Abandonment of Legal Nonconforming Use Requires Complete Cessation of Use
A recent Wisconsin Supreme Court case makes clear that under Wisconsin law, two elements must be met to constitute abandonment of a legal nonconforming use: (1) actual cessation of the nonconforming use and (2) an intent to abandon the nonconforming use. Intent to abandon the use, without actual and complete cessation of the nonconforming use, does not result in abandonment of the nonconforming use. Thus, an LLC which purchased 82 acres of farmland and began developing a residential subdivision that stalled out during the 2008 recession and collapse of the real estate market did not abandon the legal nonconforming agricultural use of its property where the farmer who had previously owned the property continued to cut and remove vegetation on the property as part of the property’s maintenance. Village of Slinger v. Polk Properties, LLC, 2021 WI 29.
Polk Properties, LLC purchased 82 rural acres that had operated as a farm in the Village of Slinger, and worked with the Village on a plan to convert the farmland to a residential subdivision consisting of three phases of development over the course of several years. The Village approved the development in 2007. Installation of infrastructure for the development began shortly thereafter and was completed in August 2008. Two of the lots in phase one of the project were sold and residential homes were constructed on these lots but sales of additional lots stalled due to the “2008 economic recession and the collapse of the real estate market.”
The Village sought an injunction ordering Polk to stop the agricultural use of the property. The circuit court granted summary judgment in favor of the Village, after concluding that Polk was violating the residential zoning ordinance, as well as the circuit court’s order, for which it found Polk in contempt. The circuit court ordered Polk to pay the Village $28,760 representing daily forfeitures for continuing violations of the zoning ordinance, as well as additional real estate taxes for tax years 2009 to 2013 and attorneys fees. The court of appeals affirmed in an unpublished decision, relying on a Rhode Island case. The Wisconsin Supreme Court reversed.
The Court rejected the Village’s arguments that specific actions Polk Properties took to convert the property into a residential subdivision constituted abandonment. Specifically, these included Polk Properties’ request to change zoning from agricultural to residential; the subdivision development agreement which limited the property to residential use; and subdivision covenants, conditions and restrictions with residential restrictions executed and recorded by Polk Properties. The Court viewed these things as evidence of intent but said Wisconsin law requires actual cessation of use in addition to intent. The Court chided the Wisconsin court of appeals for relying on a Rhode Island case that it found “unpersuasive and inapposite.” 2021 WI 29, ¶ 17. The Court stated that it was undisputed that the continued “farming” of the property was a legal nonconforming use of the property and that the use had continued. Cessation of the nonconforming use on a portion of the property did not constitute complete cessation of the nonconforming use.
Wisconsin Supreme Court Invalidates Indoor Capacity Limits
On April 14, 2021, the Wisconsin Supreme Court overturned DHS Emergency Order 3, which set capacity limits for indoor public gatherings. Tavern League of Wisconsin, Inc. v. Palm, 2021 WI 33. Under the order, indoor gatherings were limited to either 25% percent of an establishment’s authorized capacity or 10 people if the establishment did not have an authorized capacity. The Court reached its decision using the same reasoning from its previous decision in Wisconsin Legislature v. Palm, concluding that Emergency Order 3 was a “rule” and should have been established through the statutory rulemaking procedures set forth in Wis. Stat. Ch. 227. The Court held that “Emergency Order 3 is a general order generally applied, and therefore, it meets the facial definition of a rule under Wis. Stat. § 227.001(13) . . . .” Because the rulemaking procedures were not followed, Emergency Order 3 was held invalid and unenforceable. Read the Court’s full decision here.
