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HomeMy WebLinkAbout24. 13-505.docx NOVEMBER 12, 2013 13-505 RESOLUTION (CARRIED___6-0___LOST________LAID OVER________WITHDRAWN________) AS AMENDED PURPOSE: OPPOSE SB 349, PREEMPTING MUNICIPAL AUTHORITY TO REGULATE WATER QUALITY AND QUANTITY, AIR QUALITY, USE OF EXPLOSIVES, BORROW PITS ASSOCIATED WITH DOT CONSTRUCTION PROJECTS AND NONMETALLIC MINING INITIATED BY: COMMUNITY DEVELOPMENT PLAN COMMISSION RECOMMENDATION: Approved WHEREAS, since the 1920’s the state has granted cities and villages broad general powers to regulate for the health, safety and public welfare of the community; and WHEREAS, a municipality may use its home rule powers to address local issues of concern unless the state has specifically prohibited such regulations; and WHEREAS, Senate Bill 349, which was introduced on October 22, 2013, eliminates the ability of a municipality to rely on its home rule authority to regulate air quality, water quality and quantity, the use of explosives by quarry operators, and borrow pits and material disposal sites related to DOT construction projects; and WHEREAS, SB 349 also reduces local government authority to enter into contracts with highway users requiring reimbursement for highway damage; and WHEREAS, SB 349 also eliminates the ability of municipalities to regulate nonmetallic mining in ways other than through zoning; and WHEREAS, SB 349 is unnecessarily broad and eliminates local control in areas well beyond frac sand mining; and WHEREAS, the City of Oshkosh has invested $50 million in storm water management which would be directly affected by SB349; and WHEREAS, SB 349 would permit locally unregulated expansion of legal nonconforming quarrying operations in the City of Oshkosh; and WHEREAS, SB 349 would permit the creation of borrow pits and material waste disposal sites without benefit of any local review or application of local standards; and NOVEMBER 12, 2013 13-505 RESOLUTION CONTD WHEREAS, by taking away statutory home rule powers, SB 349 removes from municipalities the ability to address unique local concerns and problems that might apply to denser, more populated areas, or areas with unusual topography, such as local drainage or flooding concerns, which the legislature hasn’t anticipated and therefore has not specifically authorized municipalities to regulate. NOW, THEREFORE, BE IT RESOLVED by the Common Council of the City of Oshkosh that the Council opposes SB 349 as an unnecessary and overly broad attack on local control and authorizes the proper City officials to contact local Representatives and Senators to vote against the bill. OIHKOJH ON THE WATER TO: Honorable Mayor and Members of the Common Council FROM : Darryn Burich Director of Planning Services DATE: November 5, 2013 RE: Approve Opposing SB 349, Preempting Municipal Authority to Regulate Water Quality and Quantity, Air Quality, Use of Explosives, Borrow Pits Associated with DOT Construction Projects, and Nonmetallic Mining (Plan Commission recommends approval) BACKGROUND The Wisconsin Senate has introduced SB 349 which preempts or reduces municipal authority to regulate air quality, water quality and quantity, the use of explosives, borrow pits and material disposal sites related to DOT construction projects, and nonmetallic mining. Attached is a memorandum from the League of Wisconsin Municipalities, highlighting the League's concerns with the proposed legislation that staff concurs with. The League is currently opposed to the legislation as proposed. The legislation is alarming to city staff with regard to its impacts on local land use planning and zoning which the bill preempts totally or in part and circumvents a municipality's local expertise in dealing with unique land use issues that the legislature or the state bureaucracy is not better equipped to analyze than the people of the City of Oshkosh or Winnebago County. Staff is requesting the Plan Commission to endorse the attached resolution opposing the SB 349. ANALYSIS SB 349 limits or preempts municipal home rule authority to regulate land use matters pertaining to • Borrow Pits for DOT projects • Material Disposal Sites for DOT projects • Unregulated Expansion of Nonmetallic Mining on Contiguous Sites • Prohibits regulation of blasting other than blasting schedule through CUP. With respect to borrow pits and material disposal sites for DOT projects, this takes current law that was enacted as part of the Act 10 budget bill (not stand alone legislation) that generally applied to a specific highway reconstruction project and would now apply it to any DOT transportation project. This is a complete preemption of City of Oshkosh land use policy and ordinance in that under the City's Zoning Ordinance borrow pits are treated as quarries and only permitted in the industrial districts and only through CUP. Material disposal sites would be treated similarly but would also be required to meet the city's storm water standards which the proposed law would again preempt. Unregulated creation of borrow pits and material disposal sites in the city's urbanized area is concerning due to their ability to frustrate future community development efforts where the landscape will be incalculably altered due to the presence of these unregulated features. Additionally, safety is a concern with borrow pits because of the attractive nuisance nature they can become as they fill with water posing a danger near residential areas. The City of Oshkosh is in a better position to evaluate and regulate these uses than the DOT which is why under the city's current ordinance such land uses are regulated through CUP because of their special nature. With respect to the unregulated expansion of nonmetallic mining on contiguous sites the legislation would appear to permit expansion of the Vulcan Quarry site to the west on areas where extraction has not occurred in recent history. The quarry, which is considered a legal nonconforming use, would require issuance of a CUP for any expansion of the extraction operations on the western portion of the site. Unregulated expansion is a concern given the quarry's urban location with a number of residential neighborhoods, a hotel, and number of commercial and retail uses in the immediate vicinity of the quarry that may be impacted by expansion operations. Lastly, the proposed legislation would limit a community's authority to regulate blasting other than the actual blasting schedule through CUP. Given the potential impacts that blasting can have in a community, especially with neighboring properties, preempting local regulation of blasting would appear not in a community's best interest as again the local community is in a better position to regulate these activities. SB 349 potential impacts on local land use planning and regulation is a potential detriment to the City of Oshkosh's long term community development health and ability to plan the future due to the bill's erosion of municipal home rule pertaining to local land use planning and zoning. The bill also has undetermined impacts on local storm water regulations that could frustrate the community's ability to continue to make those community wide improvements FISCAL IMPACT Undetermined. RECOMMENDATION The Plan Commission approved the resolution at its November 5, 2013, meeting. Approved, City Manager EXCERPT FROM NOVEMBER S, 2013 PLAN COMMISSION MINUTES ITEM: OPPOSE SB 349 PREEMPTING MUNICIPAL AUTHORITY TO REGULATE WATER QUALITY,AIR QUALITY, USE OF EXPLOSIVES, BORROW PITS ASSOCIATED WITH DOT CONSTRUCTION PROJECTS & NONMETALLIC MINING The Wisconsin Senate has introduced SB 349 which preempts or reduces municipal authority to regulate air quality, water quality and quantity,the use of explosives, borrow pits and material disposal sites related to DOT construction projects, and nonmetallic mining. The League of Wisconsin Municipalities has concerns with the proposed legislation and is opposed to the legislation as presented. Mr. Burich presented the item and reviewed the memo he prepared regarding the issue. He also distributed copies of correspondence sent to the state legislature from the League of Wisconsin Municipalities opposing this bill and a resolution he prepared also opposing the legislation. He stated that the bill would reduce municipal authority and would allow borrow pits to be created in any area of the city for Department of Transportation projects without the City's approval and will effect land use decisions in our community. Sites such as the Vulcan Quarry could be expanded under this new legislation without a conditional use permit approval as well as prohibiting regulations regarding blasting on the site. This will concern the residential neighbors in the area of the quarry as it may negatively impact their neighborhood. The resolution distributed was reviewed and if approved by the Plan Commission, would be forwarded to the Common Council for approval and then would be forwarded to our area's legislative representatives. Steve Gohde, Assistant Director of Public Works, stated that the local regulation of water quality and quantity and air quality concerned him as it could effect storm water flood control regulations and would be a substantial blow to storm water management for our community as flooding concerns are a major issue. Mr. Bowen commented that language in the bill enforces standards for water quality and quantity but how it effects our community is yet unknown. Mr. Gohde stated that the City Manager has sent correspondence relating to this issue to Representative Gudex but to date, no reply has been received. Mr. Fojtik commented that he was hesitant with the process of approving a resolution at this point as he needed more information before making a decision on the matter. Ms. Lohry questioned if the resolution was reviewed by the City Attorney. Mr. Burich responded that it was crafted to meet the local concerns in our community. Mr. Hinz commented that he had concerns regarding the language relating to damages to roads by vehicles during construction. 1 Mr. Gohde agreed as these construction projects currently involve organized truck routes that have to be followed and it will affect local projects as well. Mr. Hinz also commented about the strictness of navigable waterways and had concerns if this legislation overrides local regulation of that too. Ms. Propp commented that she assumed that the Department of Natural Resources or the Environmental Protection Agency's standards would be applied. Mr. Gohde responded that the Clean Water Act would require that the project would have to follow state regulations for water quality however the quantity and ability to detain water is not a state issue. Ms. Propp questioned if the legislation would not have an effect on water quality. Mr. Gohde indicated that the changes to quality would be minor however the issues regarding quantity were a concern. Mr. Bowen questioned the precedent of passing a resolution regarding this legislation as this practice has not been done in the past. He did feel the proposed legislation was bad as after reading the language in the bill it is ambiguous and far reaching when it comes to local control. Mr. Burich responded that the legislation would affect local land use policies in place. Mr. Bowen commented that these affects will impact the community in a negative way. Ms. Lohry stated that she felt that disturbing land in any way created water quality issues and she would support the resolution. Motion by Bowen to approve Resolution 13-02 opposing SB 349 preempting Municipal Authority to regulate water quality, air quality, use of explosives, borrow pits associated with DOT construction projects and nonmetallic mining. Seconded by Hinz. Mr. Hinz commented that federal and state government should have the least control over these matters and local government bodies should make these decisions as they have the most direct affect on their communities and he would also support the resolution. Ms. Propp stated that it is terrible legislation and will reach into every community and she was also in favor of supporting the proposed resolution. Motion carried 6-0. PLAN COMMISSION OF THE CITY OF OSHKOSH NOVEMBER 5, 2013 13-02 RESOLUTION (CARRIED / LOST LAID OVER WITHDRAWN ) PURPOSE: Oppose SB 349, Preempting Municipal Authority to Regulate Water Quality and Quantity, Air Quality, Use of Explosives, Borrow Pits Associated with DOT Construction Projects, and Nonmetallic Mining Whereas, since the 1920s the state has granted cities and villages broad general powers to regulate for the health, safety and public welfare of the community; and Whereas, a municipality may use its home rule powers to address local issues of concern unless the state has specifically prohibited such regulations; and Whereas, Senate Bill 349, which was introduced on October 22, 2013, eliminates the ability of a municipality to rely on its home rule authority to regulate air quality, water quality and quantity, the use of explosives by quarry operators, and borrow pits and material disposal sites related to DOT construction projects; and Whereas, SB 349 also reduces local government authority to enter into contracts with highway users requiring reimbursement for highway damage; and Whereas, SB 349 also eliminates the ability of municipalities to regulate nonmetallic mining in ways other than through zoning; and Whereas, SB 349 is unnecessarily broad and eliminates local control in areas well beyond frac sand mining; and Whereas, SB 349 would permit locally unregulated expansion of legal nonconforming quarrying operations in the City of Oshkosh; and Whereas, SB 349 would permit the creation of borrow pits and material waste disposal sites without benefit of any local review or application of local standards; and Whereas, SB 349 would permit (other than the schedule) locally unregulated blasting; and Whereas, by taking away statutory home rule powers, SB 349 removes from municipalities the ability to address unique local concerns and problems that might apply to denser, more populated areas, or areas with unusual topography, such as local drainage or flooding concerns, which the legislature hasn't anticipated and therefore has not specifically authorized municipalities to regulate. Now, Therefore, Be It Resolved, that the Plan Commission of the City of Oshkosh opposes SB 349 as proposed. Be It Further Resolved that the Plan Commission urges the Oshkosh Common Council to oppose SB 349 as an unnecessary and overly broa tack on local contr. . 1. urge our local Representatives and Senators to vote against the bi A rove, Thomas Fojtik, Chairman