Archive for February, 2014

New Nonmetallic Mining Bill Limiting Local Regulation Introduced

Thursday, February 27th, 2014

Nonmetallic Mining Bill 2013 SB 632, companion bill 2013 AB 816.

On February 26, 2014, Senator Tom Tiffany introduced a bill to limit a local government’s ability to regulate existing nonmetallic mines in several ways.  However, unlike last year’s broad sweeping bill, which did not get any traction, this one appears to primarily be aimed at protecting an existing nonmetallic mine’s interests. The gist of it seems to be to stop a local government from imposing new regulation on existing mines.  But, as always, the devil is in the details, and there may be unintended consequences.

This bill would expand the definition and the application of nonconforming use protections to existing mines (often called “grandfathering”), and includes language that would allow expansion that otherwise might not be allowed.  For example, it allows expansion of a mine, regardless of a zoning or nonmetallic mining ordinance to the contrary, to “land that is contiguous to such land if the contiguous land is under the common ownership or control of the person.”  And it appears to create an exception to the general nonconforming use standard of 50% expansion.

This law also creates an exception to the existing (and long standing) “police power” law of Wisconsin, which generally holds that a police power ordinance can apply to existing uses.  A good example of this is, if a speed limit on a road changes, the new speed limit is the law – it does not matter if you have driven safely on the road under the old speed limit for 20 years – you still must now obey the new speed limit. Another example might be if a new health standard for well water or septic systems is imposed, it could apply to existing wells and septic systems. Generally, there is no grandfathering under police power ordinances (with exceptions, of course).

I also see two immediate consequences of the expanded definition, which now includes contiguous land if it is under common ownership or control.

First, most existing ordinances already grandfather existing mines, but only to the extent of the mine’s current reclamation plan. The new language allows expansion outside of the area defined by the reclamation plan.  (I believe the reclamation plan itself would still need to be amended prior to expansion as long as the local reclamation ordinance was in existence when the mining began – but I see potential issues if a reclamation ordinance is amended).

Secondly, this language seems broad enough to include neighboring land that was not under ownership or control of the mine, but that the mine now buys or leases.  So it appears to allow potentially unlimited expansion into areas where the mine was never contemplated when it was permitted.

As a final note, the bill also includes two other sections not directly related to grandfathering, one on registered nonmetallic mineral deposits, and one on borrow sites that also limit local regulation.  I will discuss those in a separate post.

Ignore Your Rights and They’ll Go Away # 445

Monday, February 10th, 2014

I have written about this before – maybe not 445 times, but if there is one area of the law where courts tend to be consistent, whatever the merits of the case or the seeming harshness of the result, it is with deadlines.  In Morack v. Town of Waukesha, the Moracks purchased some property which was “downstream” from a development.  They complained to the Town that the storm-water from the development was causing flooding on their property.  They hired an attorney who also complained, and threatened legal action against the Town.  The Town’s attorney sent them a letter informing them of Wisconsin’s notice of claim statute, and suggesting that they should follow the procedures found there if they wanted to file a claim against the Town.  The Moracks did not follow the procedure in § 893.80, and instead continued their complaints and threats of legal action for another ten years.  Eventually, they sued, and the circuit court said they were about ten years too late (I’m paraphrasing).  They appealed and the appellate court upheld the circuit court decision.

Again, the lesson here is that process and deadlines are important.  The Moracks were denied the chance to argue the merits of the case because they failed to meet the deadlines.  In this case the appellate court noted that the purpose of the Notice of Claim statute is so that the local government can evaluate a claim, decide on its merits, and respond to it while the issues are fresh.  In this case, in the intervening ten years the developer had died, and his company had gone bankrupt.  While it may seem that ten years is just too long to wait, keep in mind that one day late may be just as fatal to a claim you hope to make