2013 - 2014 LEGISLATURE
October 22, 2013 - Introduced by Senators Tiffany,
Darling, Farrow, Gudex, Lasee
and Lazich, cosponsored by Representatives Ballweg,
Murphy, Nygren, Sanfelippo and Tittl. Referred to Committee on Workforce
Development, Forestry, Mining, and Revenue.
1An Act to repeal
285.11 (3), 285.73 and 285.75; to renumber
295.14 (1); to
2renumber and amend
59.69 (10) (ab), 60.61 (5) (ab) and 62.23 (7) (ab); to
84.06 (12) (b) (intro.), 85.193 (2) (intro.), 86.02 and 349.16 (1) (c); and 4to create
59.69 (10) (ab) 1., 59.69 (10) (as), 60.61 (5) (ab) 1., 60.61 (5) (as), 62.23 5
(7) (ab) 1., 62.23 (7) (hs), 66.0416, 101.15 (2) (g), 281.125, 285.74, 295.12 (2) (e), 6
295.13 (1) (b), 295.14 (1) (b) and 349.03 (2r) of the statutes; relating to: local
7regulation of nonmetallic mining; local regulation of air quality; local
8regulation of water quality; local regulation of the use of explosives in mining,
9quarrying, and related activities; highway use contracts by local governments;
10and local regulation of borrow sites and material disposal sites for
11transportation projects of the Department of Transportation.
Analysis by the Legislative Reference Bureau
This bill concerns local governmental authority to regulate air quality, water
quality and quantity, and the use of explosives; local government highway use
contracts and local regulation of material disposal sites related to transportation
projects of the Department of Transportation (DOT); and local governmental
authority to regulate nonmetallic mining. Nonmetallic mining is extracting
nonmetallic materials, such as stone, gravel, clay, and sand.
Local regulation of nonmetallic mining
Under current law, a political subdivision (a city, village, town that is
authorized to exercise village powers, or county) is authorized to enact zoning
ordinances that regulate and restrict the height, number of stories, and size of
buildings and other structures, the percentage of lot that may be occupied, the size
of yards and other open spaces, the density of population, the location and use of
buildings, structures, and land for various purposes, and the areas in which
agriculture, industry, mining, and other activities may be conducted. If a county has
a county zoning ordinance, current law requires that before a town that is authorized
to exercise village powers may enact or amend a zoning ordinance, the town must
obtain county board approval. Similar authority to zone may be exercised by towns
that are not authorized to exercise village powers (limited towns) if certain
conditions are met, including a situation under which the town is located in a county
that does not have a county zoning ordinance and the county fails to enact such an
ordinance after the town petitions the county to do so.
Also under current law, a zoning ordinance enacted by a political subdivision
or limited town may not prohibit the continued lawful use of any building, premises,
structure, or fixture for any trade or industry for which the building, premises,
structure, or fixture is used when the ordinance takes effect, although in limited
towns such an ordinance may prohibit the alteration of, or addition to, any existing
building, premises, structure, or fixture that is used to carry on an otherwise
prohibited trade or industry within the area that is subject to the ordinance (district).
In political subdivisions, the alteration of, addition to, or repair in excess of 50
percent of the assessed value of any existing building, premises, structure, or fixture
to carry on any prohibited trade or industry within the district may be prohibited.
Generally, if such a nonconforming use of a building, premises, structure, or fixture
is discontinued for 12 months, any future use of the building, premises, structure,
or fixture must conform to the political subdivision's zoning ordinance. Under county
law, the continued use of a nonconforming temporary structure may be prohibited.
Under a current decision of the Wisconsin Supreme Court, Zwiefelhofer v. Town
of Cooks Valley, 338 Wis. 2d 488 (2012), the court held that a town ordinance enacted
under its police power, which regulated nonmetallic mining in the town, did not
require county board approval because the ordinance enacted by the town was not
a zoning ordinance. Because the town of Cooks Valley was authorized to exercise
village powers, its zoning ordinances must be approved by the county board. The
court stated that although the exercise of zoning authority is carried out under the
town's police power, not all ordinances enacted under the police power are zoning
ordinances. The court further held that although the town's nonmetallic mining
ordinance had some similarities to a zoning ordinance, many traditional
characteristics of a zoning ordinance were not present. Therefore, according to the
court, the town of Cooks Valley's ordinance was a valid exercise of its police power,
was not a zoning ordinance, and did not require county board approval.
This bill limits the authority of a political subdivision or limited town to
regulate nonmetallic mining. Under the bill, a political subdivision or limited town
may not, other than through a zoning ordinance or a nonmetallic mining reclamation
ordinance, enact or enforce an ordinance that applies to nonmetallic mining,
including a licensing ordinance, that regulates how a use of land takes place or
affects the use of land.
Also under the bill, a zoning ordinance enacted by a political subdivision or
limited town may not prohibit the continued extraction of a nonmetallic mineral from
a nonconforming nonmetallic mining location, which is defined as land on which
nonmetallic mining was occurring when nonmetallic mining became a
nonconforming use, including land that is contiguous to such land if the contiguous
land is under the common ownership or control of the person who owns or controls
the land on which the mining was occurring. This provision codifies the diminishing
asset rule, which has been adopted in a number of decisions of the Wisconsin Court
of Appeals, including the case of Schroeder v. Dane County Board of Adjustment, 228
Wis. 2d 324 (Ct. Apps. 1999).
Nonmetallic mining reclamation
Current law requires the Department of Natural Resources (DNR) to
promulgate rules containing uniform statewide standards for the reclamation of
nonmetallic mining sites. Reclamation consists of rehabilitating a nonmetallic
mining site to achieve a land use specified in a reclamation plan, including removal
or reuse of refuse; removal, storage, and replacement of topsoil; reestablishment of
vegetation; control of surface water and groundwater; and prevention of
environmental pollution. The standards impose requirements that apply during
nonmetallic mining as well as after the mining ends.
This bill prohibits DNR from establishing nonmetallic mining reclamation
standards relating to water quality or quantity or air quality that are more
restrictive than this state's laws that relate specifically to water quality and quantity
and air quality.
Current law requires a county to administer a nonmetallic mining reclamation
program by enacting an ordinance that complies with the DNR standards and that
includes a requirement to obtain a nonmetallic mining permit, requirements for fees,
requirements for reclamation plans, and requirements for proof of financial
responsibility for reclaiming nonmetallic mining sites. Current law authorizes a city,
village, or town to administer a nonmetallic mining reclamation program by
enacting such an ordinance.
This bill prohibits a county, city, village, or town from enacting or enforcing a
nonmetallic mining reclamation ordinance that requires an operator to obtain a
permit other than a reclamation permit; includes a standard of air quality or water
quality; requires monitoring water quality or quantity or air quality; or is more
restrictive than DNR's nonmetallic mining reclamation standards or this state's
laws that relate specifically to water quality and quantity and air quality.
Local regulation of water quality and quantity and air quality
This bill generally prohibits a county, city, village, town, county utility district,
town sanitary district, public inland lake protection and rehabilitation district, or
metropolitan sewage district (local governmental unit) from establishing or
enforcing a standard of water quality; issuing permits related to water quality or
quantity; imposing restrictions related to water quality or quantity; or requiring
monitoring of water quality or quantity. The bill authorizes a local governmental
unit to take actions related to water quality or quantity that are specifically required
or authorized by this state's statutes.
Current law authorizes a county to administer an air pollution control program
with requirements that are consistent with or stricter than those in state laws
related to air quality if DNR approves the program. This bill eliminates that
This bill generally prohibits a local governmental unit from establishing or
enforcing a standard of air quality; issuing permits related to air quality; imposing
restrictions related to air quality; or requiring monitoring of air quality. The bill
authorizes a local governmental unit to regulate open burning and to take other
actions related to air quality that are specifically required or authorized by this
Local regulation of the use of explosives
Current law requires the Department of Safety and Professional Services
(DSPS) to promulgate rules to ensure the safety of mines, explosives, quarries, and
related activities. The rules must provide uniform limits on the results of blasting,
to reasonably ensure that blasting does not cause injury, damage, or unreasonable
annoyance to any person or property outside a controlled blasting site.
This bill prohibits a city, village, town, or county from regulating the use of
explosives in connection with mining, quarrying, and related activities regulated by
DSPS, except that the bill authorizes these local governments to regulate blasting
schedules by the issuance of a conditional use permit.
Damage to highways and highway use contracts
Under current law, any person who injures a highway is liable in treble
damages to the political division with maintenance jurisdiction over the highway.
This bill limits this liability to damage that is caused willfully or that results
from an unlawful act.
Current law generally prohibits a local authority from enacting or enforcing
any traffic regulation excluding or prohibiting any motor vehicle from the free use
of all highways. Current law also allows a city, village, or town (municipality) or
county, with respect to highways maintained by the municipality or county, to post
special weight limits on highways that are weakened due to deterioration, climatic
conditions, or other special or temporary conditions and that would likely be
seriously damaged or destroyed in the absence of these special weight limits. A
municipality, county, or traffic officer may also order the owner or operator of a
vehicle to suspend operation on a highway if the vehicle is causing or likely to cause
injury to the highway, unless the highway is being used as a detour by DOT or the
vehicle is being operated under a contract that provides that the municipality or
county will be reimbursed for any damage done to the highway.
This bill prohibits, with limited exceptions, a municipality or county from
imposing any fee or other charge on a highway user under the jurisdiction of the
municipality or county. Under one exception, a municipality or county may enter into
a contract with a highway user that requires the highway user to reimburse the
municipality or county for the cost of repairs to a highway necessitated by actual
damage to the highway caused by the highway user if the contract includes all of the
following requirements: 1) the repairs to the highway are completed before
reimbursement is required by the highway user; 2) the proportion of damages to the
highway caused specifically by the highway user and the cost of repairs attributable
to that share of damages is determined by an engineer chosen by agreement of the
highway user and the municipality or county; and 3) the costs of the engineer's
services are paid in equal shares by the highway user and the municipality or county.
The contract may require that the highway user show proof of financial security
sufficient to pay for the cost of highway repairs if the proof of financial security meets
certain requirements. If a highway use contract is entered into, the provision of
current law providing treble damages against a person who injures a highway does
not apply to damage caused by a vehicle operated under the contract. The bill also
specifies a procedure for a highway user that is a party to a highway use contract that
pre-dates the bill's effective date to seek modification of the existing highway use
contract or replacement of this contract with a new contract.
Borrow sites and material disposal sites for DOT projects
Under current law, a "borrow site" is a site off of project property from which
borrow is excavated for use in a DOT transportation project. "Borrow" is soil or a
mixture of soil, stone, gravel, or similar material for use as part of a DOT
transportation project. A "material disposal site" is a site off of project property used
for the lawful disposal of surplus materials from a DOT transportation project and
that is controlled by the project contractor or subcontractor. If specified
requirements are met, a local zoning ordinance may not apply to a borrow site or a
material disposal site.
Under this bill, a political subdivision may not enact or enforce any ordinance,
resolution, or other requirement, including a zoning ordinance, that applies to a
borrow site or a material disposal site.
For further information see the state and local fiscal estimate, which will be
printed as an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
59.69 (10) (ab) of the statutes is renumbered 59.69 (10) (ab) (intro.) 2
and amended to read:
(ab) (intro.) In this subsection "nonconforming:
use" means a use of land, a dwelling, or a building that 2
existed lawfully before the current zoning ordinance was enacted or amended, but 3
that does not conform with the use restrictions in the current ordinance.
59.69 (10) (ab) 1. of the statutes is created to read:
(ab) 1. "Nonconforming nonmetallic mining location" means land on 6
which nonmetallic mining was occurring when nonmetallic mining became a 7
nonconforming use, including land that is contiguous to such land if the contiguous 8
land is under the common ownership or control of the person who owns or controls 9
the land on which the mining was occurring, and includes leasehold interests, 10
without regard to whether private roads or waterways run through the land.
59.69 (10) (as) of the statutes is created to read:
(as) An ordinance enacted under this section may not prohibit the 13
continued extraction of a nonmetallic mineral from a nonconforming nonmetallic 14
mining location. Such continued extraction from such a location shall be considered 15
an existing use, may not be considered an expansion of a nonconforming use, and 16
may not be prohibited in areas of the nonconforming nonmetallic mining location 17
that have not previously been under actual excavation.
60.61 (5) (ab) of the statutes is renumbered 60.61 (5) (ab) (intro.) 19
and amended to read:
(ab) (intro.) In this subsection "nonconforming:
use" means a use of land, a dwelling, or a building that 22
existed lawfully before the current zoning ordinance was enacted or amended, but 23
that does not conform with the use restrictions in the current ordinance.
60.61 (5) (ab) 1. of the statutes is created to read: