May/June 2021 Issue

Also in this issue: COVID Local Fiscal Recovery Funds May Impact Levy Limits     |     Public Service Commission Launches Road Map to Zero Carbon Investigation     |     Boardman Clark Welcomes Storm Larson

Legal Nonconforming Use Survives if Use Continues in Any Way, Even if Owner Promised to End the Use

05.24.21

In Village of Slinger v. Polk Properties, LLC, 2021 WI 29 (April 1, 2021), the Wisconsin Supreme Court reversed lower court decisions and found that an owner must cease all aspects of a legal nonconforming use before the use is considered abandoned. The ruling by the Court is the latest in a series of cases that emphasize the different standards governing the ​“use” of property under Wisconsin zoning law and tax assessment law.

Polk Properties owned an 80 acre parcel in the Village of Slinger. The property was zoned agricultural, and the owner regularly harvested hay and other grasses from the property. There was no dispute that such harvesting continued throughout the relevant period, including after a zoning change and after two agreements between the Village and the developer.

Polk asked the Village to rezone the property as residential, because he wanted to develop a residential subdivision. The Village not only granted the request, it entered into two agreements with Polk. The Development Agreement stated, among other things, that the property ​“was zoned only for single-family use.” The Declaration of Covenants, Conditions and Restrictions (Declaration) stated that “”[e]ach Lot shall be occupied and used only for single family residential purposes and for no other purpose. No business, commercial or individual activity (except as allowed under applicable zoning codes) shall be conducted on any lot .…” Id., 2019 WI ¶ 7. The Declaration also stated that the restrictions on residential use ​“are enforceable by the Village.” See the unpublished Court of Appeals decision reversed by this ruling, Village of Slinger v. Polk Properties, LLC, 2019 WI APP 48, ¶ 23.

The Court of Appeals relied on the two Agreements between the Village and Polk, along with the zoning change to residential sought by Polk, as constituting an abandonment of the agricultural use, and thus found it could not be a lawful nonconforming use. The Supreme Court reversed, finding that established Wisconsin law requires both (1) an intent to abandon the use, and (2) an actual cessation of the use. Because all parties agreed that the agricultural harvesting had continued on a portion of the property, the Supreme Court held there was no actual cessation of the use. Thus, it was a legal nonconforming use. The Court reversed the summary judgment for the Village, and all of the related damages and penalties assessed by the Circuit Court.

The Court’s decision was a 6 – 0 unanimous ruling, with one justice filing a concurring opinion. Justice Hagedorn did not take part, as he was in the majority on the Court of Appeals decision that was reversed.

Because the concept of a legal nonconforming use is a creature of Wisconsin zoning law, we on the sidelines can speculate what might have happened if the Village had sued only on the Declaration. That agreement specifically said that Polk agreed that all of the property ​“shall be occupied and used only for single family residential purposes and for no other purpose.” Would this Declaration be enforceable even if there was no zoning violation? That is not clear, especially since the Declaration went on to say that no other activities could take place on the property “(except as allowed under applicable zoning codes)”.

The Wisconsin Supreme Court issued a previous decision involving the same property and a related dispute between the Village and Polk Properties. In Thoma v.Village of Slinger, 2018 WI 45, the issue was whether the same property could be assessed for tax purposes as residential property. In Thoma, the Wisconsin Supreme Court upheld the residential assessment, and ruled that the evidence presented to the Village Board of Review (for the 2014 tax year) showed only that the property was used for ​“ground cover” and there was no agricultural use. 2018 WI 45 ¶ 6. In this earlier case, Thoma and his attorney asserted multiple times to the Board of Review that there was no farming taking place on the property. Id., ¶ 23.

The Supreme Court makes an oblique reference to these different outcomes in its most recent ruling, citing to the earlier Thoma ruling, see 2021 WI 29 ¶ 2 and fn. 4, ¶4 and fn. 6. In the latter footnote, the Court states, ​“It is therefore not necessary for this court to specifically define ​“farming,” or ​“agricultural use” in the context of zoning classification versus ​“agricultural use” for tax assessment purposes.” 

Given the Court’s reluctance to expound on the different definitions for zoning and tax assessment purposes, we will have to discern them as best we can.

See also, ​“Divided Court Agrees with Kenosha: Property Not Actually Used for Ag Purposes May be Assessed as Residential,” Boardman Municipal Law Newsletter (January/​February 2021 Issue): 

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