Dane County Nonconforming Use Gravel Pits – Update on New Regulatory Approach

November 13, 2019

In 1968, Dane County adopted an ordinance that changed the land use for non-metallic mineral extraction from a permitted use to a conditional use.  Owners/operators were allowed to register existing quarries to preserve the legal nonconforming use status.  Dane County then verified each site and created a list of nonconforming use gravel pits.  Dane County took a unique regulatory approach going forward, declaring that you did not have to have a “use” every year in order to maintain your legal nonconforming use status.

In 2019, Dane County, by ordinance, has elected to rescind that long-standing approach.  Instead, for all potential nonconforming use sites preserved since 1968, Dane County is moving to the requirement of continual annual “use” to preserve nonconforming use status.  This aligns with the norm across the rest of Wisconsin.

You can find a copy of the updated Dane County Ordinance (§ 10.004(1)(b)) here.  This was passed on January 17, 2019.  The ultimate date of compliance is not set by the ordinance, as the date depends on when the applicable township passes and adopts the new County ordinance.  Compliance is required within one year of town adoption.  Many of the towns adopted this ordinance in March through June of 2019, resulting in an effective date in March through June 2020, as specific to each town.

Some towns have opted out of Dane County zoning and this new regulatory approach would not apply.  The same would hold true in villages and cities.

For an owner/operator of a nonconforming nonmetallic mineral site under County jurisdiction, there are several actions required to comply and preserve nonconforming status:

  • You need to make sure that you have an approved reclamation plan with the County.
  • There must be an annual report filed every year documenting that the site is active. Obviously, to show it is active, you have to have some type of activity.
  • You also need to have a notice document showing that this is a nonconforming use site, which is signed by the landowner and Dane County. A copy of the document that Dane County is recommending can be viewed here. This must be filed with the County and the Register of Deeds.
  • You have to have an active lease that is recorded at Dane County Register of Deeds. A Memorandum of Lease will suffice.
  • You must have a designated driveway that is paved/built with impervious materials going into the site. You also must have a gate at the site entrance.
  • The active mining site needs to be fenced. This does not necessarily mean the entire parcel perimeter requires fencing. County staff should be consulted on the extent required.  The type of fencing material is not specified; low cost materials (3-strand barbed wire; snow fencing) are likely acceptable.
  • There have to be no trespassing signs posted.
  • There has to be a sign posted saying that this is a quarry or sand and gravel operation.

Once all original applications are filed with the County at the final one-year deadline, Dane County has stated that it plans to create a revised list of ongoing nonconforming use sites.

Even for those who qualify for the new list, it must be remembered that you must have annual “use,” activity on the site, and follow the above bullet points which we have highlighted out of the Ordinance.  Careful review and compliance with the Ordinance is necessary.

This article was authored by Attorneys Charles Sweeney and Mitchell Olson, with special thanks to Roger Lane and Dan Everson at Dane County Zoning for their input.

For more information about "Dane County Nonconforming Use Gravel Pits – Update on New Regulatory Approach," contact Buck Sweeney at csweeney@axley.com or 608.283.6743 or Mitch R. Olson at molson@axley.com or 608.283.6724.