Non-Conforming Use Gravel Pits in Dane County, Wisconsin

April 4, 2019

Those of you who own registered, non-conforming gravel pits in Dane County recently received a letter from Dan Everson.  This letter presents some significant changes to how an owner must manage a non-conforming site.

The letter states that by January 31st of each year after submitting your reclamation plan you must provide the Dane County Zoning Administrator with evidence subject to inspection that all of the following conditions are met:

  1. Verification of property ownership or an active mineral lease, as recorded with the Dane County Register of Deeds, between the landowner and a mineral extraction operator.
  2. The driveway accessing the subject site shall either be paved or covered with crushed asphalt for a minimum distance of 100 feet from the public right-of-way.
  3. There shall be a safety fence around the entire extraction area at all times.
  4. Driveway access points to the site shall be gated. All gates shall be signed “no trespassing.”
  5. The operator shall post clearly visible signage indicating the presence of mineral extraction activity.

In addition, the Dane County Zoning Administrator has said that if the non-conforming use of the property, i.e., nonmetallic mining, is ceased for 12 months or longer, the use will be considered abandoned and discontinued.  A conditional use permit would then be required.

This is an interesting legal issue.  In 1968, Dane County allowed certain sites to be registered non-conforming use gravel pits.  As part of that unique regulation, the sites were not required to have the typical requirement of nonmetallic mining use in every 12-month period.  Now, by new ordinance, Dane County has revised and weakened the protections for non-conforming use owners and added considerable additional requirements.

We understand that Dane County is working on some forms, and they will probably be modifying these five conditions.  Specifically, having a safety fence around the entire excavation area does not make practical sense in all cases.  Dane County will likely look at berms or other means, in addition to safety fences.  If there is a high wall, a safety fence will probably be required.  However, if there is a shallow, sand and gravel pit, then substantial berms constructed around the area may be deemed acceptable to put the public on notice and to keep the people out.  More to come on this later in 2019.

The idea behind this new regulatory approach is for Dane County to emphasize that if there is a non-conforming use aggregate pit, it should be used for aggregate on a regular basis like all the other counties in Wisconsin.  In addition, they want the site visible, by marking with a fence, a sign and a hundred-foot driveway into the site, so that neighbors and prospective neighbors cannot later complain they were unaware of a nonmetallic mine site.

This is a significant policy change from 1968, when Dane County wanted to preserve the diminishing asset of aggregate.  It is not easy to get conditional use permits for gravel pits, and these non-conforming use sites are an important reserve.  For those of you who own one, you may have to consider whether it is time to open it up now to continue your non-conforming use status, or let it slip away and have to go through the conditional use process.

For more information about "Non-Conforming Use Gravel Pits in Dane County, Wisconsin," contact Buck Sweeney at csweeney@axley.com or 608.283.6743 or Mitch R. Olson at molson@axley.com or 608.283.6724.