Wisconsin Supreme Court Issues Important Decision Affecting Frac Sand Mining

Municipal Law Alert, Special Edition, February 9, 2012

Zwiefelhofer v. Town of Cooks Valley (February 8, 2012)

In a closely watched case, the Wisconsin Supreme Court held that a town (with village powers) has the power, under its police power, to adopt a non-zoning ordinance regulating non-metallic mining (for example, frac sand mining). The property owner contended that an ordinance passed by the Town of Cooks Valley was really a disguised zoning ordinance. Accordingly, the ordinance should be struck for failing to obtain the required county board approval. The Supreme Court’s decision recognized that while zoning ordinances and pure police power regulations are closely related, they are not the same. The Court concluded that a town may exercise its police power authority (meant to protect the health, safety and welfare of residents) to regulate activities involving land use, such as non-metallic mining.

This decision is extraordinarily important for towns in west-central Wisconsin that are attempting to respond to the explosion of frac sand mines in the area. This decision confirms a town’s authority to adopt ordinances to require a license to operate a frac sand mine (and related activities). It appears that this regulation may be accomplished either directly through the provisions contained in the ordinance or by placing conditions on the issuance of the license (similar to a conditional use permit). Many towns in west-central Wisconsin have either adopted, or have begun the process of considering the adoption of, these types of non-metallic licensing ordinances. The court’s decision in this case ends the debate as to whether towns with village powers have the authority required to adopt and enforce these kinds of ordinances.

If you are a town board member in a west-central Wisconsin town, you have or may be considering non-metallic mining issues in your town. This case provides a clear outline for enacting a non-zoning regulatory ordinance in your town.

  • First, a town must adopt village powers (if it has not already done this).
  • Second, if your town is not located in a county with a moratorium currently in place, you may consider adopting a moratorium on non-metallic mining.
  • Third, use the breathing room provided by a moratorium to study, prepare, debate and possibly enact a licensing and regulatory ordinance.

The goal of a licensing and regulatory ordinance is to provide reasonable regulations to protect the health, safety and welfare of town residents. There are a number of factors to consider when adopting such ordinances, and no two towns are exactly alike. However, at a minimum it is important to consider the following: (i) protection of roads, air quality and water; (ii) mitigation of noise, dust and debris; (iii) prevention of high intensity lights at night; (iv) elimination of unsightliness (and the associated property value depreciation for neighbors); (v) regulation of hours and methods of blasting; and (vi) financial security.

If your town is considering regulation of non-metallic frac sand mining, yesterday’s Supreme Court decision confirms your ability to do so. However, it is important to remember that unless you follow the proper procedure to adopt a zoning ordinance (which requires county approval), you must still be careful to make sure your ordinance has the characteristics and purposes set forth by the Supreme Court in its decision.

To read the complete Wisconsin Supreme Court decision, click here.

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