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Village of Elm Grove, WI
Waukesha County
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Table of Contents
Table of Contents
[Amended 6-24-2003; 7-22-2003; 5-24-2005; 8-22-2006]
The lawful nonconforming principal use of a building, premises, structure, fixture, land or water existing at the time of the adoption or amendment of this chapter may be continued although the principal use does not conform to the provisions of this chapter. (NOTE: For purposes of this section, a "fixture" is defined in accordance with the Wisconsin case law rule. The rule which has developed in Wisconsin case law as to what constitutes a fixture is not really a comprehensive definition but rather a statement of the factors that are to be applied to the facts and circumstances of a particular case to determine whether or not the property in question does constitute a fixture: "...Whether articles of personal property are fixtures, i.e., real estate, is determined in this state, if not generally, by the following rules or tests: 1) Actual physical annexation to the real estate; 2) Application or adaptation to the use or purpose to which the realty is devoted; and 3) An intention on the part of the person making the annexation to make a permanent accession to the freehold.") A principal structure used in accordance with applicable zoning regulations that does not conform to applicable frontage, width, height, area, yard, parking, loading or setback requirements shall be considered to be a nonconforming structure but not a nonconforming use.
A. 
Nonconforming uses.
(1) 
Only that portion of the land or water in actual use may be so continued, and a nonconforming use may not be extended or enlarged.
(2) 
If a nonconforming use is discontinued for a period of 12 months, any future use of the building, structure, fixture or premises shall conform to the chapter.
(3) 
Uses that are merely casual and occasional or accessory or incidental to the principal use cannot acquire a nonconforming use status.
B. 
Nonconforming structures.
(1) 
Subject to the provisions of Subsection B(4) of this section, structural additions and enlargements to existing legal nonconforming structures are permitted to the extent that such structural additions and enlargements do not create or increase nonconformity with applicable setback lines or applicable yard, height, parking, loading or access provisions of this chapter.
[Amended 6-26-2012]
(2) 
The Village Plan Commission may, in its discretion, upon receipt of the Building Board's recommendations and following a public hearing noticed by a Class 2 notice, grant a special exception to allow a structural addition or enlargement that encroaches into the setback requirements.
(a) 
No application for a special exception shall be considered unless the Zoning Administrator has received the fee established by the Village Board of Trustees from time to time, by resolution, together with a completed application and the information required under § 335-88D(1) of this chapter.
(b) 
No application for a special exception shall be granted unless the Plan Commission determines that all of the following conditions are satisfied:
[1] 
The subject structure is legally conforming with respect to use.
[2] 
No point on the proposed addition or enlargement shall have a distance to a lot line that is shorter in length than the distance from the same lot line to the closest point on the subject structure as it existed at the time of the request for a special exception.
[3] 
The proposed addition or enlargement is not contrary to the public interest or detrimental to public health or safety.
[4] 
The proposed addition or enlargement shall not be detrimental to the character or property values of the surrounding area.
[5] 
For corner lots, the Board shall also determine that the proposed addition or enlargement will not impair a reasonable vision clearance for traffic on adjacent streets.[1]
[1]
Editor's Note: Former Subsection B(3), concerning the allowable amount of total lifetime structural repairs or alterations, was repealed 6-26-2012, which ordinance also redesignated former Subsection B(4) and (5) as Subsection B(3) and (4).
(3) 
Subject to Subsection B(4), a damaged or destroyed nonconforming structure may be restored to the size, location, and use that it had immediately before the damage or destruction occurred, without limitation as to the costs of repair, reconstruction, or improvement, if all of the following apply:
[Amended 6-26-2012]
(a) 
The nonconforming structure was damaged or destroyed on or after March 2, 2006.
(b) 
The damage or destruction was caused by violent wind, vandalism, fire, flood, ice, snow, mold, or infestation.
(4) 
A damaged or destroyed nonconforming structure that meets the requirements under Subsection B(3) may be restored to a larger size than it was immediately before the damage or destruction if necessary for the structure to comply with applicable state or federal requirements.
[Amended 6-26-2012]
[Amended 8-22-2006]
If such nonconforming use is discontinued or terminated for a period of 12 months, any future use of the building, premises, structure, fixture, land or water shall conform to the provisions of this chapter.
Notwithstanding § 62.23(7)(h), Wis. Stats, the repair, reconstruction, renovation, remodeling or expansion of a legal nonconforming structure, or any environmental control facility related to a legal nonconforming structure, located in the W-1 Wetland District and in existence at the time of adoption or subsequent amendment of this chapter is permitted pursuant to § 61.351(5), Wis. Stats.