Posted by: Patricia Salkin | February 6, 2015

WI Appeals Court Agrees that Marina Owners Were Not Entitled to Nonconforming Use Status

West Rod Cottage Industries, LLC, appealed a decision of the Circuit Court finding it violated Walworth County’s shoreland zoning ordinance by operating a marina that was not a legal non-conforming use at its lakeside tavern Fred’s Tap. West Rod argued that the tavern had rented boats and slips since prior to the adoption of the ordinance and that therefore its rental of boat slips was a legal nonconforming use.

The Court of Appeals agreed with the County that it was not a legal non-conforming use, and that West Rod did not meet its burden to show that Fred’s Tap had an active and actual boat slip rental/marina operation prior to the adoption of the County’s shore land zoning ordinance in 1971 or that it actively continued such an operation as more than an occasional and incidental use at the property. The evidence at best showed a limited and occasional rental of boat slips as of 1971 and thereafter until 2010 when West Rod began large-scale boat slip rentals. West Rod did not acquire a vested interest in the rental of boat slips when it purchased Fred’s Tap based upon the evidence presented to the court.

The Court further observed that both the County and West Rod had fundamental deficits in their arguments. West Rod had a false belief that if it proved a continuous rental activity involving the piers, the County had no zoning authority over the use of those piers. The County had the false belief that a distinction exists for purposes of the court’s review that the “lake” parcel has C–4 zoning and the “tavern” parcel has B–3 zoning. The particular zoning on each parcel is irrelevant when addressing the question presented: whether the “use” the County is trying to prevent was a use that existed when the zoning at issue was first imposed upon the property and, if so, whether that use continued thereafter such that its nonconforming use status was not lost.

The Court of Appeals stated that the nonconforming use concept included a burden of a requirement that the property owner show that the use was “so active and actual that it can be said he [or she] has acquired a ‘vested interest’ in its continuance.
But, the concept does not cover any activity simply because it takes place on the premises. See, e.g., Sohns v.. Jensen, 11 Wis.2d 449, 457–58, 105 N.W.2d 818 (1960). “If the specific use … was but casual and occasional, or if such use was merely accessory or incidental to the principal use, then it cannot be said that the property owner had acquired a ‘vested interest’ in the continuance of such a use.” Hartwell, 62 Wis.2d at 61.

West Rod’s evidence may have been sufficient had the use at issue been the rental of boats. As of 1971 and up to the time West Rod purchased Fred’s, the evidence clearly reflected a boat livery operation at Fred’s. Fred’s Tap (both parcels) was shown to be a place (in 1971) where boats could be rented and where boats could moor on either parcel so as to enjoy food and beverage at Fred’s. Fred’s clearly operated a boat livery business in 1971.

County of Walworth v. W. Rod Cottage Indus., LLC, 2015 WL 158902 (WI 1/14/2015)

The opinion can be accessed at:

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