SB349: Bill Text

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 authority.

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 state's statutes.

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:

SB349,1 Section 1. 59.69 (10) (ab) of the statutes is renumbered 59.69 (10) (ab) (intro.) and amended to read:

SB349,5,3 59.69 (10) (ab) (intro.) In this subsection "nonconforming:

SB349,6,3 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.

SB349,2 Section 2. 59.69 (10) (ab) 1. of the statutes is created to read:

SB349,6,10 59.69 (10) (ab) 1. "Nonconforming nonmetallic mining location" means 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, and includes leasehold interests, without regard to whether private roads or waterways run through the land.

SB349,3 Section 3. 59.69 (10) (as) of the statutes is created to read:

SB349,6,17 59.69 (10) (as) An ordinance enacted under this section may not prohibit 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, may not be considered an expansion of a nonconforming use, and may not be prohibited in areas of the nonconforming nonmetallic mining location that have not previously been under actual excavation.

SB349,4 Section 4. 60.61 (5) (ab) of the statutes is renumbered 60.61 (5) (ab) (intro.) and amended to read:

SB349,6,20 60.61 (5) (ab) (intro.) In this subsection "nonconforming:

SB349,6,23 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.

SB349,5 Section 5. 60.61 (5) (ab) 1. of the statutes is created to read:

SB349,7,6 60.61 (5) (ab) 1. "Nonconforming nonmetallic mining location" means 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, and includes leasehold interests, without regard to whether private roads or waterways run through the land.

SB349,6 Section 6. 60.61 (5) (as) of the statutes is created to read:

SB349,7,13 60.61 (5) (as) An ordinance enacted under this section may not prohibit 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, may not be considered an expansion of a nonconforming use, and may not be prohibited in areas of the nonconforming nonmetallic mining location that have not previously been under actual excavation.

SB349,7 Section 7. 62.23 (7) (ab) of the statutes is renumbered 62.23 (7) (ab) (intro.) and amended to read:

SB349,7,17 62.23 (7) (ab) Definition Definitions. (intro.) In this subsection "nonconforming:

SB349,7,20 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.

SB349,8 Section 8. 62.23 (7) (ab) 1. of the statutes is created to read:

SB349,8,2 62.23 (7) (ab) 1. "Nonconforming nonmetallic mining location" means 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, and includes leasehold interests, without regard to whether private roads or waterways run through the land.

SB349,9 Section 9. 62.23 (7) (hs) of the statutes is created to read:

SB349,8,9 62.23 (7) (hs) Nonmetallic mining. An ordinance enacted under this subsection may not prohibit 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, may not be considered an expansion of a nonconforming use, and may not be prohibited in areas of the nonconforming nonmetallic mining locations that have not previously been under actual excavation.

SB349,10 Section 10. 66.0416 of the statutes is created to read:

SB349,8,12 66.0416 Local regulation of nonmetallic mining. (1) Definitions. In this section:

SB349,8,13 (a) "Nonmetallic mining" has the meaning given in s. 295.11 (3).

SB349,8,14 (b) "Political subdivision" means a city, village, town, or county.

SB349,8,16 (c) "Zoning ordinance" means an ordinance enacted or amended by a political subdivision under s. 59.69 (4), 60.61 (2), 60.62 (1), 61.35, or 62.23 (7) (am).

SB349,8,21 (2) Limitations on regulation. Except for a nonmetallic mining reclamation ordinance as described in ss. 295.13 and 295.14 or a zoning ordinance, a political subdivision may not enact or enforce an ordinance applicable to nonmetallic mining, including a licensing ordinance, that regulates how a use of land takes place or affects the use of land.

SB349,11 Section 11. 84.06 (12) (b) (intro.) of the statutes is amended to read:

SB349,9,2 84.06 (12) (b) (intro.) No political subdivision may enact or enforce any ordinance, resolution, or other requirement, including a zoning ordinance enacted under s. 59.69, 60.61, 60.62, 61.35, or 62.23 may apply, that applies to a borrow site if all of the following apply:

SB349,12 Section 12. 85.193 (2) (intro.) of the statutes is amended to read:

SB349,9,8 85.193 (2) Exemption from local zoning requirements. (intro.) No political subdivision may enact or enforce any ordinance, resolution, or other requirement, including a zoning ordinance enacted under s. 59.69, 60.61, 60.62, 61.35, or 62.23 may apply, that applies to a borrow site or material disposal site if all of the following apply:

SB349,13 Section 13. 86.02 of the statutes is amended to read:

SB349,9,17 86.02 Injury to highway. Any person who shall injure any highway by obstructing or diverting any creek or watercourse or sluiceway, or by dragging logs or timber thereon, or by any other act, shall be liable in treble damages, to be recovered by the political division chargeable with the maintenance of highway injured, and the amount recovered shall be credited to the highway maintenance fund. This section does not apply to damage caused by a vehicle when the vehicle is being operated under a contract described in s. 349.03 (2r) (c). This section applies only to damage that is caused willfully or that results from an unlawful act.

SB349,14 Section 14. 101.15 (2) (g) of the statutes is created to read:

SB349,9,21 101.15 (2) (g) 1. Except as provided in subd. 2., no city, village, town, or county may enact or enforce an ordinance or other regulation governing the use of explosives in connection with an activity regulated by the department under this section.

SB349,9,23 2. A city, village, town, or county may regulate blasting schedules by the issuance of a conditional use permit.

SB349,15 Section 15. 281.125 of the statutes is created to read:

SB349,10,2 281.125 Limitation on local authority. (1) Except as provided in sub. (2), a municipality may not do any of the following:

SB349,10,3 (a) Establish or enforce a standard of water quality.

SB349,10,5 (b) Issue permits, including permits for discharges to the waters of the state, or any other form of approval related to water quality or quantity.

SB349,10,6 (c) Impose any restriction related to water quality or quantity.

SB349,10,7 (d) Impose any requirement related to monitoring water quality or quantity.

SB349,10,9 (2) (a) A municipality may take actions related to water quality or quantity that are specifically required or authorized by another statute.

SB349,10,11 (b) A municipality may not use s. 59.03 (2) (a), 59.54 (6), 60.10 (2) (c), 61.34, or 62.11 (5) as the basis for taking an action under par. (a).

SB349,16 Section 16. 285.11 (3) of the statutes is repealed.

SB349,17 Section 17. 285.73 of the statutes is repealed.

SB349,18 Section 18. 285.74 of the statutes is created to read:

SB349,10,16 285.74 Limitation on local authority. (1) Except as provided in sub. (2) (a), a municipality may not do any of the following:

SB349,10,19 (a) Establish or enforce an ambient air quality standard, standard of performance for new stationary sources, or other emission limitation related to air quality.

SB349,10,20 (b) Issue permits or any other form of approval related to air quality.

SB349,10,21 (c) Impose any restriction related to air quality.

SB349,10,22 (d) Impose any requirement related to monitoring air quality.

SB349,10,23 (2) (a) A municipality may do any of the following:

SB349,10,25 1. Take actions related to air quality that are specifically required or authorized by another statute.

SB349,11,1 2. Regulate open burning.

SB349,11,3 (b) A municipality may not use s. 59.03 (2) (a), 59.54 (6), 60.10 (2) (c), 61.34, or 62.11 (5) as the basis for taking an action under par. (a) 1.

SB349,19 Section 19. 285.75 of the statutes is repealed.

SB349,20 Section 20. 295.12 (2) (e) of the statutes is created to read:

SB349,11,9 295.12 (2) (e) The department may not establish nonmetallic mining reclamation standards under sub. (1) (a) relating to water quality or quantity or air quality that are more restrictive than chs. 160, 280, 281, 283, or 285 or rules promulgated under those chapters.

SB349,21 Section 21. 295.13 (1) (b) of the statutes is created to read:

SB349,11,12 295.13 (1) (b) Restrictions on ordinances. A county may not enact or enforce provisions in an ordinance under par. (a) that do any of the following:

SB349,11,13 1. Specify a standard of water quality or air quality.

SB349,11,15 2. Require an operator to obtain a permit or other form of approval in addition to a nonmetallic mining reclamation permit.