Proposed state law would ‘grandfather in’ land next to sand mines

LeAnn R. Ralph

MADISON —  If proposed state legislation is signed into law, a municipality would not be allowed to regulate nonmetallic mining on land next-door to an existing mine if the company has already leased the land.

Under the proposed legislation, a municipality also could not prevent sand mines from being operated on land where the mineral rights have already been registered.

Senate Bill 632, introduced by Senator Tom Tiffany (R-Hazelhurst) and Representative Joan Ballweg (R-Markesan), was the subject of a public hearing in Madison March 3.

Hazelhurst is in Oneida County in northeastern Wisconsin. Markesan is in Green Lake County just north of Madison.

The senate mining committee approved the bill after the hearing but the assembly mining committee has not yet voted on a companion bill (AB 816).

Under current state law, a city, village, township or county cannot adopt a zoning ordinance that would prohibit an existing use, meaning that a new zoning ordinance cannot zone a business or industry out of existence.

SB632 specifies that a new zoning ordinance cannot apply new restrictions to a nonmetallic mining site after mining has already started, or in other words, cannot zone a sand mine out of existence.

But SB632 also specifies that a new zoning ordinance — or any ordinance, such a mine licensing ordinance — cannot place restrictions related to mining on land adjacent to an existing sand mine if the adjoining land and the sand mine are owned or controlled by the same person.

Known as the diminishing assets rule, under current state law, the rule applies to single ownership.

SB632 would expand the diminishing assets rule for nonmetallic mining to include leaseholders of the adjacent land.

If the leaseholder is already operating a sand mine and has leased the land next door, any ordinance that would affect nonmetallic mining would not apply to the adjacent land, even if mining did not start on the adjacent land for a number of years.

According to the Wisconsin Towns  Association, “This language is of great concern to people living in the proximity of industrial sand mines in Wisconsin, because unlike the traditional gravel pits on 40 acre parcels or adjoining 40s, industrial sand mines are in the hundreds of acres even exceeding 2,000 acres in some cases. It is our belief that the diminishing asset rule created by the court cases did not contemplate the use of leasehold interests for the size of industrial sand minds that exist today, that would be allowed to be ‘grandfathered in’ under the diminishing asset rule as written by these bills.”

The Wisconsin Towns Association Board of Directors voted to oppose the proposed legislation on March 3 after stating the week before that they were not opposed to the legislation.

The WTA board of directors changed their position after many township officials and others contacted the association with their concerns.

Mineral rights

Current state law allows a landowner with a nonmetallic mineral deposit to register the mineral deposit if mining is a permitted or a conditional use. The registration is valid for ten years and can be renewed for ten-year periods.

In addition, under existing law, a municipality cannot, through zoning or rezoning, or by granting a variance, permit a building to be constructed on the registered land or permit any use of the land that would prevent mining of the nonmetallic mineral deposit.

Existing law does, however, permit rezoning of the land if mining has not started and the zoning is required for a land use plan that has been in effect for a minimum of one year.

State law requires that zoning be consistent with a comprehensive land use plan.

Under SB632 a municipality, through zoning, rezoning, or any other ordinance, such as a mine licensing ordinance, could not prevent mining on land where the mineral deposit is registered.

A municipality could not, for example, rezone the registered land to residential if the zoning ordinance did not allow sand mines in residential zoning or to exclusive agriculture if exclusive agriculture did not allow nonmetallic mining.

From the proposed legislation, it is not clear whether the municipalities would be allowed to have a licensing ordinance.

According to the Wisconsin Towns Association, the word “prevent” could be a problem because “it will raise the question whether a licensing ordinance ‘prevents’ the operator from operating on the registered land. Some companies have already said that limitations in some ordinances such as hours of operation, berm requirements, blasting requirements will ‘prevent’ the site from operating economically to the optimum.”

The Wisconsin Towns Association concludes, “These bills are not needed to protect the nonmetallic mining industry, in particular industrial sand mines … no existing ordinances have prevented any industrial sand mines from operating once approved.”