ABC Of Wisconsin Files Brief

Staff | September 28, 2010

ABC of Wisconsin recently filed a "friend-of-the-Court" Brief with the Wisconsin Court of Appeals in the case of Mule Hill Materials & Nursery, Inc. v. Town of LaPrairie. The case could help determine how land owners can establish that land has continuously been used for the purpose of excavating materials since before a zoning ordinance went into effect prohibiting that use. "Continuous use" since before the passage of a restrictive ordinance is required to establish a legal nonconforming use of land. If that nonconforming use isn't established, a zoning ordinance will prohibit the use of land for that purpose. This issue is a potential threat to the ability of construction material suppliers to continue to use particular pieces of land as a source of material.

Mule Hill purchased land near Janesville, Wisconsin, relying on representations of the farmer who owned the land that he had continuously excavated materials from the land since before 1977, when the Town of La Prairie based a zoning ordinance prohibiting that use. When Mule Hill expanded that excavation operation, the town sued, claiming that they couldn't prove that the land had been used continuously for material excavation purposes since 1977. The trial court ruled in favor of the town and Mule Hill appealed.

While the court of appeals could decide the case based on whether the farmer who sold the land to Mule Hill was believable, there is a good chance that, in the course of its decision, the court of appeals will discuss what standard of proof a landowner would have to meet to establish a continuous use that didn't conform to a zoning ordinance. ABC of Wisconsin was concerned that the Court of Appeals might adopt the "substantial" or "significant" use standard for which the town argued.

ABC of Wisconsin joined with the Aggregate Producers of Wisconsin in submitting a brief to the court of appeals arguing that the landowner only had to prove that the land was used for the purpose of excavating materials at least once every 12 months. That argument was based on the Wisconsin Statutes and pertinent court decisions. We will be closely monitoring this issue to help protect the ability of material suppliers to continue their material excavation operations. (Courtesy of ABC of Wisconsin)