A. General:
1. Applicability:
a. The standards in this section shall apply to all uses and buildings that do not conform to the provisions contained within a floodplain zoning ordinance with s. 87.30, Wisconsin statutes, and §§ NR 116.12-14, Wisconsin administrative code and 44 CFR 59-72, these standards shall apply to all modifications or additions to any nonconforming use or structure and to the use of any structure or premises which was lawful before the passage of this chapter or any amendment thereto. A party asserting existence of a lawfully established nonconforming use or structure has the burden of proving that the use or structure was compliant with the floodplain zoning ordinance in effect at the time the use or structure was created.
b. As permit applications are received for additions, modifications, or substantial improvements to nonconforming buildings in the floodplain, municipalities shall develop a list of those nonconforming buildings, their present equalized assessed value and a list of the cost of those activities associated with changes to those buildings.
2. The existing lawful use of a structure or its accessory use which is not in conformity with the provisions of this chapter may continue subject to the following conditions:
a. No modifications or additions to a nonconforming use or structure shall be permitted unless they comply with this chapter. The words "modification" and "addition" include, but are not limited to, any alteration, addition, modification, structural repair, rebuilding or replacement of any such existing use, structure or accessory structure or use. Maintenance is not considered a modification; this includes painting, decorating, paneling and other nonstructural components and the maintenance, repair or replacement of existing private sewage or water supply systems or connections to public utilities. Any costs associated with the repair of a damaged structure are not considered maintenance.
The construction of a deck that does not exceed two hundred (200) square feet and that is adjacent to the exterior wall of a principal structure is not an extension, modification or addition. The roof of the structure may extend over a portion of the deck in order to provide safe ingress and egress to the principal structure;
b. If a nonconforming use or the use of a nonconforming structure is discontinued for twelve (12) consecutive months, it is no longer permitted and any future use of the property, and any structure or building thereon, shall conform to the applicable requirements of this chapter;
c. The municipality shall keep a record which lists all nonconforming uses and nonconforming structures, their present equalized assessed value, the cost of all modifications or additions which have been permitted, and the percentage of the structure's total current value those modifications represent;
d. No modification or addition to any nonconforming structure or any structure with a nonconforming use, which over the life of the structure would equal or exceed fifty percent (50%) of its present equalized assessed value, shall be allowed unless the entire structure is permanently changed to a conforming structure with a conforming use in compliance with the applicable requirements of this chapter. Contiguous dry land access must be provided for residential and commercial uses in compliance with subsection 8-13-8C1 of this chapter. The costs of elevating the lowest floor of a nonconforming building or a building with a nonconforming use to the flood protection elevation are excluded from the fifty percent (50%) provisions of this subsection A2d;
e. No maintenance on a per event basis to any nonconforming structure or any structure with a nonconforming use, the cost of which would equal or exceed fifty percent (50%) of its present equalized assessed value, shall be allowed unless the entire structure is permanently changed to a conforming structure with a conforming use in compliance with the applicable requirements of this chapter. Contiguous dry land access must be provided for residential and commercial uses in compliance with 8-13-8C1. Maintenance to any nonconforming structure, which does not exceed fifty percent (50%) of its present equalized assessed value on a per event basis, does not count against the cumulative calculations over the life of the structure for substantial improvement calculations;
f. If on a per event basis the total value of the work being done under (d) and (e) equals or exceeds fifty percent (50%) of the present equalized assessed value the work shall not be permitted unless the entire structure is permanently changed to a conforming structure with a conforming use in compliance with the applicable requirements of this chapter. Contiguous dry land access must be provided for residential and commercial uses in compliance with 8-13-8C1;
g. Except as provided in subsection (h), if any nonconforming structure or any structure with a nonconforming use is destroyed or is substantially damaged, it cannot be replaced, reconstructed or rebuilt unless the use and the structure meet the current ordinance requirements. A structure is considered substantially damaged if the total cost to restore the structure to its pre-damaged condition equals or exceeds fifty percent (50%) of the structure’s present equalized assessed value;
h. For nonconforming buildings that are substantially damaged or destroyed by a nonflood disaster, the repair or reconstruction of any such nonconforming building shall be permitted in order to restore it to the size and use in effect prior to the damage event, provided that the following minimum requirements are met and all required permits have been granted prior to the start of construction:
(1) Residential Structures:
(A) Shall have the lowest floor, including basement, elevated to or above the flood protection elevation using fill, pilings, columns, posts or perimeter walls. Perimeter walls must meet the requirements of 8-13-11E2.
(B) Shall be anchored to prevent flotation, collapse, or lateral movement of the structure resulting from hydrodynamic and hydrostatic loads, including the effects of buoyancy and shall be constructed with methods and materials resistant to flood damage.
(C) Shall be constructed with electrical, heating, ventilation, plumbing and air conditioning equipment and other service facilities that are designed and/or elevated so as to prevent water from entering or accumulating within the components during conditions of flooding.
(D) In A zones, obtain, review and utilize any flood data available from a federal, state or other source.
(E) In AO zones with no elevations specified, shall have the lowest floor, including basement, meet the standards in 8-13-9D.
(F) In AO zones, shall have adequate drainage paths around structures on slopes to guide floodwaters around and away from the structure.
(2) Nonresidential Structures:
(A) Shall meet the requirements of subsection A2(h)1(A)-(F) of this section.
(B) Shall either have the lowest floor, including basement, elevated to or above the regional flood elevation; or, together with attendant utility and sanitary facilities, shall meet the standards in sections 8-13-11E1 or E2.
(C) In AO zones with no elevations specified, shall have the lowest floor, including basement, meet the standards in section 8-13-9D.
3. A nonconforming historic structure may be altered if the alteration will not preclude the structure’s continued designation as a historic structure, the alteration will comply with section 8-13-7C1, flood resistant materials are used, and construction practices and floodproofing methods that comply with section 8-13-11E are used. Repair or rehabilitation of historic structures shall be exempt from the development standards of subsection A2(h)1 of this section if it is determined that the proposed repair or rehabilitation will not preclude the structure’s continued designation as a historic structure and is the minimum necessary to preserve the historic character and design of the structure.
B. Floodway District:
1. No modification or addition shall be allowed to any nonconforming structure or any structure with a nonconforming use in the floodway district, unless such modification or addition:
a. Has been granted a permit or variance which meets all ordinance requirements of this chapter;
b. Meets the requirements of subsection A of this section;
c. Shall not increase the obstruction to flood flows or regional flood height;
d. Any addition to the existing structure shall be floodproofed, pursuant to subsection 8-13-11E of this chapter, by means other than the use of fill, to the flood protection elevation; and
e. If any part of the foundation below the flood protection elevation is enclosed, the following standards shall apply:
(1) The enclosed area shall be designed by a registered architect or engineer to allow for the efficient entry and exit of floodwaters without human intervention. A minimum of two (2) openings must be provided with a minimum net area of at least one square inch for every one square foot of the enclosed area. The lowest part of the opening can be no more than twelve inches (12") above the adjacent grade;
(2) The parts of the foundation located below the flood protection elevation must be constructed of flood resistant materials;
(3) Mechanical and utility equipment must be elevated or floodproofed to or above the flood protection elevation; and
(4) The use must be limited to parking, building access or limited storage.
2. No new on site sewage disposal system, or addition to an existing on site sewage disposal system, except where an addition has been ordered by a government agency to correct a hazard to public health, shall be allowed in the floodway district. Any replacement, repair or maintenance of an existing on site sewage disposal system in a floodway area shall meet the applicable requirements of all municipal ordinances and section 8-13-11E3 of this chapter and chapter SPS 383, Wisconsin administrative code..
3. No new well or modification to an existing well used to obtain potable water shall be allowed in the floodway district. Any replacement, repair or maintenance of an existing well in the floodway district shall meet the applicable requirements of all municipal ordinances, section 8-13-11E3 of this chapter, and chapters NR 811 and 812, Wisconsin administrative code.
C. Flood Fringe District:
1. No modification or addition shall be allowed to any nonconforming structure or any structure with a nonconforming use unless such modification or addition has been granted a permit or variance by the municipality and meets the requirements of subsection 8-13-8C of this chapter, except where subsection C2 of this section is applicable.
2. Where compliance with the provisions of subsection C1 of this section would result in unnecessary hardship and only where the structure will not be used for human habitation or be associated with a high flood damage potential, the board of adjustment/appeals, using the procedures established in subsection 8-13-11C of this chapter, may grant a variance from those provisions of subsection C1 of this section for modifications or additions, using the criteria listed below. Modifications or additions which are protected to elevations lower than the flood protection elevation may be permitted if:
a. No floor is allowed below the regional flood elevation for residential or commercial structures;
b. Human lives are not endangered;
c. Public facilities, such as water or sewer, will not be installed;
d. Flood depths will not exceed two feet (2');
e. Flood velocities will not exceed two feet (2') per second; and
f. The structure will not be used for storage of materials as described in subsection 8-13-8C5 of this chapter.
3. All new private sewage disposal systems, or addition to, replacement, repair or maintenance of a private sewage disposal system shall meet all the applicable provisions of all local ordinances, section 8-13-11E3 of this chapter and ch. SPS 383, Wisconsin administrative code.
4. All new wells, or addition to, replacement, repair or maintenance of a well shall meet the applicable provisions of this chapter, section 8-13-11E3 of this chapter, and chapters NR 811 and 812, Wisconsin administrative code. (Ord. 2007-6, 11-19-2007; amd. Ord. 2011-4, 7-18-2011; Ord., 12-8-2022)