Wisconsin town’s non-metallic mining ordinance is not zoning

by Victoria Heldt

Zwiefelhofer, et al., v. Town of Cooks Valley
(Supreme Court of Wisconsin, February 8, 2012)

The plaintiffs in this case (Zweifelhofer, Schindler, Sarauer, and La Gesse) are all residents of Cooks Valley.  In 2008, the Town adopted a Nonmetallic Mining Ordinance that prohibited nonmetallic mining unless a permit was obtained from the Town Board.  The plaintiffs, who have all engaged in nonmetallic mining in the past, sought to have the Ordinance declared invalid in the event that they want to engage in nonmetallic mining in the future.  Their argument claimed the Ordinance was invalid because it did not have the approval of the County Board.  In the Town of Cooks Valley, zoning ordinances must gain approval of the Board.  The Town claims that the ordinance is not a zoning ordinance, but rather an exercise of its police power.  Consequently, they argue that the ordinance does not require approval of the Board.  The Court had to discern whether the Ordinance constituted a zoning ordinance or an exercise of the Town’s police power.

The Ordinance begins with a preamble stating that the intent of the statute is to “promote the health, safety, prosperity, aesthetics, and the general welfare of the people and communities.”  Specifically, it attempts to regulate land mining so as to protect the population from disease and pestilence and to further the conservation of land and water use.  It describes nonmetallic mining as commercial land and mining pits and all activities associated with it.  The Ordinance allows for nonmetallic mining only if a permit is obtained from the Town Board.  The Town may place a number of restrictions on any nonmetallic mining permit that it issues.  The Ordinance does not apply to previously existing mines, but does apply to the expansion of any existent mines.

The Court conceded that the line between a zoning ordinance and a building code enacted pursuant to a Town’s police power is fine and that the two are similar in nature.  Wis. Stat. §62.23 (7) governs zoning and, within the statute, the grant of zoning power overlaps with police power.  Zoning is a subset of the police power.   In addition, both powers serve the same general purpose of promoting the health, safety, and welfare of the community.  In its analysis, the Court compared the characteristics of the Ordinance to those of typical zoning ordinances to determine whether the Ordinance in question is a zoning or non-zoning ordinance.  It identified and focused on six main criteria.

First, the Court recognized that zoning ordinances typically divide property into separate zones or districts.  The Ordinance in question does not.  It applies universally to all land within the Town.  Second, zoning ordinances usually allow explicitly stated uses and prohibit those not stated.  The Town’s nonmetallic ordinance does not permit anything as of right or automatically prohibit anything since a permit could be obtained to engage in nonmetallic mining.  Third, a zoning ordinance typically regulates where an activity takes place, not the activity itself.  This Ordinance is comparable to a license in that it regulates an entire activity and not the location of the activity.

The fourth criterion that the Court focused on was a zoning ordinance’s tendency to comprehensively address all possible uses of a specified area of land.  The Wisconsin Attorney General was quoted as saying “The more comprehensive the ordinance, the more likely it will be characterized by a court as a zoning ordinance.”  The Town’s ordinance applies to only one activity – nonmetallic mining.  The plaintiffs argued that, since the Ordinance comprehensively regulates nonmetallic mining, it should be considered comprehensive.  The Court clarified that the term “comprehensive” should not be interpreted as “thoroughly” regulating a single activity for the purpose of zoning ordinances.  It is intended to mean all-inclusive.  The plaintiffs and some friend-of-the court briefs attempted to argue that the Ordinance is a zoning ordinance because it “pervasively” regulates the use of land.  They look to a previous case in which the Attorney General stated “when an ordinance constitutes a pervasive regulation of, and in many instances a prohibition on the use of, land, [it must be concluded] that such an ordinance is a zoning ordinance which requires county board approval.”  The Court in this case deemed the phrase “pervasive regulation” as over-inclusive in application.  It noted that the phrase does not create an effective bright-line rule to guide the Court.

The fifth criterion was that zoning ordinances operate by fixed rules that allow many land uses to proceed without discretionary decisions by administrative officials (i.e., permitted uses).  The Ordinance in question, conversely, operates only on a case-by-case basis and does not allow any non-metallic mining operation to proceed without administrative action.  The plaintiffs urge that the Ordinance must be a zoning ordinance because it allows for “conditional use” permits, which have historically been associated with zoning ordinances.  The Court said that that logic placed too much emphasis on the terminology of the Ordinance.  Licenses required under non-zoning police powers could also be considered similar to conditional use permits.  Just because the language of the Ordinance includes the phrase “conditional use permit” does not mean it is a zoning ordinance.

The sixth and final criterion addressed a zoning ordinance’s tendency to exempt pre-existing activities from the new regulation.  In this way, the Ordinance in question is similar to zoning ordinances because it does not apply to pre-existing nonmetallic mines.  The Court noted that the differences between the characteristics of the Town’s nonmetallic mining ordinance and those of typical zoning ordinances exceeded the similarities.

The Court finally looked to the general purpose of zoning ordinances in comparison to the general purpose of the Town’s nonmetallic mining ordinance.  The Court acknowledged that, in a broad sense, the Ordinance has the same purpose as that of zoning ordinances (to promote the welfare of the community as a whole); however, this broad definition of purpose is not helpful in an analysis of whether an ordinance is zoning or non-zoning.  It looked instead to the more specific purpose of zoning ordinances to “separate incompatible land uses.”  The Ordinance does not share that purpose in that it does not explicitly separate different land uses or declare any land uses incompatible with others.

After looking to the Ordinance’s specific characteristics and its general purpose, the Court concluded that the Town’s non-metallic mining ordinance is not a zoning ordinance, but rather a general welfare ordinance enacted pursuant to the Town’s police powers.  Consequently, it did not require the Board’s approval and is therefore valid as enacted.  The Court reversed the lower court’s decision.

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