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Thread: Non-conforming use in a non-conforming building destroyed by fire

  1. #1

    Non-conforming use in a non-conforming building destroyed by fire

    Here is the situation:

    The City where I live (but not where I work) has a rooming house downtown. It is a huge impediment to development of adjacent lands. It has basically created a vacuum around it where no business wants to go because this building houses transients and sex offenders.

    From what I understand the building is legal non-conforming and the use as a rooming house is also legal non-conforming.

    Well a couple of months ago one of the people who lives there set the place on fire in an attempt to commit suicide (now you get an idea about the kind of people who live there). The building was significantly damaged and it is believed the damage was in excess of 50% of the value.

    Wisconsin State Statutes require Cities to allow a person to rebuild a non-conforming building if it was destroyed by fire "if the structure will be restored to the size, location, and use that it had immediately before the damage or destruction occurred...." Therefore, the statute only permits restoration of the "structure" if the property will be restored to the "use" it had immediately before the damage. However I would think that assumes the use of the structure was a permitted use at the time of the fire.

    State statute also addresses non-conforming uses in this manner: “The continued lawful use of a building, premises, structure, or fixture existing at the time of the adoption or amendment of a zoning ordinance may not be prohibited although the use does not conform with the provisions of the ordinance. The nonconforming use may not be extended. The total structural repairs or alterations in such a nonconforming building, premises, structure, or fixture shall not during its life exceed 50 percent of the assessed value of the building, premises, structure, or fixture unless permanently changed to a conforming use. If the nonconforming use is discontinued for a period of 12 months, any
    future use of the building, premises, structure, or fixture shall conform to the ordinance.”

    This section does not have the "destroyed by fire" exemption that the section on non-conforming structures has.

    So since both the use and the building are non-conforming can the City prevent them from rebuilding and opening as a rooming house again?

    Any input would be appreciated.

  2. #2
    Apr 2007
    the Mountains
    The non-conforming use and non-conforming structure are separate issues, although the language you posted does go back and forth between the terms a little excessively.

    My interpretation would be that the non-conforming use can continue if reinstated within one year and that the building can be rebuilt exactly as it was before. Since the structure is being rebuilt, it would be exempt from that 50% of assessed value requirements, although it would come back into play after the structure is rebuilt.

    The city can't say that the destruction of a building equals the destruction of a use.

    Maybe you'll get lucky and the property owner will just sell off the land at this point.

  3. #3
    Cyburbian Otis's avatar
    Mar 2002
    Upper left edge
    Based on what you've provided, I'd say the building can be rebuilt, but if it was more than 50% destroyed the use has to be converted to a conforming use.

    What provision is being made to house the people who used to live in the building?

  4. #4
    I think the guy that owns it has other dumpy rooming houses and the residents are dispersed througout them. The one benefit of the fire, even if they are allowed to rebuild and reopen is that the sex offenders cannot come back. The City passed an ordinance that prohibits sex offenders from living within 750 feet from a park and thankfully there is one across the street. The ones that lived here were grandfathered. Since the offenders have technically moved somewhere else and registered the new address they cannot come back to this building.

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