Nonconforming use not allowed to be rebuilt/reestablished on different parcel

by Melanie Thwing

Coon Creek Sportsman’s Club v. Town of Beloit
(Wisconsin Court of Appeals, March 31, 2011)

In January 2007 Michael Toubl and James Bryden (club owners) applied for a conditional use permit (CUP) for Coon Creek Sportman’s Club which would operate as a bird hunting reserve in Beloit, Wisconsin. The CUP was authorized in July 2007 to operate the reserve and to use a clubhouse as a legal nonconforming structure that existed on one of the parcels. However, in September the building was destroyed in a fire.

The board renewed the CUP on April 7, 2008. The reference to a clubhouse was not removed from the renewed permit. On May 14, 2008 the club owners signed the CUP and agreed to abide by its terms. During this time the club owners applied for a building permit to construct a new building on a different parcel of land. The application listed the building as “ag building.” The application was approved and the permit stated “agricultural use only.”

Several months later the Town supervisors learned the new building was being used as a clubhouse. A letter was sent to the club owners to cease using the building as a clubhouse but they continued to. In April 2009 they applied for an amendment to the CUP to allow the new building to be used as the clubhouse. The planning commission tabled the application waiting for the submission of a site plan but none was submitted.

In January 2010 at a public hearing the board voted to revoke the CUP, concluding that the club owners had violated the conditions. The club owners filed a motion in circuit court seeking a permanent injunction claiming the board’s decision was arbitrary.

The circuit court ruled in favor of the club owners, stating that the board acted arbitrarily because (1) both CUPs referred to the “clubhouse,” (2) the renewed CUP was effective in May 2008, (3) the building permit was renewed before the CUP was renewed, and (4) the only structure on the property in May 2008 was the building described in the building permit.  The circuit court determined that the Town, “intended in the issuing of a conditional use permit that the [new] building would be used at least in part as a clubhouse. Otherwise that provision in the conditional use permit would be meaningless.” The circuit court granted the club owners’ injunction.

The Town appealed to the Wisconsin Court of Appeals arguing that it acted reasonably in revoking the CUP.  The Court of appeals found error in the final three conclusions of the circuit court.    First, the circuit court found that the renewed CUP was not effective until May. However, the CUP states that it became effective in April, regardless of the date the club owners signed and agreed. Because of this the courts finding that the building permit was issued before the CUP is erroneous, and no building existed in May 2008.

The renewed CUP permits revocation for any violation of the permit, and is subject to the general conditions of the Town of Beloit Code of Ordinances. The Town argues that the new building is not a legal nonconforming use. The club owners argue that the building is a legal nonconforming use because “the old building was a legal nonconforming structure and they are using the new building in the same manner.” Further they argue that the reference to a clubhouse in the renewed permit means the new building even if it is not a legal nonconforming use.

Wisconsin Stat. § 60.61(5m) states that if a nonconforming use is destroyed by fire it may be rebuilt if it is, “restored to the size,… location, and use that it had immediately before the damage or destruction occurred…”

The Town of Beloit, General Zoning Ordinances § 2.17D.4 states, “If a nonconforming structure is moved for any reason for any distance whatever, it shall therafter conform to the regulations for the district in which it is located after it is moved.” Under the plain language of the statute and ordinance the new building is not a legal nonconforming structure.

The club owners argue that the CUP allows the new building to be used as a clubhouse also fails. Again, the CUP was renewed on April 7, 2008 and the building permit was not filed until April 21, 2008. There is no evidence that the board knew when it issued the CUP the club owners intended to build in a different location. There is no reason to infer that the board intended the new building to be the clubhouse.

Finally, the building permit says the building is for an “ag building,” and is intended for agricultural use only. The renewed CUP does not allow for the club owners to use the new building as a clubhouse, and therefore they violated the CUP. The decision is reversed.

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