LRB-4072/3
MES/RCT/ARG:kjf&wlj:rs
2013 - 2014 LEGISLATURE
February 26, 2014 - Introduced by Senator Tiffany, cosponsored by Representative
Ballweg. Referred to Committee on Workforce Development, Forestry,
Mining, and Revenue.
SB632,1,7 1An Act to renumber and amend 59.69 (10) (ab), 60.61 (5) (ab), 62.23 (7) (ab)
2and 295.20 (2) (a); to amend 84.06 (12) (b) (intro.), 85.193 (2) (intro.), 295.20
3(1) (a) 2., 295.20 (2) (title), 295.20 (2) (b) and 295.20 (3) (a); and to create 59.69
4(10) (ab) 1., 59.69 (10) (as), 60.61 (5) (ab) 1., 60.61 (5) (as), 62.23 (7) (ab) 1., 62.23
5(7) (hs), 66.0416, 85.193 (3) and 295.20 (2) (a) 2. of the statutes; relating to:
6local regulation of nonmetallic mining and preservation of marketable
7nonmetallic 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 1Section 1. 59.69 (10) (ab) of the statutes is renumbered 59.69 (10) (ab) (intro.)
2and amended to read:
SB632,4,33 59.69 (10) (ab) (intro.) In this subsection "nonconforming:
SB632,4,6 42. "Nonconforming use" means a use of land, a dwelling, or a building that
5existed lawfully before the current zoning ordinance was enacted or amended, but
6that does not conform with the use restrictions in the current ordinance.
SB632,2 7Section 2. 59.69 (10) (ab) 1. of the statutes is created to read:
SB632,5,28 59.69 (10) (ab) 1. "Nonconforming nonmetallic mining location" means land on
9which nonmetallic mining was occurring at any time during the 365 days before
10nonmetallic mining became a nonconforming use, including land that is contiguous
11to such land if the contiguous land is under the common ownership or control of the
12person who owns or controls the land on which the mining was occurring, and

1includes leasehold interests, without regard to whether public or private roads or
2waterways run through the land.
SB632,3 3Section 3. 59.69 (10) (as) of the statutes is created to read:
SB632,5,114 59.69 (10) (as) An ordinance enacted under this section, that became effective
5after nonmetallic mineral extraction began at a nonmetallic mining location, and
6which is more restrictive than the requirements of any ordinance in effect at the time
7nonmetallic mineral extraction began, or that imposes a new restriction, may not
8apply to or affect the continued extraction of a nonmetallic mineral from a
9nonconforming nonmetallic mining location. Such continued extraction from such
10a location shall be considered an existing use and may not be considered an
11expansion of a nonconforming use.
SB632,4 12Section 4. 60.61 (5) (ab) of the statutes is renumbered 60.61 (5) (ab) (intro.)
13and amended to read:
SB632,5,1414 60.61 (5) (ab) (intro.) In this subsection "nonconforming:
SB632,5,17 152. "Nonconforming use" means a use of land, a dwelling, or a building that
16existed lawfully before the current zoning ordinance was enacted or amended, but
17that does not conform with the use restrictions in the current ordinance.
SB632,5 18Section 5. 60.61 (5) (ab) 1. of the statutes is created to read:
SB632,5,2519 60.61 (5) (ab) 1. "Nonconforming nonmetallic mining location" means land on
20which nonmetallic mining was occurring at any time during the 365 days before
21nonmetallic mining became a nonconforming use, including land that is contiguous
22to such land if the contiguous land is under the common ownership or control of the
23person who owns or controls the land on which the mining was occurring, and
24includes leasehold interests, without regard to whether public or private roads or
25waterways run through the land.
SB632,6
1Section 6. 60.61 (5) (as) of the statutes is created to read:
SB632,6,92 60.61 (5) (as) An ordinance enacted under this section, that became effective
3after nonmetallic mineral extraction began at a nonmetallic mining location, and
4which is more restrictive than the requirements of any ordinance in effect at the time
5nonmetallic mineral extraction began, or that imposes a new restriction, may not
6apply to or affect the continued extraction of a nonmetallic mineral from a
7nonconforming nonmetallic mining location. Such continued extraction from such
8a location shall be considered an existing use and may not be considered an
9expansion of a nonconforming use.
SB632,7 10Section 7. 62.23 (7) (ab) of the statutes is renumbered 62.23 (7) (ab) (intro.)
11and amended to read:
SB632,6,1312 62.23 (7) (ab) Definition Definitions. (intro.) In this subsection
13"nonconforming:
SB632,6,16 142. "Nonconforming use" means a use of land, a dwelling, or a building that
15existed lawfully before the current zoning ordinance was enacted or amended, but
16that does not conform with the use restrictions in the current ordinance.
SB632,8 17Section 8. 62.23 (7) (ab) 1. of the statutes is created to read:
SB632,6,2418 62.23 (7) (ab) 1. "Nonconforming nonmetallic mining location" means land on
19which nonmetallic mining was occurring at any time during the 365 days before
20nonmetallic mining became a nonconforming use, including land that is contiguous
21to such land if the contiguous land is under the common ownership or control of the
22person who owns or controls the land on which the mining was occurring, and
23includes leasehold interests, without regard to whether public or private roads or
24waterways run through the land.
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