Senator Tom Tiffany (R-Hazelhurst) and Representative Joan Ballweg (R-Markesan) introduced legislation on February 26th that would secure legal nonconforming use rights for existing nonmetallic mining operations. The Senate bill was passed by the Senate Committee (3-2), and is now available for a vote on the Senate floor.
Under current law, a zoning ordinance may not prohibit the continued lawful use of property that was in place prior to the zoning ordinance going into effect. The principle of legal nonconforming use is a long standing property rights protection and one that is particularly significant to the nonmetallic mining industry. Zoning and conditions under zoning inevitably change over time as community development occurs but, as those changes occur, the rights of existing property owners is protected by recognizing that legal use that existed before a zoning ordinance is adopted should be allowed to continue. The primary focus of the new legislation is to extend that basic zoning concept of legal nonconforming use to also apply with regard to the regulation of nonmetallic mining under a non-zoning police power ordinance.
In summary the legislation does the following:
- Modifies current zoning law to codify the “diminishing asset rule”, which has been adopted in a number of court decisions. The bill expressly provides that continued extraction from a nonmetallic mine is considered an existing use and may not be considered an expansion of an existing use, which is the crux of the “diminishing asset rule”.
- Provides that nonmetallic mining, that was occurring before a non-zoning local ordinance was adopted, would have legal nonconforming use rights. In other words, it would extend to mine operators regulated under a non-zoning police power ordinance the same protection that mine operators have relied on under zoning for decades.
- Provides that a borrow site or a material disposal site that is regulated by DOT as part of a DOT project and qualifies for an exemption from zoning under current law would also be exempt from a local non-zoning ordinance.
- Modifies current law relating to registration of marketable mineral deposits under s. 295.20. Current law provides that if a landowner registers a marketable mineral deposit they are afforded certain protections against future zoning actions. The bill extends these registration related protections to also apply in the case of a non-zoning local ordinance.
The legislation is being advanced, in part, in recognition that there is not enough time left this session to fully resolve differences on earlier introduced legislation (SB 349 and AB 476) relating to nonmetallic mining and other local zoning and road agreement issues. Unlike the original legislation, the new bill does not prohibit the use of non-zoning police power to regulate local siting of a nonmetallic mine but does provide that if non-zoning police power is used to regulate nonmetallic mining then operations that were legally operating before the enactment of an ordinance should be afforded the same legal nonconforming use rights they would have under zoning law.