In 1973, Hussein applied for and received a CUP to operate a repair shop, service station and automobile sales business on its property, which limited the number of cars on the property to twenty-five or fewer. A series of amendments to the zoning code culminated in a 1988 revision to various districts, effectively eliminating selling cars as a conditional use on Hussein’s property. Therefore, Hussein’s car lot became a legal nonconforming use. In 2002, when Hussein acquired Germantown Auto Sales, he continued his previous activities in addition to operating the new business. Hussein attempted to increase the amount of allowable cars for Germantown Auto Sales in 2009 by requesting a rezoning. The rezoning would again make selling cars a conditional use in the district. At the same time, Hussein requested a new CUP to park 110 cars at Germantown Auto Sales in the event his rezoning request was approved. However, the Board denied both requests, and on appeal, found that Hussein could not ask for an amendment to the existing 1973 CUP.
The lower court reversed the Board’s decision because it put Hussein in a “‘catch-22’ position” by forbidding expansion of the car limit beyond twenty-five but simultaneously disallowing modification of the existing CUP, as the property’s district no longer made selling cars a conditional use. On the Board’s appeal, the appeals court addressed whether the village may lawfully enforce the 1973 CUP when its 1988 revisions to the zoning code eliminated selling cars as a conditional use in the relevant district. It found that the 1988 revisions voided the 1973 CUP, leaving Hussein with a legal non-conforming use to sell cars. They noted, however, that if Hussein expands the use beyond its historical scope, the village may seek to eliminate Germantown Auto Sales’ status as a legal non-conforming use.
Hussein v. Village of Germantown Board of Zoning Appeals, 2011 WL 2022889 (Wis.App., 5/25/2011)
The opinion can be accessed at: http://www.wisbar.org/res/capp/2011/2010ap002178.htm
