Town of Middleton Opposes Increased Mining Oversight

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MTT News Desk's picture
Matt Geiger
According to a county planning document, many mines are “essentially unregulated” right now.

Imagine a long-slumbering mine, located on the edge of a residential neighborhood or nature conservancy, roaring to life one day without any review or recourse for those affected by the operation’s noise, dust and traffic.

That could happen in dozens of sites across Dane County, according to proponents of a zoning law change that would require dormant mines to obtain a permit before re-opening.

Dane County is on the verge of approving an ordinance amendment that would bolster control over local mining sites. According to a county planning document, those mines are “essentially unregulated” right now.

But the fate of the amendment, which has broad support from both the county board and county executive Joe Parisi, will ultimately be up to local towns, which have the power to decide whether they want the increased oversight.

The amendment would alter Section 10.21 of the county’s current zoning ordinance, which deals with nonconforming land uses. The section lays out limitations and conditions that apply to the continuation of existing uses that do not conform to current ordinance standards - places where uses, such as mining, enjoy grandfathered status a despite violating current zoning regulations.

Most nonconforming uses lose their grandfathered status when they are discontinued for a year or longer. But there is one notable exception: mines.

Registered nonconforming mineral extraction sites currently enjoy an exemption that allows them to become active again, without any county review, no matter how long they have sat dormant.

County officials believe there are around 40 such sites in Dane County alone.

“This was a political decision made years ago,” Parisi said of the exemption. “The powers that be decided to take away residents’ input.”

Ordinance Amendment 26 would remove the exemption by deleting section 10.21(1)(d) from the county zoning ordinance.

“This is not a radical concept,” Parisi said. “It’s just leveling the playing field.”

Parisi and the county board must approve Ordinance Amendment 26 for it to become effective, but if a majority of Dane County’s 34 towns submit documentation of their disapproval of the amendment, they can effectively kill the proposal.

County board supervisor Pat Downing (Dist. 30), who represents Mount Horeb and the surrounding areas, said he plans to support the amendment.

“It seems like it would bring us in line with how this is handled in the rest of the state,” said Downing.

“My job is easy,” he added, “because three of the four towns I represent have already approved the amendment.”

The Middleton Town Board was among less than a handful of communities to vote against the amendment.

Middleton supervisor Tim Roehl said the amendment was drafted to deal with “one complaint” and would force quarry owners to open their sites once per year in an effort to avoid being designated as inactive.

The Middleton Town Board voted unanimously against the amendment. It also suggested the creation of a “stakeholders’ work group” to resolve some of the issues around mining.

A January 15 memo prepared by Majid Allan, senior planner for the county, called the amendment a “sensible change.”

“There are good reasons that mineral extraction is a conditional, rather than permitted, use in several of the county’s zoning districts,” Allan wrote. “From a public policy standpoint, it is preferable that mineral extraction proposals undergo a thorough public review and approval procedure that can impose reasonable conditions designed to protect the public health, safety and welfare.”

“The sensible change proposed by [Amendment] 26 would ensure that long inactive mineral extraction sites would have to obtain a conditional use permit and comply with current ordinance requirements in order to conduct any future extraction activities,” Allan continued.

County supervisor Sharon Corrigan (Dist. 26), who represents Middleton, is an enthusiastic supporter of the change.

“There are some mining sites that neighbors don’t even know about,” Corrigan stated. “This just gives citizens a voice in the process.”

Corrigan emphasized that she believes the amendment is not an attempt by the county to “overreach” or infringe on local control.

She also said that, pending the results of an upcoming public hearing on the matter, she expected the amendment to pass.

“I can’t speak for all of my fellow supervisors, but most of what I’ve heard from them so far is support,” Corrigan stated.

The Dane County Office of the Corporation Counsel weighed in on the amendment in a December 19 memo. In it, David R. Gault, assistant corporation counsel, indicated that the change would not violate a state law known as the “diminishing asset rule.”

“[Amendment] 26 would simply bring Dane County’s zoning ordinance into conformation with the common law of nonconforming uses,” Gault wrote. “A nonconforming mineral extraction use would be deemed terminated if discontinued for more than one year.”

“It is also important to note that adoption of [Amendment] 26 will not prohibit future mineral extraction on these sites,” Gault continued. “Future mineral extraction would simply require a conditional use permit in conformance with the ordinance.”

The county’s rationale for the change is relatively simple.

“Since extraction activities are essentially unregulated at such sites, there is no enforcement mechanism to ensure that operations are done in a manner that respects the rights and interests of neighboring property owners and towns,” according to Allan. “As a result, significant disputes and neighborhood unrest can emerge and fester for years at great cost to a community when the potential impacts of mineral extraction operations are not addressed and preempted on the front end of an operation.”

Mineral extraction is a land use that can have major implications for neighbors, according to county officials.

Not surprisingly, not every mining company was excited about the prospect of increased regulation.

“I’ve reached out and the response has been varied,” said Parisi. “Some said they think it’s fair for everyone to follow the same rules, while others would prefer no regulation at all.”

“Virtually unregulated blasting, unlimited hours of operation, unmitigated fugitive dust emissions, and costly road damage from heavy truck traffic can occur at non-conforming mineral extraction sites” could all be byproducts of a suddenly active mining site, Allan contended.

County staff supports the proposed change to the ordinance, saying it would result in a “more transparent process” for mineral extraction operations and fewer neighbor complaints.

As of press time this week, ten towns had voted in favor of Amendment 26. Five, including the Town of Middleton, voted against it.

Those in support include Cross Plains, Rutland, Black Earth, Blooming Grove, Springdale, Montrose, Vermont, Dane, Dunn and Oregon, Those opposed are Bristol, Cottage Grove, Mazomanie, Middleton and Medina.

The Zoning & Land Regulation (ZLR) Committee will hold a public hearing on the amendment at 7 p.m. on Tuesday, Feb. 25 at the city-county building. The hearing will take place in room 354.

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