New Nonmetallic Mining Bill Limiting Local Regulation Introduced

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.

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