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OFFICE OF THE�ICORPORATION COUNSEL <br />1 <br />December 19, 2013 <br />Supervisor Patrick Miles <br />Chair, Zoning & Land Regulation Committee <br />Room 106B, City -County Building <br />Madison, WI 53703 <br />RE: O.A. 26,2013-2014 <br />Dear Supervisor Miles: <br />Corporation Counsel <br />Marcia MacKenzie <br />Assistant Comoratlon Counsels <br />Eve M. Dorian <br />David R. Gault <br />Richard Greenlee <br />Shawna L. Guinn <br />Kristi A. Gallen <br />Dyamr L. Hafner <br />Leslie A. Hamilton <br />Mary M. Kasparek <br />Carlos A_ Pabellon <br />Susan H. Rauti <br />Gary S. Rebfeldt <br />Galen G. Strobe <br />John C. Talis <br />Child Support Agency <br />Deputy Comoration Counsel <br />Bradford J. Logsdon <br />Assistant Corporation Counsels <br />Clare Altschuler <br />Andrea Brcndemuehl <br />Gary Gomez <br />Patricia Haraughty-Sanna <br />Dawn Marquardt <br />Maureen A. Plunkett <br />Jerre L.Liebelman <br />You have requested an opinion as to whether Ordinance Amendment 26, 2013-2014, <br />regarding,abandoned nonconforming mineral extraction sites, contravenes the common law <br />"diminishing asset rule" as articulated by the Wisconsin courts. In my opinion it does not. The <br />diminishing asset rule has never been applied by a court to an abandoned site on which no <br />current mineral extraction activity was, occurring. <br />A non -conforming use is a use that violates a zoning regulation but is nevertheless legal <br />because it predates the regulation. Columbia County v. Bylewski, 94 Wis.2d 153; 170 (1980). <br />"Land use qualifies as nonconforming if there is active and actual use of the land that existed <br />before the commencement of the zoning ordinance and has continued in the same or related <br />use until the present." Lessard v. Burnett County Board of Adjustment, 256 Wis.2d 821, 830 <br />(Ct. App. 2002), citing, Waukesha County v. Seitz; 140 Wis.2d 111, 115 (Ct. App. 1987). In <br />general, the common law in Wisconsin provides that "the spirit of zoning is to restrict rather than, <br />increasea nonconforming use and. to eliminate such uses as speedily as possible." State ex rel. <br />Peterson v Burt, 42 Wis.2d 284, 291 (1969). A zoning ordinance may provide that a, non- <br />conforming. use is considered abandoned if the use is discontinued for a designated period of <br />time. lit. at 290. <br />Dane County's: Zoning Ordinance provides in general that if a non -conforming use "shall <br />be discontinued.for a period of one (1) year, such.nonconforming use will be deemed to have <br />terminated and any future use shall be in conformity to the provisions of this ordinance except as <br />otherwise provided by this ordinance." DCO §10.21(1)(a). When this ordinance was adopted <br />Dane County created an exception for mineral extraction operations that were registered as <br />nonconforming uses prior to 1969. Sub (d) provides that "Mineral extraction sites that were <br />registered as nonconforming sites as provided by this ordinance shall not be considered <br />abandoned or discontinued if the site is inactive for more than one year." Ordinance Amendment <br />26 would rescind Sub (d). The County was not required to create this exception for mineral <br />extraction sites, and rescission does not implicate the diminishing asset rule. <br />210 Martin Luther King, Jr. Boulevard, Room 419, Madison, Wisconsin 53703-3345 <br />Voice and TDD (608) 266-4355 / FAX (608) 267-1556 <br />