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No Zoning Necessary for Borrow Pits!
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Published: July 13, 2009
Authors:
Peter Conrad and
Charles (Buck) Sweeney
Wisconsin's recently passed state budget included a provision to exempt borrow pits used exclusively for state highway projects from local zoning regulations. This exemption means that borrow sites used for state highway projects are not subject to local zoning permits, approvals, requirements or conditions (except as noted in number four below).
This provision amended Wis. Stat. § 84.06 to provide, in relevant part, that zoning ordinances do not apply to a borrow site if all of the following apply:
- The borrow site is located on a property near the site of the state highway construction project on which the borrow is to be used.
- The owner of the property has consented to the establishment of the borrow site on his or her property.
- The borrow site is used solely for the specified state highway construction project and solely during the period of construction of the specified state highway construction project.
- The owner of the property on which the borrow site is located agrees to any noise abatement or landscaping measures required by the governing body of the political subdivision during the period of use.
- The owner of the property on which the borrow site is located agrees to reasonably restore the site after the period of use.
This provision appears broad in its application. For example, it defines a borrow site as "any site from which borrow is excavated for use in a specified state highway construction project." Although the definition includes the term "excavated," blasting is not specifically prohibited. Given its potentially broad application, zoning authorities no longer have the ability to simply say "no."
The bottom line of this amendment is that contractors no longer have to deal with the uncertainty of obtaining permits and other approvals from local zoning authorities for borrow sites used only for state highway projects. This will allow contractors more certainty when preparing bid documents, and may provide cost efficiencies by removing a layer of government approvals. However, this exemption expires July 1, 2011, and only applies to borrow sites used solely for a state highway project. Accordingly, all zoning rules and regulations apply for the opening and operation of extraction sites not covered by this exemption. Nevertheless, this exemption is a valuable tool for contractors, and will also provide cost savings to WisDOT.
Charles V. (Buck) Sweeney is a partner at Axley Brynelson, practicing in the areas of environmental and construction law. Peter J. Conrad is an attorney in the firm, practicing in the areas of construction, real estate, land use and municipal law. If you would like additional information on Wisconsin's new borrow pit law, please contact Mr. Sweeney at 608.283.6743 or csweeney@axley.com, or Mr. Conrad at 608.260.2483 or pconrad@axley.com.
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