Landowner’s marina operation not legally nonconforming, but rather was limited, occasional, sporadic

by Hannah Dankbar

Walworth County v West Rod Cottage Industries LLC
Wisconsin Court of Appeals, January 14, 2015

Fred’s Tap is located on Lake Beulah in Walworth County. It opened in 1961 and consists of two pieces of land divided by Stringers Bridge Road. The “tavern” parcel is adjacent to a channel leading into Lake Beulah, and the “lake” parcel consists of a cottage, garage, and parking area along the main body of Lake Beulah. Both properties have areas to moor boats. West Rod bought the land of Fred’s Tap in the early 2000s.

In 1971 Walworth County enacted a shoreline zoning ordinance (§ 74-179) which zoned the tavern parcel as B-3, Waterfront Business District. In this area ten or fewer boat rentals and “boat liveries” are allowed. Conditional uses allowed in B-3 include, “[t]averns and bars, [y]achting clubs and marinas, and boat liveries” (which the court assumes to be liveries operating with more than ten boats). The county zoned the lake parcel as C-4, Lowland Resource Conservation District. Marinas and boat liveries are prohibited in this district, but boating is allowed.

In 2012 the County issued a citation to West Rod for operating a boat marina/access cite in the C-4 zoning district.”  The trial court upheld the citation, and West Rod appealed.  The questions in this case are whether the use the County is trying to prevent was a use that lawfully existed when the zoning was first imposed upon the lake parcel, and if so, whether that use continued uninterrupted after the zoning ordinance was enacted.

The Wisconsin Court of Appeals recognized that a legal nonconforming use is (1) an active and actual use of the land and buildings that existed prior to the commencement of the zoning ordinance and (2) that has continued in the same or a related way until the present. The burden is on the property owner to prove by a preponderance of evidence that the nonconforming use existed at the time of the adoption of the ordinance and has continued since. This burden includes the 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.”

From this statement of the law the court concluded:

  • The leasing of boat slips is the “use” at issue;
  • The County has the burden to prove that Fred’s Tap was leasing boat slips and that such activity was not allowed without a conditional use permit as to the “tavern” parcel and not at all on the “lake” parcel; and
  • West Rod bears the burden to prove by a preponderance of the evidence that its leasing of boat slips was an active and actual use that existed prior to 1971 and has continued as the same or a related use until the present such that it is a valid nonconforming use.

After chastising both West Rod and the County for “fundamental deficits” in their arguments, the court concluded that the County had met its burden to prove that Fred’s Tap was using its property to rent boats in 2011 in violation of the code, but that West Rod failed to meet its burden to show that a valid nonconforming use of the property existed.  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’s evidence may have been sufficient had the use at issue been the rental of boats (a “boat livery” business), but it was not sufficient to show that a marina was actively operating either prior to 1971 or in the years up to 2010.

Judgment for the County was affirmed.

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