HomeMy WebLinkAbout21. 14-117A MARCH 11, 2014 14-117A RESOLUTION
(CARRIED 6-0 LOST LAID OVER WITHDRAWN )
PURPOSE: OPPOSE SB 632/AB 816 PREEMPTING MUNICIPAL
AUTHORITY TO REGULATE NON-METALLIC MINING
OPERATIONS AND BORROW PITS ASSOCIATED WITH
DOT CONSTRUCTION PROJECTS
INITIATED BY: COMMUNITY DEVELOPMENT
PLAN COMMISSION RECOMMENDATION: Approved
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 632/Assembly Bill 816, which was introduced on
February 26, 2014, eliminates the ability of a municipality to rely on its home rule
authority to regulate non-conforming non-metallic mining operations, and borrow pits
and material disposal sites related to DOT Construction projects; and
WHEREAS, Senate Bill 632/Assembly Bill 816 also eliminates the ability of
municipalities to regulate non-metallic mining in ways other than through zoning; and
WHEREAS, Senate Bill 632/Assembly Bill 816 is unnecessarily broad and
eliminates local control in areas well beyond frac sand mining; and
WHEREAS, Senate Bill 632/Assembly Bill 816 would permit locally unregulated
expansion of nonconforming non-metallic mining operations in the City of Oshkosh; and
WHEREAS, Senate Bill 632/Assembly Bill 816 would permit the creation of
borrow pits and material waste disposal sites without benefit of any local review or
application of local standards; and
MARCH 11, 2014 14-117 RESOLUTION
CONT'D
WHEREAS, by taking away statutory home rule powers, Senate Bill 632/
Assembly Bill 816 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 City hereby opposes Senate Bill 632/Assembly Bill 816 as proposed
as an unnecessary and overly broad attack on local control and the proper City officials
are authorized and directed to urge our local Representatives and Senators to vote
against the bill.
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TO: Honorable Mayor and Members of the Common Council
FROM : Darryn Burich
Director of Planning Services IS
DATE: March 6, 2014
RE: Oppose SB 632/AB 816, Preempting Municipal Authority to Regulate Non-Conforming
Non-Metallic Mining Operations and Borrow Pits Associated with DOT Construction
Projects (Plan Commission recommends approval)
BACKGROUND
On November 5, 2013 the Plan Commission endorsed a resolution to oppose SB 349 (commonly
identified as the sand frac mining bill) due primarily to the bill's overreach into municipal home rule
authority by preempting local land use regulation of nonconforming nonmetallic mining operations and
borrow pits and material disposal sites for DOT projects. That bill also included preemptions
regarding water and air quality and the regulation of blasting. The Council endorsed that resolution on
November 12, 2013. The resolutions were forwarded to the City's legislative representatives for
consideration of which Senator Gudex was a co-sponsor of the bill.
Due to the organized opposition by many interest groups at the time (i.e. City, Towns, and Counties)
the bill was pulled from consideration and not brought to either floor for a vote. Apparently the bill was
pulled for additional legislative crafting to eliminate some of the opposition to allow future passage
potential,
A new bill (SB 6321AB 816) was introduced on February 26, 2014 and placed on the "fast track" in
order to get the legislation voted on as quickly as possible with a public hearing held yesterday on
March 3`d at the Capitol before the Committee on Workforce Development, Forestry, Mining, and
Revenue.
The new bill eliminates the water and air concerns but keeps intact the local preemption of
nonconforming nonmetallic mining operations and continues to allow for the unregulated creation of
borrow pits and material disposal sites anywhere within a community.
As was previously the case, 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 and its Towns.
The Wisconsin League of Municipalities remains opposed to the proposed legislation. Staff is
requesting the Plan Commission endorse the attached resolution opposing the SB 6321AB 816 so the
resolution may be forwarded to our representatives.
ANALYSIS
The new legislation is essentially "SB 349 lite" by removing the air and water quality provisions in
order to make it more palatable to the other groups that were in opposition at the time. However the
most troubling aspects of the bill (albeit from a local land use planning standpoint) still remain by
preempting a municipality's ability to enforce its own land use regulations and comprehensive plans
relative to existing nonmetallic mining and the creation of borrow pits and material disposal sites for
DOT projects. The bill essentially gives a pass to the existing nonmetallic mining operations to
operate outside the control of local government.
Specifically SB
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
With respect to borrow pits and material disposal sites for DOT projects, this takes current law
enacted as part of the Act 10 budget bill (not stand alone and separately debated legislation) that
generally applied to a specific highway reconstruction project and would now apply it to any DOT
transportation project elevating a DOT project over and above similar land uses. 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 industrial districts and
then 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 of the quarry 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. The larger
more troubling issue that the proposed legislation poses is relative to permitting unregulated
expansion of nonconforming uses and the precedent this will set as other interest groups at the state
level request to extend these "protections" to other concerning uses such as junk yards, contractor's
yards, batch plants, billboard sites, etc. Again the city through its own zoning processes is better
equipped to make local land use decisions rather than the state giving these uses a free pass to do
what they want without any involvement by the local governing unit.
Nothing much has changed with the current legislative proposal to alleviate staff's concern relative to
the erosion of home rule land use planning and regulation that the state law seeks to circumvent and
the corresponding undetermined impacts this may have on community development and our
corresponding quality of life.
FISCAL IMPACT
Undetermined.
RECOMMENDATION
The Plan Commission approved the resolution at its March 4, 2014, meeting.
Approved,
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