SB632: Bill Text

LRB-4072/3

MES/RCT/ARG:kjf&wlj:rs

2013 - 2014 LEGISLATURE

2013 Senate BILL 632

February 26, 2014 - Introduced by Senator Tiffany, cosponsored by Representative Ballweg. Referred to Committee on Workforce Development, Forestry, Mining, and Revenue.

SB632,1,7 An Act to renumber and amend 59.69 (10) (ab), 60.61 (5) (ab), 62.23 (7) (ab) and 295.20 (2) (a); to amend 84.06 (12) (b) (intro.), 85.193 (2) (intro.), 295.20 (1) (a) 2., 295.20 (2) (title), 295.20 (2) (b) and 295.20 (3) (a); and to create 59.69 (10) (ab) 1., 59.69 (10) (as), 60.61 (5) (ab) 1., 60.61 (5) (as), 62.23 (7) (ab) 1., 62.23 (7) (hs), 66.0416, 85.193 (3) and 295.20 (2) (a) 2. of the statutes; relating to: local regulation of nonmetallic mining and preservation of marketable nonmetallic mineral deposits.

Analysis by the Legislative Reference Bureau

Zoning

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.

Diminishing asset rule

Under the bill, a zoning ordinance enacted by a political subdivision or limited town that became effective after nonmetallic mineral extraction began at a nonmetallic mining location (NMML), and which is more restrictive than the requirements of any ordinance that was in effect at the time nonmetallic mineral extraction began, or that imposes a new restriction, may not apply to or affect the continued extraction of a nonmetallic mineral from an NMML. The bill defines an NMML 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. The bill specifies that such continued extraction from an NMML is considered an existing use and may not be considered an expansion of a nonconforming use. 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), and further limits a political subdivision's or limited town's authority to enact an ordinance that applies to or affects nonmetallic mining.

Nonmetallic mineral mining

Also under this bill, if a political subdivision enacts an ordinance, other than a zoning ordinance, that applies to or affects nonmetallic mining, the diminishing assets rule applies to such an ordinance in areas where extraction was occurring at any time during the 365 days before the effective date of the local ordinance. In addition, if a political subdivision enacts or amends an ordinance, other than a zoning ordinance, the ordinance may not apply to or affect an existing off-site nonmetallic mineral processing facility or an existing off-site transportation facility that is related to nonmetallic mining, and the ordinance may not affect or apply to an activity other than nonmetallic mining. The bill does not affect a political subdivision's ability to exercise any current law authority to enact any ordinance unrelated to nonmetallic mining to the extent that such an ordinance has no regulative effect on nonmetallic mining.

Registered nonmetallic mineral deposits

Current law authorizes a person who owns land that has a marketable nonmetallic mineral deposit to register the land if nonmetallic mining is a permitted or conditional use under any zoning that is in effect on the day on which the person begins the registration process. A registration is valid for ten years and may generally be renewed for ten-year periods. Under current law, a political subdivision, through zoning or rezoning, granting a variance, or other official action or inaction, may generally not do either of the following:

1. Permit the erection of a building on registered land in a manner that would permanently interfere with the extraction of the nonmetallic mineral deposit.

2. Otherwise permit the use of registered land in a manner that would permanently interfere with the extraction of the nonmetallic mineral deposit.

The law authorizes a political subdivision to change the zoning of land that is registered if mining has not begun on any portion of the land and the zoning change is necessary to implement a land use plan that had been in effect for at least one year. The law also does not prohibit a use of land that is permissible under a zoning ordinance in effect before the land is registered.

Under this bill, a political subdivision, through the currently specified means or through enactment of an ordinance that is not a zoning ordinance, may generally not do any of the following:

1. Permit the erection of a building on registered land in a manner that would permanently interfere with the extraction of the nonmetallic mineral deposit.

2. Otherwise permit the use of registered land in a manner that would permanently interfere with the extraction of the nonmetallic mineral deposit.

3. Prevent the extraction of the nonmetallic mineral deposit that is located on registered land.

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 Department of Transportation (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. The bill also requires DOT or its contractor to give notice to each county and municipality in which a borrow site or material disposal site is located that the borrow site or material disposal site has been established.

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:

SB632,1 Section 1. 59.69 (10) (ab) of the statutes is renumbered 59.69 (10) (ab) (intro.) and amended to read:

SB632,4,3 59.69 (10) (ab) (intro.) In this subsection "nonconforming:

SB632,4,6 2. "Nonconforming use" means a use of land, a dwelling, or a building that existed lawfully before the current zoning ordinance was enacted or amended, but that does not conform with the use restrictions in the current ordinance.

SB632,2 Section 2. 59.69 (10) (ab) 1. of the statutes is created to read:

SB632,5,2 59.69 (10) (ab) 1. "Nonconforming nonmetallic mining location" means land on which nonmetallic mining was occurring at any time during the 365 days before 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, and includes leasehold interests, without regard to whether public or private roads or waterways run through the land.

SB632,3 Section 3. 59.69 (10) (as) of the statutes is created to read:

SB632,5,11 59.69 (10) (as) An ordinance enacted under this section, that became effective after nonmetallic mineral extraction began at a nonmetallic mining location, and which is more restrictive than the requirements of any ordinance in effect at the time nonmetallic mineral extraction began, or that imposes a new restriction, may not apply to or affect the continued extraction of a nonmetallic mineral from a nonconforming nonmetallic mining location. Such continued extraction from such a location shall be considered an existing use and may not be considered an expansion of a nonconforming use.

SB632,4 Section 4. 60.61 (5) (ab) of the statutes is renumbered 60.61 (5) (ab) (intro.) and amended to read:

SB632,5,14 60.61 (5) (ab) (intro.) In this subsection "nonconforming:

SB632,5,17 2. "Nonconforming use" means a use of land, a dwelling, or a building that existed lawfully before the current zoning ordinance was enacted or amended, but that does not conform with the use restrictions in the current ordinance.

SB632,5 Section 5. 60.61 (5) (ab) 1. of the statutes is created to read:

SB632,5,25 60.61 (5) (ab) 1. "Nonconforming nonmetallic mining location" means land on which nonmetallic mining was occurring at any time during the 365 days before 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, and includes leasehold interests, without regard to whether public or private roads or waterways run through the land.

SB632,6 Section 6. 60.61 (5) (as) of the statutes is created to read:

SB632,6,9 60.61 (5) (as) An ordinance enacted under this section, that became effective after nonmetallic mineral extraction began at a nonmetallic mining location, and which is more restrictive than the requirements of any ordinance in effect at the time nonmetallic mineral extraction began, or that imposes a new restriction, may not apply to or affect the continued extraction of a nonmetallic mineral from a nonconforming nonmetallic mining location. Such continued extraction from such a location shall be considered an existing use and may not be considered an expansion of a nonconforming use.

SB632,7 Section 7. 62.23 (7) (ab) of the statutes is renumbered 62.23 (7) (ab) (intro.) and amended to read:

SB632,6,13 62.23 (7) (ab) Definition Definitions. (intro.) In this subsection "nonconforming:

SB632,6,16 2. "Nonconforming use" means a use of land, a dwelling, or a building that existed lawfully before the current zoning ordinance was enacted or amended, but that does not conform with the use restrictions in the current ordinance.

SB632,8 Section 8. 62.23 (7) (ab) 1. of the statutes is created to read:

SB632,6,24 62.23 (7) (ab) 1. "Nonconforming nonmetallic mining location" means land on which nonmetallic mining was occurring at any time during the 365 days before 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, and includes leasehold interests, without regard to whether public or private roads or waterways run through the land.