September/October 2016 Issue

Also in this issue: Employee Requests to Review Personnel Records: Responding Lawfully     |     Focus On Energy Faces Uncertain Future

Denial of Frac Sand Mining Permit Upheld by Appeals Court

08.30.16

In a published decision, the Wisconsin Court of Appeals upheld the denial by the Buffalo County Board of Adjustment (“BOA”) of a conditional use permit for frac sand mining. State ex rel. Earney v. Buffalo County Board of Adjustment, 2016 WI App 66 (decision issued July 19, 2016, final publication Sept. 12, 2016) (petition for review pending). The decision affirmed the order of the circuit court, which had affirmed the denial upon certiorari review.

Petitioners (collectively referred to in the decision as ​“Earney”) applied to the BOA for a conditional use permit to mine industrial sand for ​“gas and/​or oil production and potential unknown markets.” The process as described in the application included blasting, transportation of the raw material to a ​“wet processing facility,” washing and sorting the material, treating and recycling the water used in the washing process, on-site stacking and drainage of wet sand and loading the wet sand onto trucks for transport to Minnesota. Mining would occur 200 days per year and the wet plant would operate five days a week for 18 hours per day. The mining would produce an average of 80 truck loads with an additional 80 return trips per day. All of the proposed hauling routes involved the use of Schoepps Valley Road, which has sharp corners throughout its length. 

Earney submitted the applications to the Town of Waumandee and the Buffalo County Land Resources Committee seeking recommendations of approval to the BOA. The town recommended approval. The committee vote was split and no recommendation of approval was made. After filing the conditional use permit application, Earney submitted a proposed reclamation plan pursuant to the county’s nonmetallic mining ordinance. The county engaged an outside engineering firm to review the plan. The firm concluded that ​“the majority of the reclamation plan” met the intent of the ordinance. However, the firm qualified its report, stating that its review had been ​“cursory.”

The BOA held two hearings. The petitioners submitted lengthy testimony. Opponents of the application presented testimony from five experts. A soils scientist, formerly the chair of the soil science department at one university and the former dean at another university specializing in resource development, testified that the agricultural land would have zero possibility of producing agricultural crops and forest land would have only a 20% chance of succeeding after reclamation. An experienced mining engineer and employee of the U.S. Bureau of Mines testified about his concern about potential health risks from chemicals used in the washing process as well as the amount of water required. An education director for the National Eagle Center explained that the project would likely degrade and destroy winter habitat for Golden Eagles. A statistician talked about air quality concerns, particularly from the diesel fumes that would be spewed by all the trucks. Residents raised concerns about traffic, chemical use, property values and air quality among others. 

After reviewing the standard broad array factors to be considered in reviewing applications for conditional use permits under Buffalo County’s zoning ordinance, the BOA voted unanimously to deny the application. The board laid out numerous reasons for its denial. They included negative effects on tourism, air pollution, negative impacts on water quality and quantity, decreased property values, the sharp corners on Schoepps Valley Road, traffic hazards to school children attending schools near the hauling routes as well as general traffic safety hazards to residents. The board also concluded that the project did not comply with the town’s future land use plans. 

On appeal, Earney made two principal arguments for overturning the BOA’s decision. First, he contended that the BOA had exceeded its jurisdiction by relying on ​“reclamation standards prohibited by state law.” He claimed that the engineering firm’s report established that their reclamation plan would be successful. In addition, they argued that the board could not consider environmental factors in its zoning ordinance because the reclamation plan addressed those issues. The appeals court had no difficulty in rejecting Earney’s argument for several reasons. Responsibility for approval of reclamation plans lies with the county’s Land Resources Department, not with an engineer. The department had not conducted a hearing to discuss the plan, despite an obligation to do so under the mining ordinance. Moreover, the engineering firm’s work hardly constituted a conclusive examination or approval of the plan. The court of appeals found that board properly considered all of the factors in the county’s zoning ordinance regarding conditional use permits. 

Earney’s second principal argument on appeal was that the BOA was equitably estopped from considering the condition of Schoepps Valley Road because one of the petitioners informed the board at the first hearing that he was discussing a plan with town officials to improve the road at his expense. Earney asserted that a BOA member confirmed at that hearing that the road was under the town’s jurisdiction and that the board would not be addressing concerns about the road in its assessment of the conditional use permit application. Rather than deciding whether these facts would satisfy the elements of equitable estoppel, the court noted that the BOA had cited many valid reasons for denying the application that went beyond issues relating to the road. Upholding the BOA’s conclusions on any one of those criteria would be sufficient to affirm the board’s decision. Consequently, the road issue was moot. 

— Mark J. Steichen