Nonconformities.
Milwaukee Code of Ordinances § 295-1135
in effect295-1135. Nonconformities.
1. APPLICABILITY. a. The standards in this section shall apply to all uses and buildings that do not conform to the provisions of this chapter or with s. 87.30, Wis. Stats., ss. NR 116.12 to 14, Wis. Adm. Code, or 44 CFR 59-72, national flood insurance program. 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 effective date of this subchapter 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 regulations 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, the department of neighborhood services shall develop a list of those nonconforming buildings, their present equalized assessed values, and the costs associated with changes to those buildings.
2. GENERAL. The existing lawful use of a structure or its accessory use which is not in conformity with the provisions of this subchapter 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 section and all other relevant provisions of this subchapter. 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 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.
b. The construction of a deck that does not exceed 200 square feet and that is adjacent to the exterior wall of a principal structure does not constitute an extension, modification or addition. The roof of the structure may extend over a portion of the deck to provide safe ingress and egress to the principal structure.
c. If a nonconforming use or the use of a nonconforming structure is discontinued for 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 subchapter.
d. The commissioner 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.
e. 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 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 section. Contiguous dry-land access shall be provided for residential and commercial uses in compliance with s. 295-1123-2. 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 50% provisions of this subsection.
f. Except as provided in par. g, if any nonconforming structure or any structure with a nonconforming use is destroyed or is substantially damaged, it shall not be replaced, reconstructed or rebuilt unless the use and the structure meet the current code requirements. A structure is considered substantially damaged if the total cost to restore the structure to its pre-damaged condition equals or exceeds 50% of the structure’s present equalized assessed value.
g. 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 to restore it to the size and use in effect prior to the damage event, provided that the minimum federal code requirements are met in pars. k and L and all required permits have been granted prior to the start of construction.
h. A nonconforming historic structure may be altered if the alteration will not preclude the structure’s continued designation as an historic structure, the alteration will comply with s. 295-1121-2, flood-resistant materials are used, and construction practices and floodproofing methods that comply with s. 295-1133 are used. Repair or rehabilitation of a historic structure shall be exempt from the standards of par. k 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.
i. 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 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 code. Contiguous dry-land access shall be provided for residential and commercial uses in compliance with s. 295-1123-2. Maintenance to any nonconforming structure which does not exceed 50% of the structure’s 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.
j. If on a per-event basis the total value of the work being done under pars. e and i equals or exceeds 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 code. Contiguous dry-land access shall be provided for residential and commercial uses in compliance with s. 295-1123-2.
k. Residential structures shall:
k-1. Have the lowest floor, including basement, elevated to or above the base flood elevation using fill, pilings, columns, posts or perimeter walls. Perimeter walls shall meet the requirements of s. 295-1133-3.
k-2. 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.
k-3. Be constructed with electrical, heating, ventilation, plumbing and air conditioning equipment and other service facilities that are designed or elevated so as to prevent water from entering or accumulating within the components during conditions of flooding.
k-4. In A Zones, obtain, review and use any flood data available from a federal, state or other source.
k-5. In AO Zones with no elevations specified, have the lowest floor, including basement, meet the standards in s. 295-1127-3-b.
k-6. In AO Zones, have adequate drainage paths around structures on slopes to guide floodwaters around and away from the structure.
L. Non-residential structures shall:
L-1. Meet the requirements of subds. k-1, 2, 5 and 6.
L-2. Have the lowest floor, including basement, elevated to or above the regional flood elevation; or, together with attendant utility and sanitary facilities, meet the standards in s. 295-1133.
L-3. In AO Zones with no elevations specified, have the lowest floor, including basement, meet the standards in s. 295-1127-3-b.
3. FLOODWAY OVERLAY ZONE. a. No modification or addition shall be allowed to any nonconforming structure or any structure with a nonconforming use in a floodway overlay zone, unless such modification or addition meets all of the following criteria:
a-1. The modification or addition has been granted a permit or floodplain variance which meets all code requirements.
a-2. The modification or addition meets the requirements of sub. 1.
a-3. The modification or addition will not increase the obstruction to flood flows or regional flood.
a-4. The modification or addition will be floodproofed, pursuant to s. 295-1133, by means other than the use of fill, to the flood protection elevation.
a-5. If any part of the foundation below the flood protection elevation is enclosed, all of the following standards shall apply:
a-5-a. The enclosed area shall be designed by a registered architect or engineer to allow for the efficient entry and exit of flood waters without human intervention. A minimum of 2 openings shall 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 shall not be more than 12 inches above the adjacent grade.
a-5-b. The parts of the foundation located below the flood protection elevation shall be constructed of flood-resistant materials.
a-5-c. Mechanical and utility equipment shall be elevated or floodproofed to or above the flood protection elevation.
a-5-d. The use shall be limited to parking, building access or limited storage.
b. 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 a floodway overlay zone. Any replacement, repair or maintenance of an existing on-site sewage disposal system in a floodway overlay zone shall meet the applicable requirements of this code, including s. 295-1133, and ch. SPS 383, Wis. Adm. Code, as amended.
c. No new well or modification to an existing well used to obtain potable water shall be allowed in a floodway overlay zone. Any replacement, repair or maintenance of an existing well in a floodway overlay zone shall meet the applicable requirements of this code, including s. 295-1133, and chs. NR 811 and NR 812, Wis. Adm. Code, as amended.
4. FLOOD FRINGE OVERLAY ZONE. a. 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 floodplain variance by the city and meets the requirements of s. 295-1123, except where par. b is applicable.
b. Where compliance with the provisions of par. a 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, using the procedures established in s. 295-1149-1, may grant a floodplain variance from the provisions of par. a for modifications or additions, using the criteria listed in this paragraph. Modifications or additions which are protected to elevations lower than the flood protection elevation may be permitted if all of the following conditions are met:
b-1. No floor is located below the regional flood elevation for residential or commercial structures.
b-2. Human lives are not endangered.
b-3. Public facilities, such as water or sewer, will not be installed.
b-4. Flood depths will not exceed 2 feet.
b-5. Flood velocities will not exceed 2 feet per second.
b-6. The structure will not be used for storage of materials as described in s. 295-1123-6.
c. Any new private sewage disposal system, or addition to, replacement, repair or maintenance of a private sewage disposal system, shall meet all the applicable provisions of this code, including s. 295-1133, and ch. SPS 383, Wis. Adm. Code, as amended.
d. Any new well, or addition to, replacement, repair or maintenance of a well, shall meet the applicable provisions of this code, including s. 295-1133, and ch. NR 811 and NR 812, Wis. Adm. Code, as amended.
5. FLOOD STORAGE OVERLAY ZONE. No modifications or additions shall be allowed to any nonconforming structure in a flood storage overlay zone unless the standards in s. 295-1125-4 are met.
6. COASTAL FLOODPLAIN OVERLAY ZONE. a. New construction and substantial improvement shall meet the standards of s. 295-1128.
b.
No structural repairs, modifications or additions to an existing building, the cost of which exceeds, over the life of the building, 50% of the building’s present equalized assessed value, shall be allowed in a coastal floodplain overlay zone unless the entire building is permanently altered to conform with the standards of s. 295-1128.
Source: City of Milwaukee Legislative Reference Bureau, Milwaukee City Charter and Code of Ordinances (city.milwaukee.gov master PDFs)URL: https://city.milwaukee.gov/ImageLibrary/Groups/ccClerk/Ordinances/Volume-2/CH295-SUB11.pdf#page=21Fetched: 10/26/2026