Board of Appeals

VILLAGE OF WAUNAKEE ZONING BOARD OF APPEALS In the Matter of the Petition of William and Dorothy Blobner Appealing the September 5, 2019, Determination of Kevin Even, Waunakee Zoning Administrator, that Quincy Ridge LLC May Conduct Nonmetallic Mining as a Non-Conforming Use on Parcel No. 0809-042-9000-8 ________________________________________________________________________ DECISION ________________________________________________________________________ INTRODUCTION This appeal raises several challenges to the opinion issued by Kevin Even, Waunakee Village Engineer and Director of Public Works, that the non-metallic mining extraction operation of Quincy Ridge, LLC (“Quincy Ridge”) constitutes a legal, non- conforming activity under the applicable ordinances and the “diminishing asset” rule applicable to quarrying operations. For the reasons set forth herein, the Zoning Board of Appeals (“Board”) dismisses the appeal and affirms Mr. Even’s opinion. FINDINGS OF FACT 1. William and Dorothy Blobner (the “Petitioners”) own the property at 6271 Schumacher Road, Waunakee, WI 53597, in the Town of Westport (the “Petitioners’ Property”). The Petitioners have resided at their property since 1976. 2. Quincy Ridge, LLC (“Quincy Ridge”), which is owned by Donald C. Tierney and Joanne K. Tierney, husband and wife, and a son, Jerad R. Tierney, owns the following two parcels of land in the Town of Westport: 066/0809-042-8500-5 (the “North Parcel”), and 066/0809-042-9000-8 (the “South Parcel”). The South Parcel is approximately 30 acres in size and the North Parcel is approximately 40 acres in size. 3. Quincy Ridge acquired the North Parcel and the South Parcel from the Endres family trusts in 2015. Prior to Quincy Ridge’s acquisition, the Endres family and/or their trusts owned the North Parcel and the South Parcel since 1943, and at times owned other property in the immediate area as well. 4. The Petitioner’s Property, the North Parcel, and the South Parcel are all located in the Village of Waunakee’s expanded extraterritorial zoning jurisdiction (“Expanded  ETZ”) pursuant to an agreement between the Village of Waunakee and the Town of Westport. The Petitioners’ Property, the North Parcel and the South Parcel were included in the Expanded ETZ by ordinance on May 21, 2007. 5. Prior to being included in the Expanded ETZ the Petitioners’ Property, the North Parcel and the South Parcel were governed by the Dane County zoning ordinance. 6. The North Parcel is, and has been, an active non-metallic mineral extraction site since April 1966, and has been treated as a valid legal non-conforming use. Non- metallic mining has been ongoing on the North Parcel without interruption from April 1966 to the present. 7. Prior to Quincy Ridge’s acquisition of the North Parcel and South Parcel in 2015, the non-metallic mine was operated by F.H. Raemisch Sons, Inc. (“Raemisch”). 8. Quincy Ridge wishes to begin extracting non-metallic minerals from the South Parcel. The South Parcel is being and has been used for agricultural purposes. It has never been mined. 9. Dane County administers a state-mandated program for non-metallic mining reclamation, or restoring non-metallic mine sites once they are closed. Persons seeking to open or expand a non-metallic mining site in Dane County must submit a non-metallic mineral reclamation plan or an amendment to such a plan to Dane County for approval. 10. Quincy Ridge submitted an amended non-metallic mining reclamation plan to Dane County for the South Parcel on October 25, 2019, which sought to amend a non- metallic mining reclamation plan that was previously approved by Dane County for the North Parcel in 2004. 11. Dane County only regulates the reclamation of a non-metallic mineral extraction site, including the terms of the approved reclamation plan. Dane County does not regulate other aspects of non-metallic mineral extraction site operations except, to some extent, storm water management and erosion control. 12. Included in the amended Quincy Ridge reclamation plan was a letter dated September 5, 2019, from Village of Waunakee Engineer / Director of Public Works Kevin Even. The letter provided an opinion to Dan Everson, Assistant Zoning Administrator for the Dane County Department of Planning and Development. The letter stated in part: In my opinion, the south parcel may be lawfully used for non- metallic mining activities on the grounds that this is a valid 2  nonconforming use for the south parcel. See Wis. Stat. § 62.23(7)(h). Further, it is my opinion that the diminishing asset rule as explained and discussed in a Wisconsin Supreme Court case, Smart v. Dane County Bd. of Adjustments, 177 Wis. 2d 445 (1993), applies to the south parcel. 13. Dane County held a public hearing on the amended Reclamation Plan submitted by Quarry Ridge on January 30, 2020. The amended Reclamation plan was approved by Dane County on March 25, 2020. 14. Petitioners filed this appeal pursuant to section 133-94(d)(1) of the Village of Waunakee Zoning Code, to seek review of Mr. Even’s opinion that the South Parcel may be lawfully used for non-metallic mining activities because non-metallic mining on the South Parcel is a valid, legal non-conforming use. 15. If non-metallic mineral extraction on the South Parcel is a valid, legal non- conforming use, then it is grandfathered from the requirement to obtain a zoning change or conditional use permit in order to conduct non-metallic mineral extraction activities on the South Parcel. 16. On or about April 11, 1969, Raemisch registered with Dane County the gravel pit/ quarry owned at that time by Edward H. Endres (the “Dane County Registration”). 17. The Dane County Registration included the North Parcel legal description, while listing the total area of the extraction site to be 70 acres, which necessarily includes the South Parcel. County maps subsequently also identified both the North Parcel and the South Parcel as a single mining site, and the County’s listing of registered sites indicates 70 acres for the Endres property. Other indications further show that the entire property, including the South Parcel, was intended to be used for quarrying, including the fact that the property was never sold for or developed for residential use despite such development around the subject property. Testimony presented at the hearing showed that the intent since before 1969 was that the entire 70 acres was intended for quarrying use. The Board finds as a matter of fact that at the time the Dane County Registration was filed, the entire 70 acres was intended to be used for quarrying operations. 18. Under the Village’s Expanded ETZ ordinance, the current zoning designation for the South Parcel is A-2, or County A-2 Agriculture, Waunakee Ordinance § 133- 860(13). 19. At the time of the Village’s expansion of its extraterritorial jurisdiction, the Village adopted Ordinance Code Section 133-858, carrying forward the permitted uses and applicable standards from the Dane County zoning code which treated such property 3  as it was classified under the County zoning code prior to creation of the Expanded ETZ area. 20. On January 16, 2017, the Town and Village adopted the Joint Waunakee/Westport Comprehensive Plan. It designates the future land use of both the North Parcel and the South Parcel as Community Residential, which allows for housing and mixed use of such parcels in the future. 21. In April 2017, the Town of Westport withdrew from Dane County zoning jurisdiction and enacted its own zoning ordinance. 21. In 1968, Dane County adopted an ordinance that provided in relevant part as follows: All existing mineral extraction operations shall be deemed non-conforming uses and may be continued providing that they have been worked prior to the date of adoption of this ordinance and they have been registered with the County Zoning Supervisor within one year of the date of the adoption of this ordinance. DECISION AND CONCLUSIONS OF LAW The Petitioners raise two primary arguments in this appeal. First, they argue that Mr. Even erred in finding that the South Parcel may be used for non-metallic mining as a non- conforming use. In making this argument, Petitioners argue that the diminishing asset rule set forth in Smart v. Dane Co. Bd. of Adjustment, 177 Wis. 2d 445, 501 N.W.2d 782 (1993) does not apply. Petitioners raise two arguments to attempt to distinguish the Smart decision. First, they argue that the diminishing asset rule is precluded and/or rendered inapplicable to this matter pursuant to Wis. Stat. § 62.23(7)(h) because, they contend, when City and Village zoning applies, “[a] nonconforming use may not be extended.” They also argue that even if the diminishing asset rule applies, the evidence was insufficient to conclude that there was an intent to mine the South Parcel as a non-conforming use. Petitioners also argue that Mr. Even lacked the authority to decide that the South Parcel is a nonconforming use. The Board will address each of these arguments in turn. First, the Board concludes that the diminishing asset rule applies to the South Parcel. In Sturgis v. Winnebago Co. Bd. of Adjustment, 141 Wis. 2d 149, 413 N.W.2d 642 (Ct. App. 1987), the Wisconsin Court of Appeals determined that a conditional use permit was unnecessary to expand a quarrying operation because of the unique nature of mineral extraction. Applying the diminishing asset rule, the court explained as follows: Because of the unique nature of mineral extraction, many courts have adopted the “diminishing assets” rule, which we deem applicable here. “In 4  a quarrying business the land itself is a mineral or resource. It constitutes a diminishing asset and is consumed in the very process of use. Under such facts, the ordinary concept of use, as applied in determining the existence of a non-conforming use, must yield to the realities of the business in question and the nature of its operations. We think that in cases of a diminishing asset, the enterprise is ‘using’ all that land which contains the particular asset and which constitutes an integral part of the operation, notwithstanding the fact that a particular portion may not yet be under actual excavation. It is in the very nature of such business that reserved areas be maintained which are left vacant or devoted to incidental uses until they are needed.” Id. at 153, 413 N.W. 2d (quoting Du Page County vs. Elmhurst-Chicago Stone Company, 18 Ill. 2d 479, 165 N.E. 2d 310, 313 (1960)). The diminishing asset rule was then addressed by the Wisconsin Supreme Court in Smart. In Smart, the Wisconsin Supreme Court applied the diminishing assets rule to a decision by the Dane County Board of Adjustment involving a quarry owned by Wingra Stone Company. In that case, the Supreme Court concluded that a Dane County Ordinance treating registered mineral extraction operations as non-conforming uses was not limited to the 40-acre parcel being mined at the time of the registration. The Supreme Court affirmed the conclusion of the Dane County Zoning Administrator that mining was a valid non-conforming use of Wingra’s entire 80 acres, by application of the diminishing asset rule. Likewise, in Schroeder v. Dane County Bd. of Adjustment, 228 Wis. 2d 324, 596 N.W.2d 472 (Ct. App. 1999), a quarry operator had registered its operation pursuant to the same Dane County Ordinance, identifying a 40 acre parcel as a non-conforming mineral extraction site. The quarry operator subsequently expanded mining outside of the registered area, at which time a stop work order was issued. On appeal, the quarry operator claimed the diminishing asset rule applied to the expanded site, while the zoning administrator concluded that the diminishing asset rule applied only to the registered area. The Court of Appeals disagreed with the zoning administrator, concluding that the entire area of intended use was not limited to the area registered. The court held that the Dane County Ordinance only required “registration and approval of the existing mineral extraction operation, but not the area of intended use.” Id. at 39. All of these cases exemplify circumstances very similar to the present case. In each case, the property owner undisputedly had engaged in mining for a significant period of time and wanted to expand its mining operation onto adjacent parcels of land owned by the same property owner. For example, the dispute in Sturgis was whether the non-conforming use was limited to a 30-acre parcel, where extraction had started and was ongoing, or whether the an additional 10-acre parcel was also granted non-conforming status. The court held that “when a single owner has contiguous parcels on which an excavation operation is in existence, all land which constitutes an integral part of the operation is deemed ‘in use’ 5 notwithstanding the fact that a particular portion may not be under the actual excavation.” Sturgis, 141 Wis. 2d at 154, 413 N.W.2d 642. Likewise, in Smart, the property owner had only used a 40-acre parcel for mining at the time of the registration, and the court ruled that mining was a valid non-conforming use over Wingra’s entire 80 acres, despite the fact that mining had not occurred on the adjacent 40-acre parcel. The Board concludes that these decisions are binding on this Board and apply with equal force to the facts of this appeal. The North Parcel and the South Parcel are contiguous parcels. A single owner has always owned both parcels. Again, it is undisputed that excavation operations were in existence on the North Parcel for all times material to this case. We conclude that all 70 acres constitutes an integral part of the operation and therefore all 70 acres are deemed “in use,” notwithstanding the fact that the South Parcel has not been used for actual excavation to date. This is because of the holdings in the above-references cases which make clear that in cases of diminishing assets like this one, the enterprise is “using” all land which contains the particular asset and which constitutes an integral part of the operation, notwithstanding the fact that a particular portion may not yet be under actual excavation. See Sturgis, 141 Wis. 2d at 153. As explained in Sturgis, “it is the very nature of such business that reserve areas be maintained which are left vacant or devoted to incidental uses until they are needed. Obviously, it cannot operate over an entire track at once.” Id. The Board also notes that the Court of Appeals decision in Schroeder, 228 Wis. 2d 324, 596 N.W.2d 472, is particularly instructive. In that case, the court looked at the same Dane County Ordinance that is applicable in this case. In that case, the Court of Appeals concluded that the “plain language of the ordinance requires registration and approval of the existing mineral extraction operation, but not the area of intended use.” Id. at 339. Thus, under this case law, what was intended back in 1968 is not relevant. However, even assuming intent is relevant, the Board concludes that evidence showed that the clear intent was to register the entire 70 acres (both the North Parcel and the South Parcel) for quarrying operations. The Dane County Registration included the North Parcel legal description, while listing the total area of the extraction site to be 70 acres, which necessarily includes the South Parcel. County maps subsequently also identified both the North Parcel and the South Parcel as a single mining site, and the County’s listing of registered sites indicates 70 acres for the Endres property. Other indications further show that the entire property, including the South Parcel, was intended to be used for quarrying, including the fact that the property was never sold for or developed for residential use despite such development around the subject property. Testimony presented at the hearing showed that the intent since before 1969 was that the entire 70 acres was intended for quarrying use. Accordingly, when the Dane County Registration was filed, the Board finds that the entire 70 acres was intended to be used for quarrying operations. The Board also considered the Petitioners’ argument that the diminishing asset rule does not apply to the South Parcel. The Board disagrees with Petitioners that Wis. Stat. 6 § 62.23(7)(h) and in particular the statute’s referenced to “a nonconforming use may not be extended” means that the diminishing asset rule does not apply. The Board believes that the statute, on its face, does not allow extension of non-conforming uses, but that begs the question of what was the scope of the non-conforming use in this case - the North Parcel only or both the North and South Parcels. The Board concludes that the non- conforming use, under the diminishing asset rule, is both the North and South Parcels. Thus, the entire 70 acres is a non-conforming use, and that 70 acres may not “ be extended” as that term is used in Wis. Stat. § 62.23(7)(h). Furthermore, the Board analyzed and carefully reviewed all the evidence presented by Petitioner (and by all witnesses) to determine whether if, under Wis. Stat. § 62.23(7)(h), “the nonconforming use is [was] discontinued for a period of 12 months, any future use of the building, premises, structure, or fixture shall conform to the ordinance.” The Board found no evidence that the north parcel was not “in use” or mined for a period of 12 months so as to change the premises from a nonconforming use to a “conforming use.” The Board rejects all other arguments raised by Petitioners with respect to this statute. Incidentally, the Board did consider the Petitioners’ argument that the application of a conditional use permit implies that the South Parcel is not subject to the diminishing asset rule. No party submitted evidence as to the intent of the Zoning Administrator, the Petitioners or Quincy Ridge or its predecessors in interest as to why the conditional use permit was issued. In the absence of an explanation for why the permit was issued, the Board will not speculate on whether this application evidences any intent by any person or party. Stated another way, the fact that a conditional use permit existed – and that fact alone - does not diminish the overwhelming evidence that the intent was always to operate the quarrying operations as a diminishing asset, starting with the North Parcel first and eventually getting to the South Parcel. As to the Petitioners’ second argument, the Board finds that Mr. Even had the authority to decide that the South Parcel is a non-conforming use, but that Petitioners had the right to appeal that decision to this Board. The Board would note that while Mr. Even and this Board might have overlapping authority, Mr. Even still had the authority to interpret and administer the zoning code. In fact, it is his duty to do so pursuant to Section 133-43 of the Village’s Zoning Code. However, the Board finds this argument to be non-dispositive, as the Petitioners had every right to challenge Mr. Even’s decision through an appeal to this Board, and the Petitioners were afforded a full and complete opportunity to present their arguments to the Board. Thus, even if the Board and only the Board had the authority to issue zoning interpretations - which again is not the case - the Board would reach the same result as Mr. Even. Finally, the Board would like to note the overwhelming citizen evidence that was presented that showed without question that certain property owners were not given notice that they were buying property and/or building a home near a quarrying operation. The Board has 7 no doubt that the citizen comments are accurate and that there was lack of notice. Unfortunately, this property only came into the Village’s jurisdiction in recent years and the Board can find no legal requirement that notice be provided to surrounding property owners in order for the South Parcel to have legal non-conforming use status. Thus, while the Board heard the citizen comments clearly, those comments do not provide a legal justification for the Board to reach any result other than that reached herein. CONCLUSION For the foregoing reasons, the Board concludes as follows: 1. Mr. Even did not err in finding that the South Parcel may be used for non- metallic mining as a non-conforming use; and 2. Mr. Even had the authority to decide that the South Parcel is a non- conforming use. The Board’s decision was unanimous. Date: 10/23/2020 Trisha Ives (Oct 23, 2020 10:59 EDT) Chairperson of Zoning Board of Appeals Date: 10/23/20 Tracy Meinholz Tracy Meinholz (Oct 23, 2020 10:02 CDT) Secretary of Zoning Board of Appeals 8 Final Decision (03619390x9D882) Final Audit Report 2020-10-23 Created: 2020-10-23 By: Tracy Meinholz (tmeinholz@waunakee.com) Status: Signed Transaction ID: CBJCHBCAABAAIXCVMgFqxjnreQbrqf0lMqCSouRhX57f "Final Decision (03619390x9D882)" History Document created by Tracy Meinholz (tmeinholz@waunakee.com) 2020-10-23 - 2:57:02 PM GMT- IP address: 24.196.114.186 Document emailed to Trisha Ives (trishaives77@gmail.com) for signature 2020-10-23 - 2:57:57 PM GMT Email viewed by Trisha Ives (trishaives77@gmail.com) 2020-10-23 - 2:58:57 PM GMT- IP address: 66.102.8.1 Document e-signed by Trisha Ives (trishaives77@gmail.com) Signature Date: 2020-10-23 - 2:59:58 PM GMT - Time Source: server- IP address: 73.54.32.123 Document emailed to Tracy Meinholz (tmeinholz@waunakee.com) for signature 2020-10-23 - 2:59:59 PM GMT Email viewed by Tracy Meinholz (tmeinholz@waunakee.com) 2020-10-23 - 3:01:52 PM GMT- IP address: 24.196.114.186 Document e-signed by Tracy Meinholz (tmeinholz@waunakee.com) Signature Date: 2020-10-23 - 3:02:55 PM GMT - Time Source: server- IP address: 24.196.114.186 Agreement completed. 2020-10-23 - 3:02:55 PM GMT