A divided Wisconsin Supreme Court ruled Wednesday against a proposed Trempealeau County frac sand operation, finding that counties have the right to regulate conditional uses.
The case was brought by AllEnergy Corp. and its subsidiary, AllEnergy Silica, Arcadia, which had sought to operate a 265-acre frac sand mine and processing plant in the town of Arcadia.
In 2013, the Trempealeau County Environment and Land Use Committee voted 5-3 to deny the permit, saying AllEnergy’s application was rushed and incomplete; the proposed mine raised environmental concerns and would have adverse effects on the landscape, wildlife and recreation and posed risks to health, culture and social conditions.
AllEnergy challenged the decision in court, but La Crosse County Circuit Judge Elliott Levine found that evidence supported the committee’s decision. An appeals court later agreed, saying the court could not substitute its view for the committee’s and that the company has no intrinsic right to operate a frac sand mine since that is a conditional use subject to local government approval.
AllEnergy asked the Supreme Court to review, arguing its application met the legal requirements and that the committee didn’t have the authority to judge its completeness.
“They were answering the question ‘should we have mines?’” said Gary Van Cleve, the attorney representing AllEnergy. “That should be addressed to the board. The zoning committee doesn’t have legislative authority.”
The company also argued that the committee essentially approved the permit when it previously adopted 37 potential conditions before ultimately voting to deny the permit months after the county enacted a one-year moratorium on new frac mines.
The county “denied the CUP for legislative reasons based on the public health, safety and welfare, and for reasons of public opposition that amounted to nothing more than uncorroborated hearsay,” according to AllEnergy’s brief. “In short, the CUP was denied because it sought approval of a sand mine and the people of the county wanted no more sand mines.”
In a decision released Wednesday, the Supreme Court ruled that the county acted within its jurisdiction and that there is evidence to support its denial of the permit.
The court denied what it called “the new legal doctrine urged by AllEnergy, namely that an applicant for a conditional-use permit is entitled to the permit for a conditional use when it meets the specific conditions set forth in the ordinance and any additional conditions set forth, and that an applicant cannot be required to meet other conditions and standards in the ordinance.”
Justices Daniel Kelly, Michael Gableman and Rebecca Bradley disagreed, saying the committee acted arbitrarily.
“The Committee exceeded its jurisdiction when it took upon itself the task of determining whether a sand mine, as a general proposition, is an appropriate use of the AllEnergy Property. This is a determination already answered by the Trempealeau County Board, and the Committee had no authority to second-guess the wisdom of its decision,” Kelly wrote in the dissent.
While concurring with the decision, Justice Annette Ziegler and Chief Justice Patience Roggensack said the court improperly waded into the constitutionality of Trempealeau County ordinances, making the decision “potentially more far-reaching in effect than it should be.”
Groups representing Wisconsin county and town governments, as well as the Wisconsin Realtors Association and Wisconsin Builders Association, argued in support of the county’s right to limit land use. CSI Sands Ltd., which operates several mining companies including Superior Silica Sands, argued that a ruling in favor of AllEnergy would promote “regulatory consistency.”
Van Cleve said the decision was disappointing, in part because the justices’ differing opinions failed to establish a precedent.
The county issued a written statement praising the court for “leaving such decisions in the hands of local bodies” and recognizing “the importance of giving a voice to local citizens who provide well-founded concerns instead of adopting AllEnergy’s argument which would have largely silenced the local citizens which zoning is meant to protect.”
County Corporation Counsel Rian Radtke declined to answer questions, citing a separate pending civil rights lawsuit in which AllEnergy is seeking damages from the county for alleged due process violations. La Crosse County Circuit Judge Scott Horne has yet to rule on the county’s effort to have that 2014 case thrown out.
MERRILLAN, Wis. — Ron Baerbock had never heard of frac sand when he moved to Jackson County …
AllEnergy is also seeking to open a 750-acre mine and processing facility in Jackson County, where some neighbors have sought to block the $130 million project on the grounds that the dust, noise, lights and blasting will create a nuisance. Horne is expected to decide this summer whether that case can proceed to trial.
Tom Lister, an attorney representing the Jackson County plaintiffs, said he didn’t think the decision would have any bearing on his case.
“I’m just glad the Supreme Court is recognizing local control,” Lister said.