Posted by: Patricia Salkin | May 13, 2012

WI Supreme Court Holds Town’s Nonmetallic Mining Ordinance is Not a Zoning Ordinance

The Wisconsin Supreme Court upheld the town’s nonmetallic mining ordinance, enacted as a general police power regulation, against a challenge that it was an improperly adopted zoning ordinance. 

Background on the Town and the Police Power Authority to Adopt the Ordinance  

The Town of Cooks Valley is an unzoned town located in Chippewa County. Chippewa County has a county zoning ordinance but the Town has not approved the application of the County’s zoning ordinance in the Town, nor has the Town adopted its own ordinance. In 2008, the Town adopted a nonmetallic mining ordinance to regulate nonmetallic mining operations within the Town. The Town had adopted village powers in 2001 and the Town used the general police power authority given to villages (and Towns that adopt village powers) as the authority to adopt the ordinance. This basic police power authority is “the power to act for the government and good order of the village, for its commercial benefit and for the health, safety, welfare and convenience of the public.” Wis. Stat. § 61.35(1).      

The Town’s Nonmetallic Mining Ordinance

The Town’s nonmetallic mining ordinance requires a permit for the operation of nonmetallic mines and sets forth the application process. The appendix to the Ordinance contains the application form, which the applicant must submit to the Town Clerk along with an application fee. The application is first considered by the Town Plan Commission and copies are distributed to all residents who own land adjoining the proposed site. The Town Plan Commission then makes a recommendation to the Town Board. The Town Board considers the recommendation at a public meeting and takes comments from the public. The Town Board determines whether the “mine is in the best interests of the citizens of the Town, and will be consistent with the protection of public health, safety and general welfare;” and whether the applicant has received any required federal, state, and county permits. If these criteria are satisfied, the Town Board “shall grant the permit, either with or without conditions.”

The Ordinance elaborates on the type of conditions that the Town may impose on nonmetallic mining “to protect public health and safety and promote the general welfare of the Town” as follows: Such conditions may include, but are not limited to, restrictive provisions and proof of financial security for reclamation, restrictive provisions and proof of financial security for town road maintenance and repair, restrictions on hours of operation, restrictions on truck routes on town roads, restrictions on truck and traffic volume into and out of the mine site, restrictions to protect groundwater quantity and quality, restrictions to safeguard public and private drinking and agricultural wells, restrictions to control air emissions and dust from the mine and its operations, and any other restrictions deemed necessary and appropriate . . . .

Finally, the Ordinance exempts preexisting mines from the application and permit requirements. The Ordinance applies, however, to expansion of preexisting mines. 

The Lawsuit  

The plaintiffs own land in the Town and have engaged in nonmetallic mining operations. They brought the lawsuit contending that the nonmetallic mining ordinance is a zoning ordinance and is invalid because the Town did not have the County approve the ordinance, as required for town zoning ordinances in counties with a county zoning ordinance. The Town claimed the ordinance is not a zoning ordinance, recognizing that different types of ordinances, such as subdivision ordinances, can overlap. The Circuit Court, however, agreed with the property owners. The own appealed to the Court of Appeals. In evaluating the appeal, the Court of Appeals, did not decide the case. Rather, the Court of Appeals certified the appeal to the Wisconsin Supreme Court to clarify the factors that distinguish a zoning ordinance from other ordinances enacted under a town’s general police powers. The Wisconsin Supreme Court granted the certification petition of the Court of Appeals, Zwiefelhofer v. Town of Cooks Valley, 2011 WI 89, 336 Wis. 2d 641, 804 N.W.2d 82.

 The Wisconsin Supreme Court’s decision focuses on whether or not the nonmetallic mining ordinance is a zoning ordinance. The unanimous Wisconsin Supreme Court decision, written by Justice Shirley Abrahamson (Justice Prosser did not participate), evaluates the Town’s ordinance against some of the common characteristics of a traditional zoning ordinance and concludes that the Town’s ordinance is not a zoning ordinance. The Court notes that many traditional characteristics of zoning ordinances are absent from the Ordinance. The Ordinance does not create multiple districts; it applies with equal force to any location in the Town. The Ordinance does not confine nonmetallic mining to any particular area in the Town; no parts of the Town are foreclosed to nonmetallic mining. The Ordinance does not directly affect where an activity may take place; it governs how an activity must be conducted and incidentally limits where it may be conducted. The Ordinance does not automatically permit or prohibit any land use; it operates entirely on a case-by-case basis. The Ordinance does not comprehensively address a wide range of potential classes of land use; it speaks only to a single, specific land use.

However, the Court did find that the Town’s ordinance has several similarities to a zoning ordinance. The Town’s ordinance mentions conditional uses and excludes exiting mining operations. Conditional allowance of a land use and exemption of preexisting land uses are features associated with zoning ordinances. The Town’s ordinance clearly regulates the use of land in a potentially dramatic way. It regulates nonmetallic mining in many respects and in great detail. A landowner might be barred from engaging in nonmetallic mining in a certain location or in the entire Town because of the terms of the ordinance.

While the Supreme Court recognizes that the extent to which an ordinance affects the use of land is a relevant consideration in determining whether the regulation is a zoning ordinance, that consideration is not dispositive. As noted by the Court: “Many non-zoning ordinances affect the use of land.”

The Court’s decision confirms an important non-zoning tool available to local government to regulate activities such as nonmetallic mining to protect public health, safety, and welfare. Finally, since the ordinance is not a zoning ordinance it is not required by law to be consistent with a local comprehensive plan.

Zwiefelhofer v Town of Cooks Valley, 2012 WL 386392 (Wis. 2/8/2012)

The opinion can be accessed at:

This abstract was written by Brian W. Ohm, JD, Vice-President of Chapter Affairs for the Wisconsin Chapter of the American Planning Association and it appears in the monthly chapter law and legislation report at:

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