 

Zoning codes are often dense and complicated, and if you have any questions whether your property meets current zoning requirements, you should consult an attorney to help you navigate the local code and any application process you are anticipating going through.

Davis Runde is an attorney with Weld Riley, S.C.. Davis is a Wausau native and is a member of Weld Riley, S.C.’s Labor & Employment, Business, and Municipal Law Sections. Prior to joining Weld Riley, S.C., Davis served as an Assistant District Attorney in Marathon County where he was awarded for Outstanding Achievement Supporting Survivors of Domestic Violence.